Divorce Granted by a Non-Muslim Judge, Adil Salahi

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Q. I converted to Islam many years ago. Recently, some family problems caused me to leave my husband in order to protect my daughters. My parents, who are not Muslims, forced me to seek divorce which was granted under the American civil divorce law. Later my husband pronounced Islamic divorce, yet he told our son that I could go back to him anytime, although he has married again. At the time of my marriage, my husband agreed that he would not marry a second wife without my permission. Yet I did not agree to his second marriage. Could you please explain what is the status of my marriage, and whether my husband’s words to our son constitute a revoking of the divorce he had pronounced. Suppose I was in the period when he pronounced the divorce, would the divorce still be valid?

A. On May 7, 2000, the Islamic European Council for Fatwa and Research issued a fatwa, or a ruling making a divorce issued by a non-Muslim judge in a European country valid for Muslim couples. Naturally, this fatwa applies to other countries where Muslims are a minority, such as North and South American countries, Australia, etc. The fatwa goes as follows:

The proper thing for a Muslim is to refer any question that needs a judgment to a Muslim judge or someone deputizing for a Muslim judge. However, since there is so far no Muslim court to which Muslims can refer their disputes in non-Muslim countries, it is imperative for a Muslim who made his marriage contract under the laws of such countries to enforce the decision or ruling of divorce taken by a non-Muslim judge. When a Muslim agrees to enter into a marriage contract under the same non-Muslim law, he implicitly accepts all the consequences of such marriage under that law. One of these is that such marriage can only be terminated by a judge.

This can be treated as a delegation of rights by the husband (to the judge), which is permissible according to the majority of Muslim scholars, even though the husband has not verbally made such a delegation of rights. A relevant rule of Islamic law states: “What is known by tradition has the same effect as a stated condition.” Moreover, enforcing the rule of law, even though it may be a non-Muslim law, is permissible on grounds of ensuring benefits and preventing harm and chaotic conditions. Many prominent scholars have stated this, such as Al-Izz ibn Abd Al-Salam, Ibn Taymiyah and Al-Shatibi.

This ruling by the council answers numerous cases and establishes a rule that enables Muslim couples living in non-Muslim countries to settle their disputes while observing the law of the countries in which they live. On the basis of this ruling, it is clear that the divorce issued by the American court in the reader’s case is valid, regardless of whether her husband was at the time willing to divorce her or not. She was the one who applied for divorce, as the American law gives her the right to do so. Besides, under Islamic law, it is open to a woman to seek the termination of her marriage in accordance of what is known as khula’.

When this is established, the whole issue of her husband’s pronouncement of a divorce according to Islamic law becomes superfluous, because they were already divorced when he did so. This also makes the question of her being in the period at the time immaterial.

As for the second marriage of her former husband, it is a valid marriage. The condition she speaks about may be valid while she is married to him. Since her husband’s second marriage took place after she was divorced from him, that condition was no longer valid.

The reader also asks whether her former husband’s words to her son constitute a re-instatement of their marriage. The answer is definitely not. Such re-instatement requires first of all that the man should use words to that effect and intend them as revoking the divorce.

It also requires that the woman’s waiting period should not have expired, which most probably it had. After the waiting period is over, re-instatement of the marriage requires a fresh marriage contract with witnesses and the stipulation of a new dower, or mahr.