What Are the Rulings Related to Divorce?

Answered by Mawlana Ilyas Patel

Question

How does one go about receiving a divorce? Are witnesses required? Does anything need to be put in writing? Can the woman travel 50 miles to visit family during the waiting period (‘idda)? If children (under 16) are involved, do they go with the father?

Answer

In the Name of Allah, the Most Merciful and Compassionate.

I pray you are in good faith and health. Thank you for your question.

Seeking Divorce

It would be best if you first tried to save your marriage. As for seeking a divorce, if you have sufficient grounds and reason, you should express your desire for a divorce to your husband. Your intention should be that the divorce is amicable for the children’s sake. If your husband is unwilling to give you a divorce, please read the link below. [Ibn ‘Abidin, Radd al-Muhtar]

Are Witnesses Required for a Divorce?

It is not necessary to have witnesses when a divorce takes place. It will come into effect with or without the presence of witnesses.

Almost all of the Fuqaha, both past and present, are of the opinion that having witnesses is not a prerequisite for a divorce to come into effect. Instead, divorce comes into effect regardless of whether witnesses are present. [Ibn ‘Abidin, Radd al-Muhtar; al-Mawsu‘a al-Fiqhiyya al-Kuwaitiyya]

Parents of both sides can witness the divorce or any person mutually agreed and can be relied upon in every way.

Traveling During the Waiting Period

A woman is not allowed to travel during her waiting period (‘idda).

Divorce in Writing

A woman can get an Islamic divorce from the husband in writing, preferably in the presence of witnesses, and by phone, too, if she does not want to meet the husband. The husband’s presence is only necessary if they want to discuss critical post-divorce arrangements with the presence of the wider family.

Custody of Under-16 Children

Under normal circumstances, according to the Hanafi madhab, the mother (or, if she remarries or dies, the maternal grandmother, then the paternal grandmother) gets legal custody of

• a male child until the child is capable of taking care of his own basic bodily functions & needs (eating, dressing, cleaning himself), which, for legal purposes, may be approximated at seven (7) years of age
• a female child until she reaches puberty, which, for legal purposes, may begin at the age of nine (9) years or any point thereafter, up until the age of fifteen (15). [Maydani, Al-Lubab Fi Sharh al-Kitab; Qudri Pasha, Al-Ahwal al-Shaksiyya]

Thereafter, in each case, legal custody of the child is transferred to the father. [Quduri, Mukhtasar al-Quduri]

Divorce is a Serious Matter

Divorce is a serious matter and should only be executed after consultation with a scholar. Many people hastily say it and find themselves having committed a grave sin simply because they didn’t follow the clear rules.

Given the considerations in such cases, we urge you to please consult reliable local scholars or counselors about the specifics of the situation.

I would like you to go through the valuable answers and links below. You will receive guidance and direction, in sha’ Allah.

Related:

• How Can a Woman Get an Islamic Divorce?
• Can a Wife Divorce Her Husband and How Can a Marriage Be Saved Under These Circumstances?
• Can a Woman Obtain an Islamic Divorce over the Phone or in Writing?
• Does My Husband Have To Provide For My Child If I Get Child Support Maintenance?
• Who Gets Custody of the Children After a Divorce?

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I pray this helps with your question.
Wassalam,
[Mawlana] Ilyas Patel
Checked and Approved by Shaykh Faraz Rabbani

Mawlana Ilyas Patel is a traditionally trained scholar who has studied in the UK, India, Pakistan, Syria, Jordan, and Turkey. He started his early education in the UK. He went on to complete the hifz of the Quran in India, then enrolled in an Islamic seminary in the UK, where he studied the secular and ‘Aalimiyya sciences. He then traveled to Karachi, Pakistan. He has been an Imam in Rep of Ireland for several years. He has taught hifz of the Quran, Tajwid, Fiqh, and many other Islamic sciences to children and adults onsite and online extensively in the UK and Ireland. He taught at a local Islamic seminary for 12 years in the UK, where he was a librarian and a teacher of Islamic sciences. He currently resides in the UK with his wife. His interest is a love of books and gardening.