Divorce by a non-Muslim Judge
When relations between man and wife are strained, a woman may seek a legal judgment in her case from the courts of the country in which she lives. Fiqh councils have different opinions on this subject.
Divorce by a non-Muslim Judge
· Divorce through the court in the West.
· Civil divorce in the West.
When relations between man and wife are strained, a woman may seek a legal judgement in her case from the courts of the country in which she lives. A judge who is not a Muslim may give a ruling ending the marriage according to the laws of the country. What is the status of such a divorce: is it binding in every respect? Can the couple stay together after such a court judgement?
Fiqh councils differ on this question, giving three different views, as follows:
The first view is expressed by the Assembly of Muslim Jurists of America, making clear that a divorce granted by a non-Muslim judge is of no consequence. A woman who seeks a divorce should apply to Islamic centres for a ruling on her case. The concluding statement of the second convention of the Assembly of Muslim Jurists of America held in Copenhagen in 2004 said: ‘If a man divorces his wife in accordance with Islamic law, he may go ahead and have this divorce certified by ordinary courts. If the couple are in dispute, after completing the required legal procedures Islamic centres may play the role of a Muslim judge when none is available. Resorting to man-made laws for the legal termination of a marriage is not sufficient to end the marriage from the Islamic point of view. If a woman is granted a judgement of divorce by a civil court, she should take this judgement to an Islamic centre to complete the Islamic process. There can be no argument on the basis of necessity, as Islamic centres are available and accessible in all areas.
In the case of a woman who had access to the law in Lebanon
a fatwa by the General Secretary of the Assembly of Muslim Jurists of America says: ‘A civil divorce ends the marriage from the perspective of civil law, but the Islamic bond of marriage can only be broken by the husband, a Muslim judge or whoever plays the role of such a judge, namely the imams of Islamic centres and those responsible for family affairs in such centres. Therefore, a woman who obtains a civil divorce through a court should go to the Islamic centre taking her document of civil divorce. The imam at the centre should then contact her husband to ask him to divorce her. If he refuses, the imam can order the divorce on the basis of the harm that his refusal causes. In the case under question the woman may alternatively resort to an Islamic court in Lebanon to order the termination of her marriage. Taking either course will make her divorce final. The civil divorce alone is not sufficient for final termination of the marital relationship. Nor is it sufficient to allow the woman in question to marry another man.
A paper by Dr Suhaib Hasan, on marriage dissolution through the channels of The Islamic Shari'ah Council in Britain, presented to the European Council for Fatwa and Research said: ‘If the ruling of dissolution is made by a non-Muslim judge, it is totally unacceptable. No dissolution can ever be made on such a basis, because a non-Muslim is unqualified to issue a ruling that is binding on a Muslim, as it is clearly stated in all works of Fiqh, or Islamic law.
The second view is expressed by the European Council for Fatwa and Research and it considers that a divorce ordered by a non-Muslim judge is binding on Muslims. The Council argues that a person who performs his marriage in any of these countries has implicitly accepted the rules and laws of the country. As such, a person should accept the ruling by a non-Muslim judge on divorce. Society considers that the husband has given the judge authority to rule on his divorce, on the basis of the rule that says: ‘What is known to be part of social tradition has the same status as what is stipulated as a condition.
The decision adopted by the Council on this question says: The normal situation is that a Muslim does not refer to anyone other than a Muslim judge or whoever fulfils the role of a Muslim judge. However, as there is no Islamic judicial system to which Muslims may refer in non-Muslim countries, a Muslim who solemnized his marriage according to the laws of these countries must implement the ruling of divorce made by a non-Muslim judge. Since such a Muslim married according to the same man-made law, he has implicitly accepted its consequences. One of these is that the marriage contract can only be terminated through a judge. This may be considered as an assignment of right by the husband, and such assignment is permissible according to the majority of scholars, even though the person concerned has not made this verbally. It is a rule of Islamic law that ‘what is known to be part of social tradition has the same status as what is stipulated as a condition.’ Abiding by court judgements, even though the judicial system is not Islamic, is permissible as it secures benefits and prevents harm, chaos and confusion. This is indicated by several prominent scholars such as al-'Izz ibn 'Abd al-Salam, Ibn Taymiyyah and al-Shatibi.
A study prepared by the late Shaikh Faisal Mawlawi, the former Deputy Head of the European Council for Fatwa and Research, tackled the Islamic status of a ruling of marriage dissolution issued by a non-Muslim judge in a case involving a Muslim in a non-Muslim country, i.e. according to man-made laws that are at variance with Islamic law. The study confined itself to the status of divorce involving a Muslim by order based on the man-made law of the country where this Muslim resides. It outlines several situations to which this case may apply, including that of the marriage contract having been conducted according to Islamic law. In this case, the same law should be resorted to for the termination of the marriage. On the other hand, if the marriage is done according to Islamic law and one of the spouses is a Muslim while the other is European, then the law of the European country is most likely to be applicable, and the couple are practically subject to this law. The study concludes that the judicial order issued by a non-Muslim European authority is binding on the couple from the Islamic point of view, just like it is binding on them according to the law of the country. The study goes on to draw a comparison between rules of divorce according to European laws and Islamic rules.
The third view goes into more detail. It may be summed up as declaring that if a ruling of divorce issued by a court of law happens to be consistent with Islamic law, it is valid. If it is at variance with Islamic law, then it is invalid and inconsequential.
The Prophet says
Whoever introduces in this matter of ours something that does not belong to it shall have it rejected
Related by al-Bukhari and Muslim
A relevant paper points out that the fact that Muslims are living in the West today and that their marriage contracts are not recognized does not constitute an excuse for anyone to seek or accept judgement that is at variance with God’s law. God makes clear that whoever seeks arbitration under any law other than His is an unbeliever:
But no, by your Lord! They do not really believe unless they make you judge in all disputes between them, and then find in their hearts no bar to an acceptance of your decisions and give themselves up in total submission
The paper suggests that there is no situation of necessity to justify acceptance of rulings based on man-made laws. If Muslims cannot arrange an Islamic divorce in Western countries, they can arrange it in Muslim countries, or give power of attorney to someone to conduct it on their behalf. It concludes that divorce in Western courts is valid for unbelievers and not valid for Muslims, unless it is in full agreement with Islamic law.
What is problematic here is that the paper does not specify what is meant by ‘divorce that is in full agreement with Islamic law.’ Perhaps it means that if the divorce aims to remove real harm caused to the woman, as in the case of one who is married to someone who beats her time after time, the divorce is valid. However, if the court dissolves the marriage because the husband has married a second wife, the dissolution is invalid. There is no doubt that most divorce cases submitted to such courts are based on the wife suffering harm at the hands of her husband or that she immensely dislikes him. If the paper means something different, it does not make this clear.
· The website of the Assembly of Muslim Jurists of America (AMJA): www.amjaonline.org.
· The website of the European Council for Fatwa and Research: www.e-cfr.org.
· Suhaib Hasan: ‘Marriage Dissolution through the Channels of the Islamic Shari[ah Council’, paper presented to the thirteenth session of the European Council for Fatwa and Research.
· The Muslim World League website: www.themwl.org,
· Salim ibn Abd al-Ghani al-Rafie, Ahkam al-Ahwal al-Shakhsiyyah lil Muslimin fi al-Gharb.
· Journal of the European Council for Fatwa and Research, Dublin.
- S. al-Rafie, Ahkam al-Ahwal al-Shakhsiyyah fi al-Gharb, p. 618.