Assalaamu alaykum. I have a friend who is a non-Muslim and has a one-year-old son with a muslim man, and the son bears his father's name. They could not get married before she got pregnant because her divorce with her ex-husband, which is also a non-muslim, was still not finalized. Another reason is that she did not have money to file for a divorce although she had been separated from him for five years. Now she is a revert and she and the muslim man who is the father of their son want to get married next month. What problems can they face regarding their child? Will he remain illegitimate even after his parents get married? How can they make their son legitimate? My friend is really worried about this issue and has been praying for this ever since.

All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah and that Muhammad is His slave and Messenger.

The mere separation of that woman from her husband is not considered divorce. So if that man did not divorce her, then she is still in bond of marriage with him; hence, the child should be traced back to her first husband, as ‘Aa’ishah narrated that the Prophet said, “The child is traced to the owner of the bed (i.e. the legitimate husband).” [Al-Bukhari and Muslim]

For more benefit, please refer to fatwa 129377.

If her husband had divorced her and her waiting period had expired and it was only the divorce proceedings that remained, then she is no longer his wife. So if this Muslim man did not conduct a marriage contract with her, then he has committed zina (adultery) with her while she was not married. Hence, according to the view of the majority of the scholars, the child was born out of wedlock and should be traced back to his mother, and this is the view we adopt here in Islamweb. The fact that this man marries her does not make this child his legitimate child. For more benefit, please refer to fataawa 84788 and 124459.

Nonetheless, some scholars hold the view that if the adulterer wants to trace him back to him (give him his name), then he is traced back to him. Please, refer to fataawa 97254 and 84788. 

If we presume that the husband of this woman did not divorce her, then since she had converted to Islam, her marriage to him is annulled. If he did not embrace Islam until her waiting period expires, then it becomes permissible for her to marry this Muslim man if he has repented from committing adultery. She may also marry any other Muslim man. For more benefit on when one of the spouses embraces Islam while the other does not, please refer to fatwa 156049.

Allaah knows best.