I have been seperated from my spouse for approximately 6 years and we have a 6 year old child. He provided me with a court divorce for tax and financial reasons a couple of years ago. While recently speaking to him he indicated to me that he has always wanted me to return to him and still wants to be with me. He never provided me with 3 talaks even when I asked. And once upon our seperation he asked for my return but I indicated to him that he must try harder to make the marriage work as it seemed he was doing during the seperation period. Is this marriage valid? Can we do nikkah again and be together? Is this considered a final divorce?
In the name of Allah, Most Gracious, Most Merciful
Assalaamu `alaykum waRahmatullahi Wabarakatuh
The verdict of divorce given by the judge of a civil court, can only be regarded as a civil divorce and not a Shar’ī talaaq. The judge has been appointed by the country to issue verdicts in accordance to the law of the country and not in accordance to the laws of Sharī’ah. It is incorrect to say that the judge acts as a representative (wakeel) on behalf of the husband in issuing the divorce, as the judge does not issue the divorce on the request of the husband but gives his verdict of divorce in compliance with the law of the country. At times he may have to issue a verdict of divorce in accordance to the law of the country, even though his heart desires otherwise.
Therefore, the mere verdict of a judge of a civil court cannot be regarded as a Shar’ī talaaq. However, the husband’s filing for divorce or signing on the papers of divorce can be regarded as a Shar’ī divorce only if he intends a Shar’ī divorce. If he intends to follow the civil divorce procedure and not to issue a Shar’ī talaaq, he should make two people his witness of his intention. This is merely a precaution to avoid accusation of a Shar’ī divorce against him.
If the husband issued a civil divorce merely for tax and financial reasons, without the intention of a Shar’ī talaaq, then in such a case, a Shar’ī talaaq will not take place and the marriage will remain intact. However, if the husband had the intention of issuing a Shar’ī talaaq as well, the nikaah will be terminated and in order to get together again a new nikaah will have to be made.
And Allah Ta’ala Knows Best
Wassalamu Alaykum
Mufti Ebrahim Desai
Darul Iftaa, Madrassah In’aamiyyah