1129 - Issue: He said: "If the first of them is unknown, both marriages shall be annulled."

The totality of this is that if the first [contract] of them is unknown, there is no difference between [a case] where the manner of their occurrence is not known, or it is known that one of them occurred before the other but [which one] is not specified, or it was identified and then doubt arose; the ruling in all of them is one, which is that the judge shall annul both marriages. Ahmad stated this clearly in the narration of the group. She may then marry whoever she wishes from among them or someone else. This is the opinion of Abu Hanifa and Malik. Another narration is reported from Ahmad that lots shall be drawn between them; whichever [name] the lot falls upon, his companion is ordered to divorce her, then the one who drew the lot renews his marriage. If she was his [original] wife, the renewal of the marriage harms him nothing, and if she was the wife of the other, she becomes separated from him by his divorce and becomes the wife of this one through his second contract. This is because drawing lots is a means of distinguishing rights when there is equality, such as traveling with one of his wives, determining who to spend the night with, or specifying shares in division. Al-Thawri and Abu Thawr said: The authority compels them to each pronounce one divorce, and if they refuse, he separates them. This is close to our first opinion, because it became impossible to implement a valid contract, so it was necessary to remove the harm through separation. Al-Shafi'i and Ibn al-Mundhir said: The marriage is annulled because it was impossible to implement it. This is not correct; for a valid contract is not voided by mere ambiguity, just as if the two transacting parties disagreed on the amount of the price; the contract does not cease except by its annulment, and so it is here. It has been reported from Shurayh, Umar ibn Abd al-Aziz, and Hammad ibn Abi Sulayman that she is given the choice, and whichever one she chooses, he is her husband. This is not correct; for one of them is not her husband, so she is not given a choice between them, just as if only one of them had contracted the marriage, or as if it were ambiguous to a man which of the women is his wife, or to a woman which of them is her husband, unless they intend by their statement that if she chooses one of them, separation is made between her and the other, and then the chosen one contracts her marriage. This is good, for by separating her from one of them, one is dispensed with the need to separate her from both of them, and by annulling one of the two marriages, one is dispensed with annulling both. If she refuses to choose, she is not compelled. Likewise, it should be that if lots are drawn between them and the lot falls to one of them, she is not compelled to marry him; because it is not known that he is her husband. Thus, it becomes necessary to annul both marriages, and she may marry whoever she wishes from among them or from others immediately, if it was before consummation. If one of them had consummated with her, she shall not marry until her waiting period (idda) from his intercourse is completed.