Answer
In the Name of Allah, Most Gracious, Most Merciful.
All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.
In this fatwa:
A wife filing for divorce in a civil court does not automatically nullify the Islamic marriage contract. For the divorce to be Islamically valid, she must take an additional step. This can be getting the husband to agree (making it a khul`), or if he is being abusive or neglectful, going to an arbitration council of scholars who can validate the divorce as a Khul` after examining the case.
In response to this question, Dr. Yasir Qadhi — the Dean of The Islamic Seminary of America and the resident scholar at the East Plano Islamic Center — states:
Actually, I’m not aware of any Imam saying yes to this. The question is as follows: if the husband files for divorce, I’m going to go a bit back. If the husband files for divorce, in Islamic law, the writing of divorce is the same as verbalizing divorce.
So if the husband files for divorce and signs that he’s divorcing his wife, we don’t care if it’s a civil court or an Islamic judge, or if he writes to the wife or a friend. It doesn’t matter. He has written, “I’m divorcing my wife.” It’s not that it’s a civil court or not. When you write, “The wife is divorced,” or “I’m petitioning for divorce,” or “This is a divorce,” when you write this, this is the divorce. That’s the same as the verbal. So the husband writing that he’s divorcing the wife to the civil court is a divorce.
The flip side, when the wife files for divorce, we have to be very specific here. She is filing for the civil divorce, and the civil divorce, that is the business of the state and the country. There’s another aspect which is the marriage contract.
That marriage contract will not, in and of itself, be nullified if the wife files for a civil divorce. Rather, she must do one other step, with multiple options.
Number one, she gets the husband to agree, and the husband then agrees and signs “no contest,” “I accept she’s also divorcing,” and they can then agree this is a Khul`, which is when the wife files for divorce in an Islamic court. Because if the wife asks for divorce in an Islamic court and the judge agrees, this is called Khul`.
So if the husband agrees “no contest” or whatever, this could be acceptable and in that case, it will then be a Khul`.
But what if the husband doesn’t agree? This is where the Fiqh Councils have basically said that she should go to an arbitration council of senior scholars of the community, or at least one neutral, respected scholar, so that the scholar can look into the case. What is going on?
If the husband has abandoned her, if the husband is not paying anything, if the husband is abusive, and the scholar, the arbitration committee, tries to contact him, or the husband is not interested in this and it’s clear that he’s being unjust, then the arbitration committee or the Imam can say, “Okay, this is a violent husband, and so you deserve Khul`.”
So she will do the civil divorce, and the arbitration committee of the Sheikh will say this is a legitimate Khul` because we have spoken to your husband and it’s clear that he is abandoning you or he’s not treating you rightly or whatever.
In the end, listen brothers, you have to understand one thing. In an ideal Islamic land, suppose everything was 100%, we had the Shari`ah around us, the wife is not a prisoner. If she really wanted to get out of the marriage, after some hurdles, any Islamic court would say she’s not a prisoner. If she kept on saying, just like in the case in the Prophet’s time, Khawlah came to the Prophet and said, “Ya Rasulullah, I don’t have any specific complaints about my husband, I just don’t want to remain married to him.” She literally said, “I don’t have a specific complaint, this is just not working out.” He didn’t even ask her a second question. He said, “Will you give him his Mahr back? Because you are filing, and you’re telling me he’s not doing anything wrong, it’s not his fault. You are telling me he did nothing wrong and you’re simply saying it’s not working out. Are you going to return the Mahr? He gave you an entire garden, a piece of land. Are you going to return it to him?” She said, “Yes, I’ll return it to him.” He, right then and there, gave the Khul`.
So I’m trying to explain to our brothers who are sometimes a little bit too oversensitive in this regard: a wife is not a prisoner. If she really wanted to get out, eventually she would. In even the most conservative country, the judge will say, “Give it a try, try another three months, try another five months.” And then she’ll come back again, “I still don’t want to do it.” Okay, fair, Bismillah, Khul` will happen.
So when we don’t have an Islamic court in this country, what is the alternative?
The alternative is, as I said, that she will go to a Sheikh or an arbitration committee. But now what if there is no Sheikh in her community? This is a problem, and there’s no easy solution to this. The Fiqh Council is talking about this now, let’s see what the fatwa comes out with. But without a doubt, the default is, if the wife files for divorce, as a default you cannot say the talaq takes place in the eyes of Allah, because the civil divorce filed by the wife is a civil case. The divorce is a separate issue. The Khul` is a separate issue.
So she should do one of two things: either get the husband to say this isn’t working out and, “Let’s just finish the marriage,” and he will sign, or if he’s being nasty and mean, which is very common—talk to any Imam in the country, talk to any sheikh in the country, he will tell you horror stories about this reality. By the way, every time I say this, I get a whole bunch of emails from men with their horror stories. Everybody has horror stories. I agree, sometimes women are violent to men, sometimes men are violent to women. I agree. I’m just right now talking about this scenario. 100%, sometimes wives are very unjust to their husbands and they take them to court and they take extra money. That’s also injustice, and sometimes it’s the other way around. So stop blaming each other. Each side is guilty of its own crimes and each one has issues to deal with.
So in this case, if the wife wants to get out of the marriage and the husband keeps on refusing for no legitimate reason, what is she going to do?
This is usually the case we get, in which the husband has abandoned her financially. The husband is angry at her for whatever reason and he’s saying “enough.” And this is un-Islamic. It’s literally, Allah says, “Do not leave her suspended.” This is literally in the Quran. “Do not leave her suspended,” neither is she your wife, nor can she marry somebody else.
This is, I would say, a very common case in this part of the world. What should a woman do in that case? We say in this case, she files for divorce in the civil court, she explains her situation, but she should get some neutral party to verify that this is the case.
Somebody, even if not in her own city, maybe she’s in some small town, go to the closest place, at least get some person of knowledge so that he can verify that yes, this is an unjust husband. When that is the case, insha’Allah, with the civil divorce and the Fatwa or the judgment of the Sheikh, insha’Allah it would be considered Khul` or divorce.
Source: Live Q&A Session with Shaykh Dr. Yasir Qadhi
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Almighty Allah knows best.