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Advice & guidance on Separation/Divorce/Khula

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abu mohammed, xs11ax, Taalibah
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#1 [Permalink] Posted on 30th January 2013 19:09
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Asslamo Allaikum All,

I wrote a post on Sunniforum almost 2 years ago in repsonse to a Sister which required some updates so here it is as I am banned and unable to update the original...



In Islam every action you perform must be underpinned by two pre-requisites:
 

  1. Mushwara: Consultation with your family, friends and loved ones. I also recommend that you also consult a Scholar by ringing or via email
  2. Istikhara: Seeking divine guidance in the matter.


I am hopeful that you have very seriously considered the matter and taken Mushwara from your family and those close to you and also done Istikhara.

After you have begged, beseeched our Lord (SWT) and have firmly arrived at this conclusion and then Islamically you would proceed as follows:

Islamic Procedure:

  1. Ask your husband for an Islamic divorce and according to Sunnah he needs to give you 1 Islamic divorce (when you are not on your period) and after spending Idda for 3 menstrual cycles (if you are not pregnant) and until the birth of child (if you are pregnant) you are free to marry anyone you wish. During this period you will have to remain indoors and the husband will have to provide for you financially. In UK it is recommended that you make this request in front of some reputable family members (as witnesses) and he gives you Talaq in writing; although Islamically its not required.

    If he breaks the Sunnah and gives you 3 straight Talaqs in Anger (or while drunk) and in your period etc then you will still be divorced!

    Its best to ask in writing and keep records of dates/times etc.
  2. Once you have approached him for Talaq and he is unwilling to comply. You can ask for “Khu’l” which is basically the wife may persuade the husband to enter into an agreement of Khul’ (a release for payment from the wife). The wife may also opt to forgive the husband from paying her dowry (mahr). If Khu’l is granted then again you will have to wait remain indoors for 3 menstrual cycles (if you are not pregnant) and until the birth of child (if you are pregnant) and then you are free to marry anyone else. In UK it is recommended that you make this request in front of some reputable family members OR in writing; although Islamically its not required.

    The timeframes for Khu’l varies but if he refuses in writing or in person then you need to move onto the next step.

    Its best to ask in writing and keep records of dates/times etc.
  3. If he is refusing divorce and also not willing to enter into Khu’l then the only option which is left for you is to contact an “Islamic Shariah Council” and ask the Scholars to annul your marriage. You fill out a detailed application (outlining your reasons and that you have already tried steps 1 & 2) and the process can take up from a few months to a year.


Basically once your application is considered and it is determined that you have sufficient grounds for annulment,; if your husband is in UK then he will be written to (visting the Shariah council) and explain the charges. If he can't visit then he can write. All letters are sent via registered post and guareenteed delivery. If he does not respond OR makes no attempt to contact then the Ulama will annul the Nikah after a few attempts.

Procedures may vary in different countries

You will need to prepare your application accurately, carefull and diligently for annulment.

Islamic Shariah Council in United Kingdom (& Europe):

Maulana Ijaz
Dewsbury, UK
Office: +44 (1924) 464-122
Office Hours: Mondy-Friday (UK) Time: 09:30 - 12:30 click on links to convert to your local time.
Spoken Languages: English/Urdu/Gujrati

Procedure/Fees: Application throughly completed with all supporting documents /£200

Time taken: Depending on the case but please allow at least 12 weeks

Date Verified/Person: 30JAN2013 with Shaykh (Maulana) Ejaz

Birmingham Fiqh Council

Islamic Shariah Council in United States:

Chicago (Head Office):

Rahmat-e-Alam Foundation
7045 N. Western Avenue, Chicago, IL 60645
Telephone: (773)764-8274
Fax: (773)764-8497.

Click Here for the Map

Chicago (Branch):

Rahmat-e-Alam Foundation, California & Granville
6201 N. California Ave. Chicago, IL 60659
Telephone: (630)430-6740
Fax: (773)764-8497.

Shariah Board of New York

57-16 37th Avenue
Woodside, NY 11365.
Telephone: (718)426-3454

Procedure/Fees: Application throughly completed with all supporting documents /FREE

Time taken: Depending on the case...

