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Status of British Civil Divorce

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#1 [Permalink] Posted on 2nd December 2015 12:55

Asslamo Allaikum Wa Rahmatullahi Wa Barakatuh,

An honourable student of Shaykh (Mufti) Ebrahim Desai (HA) called me a few months ago and pointed to this article on our site about Civil Divorce. Our honourable Mufti Saheb (HA) pointed out some differences between Ulama and how they may impact the lives of Muslims in a practical manner.

Opinion 1 British Civil Divorce is unacceptble in Islam:

Question: I have been seperated from my spouse for approximately 6 years and we have a 6 year old child.  He provided me with a court divorce for  tax and financial reasons a couple of years ago.  While recently speaking to him he indicated to me that he has always wanted me to return to him and still wants to be with me.  He never provided me with 3 talaks even when I asked.  And once upon our seperation he asked for my return but I indicated to him that he must try harder to make the marriage work as it seemed he was doing during the seperation period.  Is this marriage valid?  Can we do nikkah again and be together? Is this considered a final divorce?


Answer: In the Name of Allah, Most Compassionate, Most Merciful,

Assalaamu 'alaykum waRahmatullahi Wabarakatuh

The verdict of divorce given by the judge of a civil court, can only be regarded as a civil divorce and not a Shar'ī talaaq. The judge has been appointed by the country to issue verdicts in accordance to the law of the country and not in accordance to the laws of Sharī'ah. It is incorrect to say that the judge acts as a representative (wakeel) on behalf of the husband in issuing the divorce, as the judge does not issue the divorce on the request of the husband but gives his verdict of divorce in compliance with the law of the country. At times he may have to issue a verdict of divorce in accordance to the law of the country, even though his heart desires otherwise.

Therefore, the mere verdict of a judge of a civil court cannot be regarded as a Shar'ī talaaq. However, the husband's filing for divorce or signing on the papers of divorce can be regarded as a Shar'ī divorce only if he intends a Shar'ī divorce. If he intends to follow the civil divorce procedure and not to issue a Shar'ī talaaq, he should make two people his witness of his intention. This is merely a precaution to avoid accusation of a Shar'ī divorce against him.

If the husband issued a civil divorce merely for tax and financial reasons, without the intention of a Shar'ī talaaq, then in such a case, a Shar'ī talaaq will not take place and the marriage will remain intact. However, if the husband had the intention of issuing a Shar'ī talaaq as well, the nikaah will be terminated and in order to get together again a new nikaah will have to be made.

And Allah Knows Best

[Mufti] Ebrahim Desai

Darul Iftaa, Madrassah In'aamiyyah

Opinion 2 British Civil Divorce is acceptble in Islam with conditions: 

Scenario 1 (Husband Applies):

Question: I have been married for 8 years. My husband initiated divorce proceedings 18 months ago. In the letter from his solicitors, it mentions that 'my client wishes to start divorce proceedings and also that the marriage has broken down irretrievably. I received the first certificate of 'Decree Nisi' from the court 4 months ago. My husband was given a certain time after which he was entitled to apply for the 'Decree Nisi' to be made 'Decree Absolute'. I discovered that his solicitor had sent him some paperwork for him to sign to enable them to make the 'Decree Nisi' into a 'Decree Absolute', but he failed to respond. The court has advised me that I am entitled to make the application for the 'Decree Nisi' to be made absolute; hence I applied for the decree to be made absolute. What I would like to know is that once the court grants the 'Decree Absolute', would that Islamically count as a valid divorce, given that my husband failed to respond to the letter that his solicitor had sent him?
 

Answer: In the Name of Allah, Most Compassionate, Most Merciful,

When a husband files for a legal divorce, he appoints the court to divorce his wife on his behalf. Islamically, a husband has a right to divorce his wife either himself or by appointing someone else as his representative to divorce his wife on his behalf. It is not necessary that this 'representative' be a Muslim, as is the case in filing/petitioning for a legal divorce through the courts.

Shaykh Qadri Pasha states, in his decisive codification of Hanafi personal law, Al-Ahkam al-Shar'iyya fi 'l -Ahwal al-Shakhsiyya, which is a primary source for the personal law of several Muslim countries, and continues to be taught and used across the Islamic world:

'(Item 222) Divorce may be effected in speech or in clear and understandable writing, whether signed by the husband or someone he has given agency to do so on his behalf…' (Al-Fawa'id al-Aliyya ala 'l-Ahkam al-Shar'iyya fi 'l -Ahwal al-Shakhsiyya P: 120)

Thus, given the fact that your husband petitioned for a legal divorce and initiated the divorce proceedings, and thereafter he did not oppose the court in making the divorce decree absolute, Islamically a non-reversible (ba'in) divorce will take place on the day the court issues the 'Absolute Decree' of divorce. Legally, the petitioner can prevent the respondent from applying for a 'Decree Absolute', but due to the fact that he did not do so, the legal divorce would also count as an Islamic divorce.

As such, when you receive the Decree Absolute, you are no longer married to him and free to re-marry after completing the waiting period (iddah). You do not need to take an Islamic divorce from your husband. (For more details on legal divorce through a court, please refer to the answer already posted on this website titled: 'Legal Divorce according to Islamic Law'.)

