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Question ID: 657 Category: Dealings and Transactions
Validity and Effectiveness of Divorce

Assalam Alaikum Warahmatullah

 
My Khala and Khaloo had some property dispute and they were told by their lawyer that to separate their property they need to sign a 'dissolution of marriage' document in front of a judge. 
 
My khaloo clearly stated that he is not willing to divorce his wife, and signing this paper to purely work out the legal requirements to separate the property. He got one house to his name and Khala got the other house to her name.
 
Now we are worried if this paper (attached here) does indeed cause a Khula'a or Talaaq in shariyat. Kindly review and advise.

الجواب وبالله التوفيق      

As per situation described in the question, the divorce in question is a legal divorce, it’s not a Shar‘aidivorce. Although the legal separation has taken effect, it doesn’t affect the Shar‘ai Nikah at all. Therefore, according to the teachings of the Islamic Shari’ah, the Nikah between you and your husband is still valid. If a Non-Muslim Judge declares a legal divorce to separate the husband and wife, as described in the question, it will have no effect on the Nikah between them, therefore, the woman neither becomes free nor gets out of the Nikah.

 

قال تعالی: ولن یجعل اللہ للکافرین علی المسلمین سبیلا (النساء، 141

(لم ینفذ حکم الکافر علی المسلم و ینفذ للمسلم علی الذمی(فتاوی دارالعلوم زکریا ص 273، ج 4 بحوالہ ایضاح النوادر علامہ شامی

 

It is written inFatawa Rahimiyahthat the decision of a Non-Muslim Magistrate (Judge) regarding ending an Islamic Nikah, is not reliable from a Shar‘aistandpoint (ص 546، ج4).

واللہاعلم  بالصواب

Answered on: 12 November 2019 | 15 Rabiul-Awal 1441 Answer By: Mufti Ghulam Samdani Sahib Checked By: Mufti Mohammed Navalur Rahman