Legal divorce

http://islamqa.org/hanafi/daruliftaa/7766

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 initiates/files for the legal divorce, in that he appoints the court as an agent on his behalf to divorce his wife, then the day the court issues the divorce decree absolute, his wife will be Islamically divorced also.

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

If the wife initiates/files for the legal divorce, and the court sends divorce papers to the husband, and he willingly, understanding the contents of the writing, signs it and gives his consent , then too his wife will be Islamically divorced when the court issues the decree absolute.

However, if he does not sign on any written document and does not give his consent for the court to go ahead with the divorce (and neither did he initiate the divorce), but the court divorces him on behalf of his wife against his will, then this, according to Shari’ah, will not be considered 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