Question:
Bismillahir Rahmaanir Raheem, Assalaamu alaykum warahmatullah.
My name is [private] and I currently reside in Canada. I was married with my wife [private] since 2001 in Trinidad, and have three chiildren with her. In 2008 October we got separated on a visit to Trinidad. She got a divorce from me in Trinidad without my knowledge and has remarried. She went to a Muslim court in Trinidad and claimed that I was abusive to her. They have given the divorce without consulting me. Is this divorce valid? Is her new marriage is valid according to the Rules of Shariah?
Answer:
wa `alaykum salam,
Khula` is the right of women in Islam to get divorce or separation from her husband. In the situation where a woman can no longer remain in the marriage of her husband and all attempts to save the marriage have failed, the ideal solution would be for her to obtain a divorce from the husband. The husband, seeing that the marriage is futile and there is no hope of reconciliation, should also issue one divorce according to the prescribed method in Shari`ah. However, in the case where the husband refuses to issue a divorce, the wife may persuade the husband to enter into an agreement of khula` (a release from the obligation of payment to the wife). The wife may also opt to forgive the husband from paying her dowry (mahr).
The lexical definition of khula` as explained by the famous Hanafi mujtahid, Ibn Humam is as follows: “To remove the union of marriage in exchange of a financial settlement with the words of khula`.” (Ibn Humam, “Fath al-Qadir“, 3/1999). It should also be remembered that a khula` agreement can only be carried out with the consent of the husband. The wife does not have the jurisdiction to enforce khula` without the consent of her husband. This is an agreed upon ruling in all of the four Sunni schools of Islamic law. In light of what has been stated this divorce is invalid, and her new marriage is invalid as well.
Imam Senad Agic, Ph.D.
Head Imam (IABNA)
The Islamic Association of Bosniaks in North America
www.mesihat.com
