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Fatwa Answer

Question ID: 1290 Category: Marriage and Divorce
Marriage/Divorce

As salaam alaikum, 

I have a question regarding divorce through a court of law. Intention here is to understand from shariah perspective whether according to shariah if the divorce accepted in the court of law is VALID or NOT-VALID ? This is without announcing talaq either verbally or in written ever ( not even once )  to my wife. Is rule of the land override shariah law? 

Just as someone who intends to marry one have  to first get marriage license and must perform nikah in order to live in a married relationship, so is it not MUST  to take/get divorce ( talaq )  according to shariah as well after getting divorce through court of law? 

I and my ex-wife, legally divorced through court order, having one child. After an extremely tumultuous, stormy period of living with extreme level of perseverance with my wife and not seeing any relief or a way to make marital life even remotely peaceful and many attempts of reconciliation failed, I as a way of saving myself from many issues had filed for divorce after a separation of 1 year away from each other and it was accepted. 

We are living in separation and no contact except via email. I told her to take khula and she doesn't say anything and just said you filed for divorce and it will be accepted everywhere, I understand legally it will be accepted and that was the intention to get away legally for various reasons and have a window open in case she intends to save the marriage at least even for the sake of our child who we both love.

Question is, since I never said talaq to her verbally or in written or have ever intended nor she asked for it but due to consistent turbulence and for my safety I filed and got divorced but need to know if this divorce through court of law is valid according to shariah or is the marriage still intact? 

I read online and heard from few that divorce is not done according to shariah and MUST  be done by way of talaq/khula and some said it's divorced as that's the rule of the land/country. If it's rule of the country then can one take marriage license and consider married Islamically? When after getting a marriage license, performing nikah and then while divorced is it not must to divorce through talaq/khula to make it valid according to shariah? 

Please think through and let me know. 

Jazakallah Khair 

 

بسم اللہ الرحمن الرحیم

الجواب وباللہ التوفیق

Since you have filed for divorce, this divorce will be counted on your behalf and will in fact be established.

The number of divorces listed in this file will be valid and same number will apply, according to Shariah rules. If the number of divorces is not written, one (1) divorce will take place.

The divorce through the court is considered irrevocable, so there will be no right of revocation during the 'iddah’ under the existing marriage contract. However, if by mutual consent you both wish to live as husband and wife again within the 'iddah’ or after the ‘iddah’ period, that is possible but only through a new marriage contract and a new dower.

According to Fatawa Alamgiri:

إذا قال لرجل: طلق امرأتی کان توکیلاً ولم یقتصر علی المجلس الخ (ص:۴۰۲

مَن قال لامرأتہ: انطلقی الی فلان حتی یطلقک فذہبت فطلقھا فلان صح ویصیر فلان وکیلا بالتطلیق و ان لم یعلم بوکالتہ۔ (فتاوی عالم گیری۱؍۴۰۸

فقط واللہ اعلم بالصواب

Question ID: 1290 Category: Marriage and Divorce