Islamic Fiqh > Judgment and testimony > Judgment (qada) and its conditions > First issue: preference by the number of witnesses
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Updated on 06 October 2026 at 10:50 PM
The answer extends over three issues. The first concerns the preference of one proof by increase of number. The jurists differed concerning two persons in disagreement, each bringing proof, but one proof being more numerous than the other, as when one brings two witnesses and the other four or more: does the proof of the more numerous prevail, or do the two proofs stand equal, the number of witnesses having no bearing?
The majority of the jurists, namely the Hanafis, the Malikis in the well-known view, the Shafi'is in the school and the Hanbalis in the school, held that if the proof of one comprises two witnesses and that of the other four or more, the two proofs oppose one another and are not decided by number; for the number of witnesses is a matter fixed by the Law, and what is fixed by the Law admits no ijtihad, like the blood money, fixed by the Law: ijtihad does not enter it, whatever the difference of the victim in height, breadth or smallness.
Abd al-Malik ibn al-Majishun, as well as Mutarrif among the Malikis, which is a narration from Malik, and the Shafi'is in an opinion reported from al-Shafi'i in the old school, a view also held among the Hanbalis, held that proof prevails by superiority in the number of witnesses; for one of the two reports is preferred by this, and the same applies to testimony, for testimony is a report. Testimony is moreover taken into account only for the predominance of conjecture over what is attested, and when the number increases or probity strengthens, the conjecture is stronger (al-Hidaya 3/173, Tabsirat al-Haqa'iq 4/316, al-Banaya Sharh al-Hidaya 9/400-401, al-Inaya 11/401, al-Jawhara al-Nayyira 6/106, al-Lubab 2/425, al-Durr al-Mukhtar 5/576, al-Taj wa-l-Iklil 5/194-195, Sharh Mukhtasar Khalil 7/230, al-Sharh al-Kabir with Hashiyat al-Dasuqi 6/147-148, Tathbir al-Mukhtasar 5/198-199, al-Bayan 13/165-166, al-Mughni 10/248, Kashshaf al-Qina 6/498, Sharh Muntaha al-Iradat 6/613, Matalib Uli al-Nuha 6/575).
The third issue concerns the preference of one proof by superiority of probity. The jurists differed concerning two litigants each establishing fair proof, but the proof of one being more learned, more chaste and more renowned for probity: is it preferred to the proof of the other, or not?
The Malikis in the well-known view, and al-Shafi'i in one opinion, held that if one establishes proof that the item belongs to him and the other establishes a similar proof, and one of the two proofs exceeds the other in probity, it is preferred to the other. The difference between superiority of probity, which decides, and superiority of number, which does not, lies in the fact that the aim of judgment is the extinction of the dispute, and added probity is harder to obtain than added number: either of the two adversaries can indeed increase the number of witnesses, unlike probity.
The Hanafis, the Malikis in an opinion which is the school of al-Mudawwana, the Shafi'is in the school and the Hanbalis held that the proof carrying added probity is not preferred and does not prevail over the other's proof in that over which they oppose one another; for they are equal in the probity taken into consideration, and thus oppose one another as if they were equal in probity.
The Hanafis said, however: known-fair testimony prevails over that whose probity is unknown, for this is a quality of testimony.
The dispute over the wall between the two houses
When two men dispute a wall between their two houses: if one of the two holds proof against the other, judgment is rendered for the holder of the proof; if neither holds proof, the jurists differed on this point.
The Malikis said: if there is a wall between the houses of two men and they dispute its ownership, judgment is rendered for the one in whose favor custom testifies, that is, if he has an effect which custom testifies the owner performs; judgment is then rendered for him. This covers the gypsum clamps, the wood ties and the faces of bricks. The gypsum clamps are what walls are bound with, of gypsum and the like; the wood pieces are those placed at the corners of walls to bind them, according to the saying of Allah, the Most High:
"And enjoin what is customary"
Surah Al-Araf, 199
It is reported from Jariya ibn Zufar that two brothers had a partition between their two houses; they died and each left descendants; the descendant of each claimed the partition for himself against the companion, and they disputed before the Prophet (peace be upon him), who sent Hudhayfah ibn al-Yaman with them; he judged the partition for the one who showed the gypsum clamps adjacent to him, then returned to the Prophet (peace be upon him) and informed him, and he said: "You have judged rightly" or "You have done well" (very weak hadith: reported by Ibn Majah 2343, al-Tabarani in al-Kabir 2088, al-Daraqutni 4544 and al-Bayhaqi in as-Sunan al-Kubra 11150, who said: Dahtham ibn Qiran al-Yamami alone reports this hadith, and he is weak; they differed over his chain of transmission, which has been reported in this way and by two other paths).
