Custody of child

Fatwa ID: 02414

Answered by: Molana Eunus Ali

Question:

My question is related to divorce and taking back my ex wife. I was married in 2008 in Pakistan and I have a son who is 7 years old now. I divorced my wife in 2014 via text message and I only sent the just the one text message with the words "I divorce you" I did not try to reconcile the matter or try to take her back. We agreed between us both and her family that when the child reaches the age of 7 the child will be handed over to me, as per the agreement I was ready to take my son and bring him over to the UK and live with me but I faced many challenges for visa requirements.
In order for me to do that there is was certain documents required by UKBA to obtain a visa for my son such as a divorce certificate issued through the union council of Pakistan and the Pakistani courts followed by a custody/guardianship again through court. Therefore I decided to contact the union council in Pakistan through a lawyer who helped me file for divorce according to the judicial laws of Pakistan to obtain a legal divorce on paper to demonstrate and provide evidence and satisfy the requirement to UKBA for my sons visa. I was successful in obtaining the divorce certificate and the custody through the Pakistani union council and Court and according to Pakistani law we are officially divorced even though islamically we were divorced through the first text message I sent and with no reconciliation.
My question to you now is that have I divorced my ex wife once or more than once as I did go through the union council and the Pakistan courts to obtain a divorce certificate? There was no intention of divorce at this time as I was already divorced and was fulfilling a formality and to satisfy the requirement of UKBA in order to get the visa for my son.
Please note that the original divorce text message was sent in 2014 and I filed for divorce through Pakistan union council and court in  2016 as I was awaiting for my son to reach the age of 7.

Is it still permissible for me to remarry her through a new Nikah or not?

I look forward to hearing back from you.

Answer

بسم الله الرحمن الرحيم

The divorce issued by you is termed ‘at-Talaq al-Ahsan’ (the best form of divorce) whereby only one divorce is issued and the wife is allowed to sit her iddah till the term is completed without any further divorces being issued.

This is considered the best form of divorce because the marriage can be reconciled during the iddah period or the marriage can be renewed after the iddah without the need of halalah[1].[2]

In regards to your question as you had only issued one divorce and no further divorces were issued it will be considered a ‘at-Talaq al-Ahsan’as mentioned above.

Hence by requesting the official letters from the council after the iddah had been completed (by 2 years), it will not have any effect on any future marriage as she was not your wife at the time of acquiring the documents from the council.

Therefore it will be permissible for you to remarry her.

It should be noted that the normal procedure of marriagewill need to be followed for example two witnesses, mahr etc.

Only Allah knows best

Written by Molana Eunus Ali

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham


[1]Whenthe husband issues his wife three explicit talaqs, whether it be on three separate occasions or in one go, their marriage will terminate immediately and it will notbe permissible for the couple to reconcile the marriage or remarry until the wife after completing her waiting period marries a second person and consummates the marriage with him; thereafter the second husband either divorces her or dies. Then only after completing her waiting period (from the second husband) the wife is allowed to re-marry the first husband. This process is termed halalah.

 

[2] Al BinayahSharhulHidayah, Volume 5, Page 282, Darul Kutubul Ilmiyyah

 

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