Case of delegated divorce to the wife
1-11-2016 | IslamWeb
Question:
Assalaamu alaykum. I got married with a boy in court without permission of my Wali (legal guardian), but consummation did not take place, nor have we been alone by ourselves. Also, the right of divorce was given to bride for the rest of her life at the time of the ceremony. After three days, due to some problems, the boy called me and said on the phone, "I divorce you but I will contact you within 30 days and then the divorce will be nullified." He then contacted me again after a few days. I also used my right of divorce and said, "I divorced you," three times. My question is: Am I still his wife, or can I marry anyother person now? Was the marriage valid as the Wali was not present? How can I use my right of divorce? Please give me a brief answer as I am in great difficulty. 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, is His slave and Messenger.
The consent of the bride's Wali is one of the conditions for the validity of the marriage contract according to the preponderant scholarly view. However, if the Muslim judge declared such a marriage contract valid, then it is regarded valid. If an Islamic court stated the validity of this marriage contract, then it is valid. Please, refer to fataawa 83629 and 130284.
The majority of the scholars, including the Hanafis, held that if the husband delegated the wife to issue divorce, then the delegation is valid only during this very session in which it was granted to her, and after they part she does not have the choice to end the marriage and the delegation becomes null and void. (If she did not exercise her right in the same session, then this right will expire.) Other scholars, on the other hand, held that the delegation does not expire by the end of the session in which it was granted to the wife and that she can still issue the divorce at any time after the session.
As for your husband's statement, 'I divorce you,' in the present tense, you should know that divorce does not take effect in this case unless the common practice of your community is to issue divorce using the present tense, as underlined in fatwa 269398.
As you can see, some of the issues that we mentioned are subject to differences in the opinions of the scholars. Moreover, some of them require further investigation and verification to have a clear picture and inquire about the husband's intention. Therefore, it is preferable to refer the case to the Sharee'ah court in your country.
It is impermissible for you to remarry another man except after verifying that you have become divorced and that the marital bond has been terminated, and this requires a judge's verdict or the husband's acknowledgment that his delegation for you to divorce yourself was terminated. For more benefit, please refer to fatwa 195979.
Allaah knows best.