Wants to Remarry without Written Divorce from Husband
Fatwa No: 84493

  • Fatwa Date:13-7-2002 - Jumaadaa Al-Oula 4, 1423
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Question

I have been separated from my husband for nearly nine months, I asked him for a divorce because he wasn't working or looking after me. He didn't want to give me the divorce so I asked him to leave the house which is mine. I believe he married me partly for immigration reasons and expected me to look after him. I have contacted the Sharia council. They have already sent the third letter to a family friend because I have no address or contact number for him. I have recently been introduced to someone, we have spoken at great length on the telephone and only saw each other for a couple of minutes while we were chaperoned. My husband called me on the phone a couple of months ago from a call box. I asked him if he would give a divorce and he agreed to divorce me. I haven't heard from him since and there has been no reply to the letters the Sharia council has been sending. The third letter was sent on the 9th May 02. Is it possible that I can remarry before the divorce from Sharia council based on the conversation I had with my husband on the telephone?

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.

The marital relations are very significant in Islam, so much that Allah considered it a strong covenant. Allah Says (what means): {... and they have taken from you a firm and strong covenant?} [Quran 4: 21]

Islam enjoins Muslims to announce the marriage contract, recommends holding it at mosques, and permits them to beat the Duff (percussion instrument consisting of a single drumhead of skin stretched on a circular wooden frame) at wedding parties and celebrate the occasion of the marriage.

In fact, all the above rites should be performed along with fulfilling the compulsory conditions of a marriage, that are the consent of a guardian of a bride, two trustworthy witnesses and bridal money.

Also, the claim of the husband to divorce is not accepted unless two witnesses testify to it because it is only him who can invalidate the marriage contract. Allah Says (what means): {And take for witness two just persons from among you (Muslims)…} [Quran 65: 2]

Therefore, after establishing a marriage contract as in the mentioned case, it is not considered null unless two trustworthy witnesses confirm the divorce. So, an approval by phone in clear words on its own is not sufficient, let alone unclear words.
Therefore, this woman is still bound by the marriage contract, so proposing marriage to her is forbidden, and it is forbidden for her to marry unless she gets divorced from her present husband.

If the husband is absent and his wife is suffering from his absence, since he is not bearing the expenses of his wife or he is not fulfilling the rights of his wife, then, in this case, she should present her case to an Islamic court if it is available. Otherwise, she should consult an Islamic center or Muslim authorities in her area to solve her problem according to the Sharee'ah. If their decision is for a divorce, it will be valid, and after ending her waiting period, the woman can marry anyone of her choice while fulfilling the conditions of a valid marriage. Before this procedure, she is considered a married woman and she cannot be proposed for marriage.

Allah knows best.

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