Fatwa ID: 07087
Answered by: Maulana Abdul Malik
Question:
I left my marital home following domestic abuse earlier last year. Verbal, emotional, financial abuse had been ongoing since the early days of marriage (feb 2017), in addition to physical abuse towards my 4 year old, and to me when I was 8 months pregnant with the second last year in Jan.
I finally left my marital home and didn’t return after my husband abandoned us for the second time when I was in hospital with my 2.5 week old second born fighting for her life with bacterial meningitis. Hence, have been separated from my husband since 13th April 2022.
He told me to take our belongings from our marital home during this time, hence having thrown us out. There was no financial support for me in this time and bare minimum £100-200 for the girls, bare minimum in the beginning and then no contact with the children or to ask if they were ok. I filed for divorce and it was issued on 12th October and he acknowledged and signed it on 25th December.
I was now going to file for Khula, and was looking to send it off when I came across information about what’s known as ‘Faskh’ which might be more relevant to my case. Due to the abuse, having been paid no agreed mehr at the time of the nikah, up until now. Also, in my nikah form I had asked for the right to divorce and it wasn’t nullified.
But now that I read the ‘Muslim Marriage and Divorce’ booklet on your website, it seems that his signing on the divorce agreement would be a valid Islamic divorce from him. Is that correct?
I also need clarification on where he’s still liable to pay the Mehr to me?
And finally about my iddah. As I left the marital home when I was under 3 weeks postpartum, do I still need to observe iddah and if yes, then how long for?
I am worried now that if when he signed the divorce agreement that is acceptable as a valid Islamic divorce, have I missed my iddah?
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
It is not allowed for a woman request a divorce without a valid reason.
It is narrated from Thawban (May Allah be pleased with him) that the messenger of Allah (May Allah’s peace and blessings be upon him) said; “Whichever woman asks her husband for a divorce, for no reason, then the smell of paradise is forbidden for her” (Sunan Tirmizi, hadith, 1187)[1]
However, when there is a breakdown in the marriage to the point where there is no room for reconciliation. In addition, the wife is being abused by her husband and her rights are neglected. In such situation it would be allowed for her to request a divorce from her husband.
Regarding the divorce issued by the civil court, If the husband requested another person to write the declaration of divorce for him, and he (the writer) after writing it, read it out to the husband who took the divorce paper, signed and stamped it, and sent it to his wife, divorce will be effected if the husband admits that it is his writing. (Raddul Muhtar, pg 456, vol 4)[6]
Thus, If a wife files for a legal divorce, and the husband – understanding the contents of the divorce papers sent to him – signs and gives his ‘clear’ and ‘absolute’ consent for the divorce to go ahead, then this too constitutes an Islamic Divorce.
However, if the husband does not sign on any written document or he fails to give his ‘clear’ consent for the court to go ahead with the divorce, but the court divorces him on behalf of his wife against his will, then this does not constitute a valid Islamic divorce.
Secondly, regarding the unpaid Mahr (dowry), if it was stipulated before the marriage and the marriage is consummated then it is necessary for the husband to pay the entire Mahr that was stipulated. In your situation it will be necessary for your husband to give you the agreed upon Mahr in full after divorce. (Bada’i al Sana’i, pg 493, vol 3)
Now regarding your iddat, you will start counting your iddat from the time your husband willingly signed the divorce papers. (Bada’i al Sana’i, pg 490, vol 4)
Your iddat will be three (3) menstrual cycles. (Al Hidaya, pg 281, vol 3)
[1] عَنْ ثَوْبَانَ أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ “ أَيُّمَا امْرَأَةٍ سَأَلَتْ زَوْجَهَا طَلاَقًا مِنْ غَيْرِ بَأْسٍ فَحَرَامٌ عَلَيْهَا رَائِحَةُ الْجَنَّةِ
[2] ولو استكتب من آخر كتابا بطلاقها و قرأه على الزوج فأخذه الزوج و ختمه و عنونه و بعث به إليها فأتاها، وقع إن أقر الزوج أنه كتابه
[3] أن المهر قد وجب بالعقد و صار دينا في ذمته
[4] و على هذا يبني وقت وجوب العدة أنها تجب من وقت وجود سبب الوجوب من الطلاق والوفاة و غير ذلك…..
[5] و إذا طلق الرجل امرأته طلاقا بائنا أو رجعيا أو وقعت الفرقة بينهما بغير طلاق و هي حرة ممن تحيض:
فعدتها ثلاثة أقراء
Only Allah (عز و جل) knows best.
Written by Maulana Abdul Malik
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
