I am going through a civil divorce in a US state court. My wife filed for a divorce in the court
Mu' meneen Brothers and Sisters,
As Salaam Aleikum wa Rahmatullahi wa
Barakatuh. (May Allah's Peace, Mercy and Blessings be upon all of you)
One of our brothers/sisters has asked
this question:
Salaam
Aaikum Brother Burhan,
I am
going through a civil divorce in a US state court. My wife filed for a divorce
in the court about a year ago and we are still going through the proceedings.
We have been living separtely since last year and have had no phyical contact.
I also
forgot to mention a few other things with my earlier question below.
First,
my wife got custody of my two children (8 and 5) and they live with their
mother in the house we bought. I have moved into an apartment. I have visiting
rights with my kids, I love my children very much and they also love me dearly
and always enjoy times we are together. My wife also is in possession of almost
all of our assets acquired during marriage, also known as community property.
She is demanding unproportional distribution of our joint assents (meaning more
than 50%). During our mariage, she worked part-time but my contribution is
probably more than 90% of what we have.
As
common in a bohri marriage, I paid her mehr amount at the time of Nikah, but
that sum was partly. I know I dont have much to say in this regard as the
divorce is being settled in a US court but is my wife justifed in claiming most
of our assets? I need your response on this issue urgently, PLEASE.
My
question is that what I need to do based on Islamic law to be divorced. Is
civil divorce enough or I have to do it Islamically too, and if so, how?
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Answer:
Divorce in civil court
In the name of Allah, We praise Him, seek His help and ask
for His forgiveness. Whoever Allah guides none can misguide, and whoever
He allows to fall astray, none can guide them aright. We bear witness that there
is none worthy of worship but Allah Alone, and we bear witness that Muhammad
(saws) is His slave-servant and the seal of His Messengers.
Your Question: My
question is that what I need to do based on Islamic law to be divorced.
Islam has recognized that human beings are not like
animals that once they are tied together, they must live together for the rest
of their lives, whether they wish to do so or not! If for any reason the married couple do not wish to live together
as husband and wife, Islam has given them an honorable ‘exit-route’ in the form
of divorce, and guided them that just as they once united in the sacred bond of
marriage in peace, if for any reason they wish to separate, they should do so
in peace, benevolence, and grace.
Thus the correct or Sunnah way for a man to declare
divorce is to pronounce a divorce once on his wife by saying ‘I divorce you’,
making sure that his wife in not in her menses during the time of
declaration. If after the declaration
of this first divorce, the couple do not conjugate, or the husband does not
take his wife back within the ‘iddah’ or waiting period of three menstrual
cycles of the woman, the divorce will be established in the Sight of
Shariah. The man and the woman are now
divorced, they become non-mehrams to each other, and the woman is absolutely
free to marry another man if she wishes to do so. It is not lawful for the husband to demand back the ‘mehr’ or any
gifts he might have given his wife during their marriage period.
Allah Says in the Holy Quran Chapter 2 Surah
Baqarah verses 229-230:
229 A divorce is only permissible twice:
after that the parties should either hold together on equitable terms or
separate with kindness. It is not
lawful for you (men) to take back any of your gifts (from your wives) except
when both parties fear that they would be unable to keep the limits ordained by
Allah. If ye (judges) do indeed fear
that they would be unable to keep the limits ordained by Allah there is no
blame on either of them if she give something for her freedom. These are the
limits ordained by Allah; so do not transgress them. If any do transgress the limits ordained by Allah such persons
wrong (themselves as well as others).
230 So if a husband divorces his wife
(irrevocably) he cannot after that remarry her until after she has married
another husband and he has divorced her.
In that case there is no blame on either of them if they reunite
provided they feel that they can keep the limits ordained by Allah. Such are the limits ordained by Allah which
He makes plain to those who understand.
Islam guides that the first two divorce declarations in
any one marriage are revocable; thus even if after the ‘iddah’ or waiting
period of three menstrual cycles have elapsed and the divorce has been
established, and at a later date the couple change their minds and wish to
marry again, it is absolutely permissible for the two of them to remarry,
provided a brand new ‘nikaah’ is
performed between them.
Reconciliation between a divorced couple in marriage in Islam
is only permitted after the first or second declaration of divorce in any one
marriage. If the husband pronounces the
divorce for a third time, it will be considered absolutely irrevocable and then
it is not permissible for the same couple to marry again; unless the woman
perchance marries another man, and the new husband of his own free will
divorces her, or dies.
Your Question: Is
civil divorce enough or I have to do it Islamically too, and if so, how?
A divorce initiated by the wife and granted by a court or
Judge of Shariah law would be deemed as a valid divorce in the sight of Shariah
and of Allah Subhanah.
If for any reason the wife has chosen to initiate a
divorce proceeding in a civil court of a disbelieving nation, the declaration
of divorce by the non-Shariah Judge or Court will not be deemed valid in
Islamic Law.
To enable the couple to be divorced in the Sight of
Shariah Law and of Allah Subhanah, either the husband pronounces a divorce to
his wife, or a Judge of Shariah Law declares the couple divorced.
Thus to make sure that your divorce is established in
accordance with Shariah Law, you as the husband would have to pronounce a
divorce on your wife.
