Wife Applying for a Decree Absolute after the Husband Initiates a Legal Divorce
Question:
I have been married for 8 years. My husband initiated divorce proceedings 18 months ago. In the letter from his solicitors, it mentions that ‘my client wishes to start divorce proceedings and also that the marriage has broken down irretrievably. I received the first certificate of ‘Decree Nisi’ from the court 4 months ago.
My husband was given a certain time after which he was entitled to apply for the ‘Decree Nisi’ to be made ‘Decree Absolute’. I discovered that his solicitor had sent him some paperwork for him to sign to enable them to make the ‘Decree Nisi’ into a ‘Decree Absolute’, but he failed to respond. The court has advised me that I am entitled to make the application for the ‘Decree Nisi’ to be made absolute; hence I applied for the decree to be made absolute.
What I would like to know is that once the court grants the ‘Decree Absolute’, would that Islamically count as a valid divorce, given that my husband failed to respond to the letter that his solicitor had sent him?
Answer:
When a husband files for a legal divorce, he appoints the court to divorce his wife on his behalf. Islamically, a husband has a right to divorce his wife either himself or by appointing someone else as his representative to divorce his wife on his behalf. It is not necessary that this ‘representative’ be a Muslim, as is the case in filing/petitioning for a legal divorce through the courts.
Shaykh Qadri Pasha states, in his decisive codification of Hanafi personal law, Al-Ahkam al-Shar’iyya fi ‘l -Ahwal al-Shakhsiyya, which is a primary source for the personal law of several Muslim countries, and continues to be taught and used across the Islamic world:
‘(Item 222) Divorce may be effected in speech or in clear and understandable writing, whether signed by the husband or someone he has given agency to do so on his behalf…’ (Al-Fawa’id al-Aliyya ala ‘l-Ahkam al-Shar’iyya fi ‘l -Ahwal al-Shakhsiyya P: 120)
Thus, given the fact that your husband petitioned for a legal divorce and initiated the divorce proceedings, and thereafter he did not oppose the court in making the divorce decree absolute, Islamically a non-reversible (ba’in) divorce will take place on the day the court issues the ‘Absolute Decree’ of divorce. Legally, the petitioner can prevent the respondent from applying for a ‘Decree Absolute’, but due to the fact that he did not do so, the legal divorce would also count as an Islamic divorce.
As such, when you receive the Decree Absolute, you are no longer married to him and free to re-marry after completing the waiting period (iddah). You do not need to take an Islamic divorce from your husband. (For more details on legal divorce through a court, please refer to the answer already posted on this website titled: ‘Legal Divorce according to Islamic Law’.)
And Allah knows best
[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK