Court (Civil) Divorce

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When a husband files for a legal divorce, he appoints the court to divorce his wife on his behalf. Islamically, a husband has a right to divorce his wife either himself or by appointing someone else as his representative to divorce his wife on his behalf. It is not necessary that this 'representative' be a Muslim, as is the case in filing/petitioning for a legal divorce through the courts.


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Legal Divorce According to Islamic Law

By Shaykh (Mufti) Muhammad Ibn Adam (HA)

Question: I have a question about Islamic Divorce that I hope you can help me with.

I am a British born convert to Islam. I became a Muslim in 1984. I married at a Shariah Court in Sudan and then went to the UK where at the time we were told we had to have another marriage (registry) as the UK did not recognise potentially polygamous marriages. . After many years of marriage (and a lot of tension caused by the hatred to Muslims in the UK among other things), we have decided to get divorced.

We divorced by British divorce by cross decrees (mutual consent). How can I now go about dissolving the Islamic marriage? I understand it is sufficient ('bare talaq) to declare I divorce you three times, and I see that even in some bizarre cases email text messages have been accepted! Some sources cited it is usual for a family member to be present and for the man to attend a mosque and declare his intention in front of a religious 'official' (whatever that means in Islam!) - Since my wife has no family members in this country and I have no family alive - is it sufficient for me to inform my wife of my intention? Should I declare my intention of Talaq, in the local mosque? Or is as is stated in various Islamic sites on the web the British divorce also considered an Islamic divorce? Please can you advice?

Answer: In the Name of Allah, Most Compassionate, Most Merciful,

According to Shariah, speech and verbal utterance is not a necessary condition for the validity of a divorce (talaq). Rather, divorce is also effected by means of the written word.

 

The great Hanafi jurist, Imam al-Kasani (Allah have mercy on him) states:

"Similarly, issuing a divorce verbally is not a condition. Hence, divorce will be effected with clear and unambiguous writing, or with the understood gesture of a dumb person, for the clear written word is in place of verbal utterance." (Bada'i al-Sana'i, 3/100

This writing must be clear and unambiguous. It must be written out of one's own will and not be forced. Also, there should be no deception in getting the husband to write out the decree of divorce.

Similarly, if the husband instructed a third person to write the decree of divorce for him and then he signed the written document, divorce will be effected.

Allama Ibn Abidin (Allah have mercy on him) states:

"If the husband requested another person to write the declaration of divorce for him, and he (the writer) after writing it, read it out to the husband who took the divorce paper, signed and stamped it, and sent it to his wife, divorce will be effected if the husband admits that it is his writing." (Radd al-Muhtar, 3/246-247)

Shaykh Qadri Pasha explains, in his decisive codification of Hanafi personal law, al-Ahkam al-Shar'iyya fi'l Ahwal al-Shakhsiyya, which is a primary source for the personal law of several Muslim countries, and continues to be taught and used across the Islamic world:

"(Item 222) Divorce may be affected in speech or in clear, understandable writing, whether signed by the husband or someone he has given agency to do so on his behalf..."

Taking the above into consideration, if the husband initiated the legal divorce, in that he appointed the court as an agent on his behalf to divorce his wife, then on the day the court issues the divorce, his wife will be also Islamically divorced.

The reason being that the husband appointed the court as an agent on his behalf to divorce his wife, and appointing a non-Muslim as an agent is considered to be valid in Shariah. (See: Radd al-Muhtar).

If the wife initiated the legal divorce and the court sent the divorce papers to the husband, and he willingly, understanding the contents of the writing, signed it, then his wife will be considered to be divorced from the time he signs the divorce papers from an Islamic perspective also.

However, if he did not sign on any written document, neither did he initiate the divorce, but the court divorced him on behalf of his wife against his will, then this, according to Shariah, will not be classed as a valid divorce.

Therefore, in your situation, if you signed on the legal divorce papers, then you have divorced your wife from an Islamic perspective also. There is no need to go through some other form of Islamic procedure of divorce.

And Allah Knows Best

[Mufti] Muhammad ibn Adam

Darul Iftaa

Leicester , UK


Signing Divorce papers without intention of Divorce

By Shaykh (Mufti) Muhammad Ibn Adam (HA)

Question: I have an urgent question. My brother became involved with another woman and wanted to marry her. This other woman placed a condition that he must divorce his first wife in order to marry her. My brother went to the Islamic court in our country and got himself a divorce certificate and told me to sign the certificate as a witness. When I declined to sign, he said he merely got this certificate to show the woman he intends to marry as a second wife, but does not really have an intention to divorce his wife. I tried my best to explain to him that this is not a good thing to do, and after much persuasion I managed to convince him. Now he is still with his wife and has forgotten the idea of marrying this other woman. The divorce certificate is with me and has not been signed by any witnesses. He himself did sign on the certificate wherein it states that he has divorced his wife three times.

