Answered by Shaykh Yūsuf Badāt
Question:
I need an Islamic ruling urgently to finalize my separation.
I have been in an abusive relationship with my husband. The police have arrested my husband. I have very limited contact with him. Even though we have problems, he does not want a divorce and I do not want a khula (wife initiated divorce) but am very sure that I do not want to live with him under the same roof because it is a detrimental, toxic and abusive environment for my son and I.
My question is how long can we remain separated this way until we are considered islamicaly divorced?
Answer:
بِسْمِ اللهِ الرَّحْمنِ الرَّحِيْم
In the name of God, Most Gracious, Most Merciful.
Jazāk Allāh Khayr/ Thank you for contacting Mathabah Institute.
We are sorry to hear about your situation and pray for the best outcome for you and your family with safety and rights.
In response to your question, kindly note that according to Islamic law, a person is either married or not married. There is no such thing as an automatic marriage “separation” if one of the partners wants out or lives separate and apart, in Islam (contrary to the western legal system). “Separation” in a marriage can only come into existence, islamicaly, if both spouses mutually agree to a separation. This is usually the case if both partners have serious issues and mutually agree to a separation period prior to formalizing any further decision of reconciliation or divorce. Thus, in your situation, you will remain islamicaly married as long as your husband does not divorce you or you do not obtain a khula/ faskh (wife initiated Islamic divorce) even though you may be living apart for months or years. – (See: Badāi’ Al-Ṣanāi, Dār Al-Kutub Al-‘Ilmīyyah, Vol 3, Page 603)[1]
“Remain together honourably [as husband and wife] or depart with peace [via divorce].” – (Qurʾān 2:229)[2]
Only Allāh knows best
[1] فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ [البقرة: 229] أَمَرَ عَزَّ وَجَلَّ بِالْإِمْسَاكِ بِالْمَعْرُوفِ، وَقَدْ عَجَزَ عَنْ الْإِمْسَاكِ بِالْمَعْرُوفِ؛ لِأَنَّ ذَلِكَ بِإِيفَاءِ حَقِّهَا فِي الْوَطْءِ، وَالنَّفَقَةِ، فَتَعَيَّنَ عَلَيْهِ التَّسْرِيحُ بِالْإِحْسَانِ، فَإِنْ فَعَلَ، وَإِلَّا نَابَ الْقَاضِي مَنَابَهُ فِي التَّسْرِيحِ، وَهُوَ التَّفْرِيقُ – بدايع الصنايع ٣/٦٠٣
[2] فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ – البقرة: ٢٢٩