And because custom and usage are two bases to which recourse is had in case of dispute when no other basis exists, such as the rate of currency, the distance of travel and the carriage load; it is the same in our question: if custom is established that the owner performs these things in his property, judgment is rendered for the one in whose favor custom testifies; if custom testifies for neither of the two, the rules of clashing claims apply (al-Ishraf ala Nukat Masa'il al-Khilaf 3/48-49, no. 909, al-Qawanin al-fiqhiyya p. 223).
The majority of the jurists held that the claim is not preferred for the one toward whom the embedded parts of the wall face.
Imam Ibn Qudama (may Allah have mercy on him) said: the claim is not preferred by the fact that the embedded parts (al-dawakhil) or the protruding parts (al-khawarij) of the wall, the faces of bricks or the stones face one of the two; nor by the fact that the sound bricks adjoin the property of one and the cuts of the bricks face the property of the other; nor by the gypsum clamps of the privacy fence, that is, the knot of the threads by which the fence is bound; andAbu Hanifa and al-Shafi'i said this.
Abu Yusuf and Muhammad said: judgment is rendered for the one toward whom the face of the wall and the gypsum clamps face, according to what Namr ibn Harithah al-Tamimi reported from his father: people disputed before the Prophet (peace be upon him) over a privacy fence, and he sent Hudhayfah ibn al-Yaman to judge between them; he judged for the one toward whom the gypsum clamps faced, then returned to the Prophet (peace be upon him) and informed him, and he said: "You have judged rightly and done well" (very weak hadith, whose takhrij has been cited: reported by Ibn Majah; a similar report has been narrated from Ali). And because custom is established that the one who builds a wall receives its face.
Our proof is the generality of his saying, peace be upon him: "The proof is upon the claimant, and the oath is upon the one who denies". And because the face of the wall and the gypsum clamps, when two partners contest them, must necessarily face one of the two, since it is not possible that they face both together; their indication is therefore void, like ornamentation, which has no purpose but adornment. Their hadith is moreover not established by the people of transmission, and its chain is unknown, as Ibn al-Mundhir said. Al-Shalanji said: I mentioned this hadith to Ahmad, and it did not convince him; I mentioned it to Ishaq ibn Rahawayh, who said: this is not a hadith; he did not authenticate it, and the hadith of Ali on this subject is subject to criticism; and what they mentioned of custom is not authentic.
Turning the face of the wall outward for people to see it, like the man who wears his finest clothes and places the best before people's eyes so that they see it and he adorns himself with it, constitutes indeed no proof at all.
Section: the claim is not preferred by ornamentation and beautification, nor by the fact that one of the two has a plank resting on the bricks without being built upon them; for it is a thing that is tolerated and that it is possible to create afterwards (al-Mughni 4/328-329).
The vizier Ibn Hubayrah (may Allah have mercy on him) said: they differed when two persons dispute a wall between their houses: is judgment rendered for the one toward whom the embedded and protruding parts, the sound bricks and the gypsum clamps face, or not?
Abu Hanifa, al-Shafi'i and Ahmad said: no judgment is rendered by that, and the wall is between them. Malik said: if one of the two has an effect which custom testifies the owner performs, judgment is rendered for him with his oath, such as the gypsum clamps, the wood ties and the faces of bricks (al-Ifsah 1/431-432).
The wall on which one of the two has wood, and the other nothing
The jurists differed: if two persons dispute a wall between their houses and one of the two has wood or trunks on it against the other, for whom is judgment rendered? Ibn Hubayrah said: they differed when two men dispute a wall between two houses, one of the two having trunks on it: is judgment rendered for the one with the trunks, or is the wall between them?
Imam Ibn Qudama (may Allah have mercy on him) said: an issue. He said: when two persons dispute a wall bound by the building of each of them, they take a mutual oath and the wall is between them; it is the same if it is detached from the building of both; if it is bound by the building of one of them, it belongs to him with his oath.
The sum of the matter is that the two men, disputing a wall between their two properties and being equal in its being bound by their common building, that is, attached to them by an attachment that cannot be created after the building of the wall, like the attachment of building to mud, as with those enclosures where the attachment of one part to another cannot be created; or being equal in its being detached from their building, or not attached to their building by the mentioned attachment, but with a rectangular gap between them, as between two walls one of which is adjoined to the other; the two are then equal in the claim.