My question is, will this count as a valid divorce in Islam, despite my brother not having an intention to divorce his wife. He merely did this to show the other woman that he has divorced his wife and did not have an intention to divorce his wife?

Answer: In the Name of Allah, Most Compassionate, Most Merciful,

1According to Shariah, speech and verbal utterance is not a necessary requirement for the validity of a divorce (talaq); rather, a divorce is effected by means of the written word also.

Imam al-Kasani (Allah have mercy on him) states:

".....Issuing a divorce verbally is not a condition. Hence, divorce will be effected with clear and unambiguous writing, or with the understood gesture of a dumb person, for the clear written word is in place of verbal utterance." (Bada'i al-Sana'i, 3/100)

Moreover, if the husband instructs a third person to write the decree of divorce for him and then signs this written document, divorce will be effected.

Imam Ibn Abidin (Allah have mercy on him) states:

"If the husband requested another person to write the declaration of divorce for him, and he (the writer) after writing it, read it out to the husband who took the divorce paper, signed and stamped it, and sent it to his wife, divorce will be effected if the husband admits that it is his writing." (Radd al-Muhtar, 3/246-247)

Therefore, if a husband instructed a third party to write out a declaration or certificate of divorce from him to his wife, and he then signed this declaration, it will be considered a valid divorce. The Hanafi jurists (fuqaha) consider this a form of verbal divorce, in that the husband instructed the third party to write out the divorce.

2Almost all of the Fuqaha, both past and present, are of the opinion that having witnesses is not a pre-requisite for a divorce to be valid. Divorce comes into effect regardless of whether witnesses are present or otherwise, though the recommended and correct method of issuing a divorce is to appoint witnesses, so that it prevents disputes in the future. This was explained in an earlier answer.

3) Divorce in clear words will be effected regardless of whether one issued the divorce in seriousness or jest, and regardless of whether one intended the outcome or otherwise.

Sayyiduna Abu Hurayra (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said: "There are three things which, whether taken seriously or in jest, are treated as serious (and the effect of them occur in all circumstances): Marriage, divorce and taking one's wife back (raj'a)." (Sunan Abi Dawud, no. 2188, Sunan Tirmidhi, no. 1184 & Sunan Ibn Majah, no. 2039)

Keeping these three points in mind, your brother's marriage to his wife has unfortunately come to an end and three divorces have come into effect making the divorce irrevocable. You state that your brother requested for the divorce certificate to be prepared and he then signed this certificate although he had no real intention of divorcing his wife. In light of the above, it is clear that divorce takes place even when one does not intend it, as long as it is a clear divorce. A witness signing the divorce certificate is also not a pre-requisite for the divorce coming into effect. As such, due to the divorce certificate clearly stipulating three divorces, his marriage with his wife is over and she must observe the waiting period (idda), after which she is free to marry someone else.

 And Allah Knows Best

[Mufti] Muhammad ibn Adam

Darul Iftaa

Leicester , UK


Wife Applying for a Decree Absolute after the Husband Initiates a Legal Divorce

By Shaykh (Mufti) Muhammad Ibn Adam (HA)

Question: I have been married for 8 years. My husband initiated divorce proceedings 18 months ago. In the letter from his solicitors, it mentions that 'my client wishes to start divorce proceedings and also that the marriage has broken down irretrievably. I received the first certificate of 'Decree Nisi' from the court 4 months ago.

My husband was given a certain time after which he was entitled to apply for the 'Decree Nisi' to be made 'Decree Absolute'. I discovered that his solicitor had sent him some paperwork for him to sign to enable them to make the 'Decree Nisi' into a 'Decree Absolute', but he failed to respond. The court has advised me that I am entitled to make the application for the 'Decree Nisi' to be made absolute; hence I applied for the decree to be made absolute.

What I would like to know is that once the court grants the 'Decree Absolute', would that Islamically count as a valid divorce, given that my husband failed to respond to the letter that his solicitor had sent him?

Answer: In the Name of Allah, Most Compassionate, Most Merciful,

When a husband files for a legal divorce, he appoints the court to divorce his wife on his behalf. Islamically, a husband has a right to divorce his wife either himself or by appointing someone else as his representative to divorce his wife on his behalf. It is not necessary that this 'representative' be a Muslim, as is the case in filing/petitioning for a legal divorce through the courts.

