As-salaamu `alaykum,
My husband and I had an arranged marriage years ago; from our fifth years up to the present time we been a continent apart from each other. As murids we seek to end the marriage amicably. There are no children involved, and both of us have absolutely zero interest in reconciling.
I requested my husband grant me a talaq but his parents would rather us go through the khula` process instead. We have read what Mawlana Shaykh Hisham has written about the khula` here: https://eshaykh.com/family/
Here’s my question: since my husband lives far apart from me, is it permissible for the khula` to take place over the phone? The scenario would be the following: the imam and the two witnesses would be physically present with me while my husband would declare “I am leaving you / I let you go” over the phone.
Another question: after my husband declares that he lets me go, are we Islamically divorced right then at that very moment? The reason I am asking is because I would like to know the earliest moment I can initiate filing the divorce paperwork via the court system?
Wa `alaykum as-salaam.
Answer:
`Alaykum Salam,
Legal witnessing in Islam requires physical presence by definition and
therefore cannot take place over the phone or video conference. However:
1. The marriage is already annulled in effect if there has been:
(i) no cohabitation for three years and
(ii) no financial support on the part of the husband, so it is enough for both parties to sign a statement of these two facts and of their common intention not to reunite, which is then followed up by a witnessed oral affirmation and signed statement by the imam that the marriage has been cancelled (faskh) due to long and protracted physical estrangement of the two spouses, which can be countersigned by two witnesses. So there is no need of any pronouncement of talaq and no need for any khula` payment because there already is no nikah anymore.
2. Even if one were to consider that marriage still remains and wish to proceed with khula`, according to Ibn Taymiyya it does not require more than a letter to that effect on the part of the husband, stating — for example — “I have accepted [name]’s request of khul` on my part and consider myself paid in full to that intent and purpose.” That letter can be countersigned by two witnesses and all of that can be done without the presence of the other party.
The latter scenario would be justified in this situation where there is:
(i) complete amicable agreement to separate between the two parties,
(ii) mutual estrangement of the couple without financial support for over a year, tantamount to no marriage,
(iii) an additional two years of the same situation, all of which resulting in an inordinately long time in a suspended state,
and (iv) obstacles made — even after all the above — to an utterance of divorce which is in itself perfunctory but would have helped bothparties to get on with their lives and therefore would have brought mercy and blessing in sha Allah.
3. Divorce paperwork via the home state court system can be filed at any time as US law is completely unrelated.
Hajj Gibril Haddad
