Sheikh Hânî al-Jubayr, judge at the Jeddah Supreme Court
I am not aware of any text in the Qur’ân or Sunnah that stipulates the period of time that the husband must be absent before the wife can seek a divorce or have the marriage annulled.
Scholars distinguish between two circumstances in which a man is absent. The first is when there is some form of communication between the husband and the wife or news of the husband reaches the wife. In this case, there is consensus that the woman cannot marry someone else unless she cannot be supported from the husband’s wealth. In that case she can demand her marriage be annulled on the grounds of non-support.
The second circumstance is where the husband is lost and no news of him is heard. There are two scenarios here. The first scenario is where his journey was apparently safe and normal, like a business trip or travel for study or relaxation. In this case, she remains his wife until his death is established. This is the opinion of `Alî, Abû Hanîfah, al-Shâfi`î in his later opinion, and Ahmad. Mâlik’s opinion – and Shâfi`îs older view – is that she should wait four years and then observe the `iddah of a widow (which is four months and ten days). Then she may marry someone else. They argue that if a woman can get out of a marriage because of her husband’s inability to support her or because of his inability to have sexual relations with her, then it follows that she should be able to do so in a situation where he can do neither. They back up their argument with the hadîth where `Umar ruled in this way without facing any objection for doing so from the other Companions.
The other circumstance is where the context of his absence indicates that he has died. Examples of this are where the man disappears from his family suddenly or goes out for prayer and never returns or goes to a nearby place to do something and is never heard from again. A better example is when his disappearance occurs in a dangerous place or a life threatening situation. In this case, Ahmad is of the opinion that she must wait four years and then observe the `iddah of the widow. Then she may marry someone else. This was the opinion of `Umar, `Uthmân, `Alî, Ibn `Abbâs, and Ibn Zubayr from the Companions. It is the opinion of Mâlik and al-Shâfi`î’ in his older opinion.
The sister facing this situation should go to an Islamic court or judge about her situation, since this is a matter that comes under juristic discretion (ijtihâd) and the ruling of a judge overrides the disagreement of the jurists on the matter. If the sister in question lives in an area without an Islamic court or judge, she must take her case before one of the Islamic centers that exist in her country that can handle her case.
And Allah knows best.
Source: Islam Today