I am married with my wife for past 5 years and have one child from her. She was married earlier and filed for absentia divorce/khula in USA civil court while her previous husband was in Pakistan. USA divorce notice was served to him in Pakistan by her lawyers which he later signed. Based on that, US court issued her divorce decree and after around 5 years we got married. Recently during Ramadan, we were discussing the matter about Khula and i checked some online fatwas regarding Khula from different schools of thought and got concerned whether her Divorce was even occurred. There are some fatwas available at darulifta website, some states civil divorce doesnt invalidate islamic marriage and some says it does. Also khula can only be valid if decreed by Qazi or Muslim judge. She had asked some Mufti in Uk and as per them her divorce had occurred as her husband signed the divorce notice with or without intention of divorce.
I am very concerned for past few days after reading some online fatwas and would like to request for a ruling based on above circumstances.
I ll highly appreciate if you can give fatwa at your earliest convenience.
Couple of References:
بسم اللہ الرحمن الرحیم
الجواب وباللہ التوفیق
On condition of accuracy of this question;
1. If the husband had signed the court documents and allowed the issuance of “khula” on his behalf, and thereafter the court had issued it, then the “khula” will be enforced, because it was “tawakil” (authorization) from the husband, and tawakil is permissible for both Muslims and non-Muslim.
2. The issue of non-enforcement of judicial divorce is when:
a. the husband is not aware of it;
b. . or is aware of it, but the husband has not signed the court document;
c. and has not given permission for it;
d. resulting in filing a case of unilateral “khula";
Such a divorce given by a non-Muslim judge will not be enforced.
Per Fatawa Aalamgiri:
اذا قال لرجل: طلق امرأتی کان توکیلاً و لم یقتصر علی المجلس الخ (ص:۴۰۲
مَن قال لامرأتہ: انطلقی الی فلان حتی یطلقک فذہبت فطلقھا فلان صح ویصیر فلان وکیلا بالتطلیق و ان لم یعلم بوکالتہ۔ (فتاوی عالم گیری ۱؍۴۰۸
فقط واللہ اعلم بالصواب