Divorce Granted By A Non-

Muslim Judge
Q. I converted to Islam many years ago. Recently, some
family problems caused me to leave my husband in order
to protect my daughters. My parents, who are not
Muslims, forced me to seek divorce which was granted
under the American civil divorce law. Later my husband
pronounced Islamic divorce, yet he told our son that I
could go back to him anytime, although he has married
again. At the time of my marriage, my husband agreed
that he would not marry a second wife without my
permission. Yet I did not agree to his second marriage.
Could you please explain what is the status of my
marriage, and whether my husband’s words to our son
constitute a revoking of the divorce he had pronounced.
Suppose I was in the period when he pronounced the
divorce, would the divorce still be valid?

(Name and address withheld)

A. On May 7, 2000, the Islamic European Council for Fatwa

and Research issued a fatwa, or a ruling making a divorce
issued by a non-Muslim judge in a European country valid
for Muslim couples. Naturally, this fatwa applies to other
countries where Muslims are a minority, such as North
and South American countries, Australia, etc. The fatwa
goes as follows:
The proper thing for a Muslim is to refer any question that
needs a judgment to a Muslim judge or someone
deputizing for a Muslim judge. However, since there is so
far no Muslim court to which Muslims can refer their
disputes in non-Muslim countries, it is imperative for a
Muslim who made his marriage contract under the laws of
such countries to enforce the decision or ruling of divorce
taken by a non-Muslim judge. When a Muslim agrees to
enter into a marriage contract under the same non-
Muslim law, he implicitly accepts all the consequences of
such marriage under that law. One of these is that such
marriage can only be terminated by a judge.

This can be treated as a delegation of rights by the

husband (to the judge), which is permissible according to
the majority of Muslim scholars, even though the husband
has not verbally made such a delegation of rights. A
relevant rule of Islamic law states: “What is known by
tradition has the same effect as a stated condition.”
Moreover, enforcing the rule of law, even though it may be
a non-Muslim law, is permissible on grounds of ensuring
benefits and preventing harm and chaotic conditions.
Many prominent scholars have stated this, such as Al-Izz
ibn Abd Al-Salam, Ibn Taymiyah and Al-Shatibi.

This ruling by the council answers numerous cases and

establishes a rule that enables Muslim couples living in
non-Muslim countries to settle their disputes while
observing the law of the countries in which they live. On
the basis of this ruling, it is clear that the divorce issued
by the American court in the reader’s case is valid,
regardless of whether her husband was at the time willing
to divorce her or not. She was the one who applied for
divorce, as the American law gives her the right to do so.
Besides, under Islamic law, it is open to a woman to seek
the termination of her marriage in accordance of what is
known as khula’.

When this is established, the whole issue of her husband’s

pronouncement of a divorce according to Islamic law
becomes superfluous, because they were already
divorced when he did so. This also makes the question of
her being in the period at the time immaterial.

As for the second marriage of her former husband, it is a

valid marriage. The condition she speaks about may be
valid while she is married to him. Since her husband’s
second marriage took place after she was divorced from
him, that condition was no longer valid.

The reader also asks whether her former husband’s words

to her son constitute a re-instatement of their marriage.
The answer is definitely not. Such re-instatement requires
first of all that the man should use words to that effect
and intend them as revoking the divorce.

It also requires that the woman’s waiting period should not

have expired, which most probably it had. After the
waiting period is over, re-instatement of the marriage
requires a fresh marriage contract with witnesses and the
stipulation of a new dower, or mahr.