Shaykh Qadri Pasha states, in his decisive codification of Hanafi personal law, Al-Ahkam al-Shar'iyya fi 'l -Ahwal al-Shakhsiyya, which is a primary source for the personal law of several Muslim countries, and continues to be taught and used across the Islamic world:

'(Item 222) Divorce may be effected in speech or in clear and understandable writing, whether signed by the husband or someone he has given agency to do so on his behalf…' (Al-Fawa'id al-Aliyya ala 'l-Ahkam al-Shar'iyya fi 'l -Ahwal al-Shakhsiyya P: 120)

Thus, given the fact that your husband petitioned for a legal divorce and initiated the divorce proceedings, and thereafter he did not oppose the court in making the divorce decree absolute, Islamically a non-reversible (ba'in) divorce will take place on the day the court issues the 'Absolute Decree' of divorce. Legally, the petitioner can prevent the respondent from applying for a 'Decree Absolute', but due to the fact that he did not do so, the legal divorce would also count as an Islamic divorce.

As such, when you receive the Decree Absolute, you are no longer married to him and free to re-marry after completing the waiting period (iddah). You do not need to take an Islamic divorce from your husband. (For more details on legal divorce through a court, please refer to the answer already posted on this website titled: 'Legal Divorce according to Islamic Law'.)

And Allah Knows Best

[Mufti] Muhammad ibn Adam

Darul Iftaa

Leicester , UK


Court (Civil) Divorce due to Tax & Financial Reasons

By Shaykh (Mufti) Ebrahim Desai (HA)

Question: I have been seperated from my spouse for approximately 6 years and we have a 6 year old child.  He provided me with a court divorce for  tax and financial reasons a couple of years ago.  While recently speaking to him he indicated to me that he has always wanted me to return to him and still wants to be with me.  He never provided me with 3 talaks even when I asked.  And once upon our seperation he asked for my return but I indicated to him that he must try harder to make the marriage work as it seemed he was doing during the seperation period.  Is this marriage valid?  Can we do nikkah again and be together? Is this considered a final divorce?

Answer: In the Name of Allah, Most Compassionate, Most Merciful,

Assalaamu 'alaykum waRahmatullahi Wabarakatuh

The verdict of divorce given by the judge of a civil court, can only be regarded as a civil divorce and not a Shar'ī talaaq. The judge has been appointed by the country to issue verdicts in accordance to the law of the country and not in accordance to the laws of Sharī'ah. It is incorrect to say that the judge acts as a representative (wakeel) on behalf of the husband in issuing the divorce, as the judge does not issue the divorce on the request of the husband but gives his verdict of divorce in compliance with the law of the country. At times he may have to issue a verdict of divorce in accordance to the law of the country, even though his heart desires otherwise.

Therefore, the mere verdict of a judge of a civil court cannot be regarded as a Shar'ī talaaq. However, the husband's filing for divorce or signing on the papers of divorce can be regarded as a Shar'ī divorce only if he intends a Shar'ī divorce. If he intends to follow the civil divorce procedure and not to issue a Shar'ī talaaq, he should make two people his witness of his intention. This is merely a precaution to avoid accusation of a Shar'ī divorce against him.

If the husband issued a civil divorce merely for tax and financial reasons, without the intention of a Shar'ī talaaq, then in such a case, a Shar'ī talaaq will not take place and the marriage will remain intact. However, if the husband had the intention of issuing a Shar'ī talaaq as well, the nikaah will be terminated and in order to get together again a new nikaah will have to be made.

And Allah Knows Best

[Mufti] Ebrahim Desai

Darul Iftaa, Madrassah In'aamiyyah


Court (Civil) Divorce by itself counts as one divorce

By Shaykh Faraz Rabbani (HA)

Question: I divorced my wife in court, without pronouncing talaq on her outside. It has now been six years. Can we get back together?

Answer: In the Name of Allah, Most Merciful and Compassionate

May Allah's peace and blessings be upon His Messenger Muhammad, his folk, companions, and followers

Walaikum assalam wa rahmatullah,

Ipray this finds you in the best of health and spirits.

 

The court divorce would count as one divorce, as a written declaration of divorce counts as divorce (talaq). [Qudri Basha, al-Ahkam al-Shar'iyya fi'l Ahwal al-Shakhsiyya]

It would be permitted for you to get back together, but after a new nikah. [ibid.] It would be proper to seek the guidance and assistance of a reliable local scholar in this process.

And Allah alone gives success.

Faraz Rabbani