If neither of the two holds proof, they take a mutual oath: each of the two swears on the half of the wall that it is his, and it is divided into halves between them; for the possession of each of the two extends over the half of the wall, the wall being in their hands. If each swears on the whole wall that it is his, as well as on what belongs to his companion, this is valid, and the wall is between them;Abu Hanifa, al-Shafi'i, Abu Thawr and Ibn al-Mundhir said this, and I know of no opponent; for the two litigants over an item, when no proof exists for either, the word is that of the one in whose hand it is, with his oath.
The wall being in their hands, the possession of each of the two extends over its half; the word is therefore each one's concerning his half, with his oath. If one of the two holds proof, judgment is rendered for him; if each holds proof, the two proofs oppose and the two are like people without proof. If no proof exists for them and they both refuse the oath, the wall remains in their hands as it was; if one swears and the other refuses, judgment is rendered against the one who refused, and the whole then belongs to the other.
If the wall is attached to the building of one of the two against the other, it belongs to him with his oath, and Abu Hanifa and al-Shafi'i said this. Abu Thawr said: it does not revert by means of the bond, and it is not taken into consideration.
Our proof is that the outward indication is that this building was built in one single undertaking; if a part belongs to a man, the remainder belongs to him; and the other building, detached, was apparently built alone; for had it been built along with this one, it would have been attached to it; the outward indication is therefore that it belongs to someone other than the owner of this disputed wall, and the claim must then be preferred by this, like possession and the azaj.
If it is said: why did you not assign it to him without an oath for this reason? We answer: this is apparent but not certain, for it may be that one of the two built the wall for his companion out of charity, alongside his own wall; or that it belonged to him and he gave it away; or that he built it for hire. The oath was therefore instituted because of this possibility, as it was for the holder and for all those upon whom the oath is incumbent.
As for the wall bound by the building of one of the two with a bond that can be created, such as building with unbaked or baked bricks, it is possible to remove from the built wall half a brick or a brick, or to place in its stead a sound brick between the two walls. The Qadi said: this possibility does not allow the preference that the owner of the wall did this in order to take ownership of the shared wall.
The apparent meaning of al-Khiraqi's words is that preference is given by this attachment as by the one that cannot be created; for the outward indication is that the owner of the wall would not let another act upon it by removing his bricks, altering his building and doing what indicates his ownership; preference is therefore given by this as by possession; for possession may be ordinary, having arisen by force, theft, loan or hire, without that preventing preference by it.
Section: if one of the two has upon the wall a structure, such as a wall built upon it, or a bond relied upon, or a dome and the like, it belongs to him, and al-Shafi'i said this; for the placing of his structure is like possession established upon the wall, since he benefits from it, and it runs like loading it upon the beast or sowing it in the ground; and because the outward indication is that a man does not let another build upon his wall.
It is the same if he has upon it a plank, even if there is at the base of the wall a piece of wood whose end lies under a wall that one of the two holds exclusively, or if he has upon it a bound azaj: the disputed wall belongs to him; for the outward indication is that the piece of wood belongs to the one who holds exclusively the placing of his structure upon it, and the outward indication is therefore that what is upon it as structure is his.
Section: if one of the two has wood placed on the wall, our companions said that his claim is not preferred by this, and this is the view of al-Shafi'i; for it is a thing the neighbor tolerates, and the report forbidding its prevention has come; yet we hold it to be a right whose exercise must be enabled, so the claim is not preferred by it, as with leaning his furniture against the wall, plastering it or ornamenting it. It may be that the claim is preferred by it, and this is the view of Malik; for he benefits from it by placing his property upon it, and thus resembles the builder upon it and the sower in the ground; and the prohibition by the Law of preventing it does not prevent it being evidence of entitlement, for our inference from the placing is that the placing is a standing right: as soon as it disappears, its restoration is permitted; and its being a right presupposes the need to place it, so that what he does not need, he is forbidden to place.
As for tolerance in this regard, most people do not tolerate it; this is why, when Abu Hurayrah reported the hadith of the Prophet (peace be upon him), they lowered their heads in aversion; he then said: "Why do I see you turning away from it? By Allah, I will indeed throw it between your shoulders". Most of the jurists do not require enabling this, and interpret the hadith as the dislike of prevention, not as its prohibition; and because the wall is built for that purpose, preference is given by it, as by the azaj.
