Separation between spouses is not divorce, even if it lasts long
11-6-2013 | IslamWeb
Question:
Assalam o Alaikum brother I would like to ask sumthing from you as you have better knowledge. When I got married to my husband he said that I could ask for separation or divorce whenever i wanted. Does that mean he has given me right to divorce myself whenever i want? We had some issues in our marriage and I didnt want to be with him anymore. I am not with him for last 3 months now. M I divorced already? He doesnt want to leave me and want me to go back to him. But as i had intended to leave him and not been with him for last 3 months. I am not sure if I am divorced already or not? Can you please help me with this. If I go back to him is there a nikkah to be done again or we can just start living together again? Wasalam Sister
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, is His Slave and Messenger.
The saying of the husband to his wife that she could ask for separation or divorce whenever she wants is not an authorization for the wife to divorce herself. Rather, the wife has the right to seek divorce if there is a sound reason for that. We have pointed out the valid reasons for seeking divorce in Fatwa 131953. For more benefit, kindly refer to Fataawa 85390 and 86307.
The principle state is that the marriage is still valid and the wife is still married to her husband until her husband, the Islamic judge, or whatever acts on his behalf dissolves her marriage, like the Islamic centers. Accordingly, you know that you are still in marriage with your husband and what you have stated that you have intended to leave him and the like does not have any effect. If marriage is still valid, then there is no need for what was stated of renewing the contract. Each of you should deal with the other kindly and each of you should know his duties and fulfill them properly. In that way, the family will be stable and happy. Please refer to Fataawa 85308 and 85167 about the rights of the husband and wife upon each other.
As for divorce, its ends are mostly bad and it leads to the break-up of the family and the loss of children, if the couple are blessed with children. So, both husband and wife should observe patience towards one another, both of them should overlook the minor mistakes of the other, and mutual understanding and respect should prevail among them.
If the situation reaches a dead end and life between them becomes miserable and the woman hates her husband and fears not to fulfill his rights, then she has the right to seek divorce from him, even in return for compensation to be paid for the husband. That is what the scholars call Khul‘. For more information, please refer to Fatwa 89039.
We should draw attention to the following two matters:
Firstly, separation between the husband and wife is not deemed divorce no matter how long it lasts as we have pointed out in Fataawa 82732 and 89825.
Secondly, the wife should not leave the marital house or go out of her husband's house without his permission except with a sound reason; otherwise, she will be disobedient to her husband and to her Lord. For more benefit, please refer to Fatwa 99860.
Allaah Knows best.