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DOES DIVORCE OCCURE BY BEING SEPERATED

Answered according to Hanafi Fiqh by DarulUloomTT.net

QUESTION:

As Salaamu Alaikum,

I am a new Muslim who got married some time ago to a Muslim brother. After marriage we found ourselves in disagreements and I am not one who likes arguing, hence I removed myself from my paternal home, so I decided to remove myself from my husband’s home because I felt unsafe and I wasn’t being thought much about Islam from him in which I agreed to for marriage. Over a three month period, which then turned into a year without any contact with him out of fear for walking away from him without explaining because I felt like we couldn’t have that conversation without disagreement, however he got remarried and divorced. After 2 years of not communicating back or interacting with each other, I called to ask for forgiveness for my actions in which he expressed to me that he still loves me and he never divorced me . My question to you is our marriage void or is it still legal , I myself have never remarry anyone I’m focusing on my deen, Also I would like to know if a marriage will be legal if you were never given consent by your parents, I was over eighteen when the marriage occurred. Thanking you in advance.

 

ANSWER:

Wa Alaikum As Salaam,

Based on what you have explained, your marriage is still valid and legal in Islam and it is not void/broken. Both you and your husband can reunite and continue to live as husband and wife, and there is no requirement to remarry. Your walking away from him, and being apart from each other without any communication, does not cause your marriage to be broken even though more than two years have passed. In what you have described, none of the breakers of marriage occurred, and as such, your marriage with each other is still valid.

However, your action of walking away from him without his consent, and without an explanation is sinful, and you need to seek Allah’s forgiveness for this. At that time, both of you should have discussed the matter and decide whether you wish to live together or separate from each other, instead of doing what you did.

With respect to your marriage which you contracted without your parents’ consent, this is valid and acceptable since you were 18 years old, and had already passed the age of puberty.

قال فى الهداية: (و ينعقد نكاح الحرة العاقلة البالغة برضاها) و ان لم يعقد عليها ولّى بكرا كانت او ثيبا….. ثم فى ظاهر الرواية لا  فرق بين الكفء و غيره الكفء، و لكن للولى الاعتراض فى غير الكفء

(Hidayah Ma Fath Al Qadeer Vol.3 pages 246-249 Dar Al Kutub ilmiya Beriut 2009).

(فنفذ نكاح حرة مكلفة بلا) رضا (ولى) والاصل أن كل من تصرف فى ماله تصرف فى نفسه و مالا فلا (وله) اى للولى (إذا كان عصبة)……… الااعترامن فى غير الكفء.

(Ad Durr Al Mukhtar Ma Ash Shami Vol. 3 pages 55,56 HM Saeed Karachi. 1406 A.H).

هو رفع قيد  النكاح فى الحال او المأل بلفظ مخصوص

(Ad Durr Al Mukhtar Ma Ash Shami Vol. 3 pages 236,237 HM Saeed Karachi. 1406 AH).

(Kitab An Nawazil Vol. 9 pages. 104,187,189 Dar Al Isha’at Karachi 2016).

 

And Allah knows best

Mufti Waseem Khan

15/2/2021

This answer was collected from DarulUloomTT.net, which is operated under the supervision of Mufti Waseem Khan from Darul Uloom Trinidad and Tobago.

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