How Can A Marriage Be Dissolved Islamically After a Civil Divorce and Rejection of Khula?

Answered by Ustadha Shazia Ahmad

Question

The wife initiated a legal divorce under Ontario law, and a divorce certificate has been issued. Mehr and gifts were returned and acknowledged by the ex-husband’s father.

The ex-husband previously refused to sign Khul‘a papers. Is his signature required for the Khul‘a to be valid, and are there other Islamic solutions to dissolve the marriage?

Answer

Thank you for your question. I pray this message finds you in the best of health and faith. May Allah (Most High) grant clarity and ease in this matter.

Understanding Khul‘a in Islamic Law

Khul‘a is a process through which a wife seeks to dissolve the marriage by returning her mahr (dowry) or offering compensation to the husband. This requires the mutual agreement of both parties, and the husband’s consent is typically needed to formalize the process. In such cases, the husband relinquishes his marital rights in exchange for what is offered.

The Prophet (Allah bless him and give him peace) said:

“Take back the garden and divorce her.” [Bukhari & Muslim]

This hadith establishes the basis for khul‘a as a mutually agreed-upon dissolution.

Civil Divorce and Islamic Dissolution

While a civil divorce fulfills legal obligations in a specific jurisdiction (such as Ontario), it does not automatically fulfill the requirements of an Islamic divorce unless the procedures align with Islamic guidelines.

In the scenario described, the wife pursued a civil divorce, and the mahr and gifts were returned. However, since the husband did not agree to khul‘a and declined to sign the papers, the following options may be considered:

1. Husband’s Divorce (Talaq)

If the husband willingly issues a talaq, this would complete the Islamic dissolution of the marriage. Even after a civil divorce, the husband retains the ability to pronounce talaq if he agrees to do so.

2. Arbitration and Intervention of Islamic Authorities

If the husband refuses to cooperate, the wife may appeal to a recognized Islamic body or scholar to act as an arbitrator. In the absence of the husband’s cooperation, Islamic authorities may annul the marriage (faskh). The Quran instructs:

“If you fear a breach between them, appoint two arbitrators, one from his family and the other from hers. If they both desire reconciliation, Allah will cause it between them.” [Quran, 4:35]

This mechanism is applicable when reconciliation is not possible, and the marital bond needs to be terminated for valid reasons, such as harm or irreparable discord.

3. Appeal for Judicial Khul‘a

If the above options are not feasible, the wife may request judicial khul‘a through a qualified Islamic scholar or authority. In such cases, the scholar assesses the situation and, if deemed necessary, issues a ruling that dissolves the marriage.

The refusal of the husband to cooperate does not permanently bind the wife in marriage if she is enduring harm or has valid reasons for seeking separation.

Next Steps for Your Neighbor’s Friend

1. Consult a Qualified Scholar or Islamic Arbitration Council: Provide all relevant details about the marriage, civil divorce, mahr, and gifts returned. The scholar will assess whether the husband’s refusal constitutes unreasonable harm, which may allow for annulment (faskh).
2. Document the Situation: Compile evidence of the civil divorce, returned mahr and gifts, and the husband’s refusal to cooperate. This will assist in presenting the case to an Islamic authority.
3. Seek Local Islamic Mediation: If an Islamic council is available in Ontario, it is recommended to seek their assistance for arbitration and to explore the possibility of obtaining judicial khul‘a.

Conclusion

The husband’s signature is generally required for khul‘a, but if he refuses to cooperate and reconciliation is impossible, Islamic authorities can intervene to dissolve the marriage. She should seek the guidance of a qualified scholar or council to proceed appropriately.

May Allah (Most High) ease this matter, grant clarity, and provide guidance to all involved. Please feel free to reach out for follow-up or additional support.

And Allah knows best.

[Ustadha] Shazia Ahmad
Checked and Approved by Shaykh Abu Bakr Badhib

Ustadha Shazia Ahmad lived in Damascus, Syria, for two years, where she studied ‘aqida, fiqh, tajweed, tafsir, and Arabic. She then attended the University of Texas at Austin, where she completed her Masters in Arabic. Afterward, she moved to Amman, Jordan, where she studied fiqh, Arabic, and other sciences. She later moved back to Mississauga, Canada, where she lives with her family.