If yes then for how long and is there a way to avoid the same as I live alone with my son and it would be very difficult in this situation?

Mu' meneen Brothers and Sisters,

As Salaam Aleikum wa Rahmatullahi wa Barakatuh. (May Allah's Peace, Mercy and Blessings be upon all of you)

 

One of our brothers/sisters has asked this question:

Dear Brother Burhan,

I have been separated from my husband for three years now. For the first year, I waited for him to change his ways and return home to my son and me. Finally, I applied for a divorce in the Sharia Court. The judge decided to grant me a divorce and asked him to take financial responsibility of my son. However, he made an appeal to reject this decision but owing to his negligence and refusal to support us financially the judge rejected his appeal and once again granted me the divorce along with my son`s (8 yrs) custody, financial support from the father and no visitation rights for him.

Since we have been living apart from each other for such a long period is IDDAH still required for me.

If yes then for how long and is there a way to avoid the same as I live alone with my son and it would be very difficult in this situation?

Can the father be forced to pay for my son`s upbringing as he is not willing to do so? Can he ask for visitation rights at a later date? My son has the right to decide which parent he wishes to stay with once he attains the age of 13, is this right?

Also my parents think I should think of marrying again but I am very afraid of losing my son`s custody. Is it possible for him to ask for my son`s custody if I do remarry? 

 

(There may be some grammatical and spelling errors in the above statement. The forum does not change anything from questions, comments and statements received from our readers for circulation in confidentiality.)

 

Answer:

 

Divorce idda

In the name of Allah, We praise Him, seek His help and ask for His forgiveness. Whoever Allah guides none can misguide, and whoever He allows to fall astray, none can guide them aright. We bear witness that there is none worthy of worship but Allah Alone, and we bear witness that Muhammad (saws) is His slave-servant and the seal of His Messengers.

 

Your Question: Since we have been living apart from each other for such a long period is IDDAH still required for me.

If yes then for how long and is there a way to avoid the same as I live alone with my son and it would be very difficult in this situation?

Allah Says in the Holy Quran Chapter 2 Surah Baqarah verse 228:

228    Divorced women shall wait concerning themselves for three monthly periods; nor is it lawful for them to hide what Allah hath created in their wombs if they have faith in Allah and the Last Day.

 

Respected sister in Islam, regardless of how long a couple might have chosen to live apart from each other after their marriage….for a divorce to be established in Shariah, it is absolutely obligatory for the woman to fulfill her waiting period of ‘iddah’ of three menstruation periods after the declaration of divorce for the divorce to be legally established in the Sight of Shariah Law and of Allah Subhanah.  It is only after the period of ‘iddah’ has expired that the couple will be deemed officially divorced in the Sight of Shariah Law, and it is only after the expiration of the ‘iddah’ period that the woman would be free to marry any eligible believer of her choice. 

 

Your Question: If yes then for how long and is there a way to avoid the same as I live alone with my son and it would be very difficult in this situation?

Respected sister in Islam, the ‘iddah’ of divorce is not like the ‘iddah’ of a widow whereby she is restricted from going out of the house without genuine reason, and wear simple clothing, and abstain from applying any ordainments of beauty, etc.

 

The wisdom behind the Command of the Lord for the wife to fulfill the ‘iddah’ of divorce for three menstruation periods is mainly to give time to the couple if they wish to revoke their decision of divorce and unite again as husband and wife, and to verify whether or not the woman is pregnant….for the child resulting from the marriage would be eligible to his inheritance rights according to Shariah.

 

A woman fulfilling her waiting period or ‘iddah’ of divorce can live an absolutely normal life and go and do what she would normally do…the one and only restriction upon her in Shariah is that she cannot contract marriage with another person until the expiration of her period of ‘iddah’, which is her three menstruation periods.

 

Your Question: Can the father be forced to pay for my son`s upbringing as he is not willing to do so?

Absolutely regardless of who has the primary custody of the children, it is the obligatory duty of the father in Shariah to provide and bear the complete financial responsibility of the upkeep of his children.  If the father for any reason is negligent in fulfilling this obligatory duty of providing for the upkeep of his children, the mother of the children is well within her rights in Islam to initiate a case against her former husband in a Shariah Court of Law, and the Shariah Judge will enforce that the father bear the complete financial responsibility of his children.

 

Your Question: Can he ask for visitation rights at a later date?

Regardless of who holds the primary custody of the children, the spouse who does not hold custody has a right to initiate a case in a Shariah Court of Law requesting fair visitation rights. Unless and until the Shariah Judge has an extremely valid reason, or fears for the safety of the children, the spouse who does not hold custody of the children will be given fair visitation rights to his/her children.

 

Your Question: My son has the right to decide which parent he wishes to stay with once he attains the age of 13, is this right?

In the unfortunate event of a divorce in Islam, Shariah Law states that all children (male or female) will remain in the custody of the mother until they reach the age of understanding and puberty; and it will be responsibility of the father to provide for the financial upkeep of the children.

 

Once the children reach the age of understanding, the spouse who does not hold custody has a right to move the Shariah Court if he/she wishes to gain custody of the children.  The Shariah Court Judge will then ask the children who have attained the age of puberty whom they wish to live with: their mother or their father; and whatever decision is made by the children will be enforced by the Shariah Judge.  

 

The decision of who gains the custody of the children in a divorce neither rests with the mother, nor the father, nor the Shariah Court Judge; but Allah Subhanah has placed this right of decision in the hands of the children as soon as they reach the age of understanding and puberty.  The Shariah Court Judge will only enforce the decision of the children, and give the parent who lost the custody fair visitation rights.

 

If this particular case the mother will get the primary custody of her son until he has reached the age of puberty, and if then the father wishes to get primary custody of his son, he will have to approach a Shariah Court and the Shariah Judge will enforce the decision made by the son regarding whom he wishes to live with, his father or his mother.

 

Your Question: Also my parents think I should think of marrying again but I am very afraid of losing my son`s custody. Is it possible for him to ask for my son`s custody if I do remarry? 

If a divorced woman who has a child/children from her previous marriage decides to marry another person, Shariah Law does not automatically transfer the primary custody of the children to their biological father….but rather Shariah Law states that the primary custody of the children be given to the maternal grand-mother of the children.  If the maternal grand-mother of the children has expired, the primary custody of the children will be given to the maternal aunt (mother’s sister) of the children.  

 

Thus sister, even if you decide to marry another person, the primary custody of your children will not be given to their father until they have reached the age of puberty and they themselves chose to live with their father. In the event of your marriage to another person, your mother will be given the primary custody of your children…and if your mother is not alive, the custody of your children will be given to your sister/s according to Shariah Law.

 

Whatever written of Truth and benefit is only due to Allah’s Assistance and Guidance, and whatever of error is of me alone.  Allah Alone Knows Best and He is the Only Source of Strength.

 

Your brother and well wisher in Islam,

 

 

Burhan

 

 
Privacy  |  About Wister

Copyright © 2024 Wister All rights reserved