Fatwa ID: 01539

Answered by Mufti Mohammed Tosir Miah

Question:

I’ve been separated for more than 6 years; I had my decree nisii done 2 years ago by English laws. Do I need to apply for khulla?

Answer:

In the name of Allah, the most Beneficent, the most Merciful.

Decree Nisi and Decree Absolute.

In Britain divorce proceeding are carried out as follows:

1. The petitioner (man or woman) writes to the court giving reasons for wanting to separate.
2. The judge issues a letter titled ‘Divorce Petition) to the opposite part (respondent), putting forward any questions that need to be answered.
3. 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:

1. 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.
2. 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.
3. 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. 
4. 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.
5. The fifth issue is, the husband acknowledges and accepts his mistake and is willing to fulfil her rights, but the judge issues a divorce.
6. 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.
7. 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)

Regarding your question, you will have to wait for a decree absolute before your marriage is considered to have come to an end. A decree absolute is considered to be a Talaq in Islam; therefore, there is no need for you to apply for a Khula afterwards.

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham