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separated for 6 years

Question date:   27th January 2013
From:   muslim sister
Short URL:   http://qa.muftisays.com?4211
Notes:   Contains Public Notes
Question ID:   4211
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assalamoalikum.
In June 2008 my husband was asked to leave our property by the court for unreasonable behaviour due to violence and suspicions over 16 years. I received a decree nisi from the court as we had a financial hearing at the court with regard to properties. My husband kept one property and I received the other as I have 3 children.
My relationship with my husband had broken down about 1 year prior to that in 2007.
Since then we have lived separate in separate properties and we do not communicate unless absolutely necessary relating to the children, etc.
1. My husband did not issue the Islamic divorce up to now and neither of us applied for the decree absolute.
I need to know is my marriage still valid or are we islamically divorced due to the length of time we have been separated?
I donít think we feel that we will be getting back together again as we donít even communicate and relationship has broken down completely.
June 2013 we will have been separated for 6 years.
2. If we are islamically divorced then what do I do in terms of iddat? I live alone with 3 children with no family or relatives in Leicester. I work part time and I cannot leave my job as I am the only breadwinner and my husband does not pay maintenance. He pays me £20 a week through the child support agency. I work to support my children and pay all the bills.if asked to pay me maintenance, he will refuse and work will not give me time off for iddat. However, during the 1st year of my separation, I did not really go anywhere except work and shops. Does this not count as iddat?
jazakallaj

Answer

Ulamaa
Ulamaa ID 12

Answer last updated on:
4th February 2013
Answered by: Ulamaa ID 12

Website
Location: United Kingdom

Bismillahir Rahmaanir Raheem

Respected questioner.

According to the Shariah, an Islamic divorce would not occur at the granting of a decree nisi.

However, from the date the decree absolute is granted, an Islamic divorce will occur and the woman's iddat(waiting period) will also start.
(Asr e hazir ke pechida masail p31 v2)

If you do not proceed with the decree absolute your Nikah (Marriage) is still intact as a decree nisi does not affect a divorce. However, if you proceed and if a decree absolute is given then an Islamic divorce will occur.

Living separately doesnít break the Nikah(Marriage).
___________________________________________________________________________
References:

It states in Radd ul Muhtaar:

وركنه (أي الطلاق) لفظ مخصوص هو ما جعل دلالة على معنى الطلاق من صريح أو كناية .
(ردالمحتار علي در المختار، كتاب الطلاق، مطلب طلاق الدور، الجزء ٤، الصفحة ٤٣١، دار الكتب العالم رياض)

Decree Nisi سے طلاق واقع نہيں ہوتى؛ البتہ جس وقت اور جس تاريخ كو Decree Absolute يعنى حتمى فيصلہ لكها جائے گا اس وقت سے طلاق واقع ہوگى، اور عدت بهى اسى دن اور اسى وقت سے شمار ہوگى-
(عصر حاضر كے پيچيده مسائل اور ان كا حل (اردو)، جلد دوم، صفحۃ ٣٠)

The Decree Nisi does not result in a divorce becoming effective. However once the Decree Absolute is issued a divorce is effective from that very moment and Iddah will be calculated from that very moment on that particular date.
(Guidance on Intricate Contemporary Matters (English), Volume 2, Page 25, DKI)

And Allah knows best

--------------------------------------
Please remember me in your dua's

Maulana Khalil Ibn Elyas Laher

London, UK


Public Notes
Note from Ulamaa ID 12 - added on 13/02/2013 @ 18:28pm:

The Urdu writing is muddled up.

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