Question
As Salaamualykum. I have a question. Here Americans get married in the court and they get divorced by a divorce decree in the court that both husband and wife has to sign. Is that a valid talaaq?
Answer
بسم الله الرحمن الرحيم
In non-Muslim countries, marriage has two aspects viz; the civil aspect (the legal implications) and the Islamic aspect. Each aspect functions independently, none is contingent to the other.
An Islamic Marriage (Nikah) contracted is not recognised legally unless it meets the legal requirements. Similarly, if a marriage only meets the legal requirements, it would not be recognised by the Shariah.
The same is the case of divorce, a couple may be divorced Islamically, however, according to the law of the land they are considered married. Similarly, a couple may be considered divorced legally however, according to the Shariah they are still married.
In a Civil Court Divorce, it all depends on the intent and consent of the husband when signing the divorce papers. If the husband intended a civil divorce only and not to terminate the marriage, the marriage will remain intact as the intent was only to remove legal ties between him and his wife and did not intend to remove the bond of nikah.
Nb: This is the case whether the husband is petitioner or respondent.
If the husband were to petition the court for a divorce (with the intent of terminating the marriage). The court will act as an authorised agent on his behalf. Thereafter, if the court completes the divorce procedure (by issuing a decree absolute), without the husband cancelling the authorisation, an Islamic Divorce will occur.
If the wife were to petition the court for divorce, thereafter, the court completes the procedure without the consent of the husband, an Islamic divorce will not take place. If, however, the husband were to sign the divorce papers with the intent of divorce (i.e. consenting the divorce) an Islamic divorce will also take effect.
And Allah Ta’ala Knows Best
Mufti Kaleem Muhammad
Darul Iftaa, Jaamia Madinatul Uloom (Trinidad)
