Q. What do you have to say regarding a woman who married herself off using as a proof that she's upon the Madhhab of Abee Haneefah?
A. The Messenger, sallallaahu alayhi wa sallam, prohibited the woman marrying herself off. He (sallallaahu alayhi wa sallam) said:
"Indeed the Zaaniyyah (fornicatress/adulteress) is the one who marries herself off"
(Ibn Maajah, and others)
The Prophet (sallallaahu alayhi wa sallam) said:
"There's no marriage without the guardian"
(Sunan Abi Daawud)
They (who hold that it's permissible for a woman to marry herself) use as a proof,
"The woman who has been previously married has more rights over herself"
(Muslim)
The meaning of this narration is that she can choose (for herself). She can honor what her guardian has said to her or she can reject it. The meaning is not that she can marry herself off, even if there were no other narrations except for this narration, the narration of Abee Moosaa Al-Ash'aree (may Allaah be pleased with him) which is in the Sunan:
"There's no marriage without the guardian"
If this was to take place (i.e. that a woman marries herself off), the contract from the beginning of its affair is upon the Hanafi Madhhab, and the contract (based upon the Madhhab where a woman can marry herself off) is considered one of doubt. If children were to come from this contract for the both of them, they are attributed to the father. Also the guardian is to be sought and the contract of marriage is to be renewed. All praise is for Allaah. The Prophet (sallallaahu alayhi wa sallam) mentioned:
"There's no marriage except with the guardian"
(Sunan Abi Daawud)
Source: Fataawaa lil-Imaam al-Waadi'ee pg. 187 Fatwaa #207
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