Does a civil divorce constitute ṭalāq from an Islamic perspective?
بسم الله الرحمن الرحیم
Answer
In relation to the civil divorce process in England, if the husband intends ṭalāq (divorce) to occur whether acting as the petitioner or when consenting as the respondent, then one ṭalāq bāʾin (irrevocable divorce) will occur when the decree nisi is made absolute. This is based on the concept of tafwīḍ (delegation) of divorce and the husband’s intention when delegating this power to the court or consenting to it. However, if the husband does not consent as the respondent, ṭalāq will not occur (Fatāwā Maḥmūdiyyah, 19:393; Fatāwā Raḥīmiyyah, 8:377, 383, 389; Maḥmūd al-Fatāwā, 6:352). It is a separate matter whether it is appropriate or not for the husband to petition the court or provide consent as the respondent instead of using the Islamic process. This answer is concerned with the ruling and effect if someone decides to use the civil process nonetheless. The inappropriateness or unlawfulness of an action does not necessarily nullify its outcome and effect, as understood from the divorce in menstruation edict.
We have reached this conclusion after reviewing the legal documentation and recognise there are mixed views among scholars in relation to this. The above is based on the positions of my respected teachers Mufti Muhammad Taqi Usmani (b. 1362/1943), Mufti Ahmad Khanpuri (b. 1365/1946), Mufti Shabbir Ahmad (b. 1376/1957) and Mufti Muhammad Tahir (b. 1376 / 1957). Please also note this is a statement of principle, the facts of each case and the paperwork are to be carefully reviewed before reaching a judgement on it.
Allah knows best
Yusuf Shabbir
26 Shawwāl 1439 / 10 July 2018
Approved by: Mufti Shabbir Ahmed and Mufti Muhammad Tahir