Full Lecture Transcript (Cleaned)
The Question — 23:41
In the American court system, when the wife files for divorce and the husband does not file, does this constitute an Islamic divorce? Some imams say yes, some imams say no.
When the Husband Files — 23:55
Actually, I'm not aware of any imams saying yes to this directly. Let me go back a bit. If the husband files for divorce: in Islamic law, the writing of divorce is the same as verbalizing divorce. So if the husband files for divorce and signs that he is divorcing his wife, we don't care if it's a civil court or an Islamic judge or he writes to the wife or a friend — it doesn't matter. He has written, "I am divorcing my wife." It's not about whether it's a civil court or not. When you write "the wife is divorced" or "I'm petitioning for divorce" or "this is a divorce" — when you write this, this is the divorce. That's the same as the verbal pronouncement. So the husband writing that he is divorcing the wife to the civil court — it is a divorce.
When the Wife Files — 24:35
The flip side: when the wife files for divorce, we have to be very specific here. She is filing for the civil divorce, and that civil divorce is the business of the state and the country. There is another aspect which is the nikah contract. That nikah contract will not in and of itself be nullified if the wife files for a civil divorce. Rather, she must do one additional step. Multiple options:
Option 1: She gets the husband to agree. The husband agrees and signs — no contest, "I accept, she's also divorcing." They can then agree — this becomes a khul', which is when the wife files for divorce in an Islamic context. If the wife files for divorce and the judge or husband agrees, this is called a khul'.
Option 2: If the husband doesn't agree, the fiqh councils have basically said that she should go to an arbitration council of senior scholars of the community, or at least one neutral, respected scholar, so that the scholar can look into the case — what is going on. If the husband has abandoned her, if the husband is not paying anything, if the husband is abusive — and the scholar or arbitration committee tries to contact the husband, and he is not interested, and it's clear that he's being an oppressor — then the arbitration committee or the imam can say, "This is an oppressive husband, and you deserve your freedom." She will do the civil divorce, and the arbitration committee of the sheikh will say this is a legitimate faskh (annulment), because the husband has been abandoning her, not treating her rightly, or whatever the case may be.
A Wife Is Not a Prisoner — 26:05
Brothers, you have to understand one thing: in an ideal Islamic land — suppose everything was 100% and we had the Shariah around us — the wife is not a prisoner. If she really wanted to get out of the marriage, after some procedural hurdles, any Islamic court would grant it. She's not a prisoner.
Just like in the case in the Prophet's time: a woman came to the Prophet (peace be upon him) and said, "O Messenger of Allah, I don't have any specific complaint about my husband. I just don't want to remain married to him." She literally said she didn't have a specific complaint — it's just not working out. He didn't even ask her a second question. He said, "Will you give him his mahr back?" Because she was filing and she was telling him her husband did nothing wrong — it's not his fault. She was saying it's not working out. "Are you going to return the mahr? He gave you an entire garden, a piece of land. He didn't do anything wrong. Are you going to return it to him?" She said, "Yes, I'll return it to him." He right then and there gave the khul'.
So I'm trying to explain to our brothers who are sometimes a little oversensitive in this regard: a wife is not a prisoner. If she really wanted to get out, eventually she would. Even in the most conservative country, the judge will say, "Give it a try. Try another three months. Try another five months." And then she comes back again — "I still don't want to do it" — okay, the khul' will happen.
When There Is No Local Scholar — 27:25
When we don't have an Islamic court in this country, what is the alternative? The alternative is as I said — she will go to a sheikh or an arbitration committee. But now what if there is no sheikh in her community? This is a problem and there's no easy solution to this. The fiqh councils are talking about this, and we'll see what the fatwa comes out to be.
But without a doubt the default: if the wife files for divorce, you cannot say the talaq takes place in the eyes of Allah, because the civil divorce filed by the wife is a civil case. The Islamic divorce is a separate issue. So she should do one of two things: either get the husband to agree (and he will sign, and they can decide whether it's a khul' or talaq), or — if he's being nasty and mean, which is very common (talk to any imam in the country, any sheikh, and he will tell you horror stories about this reality) — go through the arbitration process.
The Case of an Unjust Husband — 28:50
If the wife wants to get out of the marriage and the husband keeps refusing for no legitimate reason — to make it even more clear, this is usually the case we get, in which the husband has abandoned her financially. The husband is angry at her for whatever reason and he's saying no. And this is un-Islamic. It's literally what Allah says: "Do not leave her suspended." This is literally in the Quran — "Do not leave her suspended. Neither is she your wife, nor can she marry somebody else." And this is, I would say, a very common case in this part of the world.
What should a woman do in that case? We say in this case she files for divorce in the civil court. She explains her situation, but she should get some neutral party to verify that this is the case — somebody, even if not in her own town, maybe she's in some small town — go to the closest place. At least get some person of knowledge so that he can verify that yes, this is an oppressive husband. Then when that is the case, insha'Allah with the civil divorce and the fatwa or the ruling of the scholar, insha'Allah we will consider the Islamic divorce valid. And Allah knows best.