Your Question: I
know I dont have much to say in this regard as the divorce is being settled in
a US court but is my wife justifed in claiming most of our assets? I need your
response on this issue urgently, PLEASE.
Beloved brother, because you live in a nation which does
not honor Shariah law, there are two issues regarding the laws of divorce:
- The
Shariah Issue
- The issue of the law of the land where
you reside.
Regardless of where a believer lives or resides, it is
absolutely obligatory and incumbent upon them to refer every aspect of their
lives to Shariah law. If any party
denies or rejects to implement Shariah law in any aspect of their life or in
their disputes amongst each other, and instead seeks a decision from the
ignorant un-godly man-made laws of the land so that they may get some
advantage….they shall indeed be held severely accountable for their manifest
act of hypocrisy in the Presence of the Majestic and Supreme Lord on an
Inevitable Day.
Allah Says in the Holy Quran Chapter 4 Surah
Nisaa verses 60-61:
60 Hast thou not turned thy vision to those who declare that they believe
in the Revelations that have come to thee and to those before thee? Their
(real) wish is to resort together for judgment (in their disputes) to the Evil
One though they were ordered to reject him. But the Shaytaan's wish is to lead
them astray far away (from the Right).
61 When it is said to them: "Come to what Allah hath revealed and
to the Messenger (seeking a solution to your disputes)": you will see the
Hypocrites avert their faces from thee in disgust!
Beloved brother, because you happen to reside in an
Un-Islamic State, and you (or your wife) have unfortunately decided to settle
the divorce case through a non-Shariah Court….it is obvious that the terms of
your divorce will now be settled according to the laws of the land, rather than
the laws of Shariah.
Beloved Brother, regardless of what decision and
settlement the non-Shariah Court or the law of the land assigns to each party;
it is the duty of the believers of both parties, if indeed they fear Allah and
the Last Day, that they say and do only that what is right and akin to piety
and justice.
If the wife unjustly demands a portion of the assets which
are not due to her according to Islamic Law, and even if the Judge of the
non-Shariah Court awards her her unjust demands….she should only take what is
rightfully proportioned to her by Shariah Law….ie.
- the
‘mehr’ she received from you at marriage (however little or much it may
have been),
- any
gifts which you might have given her during the course of the marriage,
- Anything
extra you wish to give her of your own free will and generosity.
If the non-Shariah Civil Court were to assign the wife any
more assets than the above which are permitted to a divorced believing woman in
Shariah Law, the accepting or taking of those assets would not be absolutely
unlawful for the divorced sister; and she would be held severely accountable
for taking what does not rightfully belong to her in the Presence of the
Majestic All-Just Judge on that Inevitable and Tumultuous Day of Judgment.
Al-Muwatta Hadith 36.1
Yahya related from Malik from Hisham ibn Urwa
from his father from Zaynab bint Abi Salama from Umm Salama (r.a.), the wife of
the Prophet (saws) that the Messenger of Allah (saws) said, "I am but a
man to whom you bring your disputes. Perhaps one of you is more eloquent in his
proof than the other, so I give judgment according to what I have heard from
him. Whatever I decide for him which is part of the right of his brother, he
must not take any of it, for I am granting him a portion of the
Fire."
Thus regardless of what the non-Shariah Civil Court of the
land you happen to reside in allocates of the assets in the divorce settlement,
the believers must take only as much as is assigned for them by Shariah Law, if
indeed they sincerely fear Allah and the Last Day.
Beloved brother, you may fight as aggressively as you wish
if your lawful rights are being usurped; but if you chose to forgive and be
generous, then know with conviction that Real Justice will only be served by
the Majestic and Supreme Lord and Judge on that Inevitable Day of Justice in
the Hereafter.
Your Statement:
First, my wife got custody of my two children (8 and 5) and they live with
their mother in the house we bought.
In the unfortunate event of a divorce in Islam, Shariah
Law states that all children (male or female) will remain in the custody of the
mother until they reach the age of understanding and puberty; the father will
be allowed visitation rights and it will be the responsibility of the father to
provide for the complete financial upkeep of the children.
Once the children reach the age of understanding, the
father has a right to move the Shariah Court if he wishes to gain custody of
the children. The Shariah Court Judge
will then ask the children whom they wish to live with; their mother or their
father; and whatever decision is made by the children will be enforced by the
Shariah Judge.
The decision who gains the custody of the children in a
divorce rests neither with the mother, nor the father, nor the Shariah Court
Judge; but Allah Subhanah has placed this right of decision in the hands of the
children as soon as they reach the age of understanding and puberty. The Shariah Court Judge will only enforce
the decision of the children, and give the parent who lost the custody fair
visitation rights.
If your children are only 5 and 8 years of age, Shariah
Law dictates that they shall live with their mother until they have reached the
age of puberty….at that time if you (father) wish to gain custody of your
children, you may initiate a court proceeding and the Shariah Judge will then
implement the decision of your children whether they wish to live with their
mother or their father. The total
financial responsibility for the upkeep of the children, regardless of who
holds their custody, will be borne by the father.
Whatever written of Truth and benefit is only due to
Allah’s Assistance and Guidance, and whatever of error is of me alone. Allah Alone Knows Best and He is the Only
Source of Strength.
Your brother and
well wisher in Islam,
Burhan
Wister