Does a non-valid (fasid) marriage followed by intercourse suffice to permit a thrice-divorced woman to remarry her first husband?
General Chapter
Al-Mughni
Book of Reconciliation (Return During 'Iddah)
Primary text
A non-valid marriage followed by intercourse does not render the woman lawful for her first husband. This position is held by Al-Hasan, Al-Sha'bi, Hammad, Malik, Al-Thawri, Al-Awza'i, Ishaq, Abu 'Ubayd, the Ashab al-Ra'y, and Al-Shafi'i's later opinion. The textual evidence is derived from the statement: "Until she marries a husband other than him" (Quran 2:230), where the term 'marriage' implies a valid contract. Furthermore, most effects of valid marriage, such as penal consequences (حصان), mutual imprecation (لعان), الظهار, إيلاء, and maintenance (نفقة), are not established in a void marriage.
Supporting text
An older opinion from Al-Shafi'i, held also by Al-Hakam and considered a valid line of reasoning in the Madhhab by Abu Al-Khattab, suggests that a corrupt marriage does suffice. This is argued because the act constitutes a marriage in form, thus falling under the general text, and because the Prophet (peace be upon him) cursed the one marrying solely to permit re-marriage (muhallil) and the woman for whom this is done, naming him a muhallil despite the invalidity of his marriage.