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Filing for Divorce in Secular Court

Answered as per Hanafi Fiqh by Askmufti.co.za

Q: 1. A husband issues a summons filing for divorce in the South African High court (the couple are married Islamically and in accordance with South Africa law). In the summons he states:

“Wherefore the plaintiff claims: 1. A decree of divorce”

Would this constitute a proclamation of divorce in Shariah? The husband does have the intention to divorce his wife and has mentioned several times that he will divorce her. He has not pronounced the words Talaaq or divorce directly to her. Would the abovementioned words “a decree of divorce” be sufficient to annul the marriage?

2. If  a couple are married “in community of property” and wish to divorce ONLY for the sake of rectifying this situation that’s not compliant with Shariah – how can they achieve this without annulling the Shari marriage? Many people are caught up in this predicament and want to correct the situation but don’t want their Islamic marriage to be dissolved.

A: 1) The phraseology employed in divorce proceedings via the court, such as claiming a “decree of divorce”, actually indicate the husband’s plea or request to the judge to issue a divorce on his behalf.  If the judge is a non-Muslim, such a request is not permissible and the decree of divorce issued by the non-Muslim judge would be null and void. Therefore, such court proceedings shall not result in talaaq. And Allah Ta’ala knows best

2) Following on the above, once it is established that the court divorce does not constitute an Islamic or Shar’ee divorce, if the couple go through a mock divorce via the courts just to cancel the community of property regime, that will not result in an Islamic divorce. It is in any case necessary to cancel the un-Islamic property regime called community of property through whichever way possible.

And Allah Ta’ala knows best

Mufti Siraj Desai

This answer was collected from AskMufti.co.za, which is operated under the supervision of Mufti Siraj Desai of Darul-Uloom Abubakr, South Africa.

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