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Fatwa CenterTaking legal steps to end the marriage does not necessarily mean divorce
Question
A wife decided she wants divorce so she hired an attorney who drafted a separation agreement. The husband had no choice but to hire an attorney so he can defend his rights. If the couple, who lives in the US, worked with their respective attorneys to modify and write the separation agreement, does that constitute an act of divorce? The separation agreement never reached a final form. The husband didn’t want divorce, didn’t say “the words of divorce”, didn’t fill out or signed the petition for divorce (A form to request divorce from the court), and the couple never filed divorce with the court. When the pressure was gone the husband stopped dealing with the attorneys. Later the wife expressed her will in continuing with the marriage. The couple has been living apart for about one year. Before hiring the attorney, the wife has requested the husband to divorce her or/and to leave the house. During disputes the husband warned his wife that (probably with qassam) “If I step outside this house (meaning leaving the house) I will never come back”. He was not thinking divorce but to make her stop and warn her and make her understand that we should not take these things lightly and that he will be patient for the children but if he runs out of patience and leaves he will/might not come back. The question is: Husband saying he will not come back as explained above is that an act of divorce? As explained above, the husband left because he received a letter from the wife’s attorney. The husband had to leave sooner or later. He preferred to move to another place before he could be forced by the police and he didn’t want the children to witness the scene. Can the couple continue with the marriage? Is there anything they have to do? Jazakum ALLAH khayr
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad 
is His slave and Messenger.
In Islamic Law, divorce is in the hands of the husband, so if he did not divorce his wife, then she still remains as his wife and the wife asking for divorce or that the husband subsequently endeavouring to defend his rights does not lead to divorce. Similarly, the husband and wife being separated [living separately] is not considered as a divorce. For more benefit, please refer to Fataawa 89825 and 82732.
Moreover, the statement of the husband that if he steps outside the house he will never come back, if by saying so he did not intend divorcing his wife, then this does not lead to divorce. However, if he made an oath not to return and then he broke his oath and returned home, then he should expiate for breaking an oath; for more benefit, please refer to Fatwa 86118.
Finally, it should be noted that the spouses should be keen on preserving the stability of the marital life and stay away from problems, and be wise if some problems occur.
Allaah Knows best.
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