The companions of Abu Hanifa said: the claim is not preferred by a single trunk, for the wall is not built for it; it is preferred by two trunks, for the wall is built for two. Our proof is that it is placed upon the wall: the little and the much are therefore equal in preferring the claim by it, as with structure (al-Mughni 4/237-238).
Imam Qadi Abd al-Wahhab al-Maliki (may Allah have mercy on him) said: if they dispute a wall on which one of the two has wood and the other nothing like it, judgment is rendered for the holder of the wood, whether little or abundant.
Abu Hanifa said: if the wood amounts to several trunks, judgment is rendered in his favor; if there are only one or two, no. Al-Shafi'i said: judgment is not rendered for the holder of the wood.
Our proof in favor of al-Shafi'i is the saying of Allah, the Most High:
"And enjoin what is customary"
Surah Al-Araf, 199
and custom is established that when a man has wood and trunks upon a wall, it is because he placed them on its terrace; for most of people's acts concern their properties. The placing of trunks upon the wall is moreover a possession and an act; the claim of the claimant of the wall must therefore be preferred by it, as if the two disputed a house in the hand of one of them. And if the two disputed a plot in which one of them has a wall, judgment would be rendered for the owner of the wall, with no difference between that and the trunks (al-Ishraf ala Nukat Masa'il al-Khilaf 3/49-50, no. 910).
Imam al-Imrani (may Allah have mercy on him) said: al-Shafi'i (may Allah have mercy on him) said: when two men dispute a wall between their two houses, if it is attached to the building of one of them by an attachment of building that occurs only at the beginning of the building, I assign it to him, and not to the one from whom it is detached.
The sum of the matter: the two men dispute a wall between their two properties, each claiming that it belongs to him; if one of the two holds proof against the other, judgment is rendered for the holder of the proof. If neither holds proof, one examines: if one of the two has upon the wall a structure that cannot be created after the completion of the building, because he has upon it or in it a bound azaj, the word is that of the holder of the azaj, with his oath.
Shaykh Abu Hamid said: because the wall of the azaj begins first by being crooked or straight, then bends after a while; we made him swear because the two may have shared in building the foundations, and then one of the two bound the azaj upon it with the owner's permission. Ibn al-Sabbagh said: if it is built upon the square of the building of one of them, attached to it and of equal thickness, against the other, the word is that of the latter, with his oath, for the outward indication is that it belongs to him. Abu Ishaq al-Marwazi said: if the wall measures fifteen cubits, ten of which lie between their two houses, and one of the two has five cubits attached to the ten, and then they dispute the ten, the word is that of the owner of the five, with his oath, concerning the ten; for what he holds exclusively cannot be created without the disputed part, so it is known that the whole belongs to him, as if he had an azaj upon it.
Shaykh Abu Hamid said: this is a mistake that does not befit the school, for his exclusivity over a part of the wall does not indicate that the whole of the wall is his; for the two may have shared in building what lies between them, and the owner of the addition alone built it; and it differs from the case of the azaj, for the azaj is placed upon the wall, so the outward indication is that he placed it within his property.
If the wall rests upon a long piece of wood, and one of the two acknowledges to his companion the long piece of wood while they dispute the wall, or they dispute the piece of wood and the wall, and proof is established for one of the two concerning the piece of wood, or part of the piece of wood lies in the property of one of the two, the word is that of the owner of the piece of wood, or of the one whose property holds part of it, with his oath, concerning the wall; for the piece of wood does not branch out: if judgment is rendered for part of it, it is rendered for all of it, and judgment is rendered for the wall, for the outward indication is that he placed his property upon his property.
If the wall is attached to the building of neither of the two, but is a mere screen cast between their two properties, with the possession of the two upon it, or the possession of neither and no proof for either, each swears; if they both swear or both refuse, it is divided between them; if one swears and the other refuses, the whole belongs to the one who swore. It is the same if it is attached to the building of both. The claim is not preferred for the one toward whom the embedded or protruding parts of the wall face, nor for the one toward whom the gypsum clamps face, that is, the binding of the threads of the privacy fence; andAbu Hanifa said this.
Malik and Abu Yusuf said: judgment is rendered for the one toward whom the face of the wall and the gypsum clamps face. Our proof is that what faces a person does not indicate that he holds ownership of the wall; the claim of the one toward whom it faces is therefore not preferred, as if the engravings or the plaster faced one of the two.
Likewise: if one of the two has upon the wall plastering or engravings, the wall is not judged for him by that, for it can be created after the completion of the building; if he has upon it a trunk or trunks, his claim is not preferred by that. Malik said: if one of the two has a trunk, his claim is preferred, and he swears that the wall is his.
