Wife's guardian is not entitled to issue her divorce
21-7-2015 | IslamWeb
Question:
As salaam Alkauim. My husband went away to prison and I asked for a divorce after for 7 years. In our 5 year of marriage I wanted out. My husband refused to give me a divorce. So I divorce him through the law of the land because we got married about ways. I then went to the Iman in my community and he refused to divorce me and suggested that I wait for my husband to come home. I went to my wali and asked him to divorce me by placing me in my Iddah period and he did. Since I didn't have my husband permission for divorce and I know that I wasn't pregnant because he was gone for more then 2 years. I wanted to know am I still married to him to him in Islam.
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.
Divorce is in the hands of the husband, but it can be issued by the Islamic judge or his representative against the will of the husband in order to protect the wife from harm. We have already explained that the divorce issued by a court governed by man-made laws is not effective, so please refer to Fatwa 90487. Also, your guardian has no right to effect a divorce.
Therefore, if your husband did not issue a divorce or a divorce was not ruled by a party that administers the affairs of the Muslims in your country, such as an Islamic center for example, then you are still in the bond of marriage with your husband. Based on this, you may take your case to one of the Islamic centers in your country so that they would remove harm off you either by divorce or Khul‘.
We did not understand what you meant by saying that you "got married about ways". What we can say is that there are conditions for the validity of marriage, among which is the consent and presence of the guardian and the presence of two witnesses. For more benefit, please refer to Fatwa 83629.
If your marriage took place without the consent of your guardian, then it is a defective marriage. In any case, separation in such marriage has to take place either by divorce or by having it annulled (by a Sharee'ah court or the like) as explained in Fatwa 92478.
Allaah Knows best.