The incapacity linked to apostasy

Apostasy carries, according to the schools, a form of incapacity: the apostate may be placed under judicial interdiction over his property, and his prior devotional acts fall, for some schools, from apostasy itself, for others only at death upon apostasy. The most unanimous effect touches marriage: neither spouse can remain joined to the other. The divergences bear on the moment of dissolution, its nature, and the financial rights flowing from it.

The page restitutes these two parts, interdiction and annulation of acts on one hand, marriage on the other, with each school's positions and scriptural arguments.

The apostate's interdiction and the annulment of his acts

The view opposing the Mudawwana's school: the apostate is not interdicted by apostasy alone and his property is not taken from him. Ad-Dasuqi writes: there is reflection upon this: the suspension of his property by apostasy alone is agreed upon; the disagreement concerns the property's return if he repents, which is the famous view, or its becoming booty absolutely, like what is taken from the enemy in war; the first is the Mudawwana's school, the second Sahnun's. The benefit of suspending the property, even if it never returns to him, is that a debt may appear against him and be paid from it; and because, seeing his property suspended, he might imagine the suspension is made for him and return to Islam (ad-Dasuqi's hashiya on al-Sharh al-Kabir 6/289; see also at-Taj wa-l-Ikil 5/311, Sharh Mukhtasar Khalil 8/66-67, Tahbir al-Mukhtasar 5/319).

The jurists disagreed about the falling of the apostate's acts: do they fall by apostasy alone, so that whoever performed pilgrimage then apostatizes owes a new pilgrimage, or do they fall only at death upon apostasy? The Hanafis, the Malikis within the school and the Hanbalis on one view: his acts fall by apostasy; whoever performed pilgrimage owes a new one, the former pilgrimage counting for nothing; Allah said:

Whoever disbelieves in the faith, his work is vain, and in the hereafter he is among the losers.

Surah al-Ma'ida 5

Had they associated, their work would have been in vain.

Surah al-An'am 88

If you associate, your work will surely be in vain.

Surah az-Zumar 65

These verses prove that apostasy in itself annuls the act.

The Shafi'is, the Hanbalis within the school, the Malikis on one view and Ibn Hazm: if he enters Islam after apostasy no new pilgrimage is due to him; Allah said:

Those of you who turn back and die as unbelievers, their works are vain in this world and the hereafter: those are the people of the Fire, abiding therein forever.

Surah al-Baqara 217

An-Nawawi says: Allah suspended the annulment upon two conditions, apostasy and death upon it; what is suspended upon two conditions is not established by either of them; the verse they argue from is absolute and this one restricted: the absolute is carried to the restricted (al-Majmu' 3/6 and 7/10). Al-Qarafi reports the debate: Malik said: whoever apostatizes, his work is vain; al-Shafi'i said: the work becomes vain only by death upon disbelief, for Allah's word "if you associate, your work will surely be in vain" is absolute and Malik held to its absoluteness; yet it came restricted in the other verse: "those of you who turn back and die as unbelievers, their works are vain": the absolute must therefore be carried to the restricted, and the work becomes vain only by death upon disbelief. The answer: the second verse is not a restriction of the first, for two things are ordered in it, annulment and eternity in the Fire, under two conditions, apostasy and death upon disbelief; when two conditionals are ordered under two conditions, distribution is possible: annulment being absolute through apostasy, and eternity due to death upon disbelief; the absolute therefore remains absolute, and it is not necessary that each of the two conditions be a condition of annulment: these two verses therefore do not belong to carrying the absolute to the restricted; reflect on that, it is one of the finest discussions in question and answer (al-Furuq 1/340). Adh-Dhakhira says: the answer has two ways. The first: whoever says to his slave "if you enter the house you are free", then says later "if you enter the house and speak to Zayd you are free": manumission occurs by entry alone, by agreement, for he established two ways of manumission: linguistic conditions are causes, and one of them having occurred the ruling follows; this does not belong to the absolute and the restricted. The second: we concede it; but death upon apostasy brings about two things: annulment and eternity in the Fire; the ordination of two things upon two things permits distributing the one to the one and the other to the other, and also permits no independence, neither scruple being more likely than the other: the argumentation falls; the weightier is even independence, the basic rule being absence of composition (adh-Dhakhira 4/337).

