According to Shariah Law the child (male) goes to the father at the age of seven. However, we contacted solicitors who have advised us that Shariah Law is not recognised and does not apply here and that we should follow the law of this country. The law states that the mother has the right to the child until the age of 16; thereafter the child can make their own choice of where to live. What should we do, please advise.
In the name of Allah, the most Beneficent, the most Merciful.
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 the 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 who 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 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 p458-459v.5)
The reason for the mother and the other female relatives are foremost for raising the child in the early years (until seven for a boy and nine for a girl) is that they tend to show the child more love, mercy, attention and motherly care. When the boy has reached seven, he is known to need education and discipline, thus the responsibility is passed to the father. The girl when she reaches puberty (age of nine), She is in need of protection, which the father provides and offers.
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 p542 v.1)
An additional point is that, the husband and wife should remember that whoever has custody it is not acceptable to refuse or reject visitation rights to the other party. This is against Islam and very harmful for the child.
In regards to your question, it should be borne in mind that Muslim are obliged to abide by the laws of the land and country they live in, whether it is a Islamic State, Muslim country, or non Muslim Country, as long as they are not ordered to practice something that is against Shariah.
It is narrated by Sayyidina Abdullah Ibn Ummar (RA) that the Prophet of Allah said: “It is necessary upon a Muslim to listen and obey the ruler, as long as one is not ordered to carry out a sin. If he is commanded to commit a sin, then there is no adherence and obedience. (Sahih Bukhari)
When one lives in a particular country, one agrees to adhere to the rules and regulations of that country. This is a promise or a trust. One is obliged to fulfil a trust whether it is contracted to a Muslim or non Muslim. Sayyiduna Abu Hurayra (RA) narrates that the prophet said: “the signs of a hypocrite are three: when he speaks he lies, when he makes a promise he breaks it, and when he is given trust he breaches it.” (Sahih- Bukhari)
The rulings in regard to the custody of a child is a Ijtihadi ruling, which is something not compulsory like the five daily prayers, or the fast of Ramadan, hence there is some scope of flexibility if one is not able to act upon it due to the law of the country.
Only Allah Knows Best.
Mohammed Tosir Miah
Darul Ifta Birmingham.