Divorce and Marriage without Consummation
Question:
Brother X and Sister Y were married for a short while before things turned sour. The couple never lived together and the marriage was never consummated (even though they had the opportunity too). The couple have been separated for several months (more than that of a waiting period) and the divorce has not been finalised yet. The whole process (for divorce) has been initiated by Sister Y.
1) If the marriage was not consummated then do the normal divorce rulings apply or is the marriage annulled (as opposed to divorce)?
2) Is there such thing as an annulment of marriage when the marriage has not been consummated?
3) If the couple have been separated for a long time and NO divorce (revocable or irrevocable) issued then will the sister still need to observe the waiting period when a divorce is finally issued.
4) How can the waiting period be observed in the West with work commitments etc etc. Is there dispensation for those living in the west and who don’t have the means to observe the waiting period.
5) Can the sister initiate the divorce, and if so, how?
Answer:
1) If the marriage was never consummated, neither the couple were ever together in privacy and isolation (khalwa) since their marriage, then the rules of divorce will defer, e.g.: The wife will only be liable for half of the specified Mahr (dowry), also the wife will only receive one divorce and with that she will be separated from her husband and there is no reconciliation.
Nevertheless it seems that in the stated situation, the couple had been alone sometime or another where they had the opportunity to have intercourse, therefore the same rulings of normal divorce will apply.
2) In Shariah, there are only two ways of separation between the spouses – divorce or khul’a (financial payment from the wife in order to get a divorce). If both these avenues fail, then the woman will have to recourse to a shariah committee for annulment.
3) If after the Nikah (marriage) the couple had intercourse or they were in isolation (meaning they were alone in a way that intercourse was possible), then such a woman, if divorced will have to wait the full period, otherwise there is no waiting.
4) The rulings of Iddah (the waiting period) will apply even in the west. Yes if there is an extraordinary situation, then the ruling will be given according to that situation.
5) In Islam, the husband has the exclusive right of issuing divorce. The wife can ask her husband to issue her a divorce, opt for a khul’a (explained earlier) or refer to a shariah court for annulment.
I hope this has answered all your questions.
And Allah Knows Best
[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK