Divorce by Islamic Centres
Do Islamic centres have a judicial role?Is divorce ordered by an Islamic centre valid?
Divorce by Islamic Centres
• Do Islamic centres have a judicial role?
• Is divorce ordered by an Islamic centre valid?
This is a question about the legitimacy of divorce ruled by an Islamic centre, or a similar institution, in cases put to them by Muslim women who obtained an order of dissolution of their marriages from the courts of non-Muslim countries.
The majority of contemporary Muslim scholars, whether members of Fiqh councils and assemblies or not, are of the view that Islamic centres in non-Muslim countries have the jurisdiction to divorce a woman when they determine that the continuity of the marriage causes her harm. Their ruling counts as a judicial ruling that dissolves a marriage, and the woman in such cases is divorced from her husband by such a ruling. The authorities confirming this ruling include:
The Islamic Fiqh Council of the Muslim World League
In its nineteenth session, held in Makkah 22–26 Shawwal 1428 AH, 3–7 November 2007, the Council studied the question of an Islamic centre or a similar institution issuing a ruling of divorce for a Muslim woman who puts her case to the centre after having obtained a ruling of divorce from a non-Muslim court. The Council discussed the challenges and problems faced by Muslims living in non-Muslim countries and their keen desire to know the proper rulings that they should implement in their lives. Thorough discussions followed the presentation of the studies and papers dealing with the subject and concluded with the Council’s adoption of the following decision:
1. The Council urges Muslims living in non-Muslim countries to refer to reliable Islamic institutions and centres to put in place procedures for marriage, divorce and other types of marriage dissolution, paying due regard to the laws regulating such contracts in their countries of residence, so that everyone will get their rights.
2. The Council stresses that people’s interests require that marriage contracts should include a condition stipulating that disputes should be referred to arbitration in accordance with Islamic law.
3. When a civil court in a non-Muslim country gives an order terminating a marriage, both husband and wife should refer to a reliable Islamic centre in order to take the necessary steps required by Islam to complete the divorce.
4. If the country’s regulations concerning the dissolution of marriage allow the case to be referred to an Islamic centre, a Muslim lawyer or arbiter for an agreed settlement, it is obligatory to ask for and accept such referral.
The Council’s decision recommends such institutions and centres that represent the Muslim community to undertake the following:
i. Set up committees for reconciliation and arbitration in family matters whose members should combine proper Islamic knowledge, understanding of the law and practical experience. Members of such committees should be given the necessary training and qualifications to help them undertake their work in the proper way from both the Islamic and legal points of view.
ii. Endeavour to have whatever privileges the laws of their countries allow upheld by courts, including decisions of the reconciliation and arbitration committees, the so-called religious mediator, etc. They should also endeavour to gain recognition of their legal jurisdiction in personal and family matters, so as to ensure implementation of Islamic law while observing the laws of their countries of residence.
iii. Islamic centres should coordinate their efforts to make Muslims more aware of the Islamic rules and procedures on personal and family matters.
Although this decision does not give Islamic centres clear authority to grant a divorce, its direction confirms that an Islamic centre in a non-Muslim country has an authority that is similar to that of a judge. The decision points out the desirability to include in marriage contracts a condition to refer disputes to Islamic centres for arbitration. It thus gives the centre the right to put the procedures of divorce in place.
The Assembly of Muslim Jurists of America
The concluding statement of the Assembly’s second convention held in Copenhagen, in 2004 says that when 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, Islamic centres may, after completing the required legal procedures, assume the role of a Muslim judge when none is available. Resort to man-made laws for the legal termination of 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.
A fatwa by the General Secretary of the Assembly of Muslim Jurists of America, in the case of a woman who has access to the law in Lebanon, 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.’
• 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.
• Badriyyah bint Abdullah al-Aqeel, Al-Nawazil fi al-Nikah wa Firaquh.