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Author Topic: Is it really divorce?  (Read 1726 times)

cinders

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Is it really divorce?
« on: Sep. 15, 2010, 07:07 AM »

Salam all,

I just wanted know if anyone has the answers.. Forigve me of my naiivety.
A sister I know  is going through a divorce I think. I want to ask was if a husband and wife have gone down the road of no turning back & are getting divorced in a non-Muslim country, when is divorce actually DIVORCE?
My understanding was if the Man wants Divorce, he can apply via the state & Islamically that's it. The law of the land stands. (talaq). Also he has no right to ask for Maher or gold.
However, if the woman wants to divorce then she has to apply to the state or be divorced in the eyes of the law & then also to the Shariah Council in UK for a Khula. She has to return Maher or gold.
Is this right or am I mistaken?
Oh also, when would she be allowed to remarry? 
Much appreciated, in advance.   
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Al-Qamar

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Re: Is it really divorce?
« Reply #1 on: Sep. 21, 2010, 01:01 PM »

Assalamu alaykum,

It's a slightly complicated topic, but let me try to explain, bi'ithnillah. We'll leave the courts and legal structure aside for the moment, ultimately the matter is between the husband and wife. The legal institutions only seek to aid the process, they're not a requirement for it to work (Islamically speaking).


Firstly, divorce. This is only possible from the husband, women cannot divorce. All that the husband needs to do is tell the wife that he is divorcing her, and that's it, the talaq is initiated. He needs to do it though when she is pure (i.e. not on her cycle) and in a period of purity where he has not touched her (in the marital sense), i.e. if they've not been together in a marital sense since she came off her cycle, he's able to initiate talaq.

Her iddah (waiting period) is three menstrual cycles. Once she completes the third cycle, she is completely free from him. If this was the first or second talaq, she has to stay in his home (because she's still his wife until the iddah period expires, and she's supposed to beautify herself to try and get him to take her back, and give him the chance to revoke his divorce). He can revoke the divorce at any point before the iddah ends, and the marriage continues as per normal.

If it was the third time he's pronounced divorce, she is no longer his wife with immediate effect (because he can't revoke the third divorce, it's pretty much final). She should wear hijab and leave the home. She still has the iddah of 3 cycles to wait before she can accept proposals, etc, but in terms of other obligations towards each other, they all end.

When the husband calls for a divorce, he can't ask for anything in return. The mahr he has promised his wife becomes due upon him (i.e. he has to pay it to her, unless she agrees to waive it, but he's not in a bargaining position... it's her right!)


With regards to the wife wanting to end a marriage, she has the option of a khula, whereby she ransoms herself off. The husband and wife agree a mutual amount between them, she pays that to him and as soon as the transaction is complete, she's free of him. She has to wait for one menstrual cycle before she can pursue other proposals, just to ensure she's not pregnant. It's generally believed she has to give the mahr back, but in reality the amount can be anything the two of them agree between themselves - so it can be the mahr amount, or more, or less.


And as always, Allah (swt) knows best
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cinders

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Re: Is it really divorce?
« Reply #2 on: Sep. 21, 2010, 01:17 PM »

Walaykum Salam. Thanks bro Al-Qamar. You've simplified things. I thought as much with regards to the main  points that you covered. However, The sister in question is divorced alhamdulillah islamically anyway. I know divorce is a last resort, but the guy she was married to was not a good guy. Even now he's being awkward. But alhamdulillah, she is free to marry again, if she so wishes.
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