Fatwa ID: 03957

Answered by: Maulana Muhammad Afzal Hussain 

Question

Salam,

My husband and I are both legally and Islamically married. He is suffering from depression and due to his mother's advice, has decided that I am the cause of all his problems and has asked me for a divorce. I have resisted as much as possible and pleaded with him to consider mediation, Islamic mediation, going to a Shariah Council for help and advice, counseling, talking therapies, time apart, time abroad together, Hajj, everything – to ensure this is definitely what he wants, especially as we have children together. But he has said he has made his decision and that is final.

He said either I can petition for divorce or he can. I do not want a divorce – certainly not when his mental health is fragile, and he is being influenced by his family who dislikes me. I am worried that in a few years’ time he will realize his mistake and it will be too late because we will have already been divorced. A friend has told me, however, that if I am the one to file a petition for divorce under UK law, even if my husband agrees with it all and intends to divorce me, it will be classed as talaq-e-bain which means that in the future we could remarry if he comes to his senses. Is this correct? I do not want to file for divorce as I do not want to be seen as the one to break something so important in Islam – but I also want to keep the possibility of a reunion in the future open for the sake of our children. Will it still be talaq-e-bain if he files for divorce and I don't contest? I wish I could contest in order to get him to see reason but I feel given how angry he is already with me and hate me, if I try to delay the divorce it will only strengthen his resolve to leave me forever. Could you please advise?

        بِسْمِ اللهِ الرَّحْمنِ الرَّحِيْم

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

Answer:

What makes a divorced wife lawful: When the divorce is irrevocable but is through less than three repudiations, he may marry her during her waiting period or after it.[1]

Irrevocable Divorce: This is the divorce in which the divorcing man does not possess any right to take back his wife. When such divorce takes effect, he will become like any other man who seeks to marry her (if he intends to remarry her). If she likes, she can accept him for new marriage by a new marriage contract and new dowry (Mahr).

The irrevocable divorce occurs in the circumstances of (1) He divorces her with a revocable divorce, then leaves her and does not take her back until she completes her prescribed waiting period. Thus, it will be an irrevocable divorce simply by her waiting period ending.

(2) That he divorces her for some wealth that she pays to him to remove herself from the marriage (Khul).[2]

Regarding your question, if your husband or you were to petition for a divorce, then a divorce would not take place. An Islamic divorce would be required afterward.

Only Allah knows best

Written by Maulana Muhammad Afzal Hussain

Checked and approved Mufti Mohammed Tosir Miah

Darul Ifta Birmingham