beengoing through problemsfor the last 3 years with my wife about
children access, we separated about 5 times and now after 3 years both
want to come together. I initially said divorce once when she left my
house with my kids and then after 6 months came together and the local
imam said we haveto perform Nikah again. We lived only for 1 day and I
told her come back home and leave the courts matters. She did not come
back and we had our financially matters in the English court I wanted
to settle this so she cant ever claim against my property or Money my
lawyer said you have to give a English Divorce tohave a consent order
so she will never able to claim so I did. My lawyerfiled the English
divorce and now I have it on paper but I did this to save my property.
I know I only divorced twice but I am totally confused I have 3 lovely
children and me and mywife have regretted andwant to come together.
Please could you advise me further? We want to live again like husband
and wife halaal way.
Praise be to Allah.
Firstly:
What we understood from your question is that you separated from your
wife five times without talaaq (divorce),and that you only issued a
talaaq once, then you took your wife back after the end of the 'iddah
with a new marriage contract and mahr; then after that you asked your
wife to stop court proceedings but she refused, so the lawyer advised
you to divorce her according toEnglish law so as to protect your
financial rights, and you filed for divorce in the court.
Secondly:
With regard to this divorce that you filed forin court, if you uttered
the words of divorce (talaaq), then divorce has taken place. But if it
was only official proceedings to sign the legal divorce, and you only
wrote the word divorce without utteringit, or you instructed
yourlawyer to take care of this official paperwork only, then it
depends on your intention. If your intention in doing that was
actually to divorce your wife or you instructed the lawyer to actually
make it happen, then divorce has taken place. In that case you have
divorced your wife twice, so it is permissiblefor you to take her back
so long as she is still in the 'iddah period. If the 'iddah has ended,
then itis permissible for you to marry her with a new marriage
contract and mahr, but it is essential to note that if another divorce
takes place after that, then your wife will become irrevocably
divorced from you, and it will not be permissiblefor you to marry her
again until after she has been married to anotherman in a genuine
marriage, not a tahleel marriage (one intended to make it permissible
for her to go back to the first husband) and that marriage has been
consummated, then he (the second husband) divorces her or dies.
Thirdly:
But if you wrote the word of divorce in this request that you filed
with the court but did not intend to divorce your wife by writing it,
and you did not instruct the lawyer to actually make divorce happen
onyour behalf, then divorce has not taken place, as we have explained
in detail, quoting the words of the scholars, in fatwa no. 72291. In
that case, yourwife has only been divorced once, which was the first
instance.
Fourthly:
The ruling does not differ with regard to what is mentioned above,
whether the judge decided the divorce or not, because divorce issued
by a non-Muslim judge does not count as such, as we explained in fatwa
no. 127179
Fifthly:
It should be noted that itis not permissible to refer for judgment to
courts that rule according to man-made laws, because that comes under
the heading of taghoot (falsehood). Allah, may He be glorified, has
commanded His slaves toavoid falsehood and not to believe in it, as He
says (interpretation of the meaning):
"O you who believe! Obey Allah and obey the Messenger (Muhammad SAW),
and those of you (Muslims) who are in authority. (And) if you differ
in anything amongst yourselves, refer it to Allah and His Messenger
(SAW), if you believe in Allah and in the Last Day. That is better and
more suitablefor final determination.
Have you seen those (hypocrites) who claim that they believe in that
which has been sent down to you, and that which was sent down before
you, and they wish to go for judgement (in their disputes) to the
Taghoot (false judges, etc.) while they have been ordered to reject
them. But Shaitan (Satan) wishes to lead them far astray"
[an-Nisa' 4:59, 60].
We have discussed this important matter previously in detail, in fatwa
no. 93208. You have to pay attention to this matter and study it well
and teach your wifeabout it, so that you will not end up referring to
those false judges, because that is a major sin and a serious matter
that may put one beyond the pale of Islam.
An exception may be made from that if there is no option other than
referring for judgment to man-made laws in order to recover one's dues
that are proven according to sharee'ah, or to document it, or to ward
off harm in a country that is not ruled according to sharee'ah and
where there are no shar'i courts, on condition that reference be made
to some of the scholars to define the shar'i ruling that must be
applied in the case at hand, and the demand be limited to what the
scholars have defined as his dues and striving to attain that.
This was stated in the final statement of the Second Conference of
Shar'i Fuqaha' in America, which was heldin Copenhagen, Denmark, with
the Muslim World League, 4-7 Jumaada al-Oola 1425/22-25 November 2004
CE. See the text of the statement in fatwa no. 127179
Sixthly:
If you want to keep yourwife and she has become irrevocably divorced
because the 'iddah that followed the second divorce, if it did indeed
take place, has ended, then what you must do is marry her with a new
marriage contract and mahr. If no divorce took place, then the matter
is clear and she is still your wife.
If there is any advice we can give you regarding this matter, we
advise you to have a good attitude towards your wife, to treat her
kindly and to be patient with any bad attitude from her, and we advise
you to deal with her in an honourable and reasonable manner. Allah,
may He be exalted,says (interpretation of the meaning):
"And live with them honourably"
[an-Nisa' 4:19]
"And they (women) have rights (over their husbands as regards living
expenses, etc.) similar (to those of their husbands) over them (as
regards obedience and respect, etc.) to what is reasonable"
[al-Baqarah 2:228].
According to the Sunnah, it was narrated that Abu Hurayrah (may Allah
be pleased with him) said: The Prophet (blessings and peace of Allah
be upon him) said: "I urge you to be kind towomen."
Narrated by al-Bukhaari (3153); Muslim (1468).
Note:
With regard to the five separations mentioned, if any of them involved
any mention of divorce, whether by clearly usingthe word or by use of
metaphors, whether it was to take immediate effect or was attached
tosome condition, then that is a whole different matter and it is
essential to explain what really happened.
And Allah knows best.
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