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Fatwa CenterDivorce by Judge who Rules by Man-Made Laws
Question
Can a non-Muslim judge in a non-Muslim country rule on a divorce between a Muslim husband and a Muslim wife? The nikah was placed according to Shariah in a Muslim country. Is this divorce that is given by a non-Muslim judge in a non-Muslim country valid in the light of shariah, especially when the husband did not intend to divorce? The couple has two children.
Answer
All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad 
is His slave and Messenger.
Divorce does not take place merely by the judgment of the judge who rules by man-made laws. The decision of the Assembly of Muslim Jurists of America (AMJA) reads: “Resorting to man-made judicial system to terminate the marriage from the legal point of view does not alone entail the termination of the marriage from the Sharee’ah point of view.
With regard to what was mentioned about the husband not intending to divorce, we say that if the husband uttered the divorce in an explicit manner, such as when he said: ‘You are divorced’, then the fact that he did not intend to divorce is of no consideration. An explicit divorce takes place even if the husband did not intend it, and if he uttered a metaphor for divorce, like when he says to his wife: “Go to your family”, then it depends on his intention, and if he did not intend to divorce, then divorce did not take place. In addition, if he did not utter the divorce in the first place, then the divorce did not take place at all.
Moreover, if a woman is harmed by remaining married to her husband, and she desires divorce, she can refer the matter to the Muslim community in Islamic Centers and the like, so that they can remove the harm from her by divorce or khul’. We warn here that the spouses should not resort to divorce until its interest is preponderant. Therefore, one should not hasten for divorce, especially with the presence of children, as the separation of parents often has bad effects on them.
Allah knows best.
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