Ibn Taymiyya says: as for the annulment of the work by apostasy, some of our associates denied it and said: the verses concern whoever dies upon apostasy, according to the word of Allah "those of you who turn back and die as unbelievers, their works are vain"; the absoluteness of the other verses does not prevent it, for every punishment ordained for disbelief is conditioned upon death upon it. If it is said: the restriction of this verse to death upon disbelief holds because two things are ordered in it, the annulment of the work and eternity in the Fire, and eternity is deserved only by the unbeliever, while the other verses mention only annulment, whence it is known that apostasy alone suffices; we answer: Allah's word "whoever disbelieves in the faith, his work is vain" and "if you associate, your work will surely be in vain and you will be among the losers" applies only to whoever dies an apostate, for the losers are those who lost their souls and their families on the Day of Resurrection, which does not apply to whoever dies upon a good work: when he returns to Islam the past apostasy is forgiven him, the repentant from sin being like one without sin; the sin gone, its punishments and their causes go, among them the annulment of the work. This shows that if he did, during his apostasy, what apostasy requires of reviling, insult or association, it does not stand against him when he enters Islam; and because the enemy unbeliever who drew near to Allah through deeds then was sealed by Islam: it is counted for him, according to what Hakim ibn Hizam reports: I said: O messenger of Allah, what do you think of the acts of devotion I performed in the age of ignorance, charity, manumission and kinship ties: is there a reward in them? The Prophet (peace be upon him) said: "you have entered Islam upon the good you sent ahead"; agreed upon. Since disbelief contemporaneous with the act does not annul except conditioned upon death upon it, then supervening disbelief all the more annuls only conditioned upon death; the persistence of a thing being stronger than its beginning, and prevention easier than removal; hence the saying: apostasy, the state of consecration and the waiting period prevent the beginning of marriage without preventing its duration; how so, when those acts were done for Allah? Allah having pardoned, through repentance, the disbelief that came after them (Charh al-Umda 4/38-40).

Ibn Hazm says: whoever performed pilgrimage and umra, then apostatized, then Allah guided him and rescued him from the Fire so that he entered Islam: no redoing of pilgrimage or umra is due from him; this is al-Shafi'i's view and one of al-Layth's two views. Abu Hanifa, Malik and Abu Sulayman say: he redoes the pilgrimage and the umra, arguing from Allah's word "if you associate, your work will surely be in vain and you will be among the losers"; we know no other argument for them, nor is there one in it for them: Allah did not say in it "your work vain" of the one performed before associating, and that is an addition upon Allah which is not permitted; Allah only informed that the work becomes vain after association if he also dies upon association, not if he enters Islam, and this is true without doubt. If a polytheist performs pilgrimage, umra, prayer, fasting or zakat, none of that dispenses him from the obligation. Allah's word "and you will be among the losers" establishes that the apostate who returns to Islam does not see his prior works annulled in principle: they are written to his credit and he is rewarded with Paradise for them, no member of the community disagreeing, neither they nor we, that the apostate who returns to Islam is not among the losers, but among the profiting, the prosperous and the successful. It is therefore established that the one whose work is annulled is the one dead upon his disbelief, apostate or not; whoever enters Islam after his disbelief or returns to Islam after his apostasy is not of them; Allah said: "those of you who turn back and die as unbelievers, their works are vain": our statement is thus established, that his work becomes vain, if he apostatizes, only by his death in disbelief. We find Allah saying: "I lose not the work of any worker among you, male or female" (Surah Ali 'Imran 195), and: "whoever does an atom's weight of good shall see it" (Surah az-Zalzala 7): a generality that may not be restricted: his pilgrimage and umra, should he return to Islam, are therefore seen by Allah and are not lost to him. We have related by pathways like the sun, from Urwa ibn az-Zubayr, that Hakim ibn Hizam told him he said to the messenger of Allah (peace be upon him): O messenger of Allah, what do you think of the acts of devotion I performed in the age of ignorance, charity, manumission and kinship ties: is there a reward in them? the messenger of Allah (peace be upon him) said: "you have entered Islam upon the good you sent ahead"; narrated by al-Bukhari (1436) and Muslim (123); Abu Muhammad says: it is established that the apostate who enters Islam and the unbeliever who never was a Muslim, upon entering Islam, enter upon the good they sent ahead; the apostate who had performed pilgrimage as a Muslim having fulfilled what he was ordered: he now enters upon that basis, and it remains for him as it was. As for the unbeliever who performs pilgrimage, like the Sabaeans who count pilgrimage to Mecca in their religion, if he enters Islam afterward it does not dispense him, for he did not perform it as Allah ordered, the performance of pilgrimage and of all the laws being to do them only as the messenger of Allah Muhammad ibn Abdillah (peace be upon him) ordered in the religion he brought, which Allah accepts no other of; the Prophet (peace be upon him) said:

