Q. In my home country, Muslims arrange their marriages and divorces twice: The first to satisfy the secular law requirements and the other to ensure the fulfilment of Islamic requirements. If they divorce, again they have to do it twice. Now, if the divorce is agreed and done amicably, both husband and wife file an application for divorce with mutual consent. Muslims generally look at the secular process in both ways as trivial while they consider the Islamic one as the real marriage or divorce. Suppose that a divorce is applied for through the court, will the couple continue to be considered married while the case is pending? If the legal process is completed, but the Islamic divorce has not yet taken place, are the couple still married from the Islamic point of view? If the couple have been using contraceptives during the legal divorce process which lasts more than four months, does the woman still need to observe a waiting period after her Islamic divorce?
I. Toure
A. This is really an unusual problem complicated by the fact that the people look at the legal procedure as irrelevant, while it could be sufficient if it satisfies Islamic requirements. The reader has not given me any details of the legal process of marriage and divorce to be able to say whether it is sufficient. Now, if in the common law marriage, there is a commitment by the woman’s side and acceptance by the man’s side, and this is done in the presence of the woman’s father or guardian and two witnesses, then the law marriage is valid from the Islamic point of view. If people wish to reassert it in a strictly Islamic way, they may go ahead and do so.
The real problem is with the divorce, where much depends on the man’s intention at every step. Let us take the first case, with a couple signing divorce applications and treating them as actual divorce from the moment they are signed, then the Islamic divorce process begins at the same time. This process begins with the husband saying that he is divorcing his wife. He should do so at a time when she can begin her waiting period, as it is clearly stated in the first verse of Surah 65, entitled Divorce. This means that the woman must not be in her monthly period, or in a period of cleanliness in which the couple have had intercourse, or she should be confirmed pregnant. The waiting period lasts until she has completed three menstruation periods or three periods of cleanliness, or she has given birth. During this waiting period she stays in her marriage home, with her husband, but they use separate bedrooms. All her expenses are borne by her divorcing husband. When the waiting period is completed the divorce is complete and takes full effect. The woman leaves and goes back to her own family. During the waiting period, the couple may reinstate their marriage by mutual consent, with no need for a fresh marriage contract. They only have to inform two witnesses of all facts of divorce, its completion or its abrogation and resumption of the marriage.
Now take the other case with the couple signing the necessary application, but thinking that they remain married until the legal process takes effect when they will divorce properly, according to Islamic rules. Then they are still married. In this case, they continue with their married life as usual, if they wish to do so.
As you see, if the two processes are to be done, it is better if the couple start with the Islamic divorce first. They will then make their application to court while the woman is observing her waiting period.
Whether the legal process takes four months or much longer, and no matter how effective the method of contraception being used, the woman must observe her normal waiting period as usual. This waiting starts when the divorce process starts. Its purpose is not only to establish whether the woman is pregnant or not. It also allows time for the couple to re-consider their situation. Should they feel that they could try again, the possibility is open to them. This is important, particularly in cases where the couple have children. During the waiting period they could consider the effects of their divorce on their children.
