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Does a civil divorce constitute a Shar’ee talaq?

Answered according to Hanafi Fiqh by Askimam.org

Dear Mufti Saheb, Due to unbearable verbal,emotional and physical abuse, I asked for divorce from my husband who has a criminal record of two years for hitting men. He sent a letter through his lawyer saying he won’t give me an Islamic Divorce but will issue a Canadian divorce. He then claimed divorce through an application signed by him and his lawyer. Eventually I got a divorce on June 1st, 2019. Will this divorce also serve as an Islamic divorce? If so, what kind of divorce took place? I have all the relevant legal papers. Please feel free to contact me if needed. JazakAllahu Khairan,

Answer

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh

Muslims living in western countries generally have two aspects of their marriage. The Civil aspect and the Shar’ee aspect. It is important to separate the two, as both are not contingent on one another and function independently. Islamically, if a person is married legally and is not married according to the laws of shariah, such a marriage has no standing.

In principle, a civil divorce will count as a shar’ee talaaq, if the husband signed the civil divorce document and also intended a Shar’ee talaaq. 

Accordingly, your husband intended a Canadian civil divorce and did not intend thereby to terminate the shar’ee marriage. Therefore, he was intending to remove the civil and legal ties that is between you. He did not intend to remove the bond of nikah. As such, this civil divorce does not count as a shar’ee divorce.

It is important to note that in such a case, your husband is not absolved of his obligations. If he fails in meeting his Shar’ee obligations of a husband, he will be sinful.

And Allah Ta’āla Knows Best

Mirza-Zain Ibn Ameer Baig

Student – Darul Iftaa

Montréal, Québec, Canada

Checked and Approved by,

Mufti Ebrahim Desai.

 

00-02-1441| 00-10-2019

 

This answer was collected from Askimam.org, which is operated under the supervision of Mufti Ebrahim Desai from South Africa.

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