Fatwa ID: 04827
Answered by: Mufti Mohammed Tosir Miah
Question
Assalamu Alaikum
I am a South African female and came to this country with my husband who is also South African in 2003, just after we got married. Alhamdulillah, we had a son in 2007 but separated 6 months later and I went back to SA to my parents. After many years of maternity leave, I decided to come back to the UK and resumed work. I share a house with a Muslim family and the lady of the house is also my childminder. My son, who is now 3 and a half years sees his father regularly and has an excellent relationship with him. Three talaaqs were issued in one go in writing when I came back to the UK after our separation and I have always acknowledged that my marriage is no longer valid, though my husband wants to reconcile. I am 38 years old and my parents now want me to go back to SA as I do not have ‘my’ family support system here but my son is so attached to his father, and I would hate to take him away from his father- who will not go back to SA as he is now British. Please advise me on what I should do. I know its wrong for me to live in a house with people who are not my family (man of the house not mahram)
I do not have the strength to leave the good prospects my son could have by living in this country compared to SA but at the same time, I am living as a single mother. Please make this decision for me as I am torn about what to do.
In the name of Allah, the Most Gracious, the Most Merciful
Answer
In a situation where children are involved, divorce should definitely be avoided as much as possible, as this will inevitably affect the welfare and upbringing of a child.
The Prophet of Allah (SAW) has said; “Divorce is the most hated of all lawful (halal) things in the sight of Allah.” (Sunan Ibn Majah p.146 v.1)
However, sometimes separating is the best solution for both parties and the husband and wife divorce. During this difficult period, it is important that children’s rights are not being abandoned.
At the time of The Prophet of Allah (SAW) a woman came to him and said “ O’ Prophet of Allah, for this son of mine my womb, was a plate, my lap was a resting place and my breasts a means for him to quench his thirst, and now his father wants to take him away from me. So the Prophet of Allah (SAW) said “You have more right over him until you get married.” (Sunan Abu Dawud)
If the separation takes place between couples that have young children, the ruling is as follows:
The mother has a right of custody for a boy until the child is capable of taking physical care of himself, for instance, the child should be able to feed himself and go to the toilet by himself etc, this is approximately at seven years old, and the fatwa has been issued on this age. In the case of a girl, the mother has custody for her until she has reached the age of puberty, which has been declared at nine years old. (Raddul-Muhtar p.252-265 v.5, Ahsanul Fatwa p.458-459 v.5)
It should also be borne in mind that the boy remains in his father’s custody until puberty, at which point he has a choice to whom he wants to live with or perhaps he may wish to live by himself. The girl on the other hand will remain with the father until she gets married. (Fatawa Hindiyyah p.542 v.1)
If the mother wants to move to another town or city with the child then if the following two conditions are found (both have to be found) it will be permissible.
- If it is her hometown.
- The marriage was contracted there. (Hidayah p.436 v.2)
With regards to your question, if you did move back to South Africa then it will be permissible as it is your home country and the marriage was also conducted there. However, my humble opinion is that it is best to stay in the UK so that your child can be closer to the father. There is nothing wrong in living with a family as long as there is no intermingling between you and the men in the family with who you are living.
Only Allah Knows Best
Written by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
