We were married and had civil marriage as well. Due to certain reasons, I first gave divorce to my wife in march 2006 when I said " I’m giving you first divorce" we however started to live together after a short gap of about less than a month, which I understand based on my wording was an Islamic divorce. I am however not sure whether my wife was in her periods at that time or not.
We had difficult time again in 2008 and I cautioned her though on numerous occasions that mind the behaviour or " I will divorce you".
We had a separation of about 2 years but we have been regularly meeting each other with our daughter.
I applied for a civil divorce and had got decree nisi but some of the concerns are still around with regards to uncomfortable behaviours and I feel there are certain encouraging factors that are not letting this behaviour to be controlled.
Can I ask you if we go ahead with the decree absolute, would that Decree Absolute nullify our Islamic Nikah as I had already given her one divorce. Secondly can we live as husband and wife under the shariah law and at what stage a Tajdeed-eh Nikah is mandatory.
I would very much appreciate your guidance in this regard.
In the name of Allah, the most Beneficent, the most Merciful.
We will look at your situation one by one under the following sub headings.
March 2006 when you said " I’m giving you first divorce"
The aforementioned statement will effect one revocable divorce known in the Shariah as talaq rajee. This divorce will still be counted irrespective of whether your wife was on her menses or not. The same way three talaqs in one sitting is unlawful and sinful but if he does so, the talaq is valid and comes into effect, the same can be said regarding talaq in the state of haidh or nifas. (Fatawa Hindiyyah p.349 v.1)
Saaiduna Abdullah Bin Umar Radiallahu Anhu relates that in the time of the Prophet of Allah Sallallahu Alahi Wasalam he i.e. Abdullah Bin Umar Radiallahu Ahu divorced his wife while she was menstruating. Saaiduna Umar Bin Khattab Radiallahu Anhu asked the Prophet of Allah Sallallahu Alahi Wasalam about it. The Prophet of Allah Sallallahu Alahi Wasalam said: "Command him to take her back. Then he should keep her until she becomes pure and then menstruates and becomes pure. Then, if he wishes, he can keep her, and if he wishes, he can divorce her before having intercourse with her. That is the prescribed period which Allah has fixed for the women to be divorced." (Sahih Bukhari )
Thereafter, Imam Bukhari (RA) forms a chapter entitled, "Chapter with regards to a menstruating woman when she is divorced, it is counted as a divorce".
In 2008 when you said “if you don’t mend your behaviour I will divorce you".
The aforementioned statement will not effect a divorce. The Islamic ruling regarding divorce being uttered in the future tense is that divorce does not occur. They are merely a promise or a warning and promises and warnings do not effect divorce. (Badaaius Sanaai p.210 v.2)
Therefore, at this point in 2008 you and your wife are still considered lawfully married in the eyes of the Shariah.
Decree Nisi and Decree Absolute.
In Britain divorce proceeding are carried out as follows:
- The petitioner (man or woman) writes to the court giving reasons for wanting to separate.
- The judge issues a letter titled ‘Divorce Petition) to the opposite part (respondent), putting forward any questions that need to be answered.
- 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:
- 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.
- 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.
- 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.
- 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.
- The fifth issue is, the husband acknowledges and accepts his mistake and is willing to fulfil her rights, but the judge issues a divorce.
- 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.
- 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 and the woman’s iddat will also start. (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. Thus, along with the earlier talaq rajee which you gave her in 2006 you would have given your wife two clear and revocable divorces. The marriage in this situation will be considered to be intact until your wife’s iddat (three menstruation cycle) finishes. Thereafter, the marriage will break and you can get back together again by redoing the marriage in the presence of two male witnesses or one male and two female witnesses. Also a new dowry will have to be set.
If the judge uses the words “separation” or “dissolve” etc…. then a talaq bain will occur straightaway and the nikah will break. You can redo the marriage within her iddat or afterwards in the presence of two male witnesses or one male and two female witnesses. Also a new dowry will have to be set. (Fatawa Hindiyyah p.472 v.1)
Finally, remember in both situations if you decide to remarry you will only have one divorce left at your disposal. If you were to divorce your wife again then she will be unlawful for you unless she does halalah.
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham.