Is a Decree Absolute considered to be an Islamic divorce

CategoriesDivorce [572]

Fatwa ID: 01840

Answered by Mufti Mohammed Tosir Miah

Question:

I hope you can help me with my dilemma. I had an arranged marriage in August 2013; Nikkah followed by a civil registration a week later.
From day 1 I realised there was a problem with our marriage. He was very distant, cold and detached. He did not talk to me on our 10 day honeymoon abroad. I tried multiple times to address the issue but he would always give a non-marriage related reason such as work stress or money related issues. It soon became very evident to both families that there was a big issue at hand. He stopped talking to me and whenever I tried to resolve matters, the discussion was always emotionally abusive towards me; I was always made to feel that there was a fault in me and it was my fault we were in this situation. My mother and father in law were very supportive of me as I was living with them and they could see that their son was in the wrong. Both of our parents tried numerous times to sit together and resolve the matter, to which my husband would always conclude; "I will try again".
 

6 months into a very emotionally abusive marriage, my husband became very physically aggressive towards me. One night he was threatening to kill me as I was causing a misery in his life. My mother and father in law had to protect me from my husband and they escorted me to out of the house and took me to my parents house at 2am. They were very apologetic for their sons behaviour and were begging me for their forgiveness.

ONE OF THE ISSUES WITH THE MARRIAGE WAS THAT IT WAS NOT CONSUMMATED.

I waited for two months at my parents house and my husband and in laws made no effort to contact me whatsoever. I had plenty of time to think about matters and I decided that I did not want to carry on in an abusive marriage. I am a doctor and it had affected me in every aspect of my life; emotionally, physically, spiritually as well as my work. To the point I was needing counselling.

My father met my husbands father and expressed my wishes to end the marriage. My father in law agreed that they would cooperate.

I initiated annulment proceedings as according to the English law, our marriage was void due to non consummation.

My husband has acknowledged the petition of "wilful refusal of consummation" and has not defended it. The decree nisi has now been granted and I am awaiting the decree absolute.

Through family and friends I have asked my husband to also give me an Islamic divorce. However I have not heard or seen him since the night I left his house. He has not made any form of contact.
He is effectively refusing to give me an islamic divorce. He is also refusing to give back the furniture my parents gave to me as a wedding present worth £20,000.

My questions are:

1. Where do I stand islamically is my marriage was not consummated?
2. Will I still need an Islamic divorce if our civil marriage is annulled as my husband is effectively agreeing to end the marriage contract?
3. Will I need to observe the iddah period if my husband has admitted there was no consummation?

Answer:

Bismillah

Decree Nisi and Decree Absolute.

In Britain divorce proceeding are carried out as follows:

  1. The petitioner (man or woman) writes to the court giving reasons for wanting to separate.
  2. The judge issues a letter titled ‘Divorce Petition) to the opposite part (respondent), putting forward any questions that need to be answered.
  3. If the respondent acknowledges the letter and signs it without answering the question.

Then the judge processes the case according to the law, and finding sufficient causes, will write that the marriage has broken down irrevocably unless sufficient cause is shown to the court within six weeks and that there is no opposition between the parties.  This is termed ‘Decree Nisi’.  If no one opposes this decree within this period, then the petitioner has to apply for the final decree and the judge issues a final and absolute divorce, which is termed ‘Decree Absolute’.  According to the law of the country, both are separate and their marriage is completely annulled.  They are now free to marry someone else.

Let us look at the issues in light of the sacred law:

  1. If it is the case, where the man files a petition for divorce in the county court and demands separation, then in this, as the man has the right to divorce, he can use it or make someone else his representative.  So, it is as if he has made the judge his representative to divorce his wife.  It is not necessary that the representative be a Muslim, as is the case in the court of this country.  The divorce will take place issued by the judge and the woman can marry someone else after completing the waiting period (Iddah).  She does not need to take an Islamic divorce from her husband.
  2. If it is the case where the woman files a petition for divorce and when the court case begin proceedings, the man gives permission to the judge to proceed in clear terms, then in this case also the divorce will take place.
  3. The third issue is, if the man goes to his solicitors after having received the divorce petition to give a reply.  Generally, the solicitor advises clients of no benefit in defending the case except delay with financial implications, with the court issuing the divorce in any case.  Because of this, the solicitor writes that both husband and wife will separate or the husband signs and sends the divorce petition to the county court, willingly.  Therefore, in this case also the divorce will take place because of the willingness of the husband. 
  4. The fourth issue is, if the woman files for a divorce and the judge sends the divorce petition to the husband, but the husband defends his case and is not willing to divorce her, but despite this the judge issues a divorce.
  5. The fifth issue is, the husband acknowledges and accepts his mistake and is willing to fulfil her rights, but the judge issues a divorce.
  6. The sixth issue is, the man receives the divorce petition but does not proceed with the case nor does he do anything to show his willingness to divorce her, but the judge issues a divorce.
  7. The seventh issue is, if the woman files for divorce and the judge sends the divorce petition to the husband, but he refuses to defend his case and is not willing to divorce her, despite this the judge issues a divorce.

In the above four cases, according to Islamic law the husband and wife are still considered marred. The woman cannot marry another man. If she does, the marriage will be void and both will be considered living in sin. (Extracted from Asr Hadhir Ke Pechida Masaail p.25 – p.31 v.2)

According to the Shariah, an Islamic divorce would not occur at the granting of a decree nisi. However, from the date the decree absolute is granted, an Islamic divorce will occur.  (Asr Hadhir Ke Pechida Masaail p.31 v.2)

The conclusion we can come to is that if you do not proceed with the decree absolute your nikah and marriage is still intact as a decree nisi does not effect a divorce. However, if you proceeded if a decree absolute then an Islamic divorce will occur.

Now the question is what type of divorce will occur?

The words which effect divorce are of two types:

1) Clear and plain words (sareeh)

2) Ambiguous and allusive words (kinaya)

Sareeh means expressly pronouncing the word divorce or words derived from it, such as: “I divorce you” or “you are divorced” etc… Clear and plain words effect divorce whether one intends divorce by them or not. (Hidayah  p.359 v.2 & Fatawa Hindiyyah p.354 v.1)

Kinaya means using words that are not exclusively prescribed for issuing divorce, but alludes and hints to it. Kinaya words do not effect divorce unless one intends divorce by them or it is determined by the circumstance one is in. (Hidayah p.373 v.2 & Fatawa Hindiyyah p.374 v.1)

The kinaya words effect a talaq bain (irrevocable divorce) when one intends divorce by them. (Hidayah p.374 v.2)

The answer to the earlier question depends on what kind of words the judge uses to dissolve the marriage. If he uses words such as “I have thereby granted a divorce etc…” then one talaq rajee will occur.

If the judge uses the words “separation” or “dissolve” etc…. then a talaq bain will occur straightaway and the nikah will break. (Fatawa Hindiyyah p.472 v.1)

Regarding whether you will have to observe the iddah or not depends on whether you were alone with your husband and is not dependant on whether there was actual intercourse or not.

If the husband and wife had “Khalwah Sahihah” i.e. if they were together at a private place without any apprehension of interference by someone and there is nothing to prevent them from having sexual intercourse, this type of privacy (Khalwah Sahihah) carries the same legal consequences as actual intercourse. (Maariful Qur’an p.187 v.7 & Fatawa Hindiyyah p.526 v.1)

Only Allah Knows Best

Mufti Mohammed Tosir Miah

Darul Ifta Birmingham

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