Abu Hanifa said: preference is given by two trunks or more, and not without two trunks. Our proof is that the placing of the trunk is a new act occurring after the completion of the wall; the claim is therefore not preferred by it, as with plastering and ornamentation.
Back to the wall: if the two dispute a wall lying in a plot belonging to one of them, the word is that of the owner of the plot, for the outward indication is that what lies in a person's property belongs to him. If they dispute a plot on which one of them has a wall, two views confront one another, reported by Shaykh Abu Hamid. The first: the word of the owner of the wall is not preferred, but they take a mutual oath concerning the plot, as we said for two persons disputing a wall on which one of them has trunks. The second: the word is that of the owner of the wall, for the outward indication is that he places his property only upon his own property, no one having allowed the placing of a wall upon another's plot without his permission, unlike trunks.
The same two views apply if the two dispute a plot in which one of them has a palm tree (al-Bayan 13/206-208).
The claim of marriage
The jurists differed: if a man claims marriage to a woman and she denies it, is his claim heard in this regard, or is proof necessary?
The Shafi'is, in one opinion, and the Hanbalis held that whoever claims marriage to a woman does not have his claim heard until he says: "I married her with a guardian, two just witnesses and her consent". People have indeed differed over the conditions of marriage: some require the guardian, the witnesses and the witnessed act; others do not require them; some require the permission of the father of the adult virgin in order to marry her off; others do not require it. It may be that the man claims a marriage he believes valid, while the judge does not see its validity, and it is not fitting to judge by that validity despite his ignorance of it, and he does not know of it so long as the conditions are not stated and proof is not established by them.
The claim of marriage differs from the claim of property: its causes are indeed limited, and the cause of the establishment of the right may escape the claimant; contracts, for their part, multiply in conditions, to the point that we required seven conditions for the validity of sale, and it may be that the claimant knows neither how to count them nor what they are. Property is a domain of tolerance, and this is why they differed over requiring the guardian and the witnesses in their contracts, and consequently differed in the claim.
As for the absence of the waiting period and of the state of consecration, people did not differ over them, the default is their absence, and the purposes do not vary by them. If the man claims continuation of the marriage bond without claiming the contract, he does not need to state the conditions, according to either of the two views held by the Shafi'is and the Hanbalis: establishment takes place by prevalence of common knowledge; and if he were to require the statement of the conditions, testimony would be required by them, which does not obligate the testimony of prevalence. In the second case, namely the claim of the contract, the statement of the conditions is necessary, for it is a claim of marriage resembling a claim of contract (al-Bayan 13/155-156, Sharh Mukhtasar Khalil 3/295, Tathbir al-Mukhtasar 3/71-72, al-Mughni 10/242).
The Hanafis, the Malikis and the Shafi'is, in one opinion, held that whoever claims marriage to a woman has his claim heard, without being required to mention that he married her with a guardian, two just witnesses and her consent; for it is a claim of ownership, which does not require the statement of its cause, like the claim of property. And because it was not required, in the claim of marriage, that it be free of the waiting period, the state of consecration and apostasy, the statement of the guardian, the two witnesses and the consent is not required, for all of that is a condition of the validity of marriage (al-Jawhara al-Nayyira 6/95-98, al-Lubab 2/417-418, Tahdhib al-Mudawwana 1/359, al-Dhakhira 11/6-7, al-Bayan wa-l-Tahsil 5/84).
On this basis: if he claims marriage against her and she denies it, his word is not accepted until he brings two witnesses to the marriage; he has no oath against her according to ImamAbu Hanifa, the Malikis and the Hanbalis; she is not imprisoned, and no marriage is established without two witnesses, nor with a single witness accompanied by an oath (al-Jawhara al-Nayyira 6/95-98, al-Lubab 2/417-418, Fatawa Qadi Khan 2/215, Tahdhib al-Mudawwana 1/359, al-Bayan wa-l-Tahsil 5/84, al-Mughni 10/241-242).
The Shafi'is, as well as the two companions ofAbu Hanifa, whose view carries the fatwa, and the Hanbalis according to one possibility, held that if he claims marriage against her, she denies it and no proof exists, the word is that of the woman with her oath, according to the saying of the Prophet (peace be upon him): "The proof is upon the claimant, and the oath is upon the one who denies" (authentic hadith already cited).