And Allah Knows Best

[Mufti] Muhammad ibn Adam

Darul Iftaa

Leicester , UK

Scenario 2 (Wife Applies & Husband Signs):

Question: I have a question about Islamic Divorce that I hope you can help me with.

I am a British born convert to Islam. I became a Muslim in 1984. I married at a Shariah Court in Sudan and then went to the UK where at the time we were told we had to have another marriage (registry) as the UK did not recognise potentially polygamous marriages. . After many years of marriage (and a lot of tension caused by the hatred to Muslims in the UK among other things), we have decided to get divorced.

We divorced by British divorce by cross decrees (mutual consent). How can I now go about dissolving the Islamic marriage? I understand it is sufficient ('bare talaq) to declare I divorce you three times, and I see that even in some bizarre cases email text messages have been accepted! Some sources cited it is usual for a family member to be present and for the man to attend a mosque and declare his intention in front of a religious 'official' (whatever that means in Islam!) - Since my wife has no family members in this country and I have no family alive - is it sufficient for me to inform my wife of my intention? Should I declare my intention of Talaq, in the local mosque? Or is as is stated in various Islamic sites on the web the British divorce also considered an Islamic divorce? Please can you advice?

 

Answer: In the Name of Allah, Most Compassionate, Most Merciful,

According to Shariah, speech and verbal utterance is not a necessary condition for the validity of a divorce (talaq). Rather, divorce is also effected by means of the written word.

The great Hanafi jurist, Imam al-Kasani (Allah have mercy on him) states:

"Similarly, issuing a divorce verbally is not a condition. Hence, divorce will be effected with clear and unambiguous writing, or with the understood gesture of a dumb person, for the clear written word is in place of verbal utterance." (Bada'i al-Sana'i, 3/100

This writing must be clear and unambiguous. It must be written out of one's own will and not be forced. Also, there should be no deception in getting the husband to write out the decree of divorce.

Similarly, if the husband instructed a third person to write the decree of divorce for him and then he signed the written document, divorce will be effected.

Allama Ibn Abidin (Allah have mercy on him) states:

"If the husband requested another person to write the declaration of divorce for him, and he (the writer) after writing it, read it out to the husband who took the divorce paper, signed and stamped it, and sent it to his wife, divorce will be effected if the husband admits that it is his writing." (Radd al-Muhtar, 3/246-247)

Shaykh Qadri Pasha explains, in his decisive codification of Hanafi personal law, al-Ahkam al-Shar'iyya fi'l Ahwal al-Shakhsiyya, which is a primary source for the personal law of several Muslim countries, and continues to be taught and used across the Islamic world:

"(Item 222) Divorce may be affected in speech or in clear, understandable writing, whether signed by the husband or someone he has given agency to do so on his behalf..."

Taking the above into consideration, if the husband initiated the legal divorce, in that he appointed the court as an agent on his behalf to divorce his wife, then on the day the court issues the divorce, his wife will be also Islamically divorced.

The reason being that the husband appointed the court as an agent on his behalf to divorce his wife, and appointing a non-Muslim as an agent is considered to be valid in Shariah. (See: Radd al-Muhtar).

If the wife initiated the legal divorce and the court sent the divorce papers to the husband, and he willingly, understanding the contents of the writing, signed it, then his wife will be considered to be divorced from the time he signs the divorce papers from an Islamic perspective also.

However, if he did not sign on any written document, neither did he initiate the divorce, but the court divorced him on behalf of his wife against his will, then this, according to Shariah, will not be classed as a valid divorce.

Therefore, in your situation, if you signed on the legal divorce papers, then you have divorced your wife from an Islamic perspective also. There is no need to go through some other form of Islamic procedure of divorce.

And Allah Knows Best

[Mufti] Muhammad ibn Adam

Darul Iftaa

Leicester , UK

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#2 [Permalink] Posted on 2nd December 2015 12:56
Next posts will be about ambiguous scenarios

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#3 [Permalink] Posted on 24th December 2018 17:34
Muadh
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#4 [Permalink] Posted on 9th January 2019 03:23
mSiddiqui wrote:
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Question
Mufti Saab, InshaAllah Ta'ala I will be looking to get a second wife fromPakistan. The thing is I want to dissolve my legal marriage in Canada. Mywife is aware of me getting my second marriage. If i file for a civil divorcewill it effect my Shari Nikkah in any way?
These are the forms: www.ontario.ca/page/file-joint-divorce-application-online
Please give me a solution for this. I want my Nikkah to remain intact.

Answer
In the Name of Allaah, the Most Gracious, the Most Merciful.

As-salaamu ‘alaykum wa-rahmatullaahi wa-barakaatuh.

In principle, a civil divorce does not constitute an Islaamic divorce (talaaq). The judge presides over the rulings and implications of a civil divorce. He does not have jurisdiction over a Shar’ee divorce (talaaq) and neither is that his mandate[1]. If the husband signs the civil divorce document and also intended a Shar’ee talaaq, then only talaaq will take place. If he does not intend talaaq, then talaaq will not take place.

In the enquired situation, if you do not intend talaaq when signing or filing for a civil divorce, then your nikaah will remain intact. It is advisable to make two people your witness that you only intend civil divorce and not a Shar’ee talaaq.



And Allaah Ta’aala Knows Best.

Muajul I. Chowdhury

Student, Darul Iftaa

Astoria, New York, USA



Checked and Approved by,

Mufti Ebrahim Desai.
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