Question Summary:
Civil Divorce

Question Detail:

A woman wishes to leave her marriage and has applied to the courts for a civil divorce. Before the court issues the civil divorce the court sends the husband a Decree Nisi. Which informs the husband that his wife has applied for a divorce and they wish to go through with it unless he objects. If the husband signs and agrees then after six months the court will send a Decree absolute. This is to inform him that his marriage is over. 

Answer :

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 Sharī’ah. 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, a 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.
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.[2] 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 a 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, UK
Checked and Approved by,
Mufti Ebrahim Desai.