Rulings when the order of two simultaneous marriage contracts is unknown.
General Chapter
Al-Mughni
Book of Marriage
Primary text
If the order of the two contracts is unknown, whether the manner of their occurrence is unclear, or it is known one preceded the other but not which one, or if the order is known but doubted, the ruling is uniform: the judge must annul both marriages. This is the stated position of Ahmad in the narration transmitted by the majority, and it is the view of Abu Hanifa and Malik. The wife may then marry whomever she chooses from them or others.
Supporting text
Another narration from Ahmad suggests a drawing of lots between the two husbands; the one upon whom the lot falls instructs the other to divorce. The drawer then renews the marriage contract. If the wife remains his, there is no harm; if she becomes the other's wife, she is separated by the first divorce and becomes the second's wife by his new contract, as the lot resolves disputes among equals. Al-Thawri and Abu Thawr suggest that the Sultan compels both to issue one divorce; if they refuse, separation occurs between them. Al-Shafi'i and Ibn al-Mundhir state the marriage is voidable because enforcing it is impossible. This is contested, as a valid contract is not invalidated merely by doubt. Some early scholars suggested she is given the choice between the two, and whomever she chooses becomes her husband, with separation from the other, followed by a new contract. This is considered sound as it avoids annulling both contracts by separating her from one and invalidating the other's contract.