The Shafi'is said: if she swears, his claim falls; if she refuses, the oath is returned to him, and when he swears, the marriage is established (al-Bayan 13/156-157, al-Jawhara al-Nayyira 6/95-98, al-Lubab 2/417-418, al-Mughni 10/241-242).
As for her granting him permission, it depends on the inward reality of the matter: if he knows she is his wife, she becomes lawful for him, for his denial of the marriage is not a divorce and he did not intend divorce; if he knows she is not his wife, either because there was no contract or because she has become a stranger to him through separation, she is not lawful for him.
May she then be made lawful to him in outward terms? This carries, according to most of the jurists, two views. The first: she is made lawful to him, for the judge has ruled on the marriage bond. The second: she is not made lawful to him, for his acknowledgment against himself that she is forbidden to him is accepted concerning himself, not concerning what is against him, like the man who marries a woman and then says: "She is my sister by suckling".
If proof is not established, the word is that of the husband with his oath, according to the Shafi'is and the two companions of the Hanafis, and it is one possibility among the Hanbalis.
The Shafi'is said: if he swears in her favor, her claim falls; if she refuses, the oath is returned to her, and when she swears, she binds him by the marriage (al-Bayan 13/157-158).
Abu Hanifa, the Malikis and the Hanbalis said: there is no oath upon him.
The claim of marriage to a deceased person
The majority of the jurists stated explicitly that when the woman claims marriage to a dead man, or the man claims marriage to a dead woman, and establishes proof of it, inheritance is established for the claimant.
The Hanafis said: if a man claims against a woman that he married her and she denies it, then the man dies and she comes forward claiming his inheritance, the inheritance belongs to her; likewise, if the woman claimed the marriage and the husband denied it, then the woman dies and the man comes forward to claim her inheritance asserting that he married her, the inheritance belongs to him. The two questions were mentioned in al-Muntaqa without disagreement; in the second, there is a divergence with Abu Hanifa: no inheritance for her, whereas according to Abu Yusuf and Muhammad, the inheritance belongs to her.
If two men claim marriage to a woman, asserting that they both married her, or two sisters claim marriage to a man, asserting that he married them, and they all establish, that is, the two men and the two sisters, proof in support of their claims, the proofs become mutually invalidated among them during life, that is, nothing is judged for them, for the aim during life is lawfulness, and partnership is not lawful; after death, the proof is accepted, and inheritance is judged between them after death, for inheritance admits division.
On this basis, judgment is rendered for the two sisters, each receiving the mahr and the half of the inheritance; and it is rendered to each of the two men for the half, which is the inheritance of the husband, that is, they are judged the inheritance of a single husband, for the ruling of marriage after death is inheritance, and inheritance admits partnership (Fatawa Qadi Khan 1/199, al-Muhit al-Burhani 10/99, al-Banaya Sharh al-Hidaya 12/533, al-Bahr al-Raiq 7/36, Hashiyat Ibn Abidin 7/19, al-Fatawa al-Hindiyya 4/72).
The Malikis said: if a woman claims, after the death of a man, that he married her with a known mahr, and establishes in this regard a man and two women, or one of the two, and swears along with him, property is established by that, but not the marriage, according to Ibn al-Qasim, and this is the well-known view.
Ashhab said: she does not inherit, for inheritance is a consequence of the marriage bond, and that bond is established neither by a witness nor by an oath; neither the inheritance nor the mahr is therefore established, except after the establishment of the marriage, and the latter is established only by two just witnesses (Sharh Mukhtasar Khalil 3/294 and 7/203, al-Sharh al-Kabir with Hashiyat al-Dasuqi 6/97).
The Shafi'is said: if a woman claims against a man that he married her and divorced her before consummation and demands from him the half of the mahr, or claims the marriage of a certain deceased man and demands the inheritance from him, this is established by a man and two women, or by a man and an oath, even if the marriage is not established by them, for her purpose is the mahr in the first case and the inheritance in the second. Al-Ghazali drew an analogy with the question of theft and of divorce suspended upon usurpation: property is established in both even if the hand of the thief is not cut off and the divorce does not take place (Asna al-Matalib 4/428-429).
The Hanbalis said: whoever claims that this deceased woman is his wife and that this man is their son, if he establishes the woman by the origin of the marriage and the son is acceptable, he stands upon the origin of the marriage, and paternity by the bed is established and attaches to him. If she claims that this deceased man is her husband, it is not accepted, unless she establishes proof of the origin of the marriage, and the inheritance is then given to her (al-Furu 6/478, al-Mubdi 10/199, al-Insaf 12/17).