Answer
Wa `alaykum As-Salamu wa Rahmatullahi wa Barakatuh
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:
- The spouses should avoid fighting or divorce as much as possible. If they have difficulties and problems they should be patient and forbearing. They have to try to work out their differences and seek help from their relatives, friends, or professional counselors.
- Separation due to strained relationship does not affect the validity of marriage, however long it lasts. They are still husband and wife.
- If the husband does not reconcile with his wife and remains severed from her, she has a right to file for divorce and take a legal divorce through the court.
In response to your question aboute the effect of separation on the validity of marriage, Dr. Muzammil H. Siddiqi, Former president of the Islamic Society of North America, states,
Marriage in Islam is a solemn contract for which the Shariah lays down rules and arrangements to guarantee its stability.
It is not right for husband and wife to break their relations for such a long time. If there are differences, then they should try to reconcile as soon as possible.
Prophet Muhammad (peace be upon him) urged Muslims to reconcile their differences within three days. The one who begins the reconciliation receives the greater reward and blessings from Allah.
However, separation due to strained relationship does not affect the validity of marriage, however long it lasts. They are still husband and wife.
If the husband does not reconcile with his wife and remains severed from her, she has a right to file for divorce and take a legal divorce through the court.
But if a husband separates from his wife with an oath that he will not have conjugal relations with her, then he has only four months to reconcile. According to the Quran, this is called ila’.
In the Shariah, ila’ means that the husband swears that he will not have sexual intercourse with his wife, either for an unrestricted period or for more than four months.
Allah says, {Those who swear that they will not go into their wives, the waiting period is four months. Then if they go back, Allah is surely Forgiving, Merciful. If they resolve on a divorce, then Allah is surely hearing and knowing.} (Al-Baqarah 2: 226-227).
At the end of four months, if he has not reconciled verbally or in action, then the wife has the right seek divorce through the court. And the judge can grant divorce to her.
Almighty Allah knows best.
Editor’s note: This fatwa is from Ask the Scholar’s archive and was originally published at an earlier date.