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Civil marriage and divorce in light of the Shariah

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Civil marriage and divorce in light of the Shariah

Post by Admin on Mon Sep 19, 2011 3:37 pm

Q. A husband says that because a couple got marriedly Islamically first (for the sake of the religion) and that they only did the legal marriage as a protection so he could stay in the country without fear of deportation and he is making a clear distinction between the 2 forms of marriage and says he will only divorce his wife legally not islamically. One of his reasons for wanting a civil divorce is so that he is free to marry again. He claims if he doesn't get his way he will do both the civil and shariah divorce.

A. I managed to get your question through to Shaykh Dr. Wasiyullah Abbas (one of the scholars who teaches in the Haram and at Umm Al-Qura University, Makkah).
Scholars are usually very hesitant when answering such questions from a distance, because issues of marriage and divorce are serious and might require an Islamic court judgement.
In light of the fact that the husband has already pronounced divorce twice, the Shaykh said it is not allowed for him to do the civil divorce - if he still wants his wife to remain married to him in reality, because - the Shaykh indicated - the divorce would actually count as a real (Islamic) one, in which case the sister would have been divorced irrevocably, as it would be the third one. This the Shaykh feared based on the hadith which states:

Three things are earnest (and occur) whether said in earnest or jest: marriage, divorce and revocation of divorce (taking the wife back)

This hadith is in the Sunan of Abu Dawud, Al-Tirmishi and other collections. It reflects the care taken in Islam over such issues, which cannot be treated in a way that causes confusion or doubt in the minds of those involved

The fatwa stands because the issue is about the divorce occurring when a divorce is pronounced, whether that be in an Irish government office, court or masjid. The issue about intentions really only applies to situations where the wording of the pronouncement is ambiguous. This is a different topic altogether. The distinction the husband is making is exactly what the fatwa is saying you shouldn't make here; the Shaykh was made fully aware of the two 'types' of marriage. Whether or not the husband likes it or not, I can only convey what the scholars say and unless the husband is a scholar who can make independent rulings on such issues, I would suggest he think hard and carefully about what he is doing before he ignores a fatwa. I myself am not prepared to guess and theorize over issues concerning this marriage, so I can only convey the fatwa. A layperson is required to follow the fatwa of a scholar unless he/she knows better based on sound knowledge; after all, that's why we have been commanded to 'ask the people of knowledge if ye know not,' in the Quran.

I pray Allah the Exalted resolves this matter for the couple. I can only advise the wife to be patient and try to follow the Islamic course of action whichever way this goes. It's important to remember here that the Islamic rules and regulations on marriage and divorce are there to protect the rights of all involved. From experience I have seen that when sisters, particularly those who do not have a Muslim family support network, get into all kinds of situations if they do not follow the Islamic course. Alhamdulillah, most sisters however, recognize the need and benefit of following the Islamic teachings. Please do not get confused: if the husband initiates the divorce, a scholar has already pointed out that this divorce will be counted. In this case, it will be final and irrevocable. They will no longer be husband and wife. If you doubt the validity of this fatwa, or the person who is conveying it, you of course have the right to seek an alternative opinion from sources you trust. However, it is not allowed for any Muslim to ignore those more knowledgeable than him and take matters into their own hands without knowledge and based on emotions



Allah knows best.

Abu Abdillah Owais Al-Hashimi

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When you are faced with a choice - what ever you do - do it SOLELY for the sake of Allah and you can't go wrong.

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