Divorce

[Tanya K]

Can someone tell me how a woman can get a divorce if the marriage was not registered in this country. It's been 5 years since the pair split up, the ex husband is now married again, but no divorce took place. Is this allowed?

I know men are allowed to have four wives but not for the reason stated. He can't get married without divorcing his other wife first right? The wife wants to get married soon.

I know she should have got the divorce out of the way years ago, but people kept telling her the marriage is over and you have been seperated for years, which makes you islamically divorced. Is that true? If not, then how does she go about getting a divorce if she has no one else's support, no nikaah papers, nothing?

Her Husband took everything so she has no marriage certificate or anything. She can't even get in touch with him , no contact numbers no address for him, nothing. How would someone get a divorce if in this state?

[The Deen]

When nikah happened, it was acceptance from both sides. For divorce to tke place, allt he husband has to do is utter a word of divorce and that's it, they're divorced, although you could go further into the topic and look at different situations, but this is just the basic.

If no dovorce took place, and only separation, then that's still no divorce. Usually the eoman can go to an Islamic judge and get it done that way...

And the husband can get married without divorcing the first wife first.

[Abandoned-Mind]

Just go to a local Imam who deals with nikaah, explain to him the husband is not contactable and hasn't been for so and so years and that the sister is looking to get married and wants to know has she been divorced or what.

[Z-Blade]

Can someone tell me how a woman can get a divorce if the marriage was not registered in this country. It's been 5 years since the pair split up, the ex husband is now married again, but no divorce took place. Is this allowed?

I know men are allowed to have four wives but not for the reason stated. He can't get married without divorcing his other wife first right? The wife wants to get married soon.

I know she should have got the divorce out of the way years ago, but people kept telling her the marriage is over and you have been seperated for years, which makes you islamically divorced. Is that true? If not, then how does she go about getting a divorce if she has no one else's support, no nikaah papers, nothing?

Her Husband took everything so she has no marriage certificate or anything. She can't even get in touch with him , no contact numbers no address for him, nothing. How would someone get a divorce if in this state?

Is it the sister who married an Ahmediya? In which case, he is a kafir and so the marriage never happened Islamically, since in Islam - a woman can only marry a Muslim man - anything else is null and void. So she was never married to him in the first place, and so they were fornicating when they slept together. So there is no question of divorce, since the nikah didn't count!

She did not know about that so the sin won't be heavy, but she should still repent to Allah, seek His forgiveness and seek refuge with Him from the devil, praise Him for guiding her and ask Him for knowledge, guidance and understanding.

Tell her: "You are free to look for a husband, and inshaAllah you will get something better in return for your sacrifice in the way of Allah, since the Prophet :saw: has said that when a Muslim gives up something for the sake of Allah, he will receive something much better in return."

May Allah give her a pious, loving and caring husband who will lead her to Jannah through the pleasure of Allah. May Allah give her ease after hardship, reward her immensely for all her struggling, and finally give her Sakinah (peace and tranquility), AMEEN!

Wassalam.

[Tanya K]

Is it the sister who married an Ahmediya? In which case, he is a kafir and so the marriage never happened Islamically, since in Islam - a woman can only marry a Muslim man - anything else is null and void. So she was never married to him in the first place, and so they were fornicating when they slept together. So there is no question of divorce, since the nikah didn't count!

She did not know about that so the sin won't be heavy, but she should still repent to Allah, seek His forgiveness and seek refuge with Him from the devil, praise Him for guiding her and ask Him for knowledge, guidance and understanding.

Tell her: "You are free to look for a husband, and inshaAllah you will get something better in return for your sacrifice in the way of Allah, since the Prophet :saw: has said that when a Muslim gives up something for the sake of Allah, he will receive something much better in return."

May Allah give her a pious, loving and caring husband who will lead her to Jannah through the pleasure of Allah. May Allah give her ease after hardship, reward her immensely for all her struggling, and finally give her Sakinah (peace and tranquility), AMEEN!

