The ruling on divorce if husband merely signed divorce papers
Fatwa No: 314359

  • Fatwa Date:15-2-2016 - Jumaadaa Al-Oula 7, 1437
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Question

Respected Mufti, please help me to save my future and to rectify my mistake. I got married in secret with a man that was already married without informing my family and in the presence of two friends of my husband in April 2013. There is a wide professional and educational gap between us (I m a MD doctor, He is a bus driver). Ever since, I have not met the man as my husband, we only secretely meet during the day time. Then I realized my mistake of cheating my family, moreover it rendered me ineligible to do my job. So I decided to rectify my mistake and discussed doing a khulʻ (marriage requested by the wife) with my husband. I prepared a khulʻ agreement paper which was "consequent the expression of inability by my wife to continue our marital relation, I (the husband) offer her a khulʻ in return of the bridal gift and have pronounced the word 'I released u from my marriage, from this day we are free from all social, religious and legal rights on each other as husband and wife.' Reading this, he signed a blank bond paper expressing his agreement which I wrote on paper. Now, I want to marry with the consent of my family with a suitable and matching person. I have told this to the person with whom I was married. Please guide me on the following because I cannot discuss my case in my country because of my necessity for anonymity 1. Can I get married now, as my family is asking me? 2. Is it necessary do get divorced again? 3. Is my previous marriage valid or void.

Answer

All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

A marriage contract conducted in the absence of the bride's wali (legal guardian) is invalid according to the preponderant view of Muslim jurists; please refer to fatwa 83629. However, if the marriage was conducted following the Hanafi School, then it is declared valid because Imaam Abu Haneefah  may  Allaah  have  mercy  upon  him maintained that the adult and sane woman can marry herself off and that the marriage is valid (even) without the permission of her guardian.

Assuming that this marriage is invalid, the termination of the marriage is done either by divorce or annulment, as previously highlighted in fataawa 92478 and 195979.

Some scholars held that divorce does not take effect by merely signing the divorce papers. Shaykh Muhammad ibn Ibraaheem Aal Ash-Shaykh  may  Allaah  have  mercy  upon  him stated:

"There is no doubt that this signature is not regarded as one of the expressions of divorce at all, nor is it a clear statement of divorce, and it is not one of the metaphors for divorce. It does not come under the heading of writing either, because the husband did not write that he was divorcing his wife so that it may be regarded as a divorce on the basis of writing. The most that can be said about this matter is that he wrote his name below the words written by someone else. If he did not say any of the words of divorce that were written on the paper mentioned, and he only wrote his name at the bottom, then it does not seem to us that divorce has taken place as a result of his signing this piece of paper."

However, if the husband verbalized the divorce by saying, 'I release you from marriage from this day and we are free from all social, religious, and legal rights of each other as husband and wife,' while intending to divorce his wife, then divorce takes effect, and if it is done in return for compensation paid by the wife, then it is considered a khulʻ (divorce at the instance of the wife in return for a compensation payable by her).

Scholars held different opinions regarding the ʻiddah (waiting period) of the woman in the case of khulʻ; some maintained that the ʻiddah (post-divorce waiting period) is the same as that of the divorced woman, three menstrual cycles, and others held that it is only one menstrual cycle. The first opinion is held by the majority of Muslim scholars, and it is the more prudent in this regard. The woman is allowed to remarry another man after the ʻiddah expires. For more benefit, please refer to fatwa 93593.

The preponderant view of the Muslim scholars is that true seclusion (khalwah) has the same legal status as consummation of marriage; it entails the religious rulings of the consummation of marriage. Hence, in case true seclusion took place and the wife gets a khulʻ, then she must observe an ʻiddah. Please refer to fatwa 246769. If the marriage has not been consummated and no true seclusion took place, then the woman does not have to observe an ʻiddah.

Lastly, we stress that the Muslim should adhere to deliberation when choosing the prospective spouse and should not allow themselves to be blinded by emotions. Marital life is a long journey that requires deliberation in choosing the future partner in the hope of fostering the continuity of the martial life and shielding it from weakness and divorce.

Allaah knows best.

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