Marital Problems and Separation While They Have 4 Children
Fatwa No: 446356

Question

Asalaamu Alaikum.I am writing this email as i need some advice on a divorce issue.I have been married for 16 years and have 4 children.My wife and I have been living separately for a year and a half now.We have arranged child access and payments between us.For many years the marriage has been increasingly difficult and under pressure due to incompatibility and trust issues.Despite reconciliation efforts my wife is adamant she wants a divorce.Whilst i do not want a divorce, equally i do not want to continue in a marriage where my wife is not happy.Therefore I do not want to hinder her divorce request.Can you please advise if the wife needs to appy for a ‘khula’ (since it is her wish to divorce) or must the man issue the divorce? (even though it is not his decision to divorce)Walaikum Salaam

Answer

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

If the matter is as you mentioned, that the separation between you and your wife has lasted for such a long period, then it should not have been so; either you keep your wife in kindness or divorce her in kindness, as Allah advised us in His Book.

You have done well by seeking reconciliation, and we recommend that you continue to do so and not despair. You should supplicate Allah abundantly to facilitate reconciliation between you as Allah ordered us to supplicate Him and He promised us to answer our supplication.

Allah Says (what means): {And your Lord says, "Call upon Me; I will respond to you." Indeed, those who disdain My worship will enter Hell [rendered] contemptible.} [Quran 40:60]

It is necessary to mediate trustworthy people and those who are expected to lead to goodness and reconciliation. Perhaps the presence of the children would be the best thing to help in achieving reconciliation as divorce would often have bad effects on them.

As regards what you mentioned about the lack of incompatibility and trust, then this can be amended by laying down the sound foundations that lead to the stability of the marital life so that respect will prevail between the spouses and so that each one of them knows the other’s rights over him and performs them in the most perfect manner.

Allah Says (what means): {And due to the wives is similar to what is expected of them, according to what is reasonable.} [Quran 2:228]

The basic principle is that it is not permissible for a woman to ask her husband for divorce because it is forbidden in the Sunnah, but if your wife is harmed by her staying with you, then she has the right to ask for divorce. If she asks for divorce without a legitimate justification, then it is your right to refrain from divorcing her until she ransoms you with money and the like, as mentioned by the jurists.

We conclude by saying that the interest of divorce may outweigh if marital relations become impossible and it is not possible to achieve the Islamic objectives of marriage.

Ibn Qudamah  may  Allaah  have  mercy  upon  him said in Al-Mughni: “Conditions may get worse between the husband and his wife and thus staying married will become a total corruption and harm by just obligating the husband to spend and accommodate his wife, and keeping her in his house subjected to bad treatment and continuous dispute to no avail. This entailed prescribing what ends marriage so that the harm caused may be removed.” [End quote]

Allah knows best.

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