How Long Can a Couple Be Separated While Remaining Legally Married in Islam

CategoriesMarriage [657]

Fatwa ID: 05690

 

Answered by: Maulana Syed Johir Miah

 

Question:

 

 

I was a victim of domestic abuse for 6 years. We got married 10 years ago in Jan 2011. We had 1 son in 2015. That’s when my husband started getting abusive which was mainly emotional, mental and it was occasionally physical.

 

On Sunday 8th August, he was shouting, threatening me and physically assaulting me. I called the police the first time. They took him for questioning but released him without charges. Meanwhile, I was placed in a shelter along with my son, by the council.

 

The shelter is not a suitable place for me and my son. Even though I have very limited contact with my husband, which is only regarding him meeting our son. He has clearly stated that he wants us to move back to our home. He said that he is willing to move out just so our son and I can live comfortably. He is being very cooperative in sorting out our housing and having flexible and mutually decided child living arrangements.

 

Now he does not want a divorce and I do not want a khula or a divorce. BUT I am very sure that I don’t want to live with him under the same roof because it is a detrimental, toxic and abusive environment for me & my son.

 

Hence, I am willing to live in our house with my son BUT my husband shall not be allowed to enter it or trespass it, during our separation period. The separation period will be for 3 months minimum.

 

I have contacted a family lawyer and he will help me draft a legal settlement agreement that will specify the same, along with the child custody days and financial obligations of my husband. The house is owned solely by him and he is the financial provider as he is employed full time.

 

I need to know if this is allowed and basically a fatwah detailing how long we can be separated this way while remaining legally married. We had our Nikah in Pakistan.

 

Currently, my husband and my son are British nationals but I’m on a spouse visa. My immigration lawyer has started my proceedings for an ILR under DV (domestic violence)I require advice and the fatwa urgently, please.

 

 

In the name of Allah, the Most Gracious, the Most Merciful

 

Answer:

 

We are sorry to hear that you have been a victim of domestic violence.

 

Marriage comes as a challenge just as many things in life come as a challenge.

 

What makes marriage different to the single life is that after marriage a person has responsibilities that make him mature.

 

Where there arise differences between the husband and the wife, they should talk it through and resolve the matter with mutual respect. One cannot expect their spouse to make all the sacrifices while they are not willing to make any or even negotiate.

 

Divorce is the right of the husband and Islamically it is an expression in the meaning intended to dissolve the marriage contract[1].

 

Hence, every division between a husband and his wife that occurs on the part of the man is called divorce (Talaq) [2].

 

Whilst Khul is the right of the wife and it is; When the spouses clash with each other and fear that they will not be able to uphold the boundaries set by Allah, then there is no objection to her ransoming herself from him with property for which he will release her [3].

 

You mentioned that your husband does not want a Talaq, neither do you want a Khul.

 

However, you have contacted a family lawyer and he will help you draft a legal settlement agreement that will specify the same, along with the child custody days and financial obligations of your husband. You also noted that the separation period will be for 3 months minimum.

 

Hence, in your case, it will be permissible for you and your child to live in your husband’s house while your husband lives elsewhere until things have improved and he moves in.

 

This is permissible and you can continue this way until things improve, while remaining legally married. However, we advise you to contact a local Mufti who can counsel you on marriage and Insha Allah to improve the situation between yourself and your husband.

 

 

Only Allah knows best.

Written by Maulana Syed Johir Miah

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham

 

 

 

 

[1]وهُوَ فِي الشَّرْعِ عِبارَةٌ فِي المَعْنى المَوْضُوعِ لِحِلِّ عُقْدَةِ النِّكاحِ

Al-Jawharatun Neeratu Ala Mukhtasaril Quduri, 30/2, Al- Matbaatul Khayriyyha, 1322 H

 

 

[2]كل فرقة بَين الرجل وامرأتة وقعت من قبل الرجل فَهِيَ طَلاق

Al-Hujjah Ala Ahlil Madinah, Muhammad, 504/3, Alamul Kutub, Beirut, Lebanon, 1403 H.

 

 

[3]إذا اشتاق الزوجان وخافا أن لا يقيما حدود الله فلا بأس أن تفتدي نفسها منه بمال يخلعها به فإذ فعل ذلك وقع بالخلع تطليقة بائنة ولزمها المال

Mukhtasarul Quduri, Quduri, 163, Darul Kutub Al-Ilmiyyah, Beirut, Lebanon, 1418 H.

 

 

 

About the author