Whoever performs an act outside our command, it is rejected of him.

narrated by Muslim (1718)

The Sabaean performed pilgrimage only as Yurasaf or Hermus ordered him: it therefore does not dispense him; success is with Allah. The one whose pilgrimage fell through his apostasy should, by the same logic, have his marital protection fall, his triple divorce, his sales, purchases and donations made within Islam: they do not say this, which reveals the nullity of their statement; support is with Allah (al-Muhalla 7/277-278; see also Badai' as-Sanai' 1/95, Ibn Abidin's hashiya 2/80, al-Mabsut 2/175, Ibn al-Arabi's Ahkam al-Quran 1/285, al-Qurtubi's Tafsir al-Quran 15/277, al-Majmu' 7/10, al-Hawi 4/248, ar-Ramli's hashiya 4/116, al-Mubdi' 1/171, Sharh Muntaha al-Iradat 3/402, Sharh az-Zarkashi 1/60, al-Mughni 1/239, al-Ifsah 1/445).

The effect of apostasy on marriage

The jurists agree that if either spouse apostatizes they are separated: he may not approach her in seclusion, in intercourse or the like. They agree that if either apostatizes before consummation or seclusion the marriage is dissolved. They disagree if either apostatizes after consummation: does the marriage dissolve by apostasy alone, or does it remain until the end of the waiting period, the apostate keeping his wife if he returns to Islam before its end, and her leaving him if he persists until its end? And is the separation a dissolution or a divorce? Each school has its detail.

The Hanafis: when either of the two Muslim spouses apostatizes his wife is separated from him at once, whether a Muslim or a woman of the Book, consummated or not, for apostasy contradicts marriage: it is an immediate dissolution, not a divorce, and does not depend on a ruling. If the apostasy precedes consummation and the apostate is the husband, she has half the named dower or the dower of satisfaction; if she is the apostate she has nothing. If the apostasy follows consummation, she has the whole dower, whether the apostate be husband or wife (al-Mabsut 5/49, Ibn Abidin's hashiya 2/392, Badai' as-Sanai' 7/136, Sharh Fath al-Qadir 3/428, al-Ikhtiyar 3/127, al-Inaya 5/115).

The Malikis, on the famous view: when either of the two Muslim spouses apostatizes it is an irrevocable divorce: if he returns to Islam she does not return to him except by a new contract, unless the woman intended by her apostasy the dissolution of the marriage, in which case it does not dissolve, she being treated opposite to her aim. It has been said: apostasy is dissolution without divorce (Ibn Abd al-Barr's al-Kafi, p. 221, al-Qawanin al-fiqhiyya, p. 132, Mawahib al-Jalil 3/479, al-Fawa'id ad-Dawani 2/25, ad-Dasuqi's hashiya with al-Sharh al-Kabir 2/270).

