Fatwa ID: 06690
Answered by: Muftiyah Habiba Akhtar
Question:
Can you please tell me if a civil divorce in a European court in front of a non-Muslim judge is a valid Islamic divorce if the husband gives his consent verbally in front of the judge, lawyer, and wife? The judge asked him if he agrees to the request for divorce from his wife and also wishes to get divorced. He answered, “Yes, that’s right”. Now after the Iddah is over he is saying that it was only a German divorce, not an Islamic and that the wife needs to apply for it from a Muslim Judge or the husband needs to say Talaq. Can you please guide me? Divorce is a serious issue. How someone can say, “yes” and give their comänsent and afterwards say that they are in a lumbering marriage because it doesn’t count as Islamic divorce? If he intended this he should have communicated it.
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
Civil divorce and sharee divorce are considered separate due to their context.
A civil divorce is the annulment of a court marriage as a judge only has the right over a court marriage. He can’t go ahead and trespass his criteria of work. (1)
Therefore, generally, a civil divorce is in junction with a civil marriage.
However, it will be better to understand by understanding the laws pertaining to divorce:
When issuing divorce, the state of the words is considered. Therefore, statements of divorce are considered to be clear (Sarih) or Kinayah (unclear or ambiguous).
Such (Clear) divorces (by the use of the term Talaq) are of immediate effect as saying these direct words which only have the use of divorce is accompanied with intention (2).
Therefore, we can establish that when one uses clear words (the term Talaq used), then divorce is considered to be in effect. Use of such an uncommon word would need to be intended.
On the other hand, a statement that is ambiguous would differ.
When a statement is Kinayah, then the divorce isn’t effective unless it was accompanied by an intention specific to divorce or circumstantial evidence. (3)
The reason for this is that the words used are common and not specifically reserved for the use of divorce and thus can imply divorce or another meaning.
This is effective in your case as your husband would have had to have associated an intention of sharee Talaq when divorcing you civilly as the method of divorce was not the clear route according to Islam.
Therefore, in response to your query, if your husband hasn’t intended sharee divorce from your Nikah, then the Nikah remains intact though the civil marriage breaks.
Of course, as a civil divorce has occured, it can be seen that the marriage has broken down and you may ask your husband for a khula or fakh Nikah.
Your husband should cooperate in such a situation as advised in the Qur’an:
“Retain with honour or allow to leave with grace” (4)
Only Allah knows best
Written by Muftiyah Habiba Akhtar
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
(1)
ولو كافرا ( ويجوز تقلد القضاء من السلطان العادل والجائر ذكره مسكين وغيره إلا إذا كان يمنعه من القضاء بالحق فيحرم
(Durrul Mukhtar, Volume 8, Page 43-44, Darul Ilm Kutub)
(2)
الطلاق على ضربين: صريح وكناية، فالصريح: قوله: أنت طالق، ومطلقة، وطلقتك، فهذا يقع به الطلاق الرجعي؛ لأن هذه الألفاظ تُستعمل في الطلاق، ولا تستعمل في غيره، فكان صريحاً، وأنه يعقب الرجعة بالنص، ولا يفتقر إلى النية؛ فيه؛ لغلبة الاستعمال.
Al Hidayah, Bushra, Vol 3, Page 143
(3)
وأما الضرب الثاني – وهو الكنايات-: لا يقع ها الطلاق إلا بالنية أو بدلالة الحال؛ لأنها غير موضوعة للطلاق، بل تحتمله وغيره، فلا بد من التعيين أو دلالته.
(Al Hidayah, Vol 3, Page 170, Bushra)
4)
(ٱلطَّلَـٰقُ مَرَّتَانِۖ فَإِمۡسَاكُۢ بِمَعۡرُوفٍ أَوۡ تَسۡرِیحُۢ بِإِحۡسَـٰنࣲۗ وَلَا یَحِلُّ لَكُمۡ أَن تَأۡخُذُوا۟ مِمَّاۤ ءَاتَیۡتُمُوهُنَّ شَیۡـًٔا إِلَّاۤ أَن یَخَافَاۤ أَلَّا یُقِیمَا حُدُودَ ٱللَّهِۖ فَإِنۡ خِفۡتُمۡ أَلَّا یُقِیمَا حُدُودَ ٱللَّهِ فَلَا جُنَاحَ عَلَیۡهِمَا فِیمَا ٱفۡتَدَتۡ بِهِۦۗ تِلۡكَ حُدُودُ ٱللَّهِ فَلَا تَعۡتَدُوهَاۚ وَمَن یَتَعَدَّ حُدُودَ ٱللَّهِ فَأُو۟لَـٰۤىِٕكَ هُمُ ٱلظَّـٰلِمُونَ)
[Surah Al-Baqarah 229]
