Salaam, a client is married both Islamically and court married. Her civil marriage is in community of property, she want to change the marital regime to out of community of property, in order to do this will have to get divorce in court and get remarried in court. Will this amount one Talaq and if so what are the consequences of this Talaq.
In the Name of Allah, the Most Gracious, the Most Merciful.
As-salamu ‘alaykum wa-rahmatullahi wa-barakatuh.
The verdict of divorce given by the judge of a civil court, can only be regarded as a civil divorce and not a Shari’ Talaaq. The judge has been appointed by the country to issue verdicts in accordance to the law of the country and not in accordance to the laws of Shariah. It is incorrect to say that the judge acts as a representative (wakeel) on behalf of the husband in issuing the divorce, as the judge does not issue the divorce on the request of the husband but gives his verdict of divorce in compliance with the law of the country. At times he may have to issue a verdict of divorce in accordance to the law of the country, even though his heart desires otherwise.
Therefore, the mere verdict of a judge of a civil court cannot be regarded as a Shari’ Talaaq. However, the husband’s filing for divorce or signing on the papers of divorce can be regarded as a Shari’ Talaaq only if he intends a Shari’ Talaaq. If he intends to follow the civil divorce procedure and not to issue a Shari’ Talaaq, he should make two people his witness of his intention. This is merely a precaution to avoid accusation of a Shari’ Talaaq against him.
If the husband issued a civil divorce merely to change the marriage contract of a marriage in community of property to a marriage out of community of property (Ante Nuptial without accrual), without the intention of a Shari’ Talaaq, then in such a case, a Shari’ Talaaq will not take place and the marriage will remain intact. However, if the husband had the intention of issuing a Shari’ Talaaq as well, the Nikaah will be terminated and in order to get together again a new Nikaah will have to be performed.
And Allah Ta’ala Knows Best
Mufti Ismaeel Bassa
Mufti Ebrahim Desai.