It is not permissible to marry a zaani or zaaniyah unless they have repented

Question

Praise be to Allah.

It is not permissible to marry a zaaniyah or zaani unless
they have repented. If the man or woman has not repented then the marriage
is not valid.

Allaah says (interpretation of the meaning):

“The adulterer — fornicator marries not but an adulteress
— fornicatress or a Mushrikah; and the adulteress –fornicatress, none
marries her except an adulterer — fornicater or a Mushrik [and that means
that the man who agrees to marry (have a sexual relation with) a Mushrikah
(female polytheist, pagan or idolatress) or a prostitute, then surely, he is
either an adulterer — fornicator, or a Mushrik (polytheist, pagan or
idolater). And the woman who agrees to marry (have a sexual relation with) a
Mushrik (polytheist, pagan or idolater) or an adulterer — fornicator, then
she is either a prostitute or a Mushrikah (female polytheist, pagan, or
idolatress)]. Such a thing is forbidden to the believers (of Islamic
Monotheism)”

[al-Noor 24:3]

There is a report concerning the reason for the revelation of
this verse which makes the ruling clearer. Abu Dawood (2051) narrated from
‘Amr ibn Shu’ayb, from his father, from his grandfather, that Marthad ibn
Abi Marthad al-Ghanawi used to smuggle prisoners from Makkah. There was in
Makkah a prostitute called ‘Anaaq and she had been his friend. He said: I
came to the Prophet (peace and blessings of Allaah be upon him) and
said: O Messenger of Allaah, should I marry ‘Anaaq? He remained silent and
did not answer me. Then the words “and the adulteress –fornicatress, none
marries her except an adulterer — fornicater or a Mushrik” were
revealed. He called me and recited them to me, and said: Do not marry her.
Classed as saheeh by al-Albaani in Saheeh Abi Dawood.

In ‘Awn al-Ma’bood it says:

This indicates that it is not permissible for a man to marry
a woman who has openly committed zina. This is indicated by the verse quoted
in the hadeeth, because at the end of it, it says: “Such a thing is
forbidden to the believers”. This clearly shows that it is haraam. End
quote.

Al-Sa’di (may Allaah have mercy on him) said in his
commentary on the verse quoted above:

This shows that zina is abhorrent and that it tarnishes the
honour of the one who does it in a way that other sins do not. We are told
that no woman marries a zaani except a zaaniyah who is like him or a
mushrikah who associates others with Allaah and does not believe in the
resurrection or reward and punishment, and does not obey the commands of
Allaah. The same applies to the zaaniyah: no one marries her but a zaani or
a mushrik. “Such a thing is forbidden to the believers” means: it is
forbidden for them to marry zaanis or zaaniyahs.

What the verse means is that the one who marries a person,
man or woman, who has committed zina and has not repented from that must be
either a person who is not adhering to the rulings of Allaah and His
Messenger, so he cannot be anything but a mushrik, or he is adhering to the
laws of Allaah and His Messenger but he goes ahead with this marriage even
though he knows about this zina, in which case the marriage is zina and
immorality. If he were truly a believer in Allaah, he would not do that.

This clearly indicates that it is haraam to marry a zaaniyah
until she repents, or to marry a zaani until he repents, because the
partnership between a man and his wife or a woman and her husband is the
closest of partnerships. Allaah says (interpretation of the meaning):
“Assemble those who did wrong, together with their companions” [al-Saaffaat
37:22]. Therefore Allaah has forbidden that because of the great evil
that it involves. It also implies a lack of protective jealousy and implies
that children may attributed to the husband who are not his, the zaani will
not be keeping her chaste because he is distracted by someone else. Any one
of these would be sufficient for it to be haraam. End quote.

Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) said
something similar, and said that the meaning of the verse is that the one
who believes that it is haraam to marry a zaaniyah but still marries her has
entered into a haraam marriage contract which he believes is haraam. A
haraam contract is like one that does not exist, so it is not permissible
for him to be intimate with the woman; in that case the man will be a
zaani.

But if he denies that it is haraam to marry a zaaniyah and
says that it is permissible, then in this case the man is a mushrik, because
he has declared permissible something that Allaah has forbidden and has made
himself a lawmaker along with Allaah. This is what we say to a man who gives
his daughter in marriage to a zaani.

Fataawa al-Mar’ah al-Muslimah,
compiled by Ashraf ‘Abd al-Maqsood (2/698).

This (i.e. that it is haraam to marry a zaaniyah) was stated
in fatwas issued by Shaykh Muhammad ibn Ibraaheem (may Allaah have mercy on
him) and by the scholars of the Standing Committee for Issuing Fatwas,
headed by Shaykh Ibn Baaz (may Allaah have mercy on him).

See: Fataawa Muhammad ibn Ibraaheem (10/135) and
Fataawa al-Lajnah al-Daa’imah (18/383).

Shaykh al-Islam Ibn Taymiyah said:

Because of the punishment that Allaah has decreed for those
who commit zina, He made it haraam for the believers to marry them, as a
rebuke to them and because of the sins and bad deeds that they have. … So
(Allaah) tells us that no one does that but a zaani or a mushrik.

As for the mushrik, he has no faith that will deter him from
committing immoral actions or keeping company with those who do them.

As for the zaani, his immoral nature prompts him to do that
even if he is not a mushrik.

Allaah has enjoined us to shun evil and its people so long as
they are doing that, and this applies to the zaani.

Allaah has stipulated that men should be chaste and not
immoral, as He says (interpretation of the meaning): “All others are
lawful, provided you seek (them in marriage) with Mahr (bridal-money given
by the husband to his wife at the time of marriage) from your property,
desiring chastity, not committing illegal sexual intercourse” [al-Nisa’
4:24]. This is something that should not be ignored because the Qur’aan
has stated it clearly.

As for the prohibition on marrying a zaaniyah, the fuqaha’,
such as the companions of Ahmad and others, have discussed it and there are
reports concerning it from the salaf. Although the fuqaha’ differed
concerning it, those who said it is permissible do not have any reliable
evidence. End quote.

Majmoo’ al-Fataawa (15/316)

He also said (32/110):

Marriage to a zaaniyah is haraam unless she repents, whether
it was he or someone else who committed zina with her. This is undoubtedly
the correct view, and it is the view of a number of the earlier and later
generations, including Ahmad ibn Hanbal and others.

This is what is indicated by the Qur’aan and Sunnah. The most
well-known text concerning that is the verse in Soorat al-Noor where Allaah
says (interpretation of the meaning):

“The adulterer — fornicator marries not but an adulteress
— fornicatress or a Mushrikah; and the adulteress –fornicatress, none
marries her except an adulterer — fornicater or a Mushrik [and that means
that the man who agrees to marry (have a sexual relation with) a Mushrikah
(female polytheist, pagan or idolatress) or a prostitute, then surely, he is
either an adulterer — fornicator, or a Mushrik (polytheist, pagan or
idolater). And the woman who agrees to marry (have a sexual relation with) a
Mushrik (polytheist, pagan or idolater) or an adulterer — fornicator, then
she is either a prostitute or a Mushrikah (female polytheist, pagan, or
idolatress)]. Such a thing is forbidden to the believers (of Islamic
Monotheism)”

[al-Noor 24:3]

In the Sunnah, there is the hadeeth of Abu Marthad al-Ghanawi
and ‘Anaaq. End quote.

The one who is faced with this problem and who did a marriage
contract before repenting has to repent to Allaah and regret what he did,
and resolve not to commit this sin again, then he should do the marriage
contract again.

And Allaah knows best.