Wassalam.


Thanks everyone for replying. :)

No she did not marry an Ahmadi. She was married to a Sunni Muslim. What does she do without any divorce papers and no contact for her husband? :confused:

[Z-Blade]

Thanks everyone for replying. :)

No she did not marry an Ahmadi. She was married to a Sunni Muslim. What does she do without any divorce papers and no contact for her husband? :confused:

:salams,

Oh OK :o. In that case, are the people reliable who said she's Islamically divorced since husband hasn't been around forever? Do they have proper knowledge of Islam? I may look for a fatwa like this and inshaAllah will tell you my findings.

Wassalam.

[Z-Blade]

:salams,

Looks like this answer is relevant, though not exactly the case:

Divorce: Marriage Without Consummation, Annulment, Iddah...
Answered by Shaykh Muhammad ibn Adam al-Kawthari

http://www.sunnipath.com/images/Q_Image.jpg
Brother X and Sister Y were married for a short while before things turned sour. The couple never lived together and the marriage was never consummated (even though they had the opportunity too). The couple have been separated for several months (more than that of a waiting period) and the divorce has not been finalized yet. The whole process (for divorce) has been initiated by Sister Y.
1) If the marriage was not consummated then do the normal divorce rulings apply or is the marriage annulled (as opposed to divorced)?
2) Is there such thing as an annulment of marriage when the marriage has not been consummated?
3) If the couple have been separated for a long time and NO divorce (revocable or irrevocable) issued then will the sister still need to observe the waiting period when a divorce is finally issued.
4) How can the waiting period be observed in the West with work commitments etc etc. Is there dispensation for those living in the west and who don't have the means to observe the waiting period.
5) Can the sister initiate the divorce, and if so, how?
http://www.sunnipath.com/images/A_Image.jpg
http://www.sunnipath.com/images/bism01.jpg
Assalam Alaykum

1) If the marriage was never consummated, neither the couple were ever together in isolation since their marriage, then the rules of divorce will defer e.g., the wife will only be liable for half of the specified mahr (dowry), also the wife will only receive one divorce and with that she will be separated from her husband and there is no reconciliation.
Nevertheless it seems that in the stated situation the couple had been alone sometime or another where they had the opportunity to have intercourse, therefore the same rulings of normal divorce will apply.

2) In Sharia there are only two ways of separation between the spouses - divorce or khula [financial payment from the wife in order to get a divorce]. If both these avenues fail, then the woman will have to recourse to a sharia committee for annulment.

3) If after the Nikah [marriage] the couple had intercourse or they were in isolation (meaning they were alone in a way that intercourse was possible), then such a woman, if divorced will have to wait the full period, otherwise there is no waiting.

4) The rulings of Iddat (the waiting period) will apply even in the west. Yes if there is an extraordinary situation, then the ruling will be given according to that situation.

5) In Islam the husbands have the exclusive right of issuing divorce. The wife can ask her husband to issue a divorce, opt for a khula (explained earlier) or refer to a sharia court for annulment.

I hope this has answered all your questions.

Only Allah knows best.
Muhammad Ibn Adam al-Kawthari

http://qa.sunnipath.com/issue_view.asp?HD=1&ID=173&CATE=11

So seems like she should take it to a sharia court, which in the case of the West would be trusted scholars and tell them the situation and whether the marriage has been annulled or to get it annulled.

More info here about Khul (divorce initiated by wife):

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In the name of Allah, Most Compassionate, Most Merciful,

In the situation where a woman can no longer remain in the marriage of her husband and all attempts to save the marriage have failed, then the ideal solution would be for the wife to obtain a divorce from the husband. The husband, seeing that the marriage is futile and there is no hope of reconcilement, should also issue one divorce according to the prescribed method in Shariah.

