Fatwa ID: 05695

 

Answered by: Maulana Syed Johir Miah

 

Question:

 

 

If my wife sends me a divorce petition from a USA court, will this be equivalent to Sharyee talak?

 

 

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

 

Answer:

 

The divorce given by the court without the consent of the husband is not accepted in Shariah. The mere separation between the husband and wife does not invalidate the nikah.

 

The husband and wife should cordially resolve their dispute by seeking help from their respective families and the local Scholars.

 

If the wife still wishes to be divorced and the husband refuses to divorce her, she may seek khula (divorce from her husband in exchange for a sum of money).

 

If the husband refuses to accept the khula, the wife may apply to the local Ulama body to annul the marriage. The Ulama will consider the application and act accordingly to it.

 

Hence, 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, despite this the judge issues a divorce.

 

If 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, the judge issues a divorce.

 

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.

 

Islamically, the husband and wife are still considered married in these four cases mentioned above.

 

The woman cannot marry another man. If she does, the marriage will be invalid and both will be considered living in and committing sins.[1]

 

An Islamic divorce would not occur at the permitting 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.[2]

 

Hence, if you do not proceed with the decree absolute your nikah and marriage is still intact as a decree nisi does not result in a divorce.

 

However, if you proceed if a decree absolute then an Islamic divorce will occur.

 

If the judge uses words such as “I have thereby granted a divorce etc…” then one talaq rajee will occur.

 

Therefore, after the passing of the wife’s iddat (three menstruation cycles), the marriage will break, however, you can get back together again by redoing the marriage in the presence of two male witnesses or one male and two female witnesses. Also, a new dowry will have to be set.

 

If the judge uses the words “separation” or “dissolve” etc…. then a talaq bain will occur straightaway and the nikah will break. You can redo the marriage within her iddat or afterwards in the presence of two male witnesses or one male and two female witnesses. Also, a new dowry will have to be set.

 

 

Only Allah knows best.

Written by Maulana Syed Johir Miah

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham

 

 

 

 

[1] Asr Hadhir Ke Pechida Masaail, Pages 25-31, Volume 2.

 

[2] Asr Hadhir Ke Pechida Masaail, Page, 31, Volume 2.