When a husband files for a legal divorce, he appoints the court to divorce his wife on his behalf. Islamically, a husband has a right to divorce his wife either himself or by appointing someone else as his representative to divorce his wife on his behalf. It is not necessary that this 'representative' be a Muslim, as is the case in filing/petitioning for a legal divorce through the courts.
By Shaykh (Mufti) Muhammad Ibn Adam (HA)
Question: I have a question about Islamic Divorce that I hope you can help me with.
I just wanted to know if I as a husband file for a legal and civil divorce here in the UK courts, would that automatically count as an Islamic divorce, or would I have to give a separate Islamic divorce. Please explain?
Answer: In the Name of Allah, Most Compassionate, Most Merciful,
According to Shariah, speech and verbal utterance is not a necessary condition for the validity of a divorce (talaq). Rather, divorce is also effected by means of the written word.
The great Hanafi jurist, Imam al-Kasani (Allah have mercy on him) states:
“Issuing a divorce verbally is not a condition. Hence, divorce will come into effetc with clear and unambiguous writing, or with the understood gesture of a dumb person, for the clear written word is in place of verbal utterance.” (Bada’i al-Sana’i, 3/100)
This writing must be clear and unambiguous. It must be written out of one’s own will and not be forced. Also, there should be no deception in getting the husband to write out the decree of divorce.
Moreover, if a husband instructs a third person - even if a non-Muslim - to write the decree of divorce on his behalf and he then signs the written document, or he appoints a third parson to issue divorce on his behalf (tawkil), divorce will come into effect.
Imam Ibn Abidin (Allah have mercy on him) states:
“If the husband requested another person to write the declaration of divorce for him, and he (the writer) after writing it, read it out to the husband who took the divorce paper, signed and stamped it, and sent it to his wife, divorce will be effected if the husband admits that it is his writing.” (Radd al-Muhtar, 3/246-247)
Shaykh Qadri Pasha explains, in his decisive codification of Hanafi personal law, Al-Ahkam al-Shar’iyya fi’l Ahwal al-Shakhsiyya, which is a primary source for the personal law of several Muslim countries, and continues to be taught and used across the Islamic world:
“(Item 222) Divorce may be affected in speech or in clear, understandable writing, whether signed by the husband or someone he has given agency to do so on his behalf…”
Taking the above into consideration:
1 If a husband files for a legal divorce, he in theory is appointing the court as his agent to divorce his wife. As such, when the court issues the Absolute Decree of divorce, it constitutes an Islamic divorce also - resulting in one irrevocable (ba’in) divorce. Appointing a non-Muslim an agent is considered valid in Shari'ah. (See: Radd al-Muhtar).
2 If a wife petitions/files for a legal divorce, and the husband – understanding the contents of the divorce papers sent to him – signs and gives his ‘clear’ and ‘absolute’ consent for the divorce to go ahead, then this too constitutes an Islamic Divorce, when the Decree Absolute is issued by the court.
However, if the husband does not sign on any written document or he fails to give his ‘clear’ consent for the court to go ahead with the divorce, but the court divorces him on behalf of his wife against his will, then this does not constitute a valid Islamic divorce.
Therefore, in your situation, if you filed for the divorce or gave your full consent and signed on the legal divorce papers, then you have divorced your wife from an Islamic perspective also. There is no need to go through some other form of Islamic procedure of divorce.
And Allah Knows Best
[Mufti] Muhammad ibn Adam
Leicester , UK