However, in the case where the husband refuses to issue a divorce, the wife may persuade the husband to enter into an agreement of Khul’ (a release for payment from the wife). The wife may also opt to forgive the husband from paying her dowry (mahr).

Khul’ is an Arabic term that literally means ‘to take out’ and ‘remove’. The Arabs say: “Khala’tu al-libas” (I took off my cloths). Similarly, Allah Almighty said to Sayyiduna Musa (Peace be upon him) when he went to receive the sacred law:

“Verily I am your lord! Therefore, put off (fakhla’) your shoes”
(Surah Ta Ha, 12).

The lexical definition of Khul’ as explained by the famous Hanafi Mujtahid, Ibn Humam is as Follows:

“To remove the union of marriage in exchange of a financial settlement with the words of Khul” (Ibn Humam, Fath al-Qadir, 3/1999).

Similar to other agreements and transactions, an agreement on Khul’ will also come into effect by acceptance and offer (al-Kasani, Bada’i al- Sana’i, 3/145 & Radd al-Muhtar, 2/606).

The couple can normally agree upon any financial arrangement they desire. However, the Fuqaha state that if the husband was at fault and it was his wrongdoings that resulted in the failure of their marriage, then it is impermissible for him to demand a financial payment in return for a divorce. He should divorce the wife without demanding anything in return.

Allah Most High says:
“But if you decide to take one wife in place of another, even if you had given the latter a whole treasure for dower, take not the least bit of it back. Would you take it by slander and a manifest wrong? And how could you take it when you have gone into each other, and they have taken from you a solemn covenant?” (Surah al-Nisa, 20-21).

Due to the above verse of the Qur’an, the Fuqaha have declared the taking of anything in return as a major sin if the husband was at fault.

However, if the husband was not at fault, but the wife for some reason or another wishes to end the marriage, then it is permissible for the husband to demand and receive some financial payment. It would be superior for him not to take more then the actual stipulated dowry. However, it would be permissible for them to agree on any amount (See: Bada’i al-Sana’i, 3/150 & Bahr al-Ra’iq, 4/83).

Allah Most High says:
“It is unlawful for you (men), to take back (dowry, etc…) from your wives, except when both parties fear that they would be unable to keep the limits ordained by Allah. If you (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is not blame on either of them if she give something for her freedom” (Surah al-Baqarah, 229).

According to the Majority of Jurists (jumhur), a Khula’ agreement can be carried out without having to go to an Islamic court. Merely, the consent of both parties is sufficient (See: al-Sarakhsi, al-Mabsut, 6/173).

A Khul’ is considered an irrevocable divorce and a finalized cancellation of marriage (ba’in), differing from a threefold divorce by the fact that they may remarry in such a case without her marrying another husband first.

If they did remarry, the husband will only remain the owner of two more divorces. Meaning, if he further issued two more divorces, it will total to three, thus he will not be able to take her back until she marries another man (See: al-Mabsut, 6/173).

The waiting period (idda) for the woman will be similar to that of a woman who was given an irrevocable divorce (ba’in) which is three menstrual cycles. The husband can not take her back within or after the waiting period without her consent (by contracting a new agreement of marriage).

Finally, it should also be remembered that a Khul’ agreement can only be carried out with the consent of the husband. The wife does not have the jurisdiction to enforce Khul’ without the consent of her husband. This is a agreed upon ruling in all of the four Sunni schools of thought.

The great Hanafi jurist, al-Sarakhsi says:
“An agreement of Khul’ is permissible with or without the presence of a judge, as it is a contract that is based on mutual agreement” (al-Mabsut, 6/173). The same has also been mentioned in Radd al-Muhtar, Fatawa al-Hindiyya and other major works.
With the above discussion, I sincerely hope all your queries with regards to Khul’ have been answered.

And Allah knows best
Muhammad ibn Adam al-Kawthari, UK

http://qa.sunnipath.com/issue_view.asp?HD=1&ID=1796&CATE=11


Wassalam.