The Shafi'is: when either of the two Muslim spouses apostatizes no separation occurs until the wife's waiting period elapses, failing repentance and return to Islam; when it elapses she is separated from him; this separation is dissolution, not divorce; if he returns to Islam before its end she remains his wife (al-Umm 6/160, Jawahir al-Uqud 2/27).

The Hanbalis: if either spouse apostatizes before consummation the marriage dissolves at once; her dower is halved if the apostate is the husband, and falls if she is the apostate. If the apostasy follows consummation, two reports: separation is hastened, the choice of the shaykh al-Islam Ibn Taymiyya; or it waits for the end of the waiting period (al-Mughni 6/248 and 7/133, al-Mubdi' 7/122, al-Insaf 8/215, Sharh Muntaha al-Iradat 2/691). Ibn Qudama writes in al-Mughni: if he marries her while both are Muslims and she apostatizes before consummation the marriage dissolves with no dower for her; if he is the apostate before her and before consummation, it is likewise, except that he owes her half the dower. In sum: when either spouse apostatizes before consummation the marriage dissolves according to the generality of the people of knowledge; it has nevertheless been related from Dawud that it does not dissolve by apostasy, the basic rule being the marriage's continuance. Our proof:

Do not hold to marriage ties with unbelieving women.

Surah al-Mumtahana 10

Do not return them to the unbelievers: they are not lawful for them, nor are they lawful for them.

Surah al-Mumtahana 10

Difference of religion prevents enjoyment, which obliges the dissolution of marriage, as when a woman enters Islam under an unbeliever. One then considers: if the woman is the apostate she has no dower, the dissolution coming from her; if the man is the apostate he owes half the dower, the dissolution coming from him, resembling divorce; if the dower's designation is defective he owes half the dower of equivalence. Ibn Qudama writes further: if her apostasy follows consummation she has no maintenance; if she does not enter Islam before the waiting period ends her marriage dissolves; and if he is the apostate and does not return to Islam before the waiting period ends, the marriage dissolves from the moment the two religions differed. Ahmad's report varied when either spouse apostatizes after consummation, according to its variation when either of two unbelieving spouses enters Islam. In one report separation is hastened: the statement of Abu Hanifa and Malik, reported also from al-Hasan, Omar ibn Abd al-Aziz, ath-Thawri, Zufar, Abu Thawr and Ibn al-Mundhir, for what dissolves the marriage is equal before and after consummation, like suckling. In the second, separation waits for the end of the waiting period: if the apostate enters Islam before its end they remain married; otherwise she is separated from the moment the two religions differed: al-Shafi'i's school, for it is a phrase by which separation occurs; consummation being present, separation may wait for the end of the waiting period, resembling the revocable divorce, or a difference of religion after enjoyment, which does not dissolve the marriage at once, like the woman at war entering Islam under a man at war; its analogy with the Islam of either spouse is closer than its analogy with suckling. As for maintenance: if we hasten separation she has no maintenance, being separated from him; if we let it wait for the waiting period's end and the woman is the apostate, she has no maintenance, the husband having no path to her return nor to avoiding her marriage, hence no maintenance, as after the waiting period; if he is the apostate, maintenance of the waiting period is upon him, for he has a path to enjoyment of her by entering Islam, and he can avoid her marriage: maintenance is therefore obligatory upon him, like the husband of a revocable divorce (al-Mughni 6/248 and 7/133).

Practical note

This part describes classical personal status: dissolution of marriage, waiting periods, dowers and maintenance, studied here as religious and historical knowledge. Contemporary legislations govern civil marriage by their own rules, without equivalents of these categories, and no authority applies them as such. What remains transversal: the schools' consensus on the separation of religions within marriage, care for each party's financial rights, and, for most schools, the possibility of restoring the union through return to Islam before the waiting period ends.