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Divorce Proceedings In Court

Question

A happily married Muslim couple had a court marriage done. Now due to some legal issues they would like to dissolve the court marriage by asking for a divorce order. Will this divorce order have an implication on their shar’i nikah?

Answer

First of all, it should be borne in mind that there are certain situations whereby a divorce given in court will be considered to be a divorce in terms of Islâmic Law as well. 

a) For instance, when a husband files for divorce in court, he in effect, delegates to the 
magistrate the authority to issue divorce on his behalf. When the magistrate formally passes the decree of divorce, the applicant’s wife will be Islamically divorced as well. 

b) Similarly, if the wife files for divorce and the husband later consents to the divorce and appends his signature to the court decree, then too, the divorce will take place Islamically as well. 

On the other hand, if the wife files for divorce in court and when the court informs the husband of the date of hearing, with the option of contesting the wife’s application if he so wishes, the husband does not respond and the court passes the decree of divorce by default, in that case, although the divorce will be recognised in secular law, it will not take place Islamically. This is because of the fact that in this case, neither did the husband file for divorce, nor did he consent to the divorce by way of appending his signature to the divorce decree. If there is some legitimate reason and expedience in divorcing in court, such as perhaps cancelling a Community of Property Marriage Contract in order to migrate to an Anti-Nuptial Contract, the latter form of annulment may be adopted for “convenience sake” as this procedure would not result in an Islâmic divorce taking place.

Checked and Approved By:

Mufti Muhammed Saeed Motara Saheb D.B.

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