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Now, a marriage taking place over the phone in a manner that all the relevant parties are in different places will not be valid in accordance with the above explanation. One party will be pronouncing the offer over the phone and the other party (in another place) will be accepting this offer. This will not be sufficient for the marriage to be considered valid even if the witnesses are present with any one of the parties. As stated, it is a condition for the validity of marriage that the witnesses be present in the same place the marriage offer and acceptance take place.
The solution to the situation where both parties are in different counties and would like their marriage contracted is through agency (wakala). The jurists (fuqaha) of the Hanafi School state that both the woman and man may appoint agents to conduct their marriage on their behalf.
Shaykh Muhammad Qudri Basha states in his al-Akham al-Shar’iyya fi al-Ahwal al-Shakhsiyya:
Item 57: “It is permitted for a man or woman to marry themselves off, or to make another their agent (wakeel), whomsoever they wish, as long as they are free, sane, adults…”
Item 58: “It is valid to make another one’s agent (wakeel) for marriage verbally or in writing. It is not a condition that this transfer of agency be witnessed over in order for it to be valid, rather [it is recommended] lest there be denial or dispute.” (al-Akham al-Shar’iyya fi al-Ahwal al-Shakhsiyya with footnotes by Yusuf ibn Muhammad al-Hajj Ahmad, P: 35)
As such, if Zayd wants to marry Fatima without both of them being present in one place, Fatima (who is in the US, for example) may authorize a relative or friend living in the UK over the phone to contract her marriage with Zayd and pronounce offer or acceptance on her behalf. If, for example, she selects her uncle Amr to be her agent, then Amr at the time of the marriage ceremony in the presence of the witnesses will say, “I being the agent of Fatima daughter of such and such person have given her in the marriage of Zayd with X amount of dowry. At this point, Zayd will say, “I have accepted Fatima in my marriage in the presence of these witnesses”. With this, the marriage will be considered as valid.
It should be noted that any one of the two parties may appoint an agent. It is permitted to have an agent on behalf of the woman with the man himself being present, or the agent on behalf of the man and the woman herself being present. It is also permitted that both parties have agents conducting their marriage; hence, both agents will pronounce the offer and acceptance of behalf of the man and woman. The strict condition is that the offer, acceptance and witnesses must all be in one place, whether the man and woman are both physically present making these pronouncements or they appoint agents to make the pronouncements on their behalf. (See: al-Ikhtiyar li ta’lil al-Mukhtar, 2/121)
And Allah knows best
Muhammad ibn Adam al-Kawthari
Darul Iftaa, Leicester, UK