Someone asked this question: “In the American court system, when the wife files for divorce and the husband does not, does this constitute a divorce? Some Imams say yes, some say no.”
In short: A wife filing for divorce in a civil court does not nullify the Islamic marriage contract. For the divorce to be Islamically valid, she must get the husband to agree (making it a khul`).
Actually, I’m not aware of any Imam saying yes to this. The question is as follows: if the husband files for divorce, I’m going to go back a bit. If the husband files for divorce, in Islamic law, the writing of divorce is the same as verbalising divorce.
So if the husband files for divorce and signs that he’s divorcing his wife, we don’t care if it’s a civil court or an Islamic judge, or if he writes to the wife or a friend. It doesn’t matter. He has written, “I’m divorcing my wife.” It’s not that it’s a civil court or not. When you write, “The wife is divorced,” or “I’m petitioning for divorce,” or “This is a divorce,” when you write this, this is the divorce. That’s the same as the verbal. So the husband writing that he’s divorcing the wife to the civil court is a divorce.
The flip side, when the wife files for divorce, we have to be very specific here. She is filing for the civil divorce, and the civil divorce, that is the business of the state and the country. There’s another aspect which is the marriage contract.
That marriage contract will not, in and of itself, be nullified if the wife files for a civil divorce. Rather, she must do one other step, with multiple options.
Number one, she gets the husband to agree, and the husband then agrees and signs “no contest,” “I accept she’s also divorcing,” and they can then agree this is a Khul`, which is when the wife files for divorce in an Islamic court. Because if the wife asks for divorce in an Islamic court and the judge agrees, this is called Khul`.
So if the husband agrees “no contest” or whatever, this could be acceptable, and in that case, it will then be a Khul`.
But what if the husband doesn’t agree? This is where the Fiqh Councils have basically said that she should go to an arbitration council of senior scholars of the community, or at least one neutral, respected scholar, so that the scholar can look into the case. What is going on?
In the end, listen, brothers, you have to understand one thing. In an ideal Islamic land, suppose everything was 100%, we had the Shari`ah around us, the wife is not a prisoner. If she really wanted to get out of the marriage, after some hurdles, any Islamic court would say she’s not a prisoner. If she kept on saying, just like in the case in the Prophet’s time, Khawlah came to the Prophet and said, “Ya Rasulullah, I don’t have any specific complaints about my husband, I just don’t want to remain married to him.” She literally said, “I don’t have a specific complaint; this is just not working out.” He didn’t even ask her a second question. He said, “Will you give him his Mahr back? Because you are filing, and you’re telling me he’s not doing anything wrong, it’s not his fault. You are telling me he did nothing wron,g and you’re simply saying it’s not working out. Are you going to return the Mahr? He gave you an entire garden, a piece of land. Are you going to return it to him?” She said, “Yes, I’ll return it to him.” He, right then and there, gave the Khul`.
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