Question Summary:
Does a UK civil divorce constitute a shar’i divorce?

Question Detail:

 
 
If a husband gives a UK Civil Divorce to his wife is that considered valid shariah Talaq?
Or does he have to say talaq 3 times verbally or written or obtain an islamic divorce through an Islamic court or body.?
Does a Civil UK Divorce pertitioned by the Husband and given by the husband mean that he has islamically divorced his wife and that now she has become haram for him.?
 

Answer :

In the Name of Allah, the Most Gracious, the Most Merciful.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
If the husband issued a civil divorce to his wife or he does not contest his wifes application for a civil divorce and in both instances the husband has no intention to issue a Shar’i talaaq, the civil divorce will not constitute a talaaq in Shariah.
If the marriage has broken down and there is no scope for reconciliation whatsoever then the wife may request the husband to issue one talaaq-e-baa’in (irrevocable divorce) to terminate the marriage. There is no need for the husband to issue three talaaqs. The wife may also request for khula’ which constitutes a talaaq-e-baa’in.
If the husband refuses to give her a talaaq or declines the offer of khula’, the wife may request her local ulama Judicial Body to annul the marriage. If the Judicial Body finds legitimate grounds to annul the marriage, they are bound by strict rules before doing so.
Hereunder is a detailed fatwa issued by the Darul Iftaa on civil divorce not constituting a Shar’i talaaq. However we advise that if the marital dispute has landed up in the courts, it is a sign that the marriage has broken down. If there is no hope of reconciliation, the husband should practice on the following verse of the Qur’an,
فامساك بمعروف او تسريح باحسان
Translation-Retain with honour (and love) or allow to leave with (kindness and) grace (Surah al-Baqarah, verse 229).
And Allah Ta’āla Knows Best
Bilal Ishaq (Issak)
Student Darul Iftaa
Leicester, England, UK 
Checked and Approved by,
Mufti Ebrahim Desai.
In the Name of Allah, the Most Gracious, the Most Merciful.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
 
 The function of a judge in a secular court is to administer justice according to the laws under which he is conferred with jurisdiction. He is not at liberty to trespass the boundary of the justice system within which he operates even if the plaintiff’s claim is unopposed.^[1]
 
If a married woman requires a divorce from a secular court, the judge considers her request and issues a decree according to the requirements of the secular legal system in effect in the country in question. It cannot be assumed that the decree of a civil divorce is also a decree of Talāq according to Shariah. Such an assumption is contrary to reality as the judge does not even intend to issue a decree of talāq.
If papers of civil divorce are served on the husband and he signs the papers consenting to a civil divorce, that consent likewise does not constitute a shar’i talāq as that is not tawkeel (deputation) of talāq to the judge. In a civil divorce system, consent to divorce is followed by a confirmation by the judge, who still must decide whether as a matter of fact and law, the legal requirements for granting a divorce have been met.
 
The judge may still find, for example, that despite the husband not contesting the divorce, the wife has not established proper grounds for a divorce, and thus refuse a civil divorce. District Judge Stephen Gerlis who sits at Barnet County Court has noted: “As yet the judge's role in relation to undefended divorces is not as a rubber stamp. We have to consider whether, on the papers, the marriage has broken down irretrievably.”
 
This principle would apply even in cases where the husband explicitly consents to a secular divorce. For example, in Tommey v Tommey [1983] Fam 15 at page 21 the English court explained in the context of a divorce matter: “A judge who is asked to make a consent order cannot be compelled to do so – he is no mere rubber stamp. If he thinks there are matters about which he needs to be more fully informed before he makes the order, he is entitled to make such enquiries and require such evidence to be put before him as he considers necessary.”
In addition, the Supreme Court of the United Kingdom confirmed in Radmacher (formerly Granatino) v Granatino (Rev 4) [2010] UKSC 42 (20 October 2010) at para 149: “The court has the power to refuse to make the order although the parties have agreed to it. The fact of the agreement will, of course, be likely to be an important consideration but would not necessarily be determinative. The court is not a rubber stamp.”
 
Therefore, a husband who agrees to let the wife proceed with an uncontested divorce claim, and even a husband which consents to such a divorce, is essentially doing no more than informing the Judge that he will be placing no further evidence before the court. The husband is then simply leaving it up to the Judge to decide whether the legal requirements for a civil divorce have been met. The husband’s consent in this regard does not bind the Judge.  It is clear from the aforementioned that the interpretation of deputation (tawkeel) is baseless. The judge is not the deputy (wakeel) of the husband in granting a decree of divorce.
Furthermore the fundamental conditions of wakaalah are not found [2].
 
Further to the above in Shariah, a mere consent to divorce followed by the confirmation of the judge does not constitute talāq. If according to the wording of the document one assumes the consent of divorce to be tawkeel (Deputation) to the judge, then this must be interpreted within the context of the justice system within which he is acting.  The documents are to administer a civil divorce. If the consent is interpreted to depute the judge to issue a decree of divorce on his behalf, in that case too, the tawkeel will be confined to issue a civil divorce and not a shar’i talāq. The husband did not give general empowerment to the judge to issue a shar‘i divorce as well. In fact, the husband is empowered in Sharī’ah to issue a verbal divorce by himself. He does not need to depute anyone for that and neither is that the purpose in civil divorce documents.
 
 Accordingly, it is our considered opinion that a civil divorce issued by a judge by virtue of the husband consenting to divorce is not a talāq in Shariah if the husband does not intend a shar’i talāq. To interpret consent of divorce as issuing a shar’i divorce or deputing the judge to issue a divorce is against the reality of the function of the judge and a fundamental violation of the independence and neutrality of a judge.
 
And Allah Ta’āla Knows Best
Saleem Khan
 
Student Darul Iftaa
Bradford, England
 
Checked and Approved by,
Mufti Ebrahim Desai.
www.daruliftaa.net