He divorced his wife based on misinformation from her family

7-12-2015 | IslamWeb

Question:

Assalaamu alaykum wa rahmatullah. I have a question concerning my divorce. I was married for nearly four months, and after that I 'divorced' my wife. There was no abuse or disrespect in our treatment, but I treated her coldly and neglected her. After some discussions, we got along with each other and decided to stay together. However, her family insisted on getting us divorced and put her under pressure. This caused new problems, so we stopped communicating and the communication went on only with her family members. At that time, I did not want the separation and clearly said so to the family members, but her family did not tell her that. So my wife at that time thought that I wanted to divorce her (which was not true!), and I was told by her family that she wanted the divorce. I am a man who would never hold a woman who does not want to stay with him, so based on this wrong information I was ready to divorce her. The 'divorce' took place with her father and uncle. They prepared an agreement in which we appointed that I divorce my wife in return for a part of the paid mahr. I signed the agreement and pronounced to the father, "I divorced your daughter." There was no shaykh or judge, and nobody forced me. After nearly two weeks, both sides calmed down, and we met in a public place to discuss what happened. Then we recognized that there was a lot of misinformation that led to this situation. And we agreed to try again. My question is now, is this a khul' or is it a divorce? This Message was written by me and my ex-wife, so it is not my subjective view. Please give me the right proof. May Allaah bless you.

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  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

The Shaafiʻi and Hanbali scholars underlined that when a father commands his daughter’s husband to divorce her in return for the dower and the husband does, the divorce takes effect, yet the husband is still liable for the dower. An-Nawawi  may  Allaah  be  pleased  with  him wrote:

"If a man said to his son-in-law, 'Divorce my daughter and you are not liable for her dower,' and the husband does, then divorce takes effect, yet he is still liable for the dower whether the wife was an adult or under age because if she is an adult, she has the right to dispose of her own wealth as she wishes (and her father has no right to dispose of any of it), and if she is under age, then her father has no right to dispose of her wealth against her best interest..." [Al-Majmooʻ]

Ibn Qudaamah  may  Allaah  have  mercy  upon  him wrote, "If a father asked his daughter’s husband to divorce her in return for the dower and he does, then a revocable divorce takes place yet the husband is still liable for the dower; the father is not liable for the dower because he has exempted the husband from a right that only the concerned person (the wife) can exempt him from. Hence, such an act on part of the father is similar to that on part of a total stranger (i.e. invalid and non-binding)..." [Al-Mughni]

Based on that scholarly view, the divorce has taken effect, and it is not considered khulʻ, and accordingly you are not entitled to the dower, as agreed upon. The fact that this divorce did not take place in the presence of a shaykh or a judge does not entail declaring it ineffective.

If this was not the third occurrence of divorce, then you have the right to revoke the divorce and take your wife back in marriage, and there is no need for a new contract in this case as long as the ʻiddah (post-divorce waiting period) has not expired yet. If the ʻiddah did end, then you must conduct a new marriage contract. Please refer to fatwa 82541 on the different kinds of divorce.

If the wife authorizes her father or uncle to issue a khulʻ in return for part of her dower, then the khulʻ is valid; it is permissible and valid for the wife to delegate or authorize someone else to issue a khulʻ on her behalf. Ibn Qudaamah  may  Allaah  have  mercy  upon  him wrote, "It is valid for both spouses or either of them to authorize someone else to conduct a khulʻ on his or her behalf, and it is valid to delegate and authorize whoever is legally entitled to conduct a khulʻ for himself to conduct it on behalf of another person and such authorization is valid..." [Al-Mughni]

The khulʻ is considered an irrevocable divorce; it is impermissible for the husband to take his wife back in marriage except with a new marriage contract. Please, refer to fatwa 88502.

Lastly, we would like to warn the guardians and parents against hastening to end the marriage bond and terminate their children's marriages when the spouses do not willingly want to do so; verily, causing separation of husband and wife is a serious and grave sin in Islam. Abu Hurayrah  may  Allaah  be  pleased  with  him narrated that the Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) said, "Anyone who incites a woman against her husband is not one of us." [Ahmad and Abu Daawood]

Allaah knows best.

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