Fatwa ID: 06862
Answered by: Alimah Saleha Bukhari Islam
Question:
I need to know if a couple having issues living together and lives apart for 3 years and things go to court. The court has issued a final order of divorce. Now the couple wants to reunite. What Shariah says in this matter is whether the Islamic divorce is done after the court decision or what the way to a reunion of the couple.
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
When the judge issues a final order of divorce, it comes in the form of a Decree Absolute; I understand you have received this from the courts. After the initial petitioning stage, the judge issues a final and absolute divorce, which is termed ‘Decree Absolute’. According to the legislative law of the country, both spouses are officially separated and the civil marriage has been completely annulled. There are several factors to look at before concluding this matter.
We need to look at how this can have an impact on Islamic marriage (Nikah). Below is a summarised list of the various ways divorce proceedings are carried out according to the British judicial system. There are seven scenarios to consider:
- If the husband files a petition for divorce in the county court and demands separation (it is as though he has made the judge his representative to administer the divorce to his wife). The divorce will be considered valid and the woman can remarry after completing her waiting period (Iddah). She does not need to take an Islamic divorce from her husband as it is deemed valid by Sharia Law.
- If the wife files a petition for divorce the court begins proceedings, and the husband gives permission to the judge to proceed in clear terms, then the divorce is deemed valid by Sharia Law.
- If the husband goes to his solicitors after having received the divorce petition and is advised that there is no benefit in defending the case except delay with financial implications and the court will issue the divorce in any case. Based on this advice, if the husband willingly signs the divorce petition then the divorce will be considered valid by Sharia Law.
- If the wife files for a divorce and the judge sends the divorce petition to the husband, but the husband defends his case because he is unwilling to divorce her; despite this, the judge issues a divorce – then divorce is deemed invalid according to Sharia Law.
- If the husband acknowledges and accepts his mistake and is prepared to fulfil the rights of the wife, but the judge issues a divorce – then divorce is deemed invalid according to Sharia Law.
- If the husband receives the divorce petition but does not proceed with the case nor does he show a willingness to divorce her (does not respond), and the judge issues a divorce – then divorce is deemed invalid according to Sharia Law.
- If the husband receives the divorce petition but refuses to defend his case and is unwilling to divorce his wife, and despite this the judge issues a divorce – then divorce is deemed invalid according to Sharia Law.
In the last four cases, 4-7, the Islamic marriage will be unaffected and remain valid. The husband and wife are still considered married according to the Sharia Law. Therefore, the woman cannot marry another man in these situations. If she does, the marriage will be void and both will be considered to be living in sin.
(Asr Hadhir Ke Pechida Masaail p.25 – p.31 v.2)
If cases 4-7 apply to you then your Islamic marriage is still intact although the civil divorce would have occurred. You will no longer be husband and wife according to the law of the country.
We see that divorce is considered valid from a Sharia perspective only in the first three cases. Therefore, the Islamic Divorce has occurred by default in cases 1-3. And so according to the Shariah Law, an Islamic divorce would have occurred on the date the Decree Absolute was granted.
(Asr Hadhir Ke Pechida Masaail p.31 v.2)
If cases 1-3 apply to you then your Islamic divorce needs reviewing in light of the legal phrases/words used by the judge. The question would now arise as to what type of divorce would have occurred.
To understand this, we need to look at the two types of words or phrases which affect divorce; clearly expressed words (Sarīh) which give effect to immediate divorce, and ambiguously expressed words (Kināyah) which necessitate the expression of intention.
- Sarīh (clear): This is when a husband issues his wife a divorce (talaq) in clear terms, using clear phrases/words such as; “I divorce you” or “you are divorced” etc
Using clear phrases/words will cause one divorce (Talaq Raji’) to come into effect and no consideration is given to intention.
(Al lubaab fi sharh al Kitab, pg 100, vol 4)[1]
- Kināyah (ambiguous): This is when the husband issues his wife a divorce (Talaq) using unclear phrases/words which are not specifically used for issuing divorce but rather indicate it. Furthermore, there is the condition that Kināyah phrases/words do not affect divorce without consideration given to the intention of the husband and the circumstances under which he uttered them.
(Al lubaab fi sharh al Kitab, pg 103, vol 4)[2]
Your position to reunite as husband and wife will depend on what kind of phrases/words the judge used to disband the marriage. If he used Sarīh (clear) phrases/words such as “I have thereby granted a divorce…” or the likes then one Talaq Raji’ would have occurred. At this stage, your husband can retract the Talaq within the Iddah period and your Islamic Marriage would be intact. If you have passed the Iddah period then one Islamic divorce would have occurred and your ex-husband may remarry you.
However, if the judge used the words “separation” or “dissolve” or the likes then a Talaq Bain would have occurred immediately and the Islamic marriage (Nikah) would have broken too. If this is the case and the number of Talaq’s administered is less than three, the ex-husband may marry his ex-wife within the Iddah. (Fatawa Hindiyyah p.472 v.1)[3]
Only Allah (عز و جل) knows best.
Written by Alimah Saleha Bukhari Islam
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
[1] والطلاق على ضربين: صريحٍ، وكنايةٍ، فالصريح قوله: أنت طالقٌ، ومطلقةٌ، وطلقتك، فهذا يقع به الطلاق الرجعي
(و لا يفتقر إلى النية)
[2] والضرب الثاني: الكنايات، ولا يقع بها الطلاق إلا بنيةٍ أو دلالةٍ حالٍ
[3] إذَا كَانَ الطَّلَاقُ بَائِنًا دُونَ الثَّلَاثِ فَلَهُ أَنْ يَتَزَوَّجَهَا فِي الْعِدَّةِ
