If yes then for how long and is there a way to avoid the same as I live alone with my son and it would be very difficult in this situation?
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:
Dear
Brother Burhan,
I have
been separated from my husband for three years now. For the first year, I
waited for him to change his ways and return home to my son and me. Finally, I
applied for a divorce in the
Since
we have been living apart from each other for such a long period is IDDAH still
required for me.
If yes
then for how long and is there a way to avoid the same as I live alone with my
son and it would be very difficult in this situation?
Can
the father be forced to pay for my son`s upbringing as he is not willing to do
so? Can he ask for visitation rights at a later date? My son has the right to
decide which parent he wishes to stay with once he attains the age of 13, is
this right?
Also
my parents think I should think of marrying again but I am very afraid of
losing my son`s custody. Is it possible for him to ask for my son`s custody if
I do remarry?
(There may be some grammatical and spelling
errors in the above statement. The forum does not change anything from
questions, comments and statements received from our readers for circulation in
confidentiality.)
Answer:
Divorce idda
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: Since we have been living apart from each other for such a long
period is IDDAH still required for me.
If yes
then for how long and is there a way to avoid the same as I live alone with my
son and it would be very difficult in this situation?
Allah Says in the Holy Quran Chapter 2 Surah
Baqarah verse 228:
228 Divorced women shall wait concerning themselves for three monthly
periods; nor is it lawful for them to hide what
Allah hath created in their wombs if they have faith in Allah and the Last Day.
Respected sister in Islam, regardless of how long a couple
might have chosen to live apart from each other after their marriage….for a
divorce to be established in Shariah, it is absolutely obligatory for the woman
to fulfill her waiting period of ‘iddah’ of three menstruation periods after
the declaration of divorce for the divorce to be legally established in the
Sight of Shariah Law and of Allah Subhanah.
It is only after the period of ‘iddah’ has expired that the couple will
be deemed officially divorced in the Sight of Shariah Law, and it is only after
the expiration of the ‘iddah’ period that the woman would be free to marry any
eligible believer of her choice.
Your
Question: If yes then for how long and is there a way to avoid the same as I
live alone with my son and it would be very difficult in this situation?
Respected sister in Islam, the ‘iddah’ of divorce is not
like the ‘iddah’ of a widow whereby she is restricted from going out of the
house without genuine reason, and wear simple clothing, and abstain from
applying any ordainments of beauty, etc.
The wisdom behind the Command of the Lord for the wife to
fulfill the ‘iddah’ of divorce for three menstruation periods is mainly to give
time to the couple if they wish to revoke their decision of divorce and unite
again as husband and wife, and to verify whether or not the woman is
pregnant….for the child resulting from the marriage would be eligible to his inheritance
rights according to Shariah.
A woman fulfilling her waiting period or ‘iddah’ of
divorce can live an absolutely normal life and go and do what she would
normally do…the one and only restriction upon her in Shariah is that she cannot
contract marriage with another person until the expiration of her period of
‘iddah’, which is her three menstruation periods.
Your
Question: Can the father be forced to pay for my son`s upbringing as he is not
willing to do so?
Absolutely regardless of who has the primary custody of
the children, it is the obligatory duty of the father in Shariah to provide and
bear the complete financial responsibility of the upkeep of his children. If the father for any reason is negligent in
fulfilling this obligatory duty of providing for the upkeep of his children,
the mother of the children is well within her rights in Islam to initiate a
case against her former husband in a Shariah Court of Law, and the Shariah
Judge will enforce that the father bear the complete financial responsibility
of his children.
Your
Question: Can he ask for visitation rights at a later date?
Regardless of who holds the primary custody of the
children, the spouse who does not hold custody has a right to initiate a case
in a Shariah Court of Law requesting fair visitation rights. Unless and until
the Shariah Judge has an extremely valid reason, or fears for the safety of the
children, the spouse who does not hold custody of the children will be given
fair visitation rights to his/her children.
Your
Question: My son has the right to decide which parent he wishes to stay with
once he attains the age of 13, is this right?
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; and it will be
responsibility of the father to provide for the financial upkeep of the
children.
Once the children reach the age of understanding, the
spouse who does not hold custody has a right to move the Shariah Court if
he/she wishes to gain custody of the children.
The Shariah Court Judge will then ask the children who have attained the
age of puberty 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 of who gains the custody of the children in a
divorce neither rests 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 this particular case the mother will get the primary
custody of her son until he has reached the age of puberty, and if then the
father wishes to get primary custody of his son, he will have to approach a
Shariah Court and the Shariah Judge will enforce the decision made by the son
regarding whom he wishes to live with, his father or his mother.
Your
Question: Also my parents think I should think of marrying again but I am very
afraid of losing my son`s custody. Is it possible for him to ask for my son`s
custody if I do remarry?
If a divorced woman who has a child/children from her previous
marriage decides to marry another person, Shariah Law does not automatically
transfer the primary custody of the children to their biological father….but
rather Shariah Law states that the primary custody of the children be given to
the maternal grand-mother of the children.
If the maternal grand-mother of the children has expired, the primary
custody of the children will be given to the maternal aunt (mother’s sister) of
the children.
Thus sister, even if you decide to marry another person,
the primary custody of your children will not be given to their father until
they have reached the age of puberty and they themselves chose to live with
their father. In the event of your marriage to another person, your mother will
be given the primary custody of your children…and if your mother is not alive,
the custody of your children will be given to your sister/s according to
Shariah Law.
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