Date Verified/Person: 30JAN2013 with Shaykh (Mufti) Nauman Wazeer (NYC)

Darul Uloom Al Islamiyah Sacramento (California)
7285 25th Street, Sacramento, CA, 95822    
Tel: (916)424-4770

Date Verified/Person: Unverified and unable to contact

Mufti Ikraum Haq (Rhode Island)
40 Sayles Hill Rd
North Smithfield, RI 02896
Phone: 401-762-0107
Fax: 401-762-0107

Date Verified/Person: 30JAN2013 with Shaykh (Mufti) Ikarum Haq (RI)

 

Darul-Qasim (Chicago)

999 North Main St.
Suite 108
Glen Ellyn, IL 60137
Divorce accoring to British Law:

After being divorced Islamically (you are free to remarry in Islam) but according to British Law you will need to get a divorce and in a British court you can apply on any of the 5 grounds:
 

  1. Adultery: You must prove either through admission or by submitting circumstantial evidence that he has committed adultery.
  2. Unreasonable Behavior: This is the most commonly used clause and you must prove that he has proved in a way which makes living with him unreasonable.
  3. Desertion: He has deserted you for a period of 2 years. This is rarely used.
  4. 2 Year separation: By mutual consent you have been living apart for at least 2 years.
  5. 5 Year separation: You have been living apart and consent is not necessary.
    Depends on which grounds you choose and how he chooses to defend it; court case can take time.
    Aftermath of a divorce:

Divorce accoring to Aemrican Law:

Vary from state to state so check your local state legislations.

Divorce Aftermath:

If your husband is a man of Taqwa then he will provide for the children BUT that is rare. In most cases men give a very hard time, refuse to issue Talaq and refuse to pay and if you don’t have a family (to financially support you) at least initially then you will be plunged into serious financial chaos EVEN if you work because more than likely you will be seriously depressed during the whole process!

If your husband is a man of Taqwa then he will give you child custody BUT this is rare and usually men contest this in the court and even afterwards there will be “all kinds of games” just to mess you around.

If your children are of an age where they understand things then it will be VERY HARD to explain and they will go through some sort of emotional turmoil and their performance at School/Madarsa will be affected.

If you want to remarry it will depend on your age and your children etc and loads of dua. Most women will busy themselves in looking after their children and don’t actively look into remarriage.


Allah (SWT) knows best.

 

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#2 [Permalink] Posted on 25th February 2014 17:16
This thread outlines how to divorce or take Khul, nevertheless attempts should be made to ensure that all support necessary to avoid divorces is taken.
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#3 [Permalink] Posted on 25th February 2014 23:19
salaam

who is authorised (in the shariah) to annul a marriage and what are the qualifications needed?
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#4 [Permalink] Posted on 25th February 2014 23:31
xs11ax wrote:
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It's mentioned in the fatawa of askimam.org that a body of ulama are authorized to annul if the reasons are valid.
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#5 [Permalink] Posted on 25th February 2014 23:39
Sulaiman84 wrote:
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i seem to recall reading somewhere that it is not necessary that the person is an alim, but my memory is vague and i am not sure how authentic this opinion is.
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#6 [Permalink] Posted on 25th February 2014 23:51
xs11ax wrote:
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The woman has to report her case to a body of 'Ulama. If she can't do that, then the senior members of the community can get together, and be assisted by at least one 'Alim. This forms the Shari'ah council, which will now determine if she has valid grounds to demand a divorce. The husband will also have to show up.

This is the last resort for a woman whose husband refuses to give her talaaq or even accept khula. Hopefully we don't have to have too many of these cases, and the husband will just man up and give the wife a divorce if she's miserable with him.

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#7 [Permalink] Posted on 6th November 2014 10:27

Arslan. wrote:
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It isn't about being man up. The husband and wife can both lie and make things up, I see this all the time. Importantly its usually others who make the situation worse.

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#8 [Permalink] Posted on 12th August 2015 18:02
shareecouncil org (council-code-of-practice) states

The Shariah ruling is that until the child has reached maturity, he or she is to stay with the mother, however, the father has every right to visit his child, and the mother must not deny access unless there is a Court order in place. Furthermore, the maintenance of the child/children is upon the father.

This differs from the Hanafi School of Thought (see below)

central-mosque com (custody-of-children-after-divorce)

The mother has a right of custody for a male child until the child is capable of taking care of his own basic bodily functions and needs, such as eating, dressing and cleaning himself. This has been recognized at seven years of age.

islamqa org (hanafi/daruliftaa/7720)

The mother has a right of custody for a male child until the child is capable of taking care of his own basic bodily functions and needs, such as eating, dressing and cleaning himself. This has been recognized at seven years of age.

Imam al-Haskafi (Allah have mercy on him) states:

“The custody of a male child is the right of the mother until the child is capable of taking care of his own self. This has been approximated at seven years of age, and the Fatwa (legal verdict) has been issued on this age, as normally children are able to take care of themselves at this age.” (See: Radd al-Muhtar, 3/566)

In the case of a female, the mother has this right of custody until she reaches puberty. This has been declared at nine years of age. (al-Mawsili, al-Ikhtiyar li ta’lil al-mukhtar, 3/237)
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