Fatwa ID: 03190

Answered by: Mufti Mohammed Tosir Miah​

Question:

Assalamu alaikum

We have been contacted by a Christian woman who asked us a piece of information about her Islamic marriage with a Muslim.

She was previously married to another (non-Muslim) man, they had got married in a civil (not religious) marriage ceremony; now, she and her ex-husband aren't anymore together: in May 2010 they got a consensual separation (so they both agree to end their marriage) but – according to the Italian law procedures – she will have to wait two years from now before obtaining the divorce from the court.

The problem is that she is "engaged" to a Muslim man, they've been together for a year and they want to marry according to Islamic law as soon as possible. They don't need any paper; they just wanna render their relationship lawful through an Islamic marriage.

Does she have to wait for the divorce sentence from the (Italian) court or is the consensual separation from her ex-husband enough and so they could already marry (according to Islam) right now?

Or maybe some kind of verbal "talaq" (as in Shari'ah) has to be given by her ex-husband, or something else?

In short, what are the conditions needed to consider this woman "divorced" from her ex-husband according to the Shari'ah?

Answer:

In The Name Of Allah, The Most-Merciful, The Most Kind

If a married, non-Muslim woman becomes Muslim in non-Muslim lands, the wife is given a period of three menstrual cycles (if she is a woman who menstruates), or three months (for those women who don’t) before she is considered legally separated from her non-Muslim husband. (Mukhtasar Qudduri p.139)

The reasoning behind this is that there is no Muslim judge, in non-Muslim lands, to legally separate between them.  Thus, the three menstruation cycles or three months takes the effective place of the judge. (Hidayah p.347 v.2)

If the non-Muslim husband then decides to become Muslim within this period, their marriage is considered standing, and continues without the need of redoing the marriage. (Mukhtasar Qudduri p.140)

If at the end of this period, he has not become Muslim, the separation is considered a legal separation. Furthermore, there is no further need for the wife to observe a waiting period. (Raddul Muhtar p.363 v.4)

Keeping the aforementioned rulings in mind, the conclusion we can come to is that if this woman since her separation with her previous husband has passed three menstruation cycles or three months then her marriage with her previous husband will come to an end. She will be free to marry this Muslim man.

Finally, I would like to stress the Islamic marriage with this Muslim man will only be allowed if it is not considered against the Italian Law to conduct an Islamic marriage whilst waiting for a divorce from the Italian Courts. Therefore, it should be ascertained firstly, whether an Islamic marriage is allowed. Only then, she will be allowed to marry this Muslim man after the passing of her period without the need for an Italian divorce.

Only Allah Knows Best

Answered by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham