The Waiting Period of the Pregnant Woman and the Difference Between Minor and Major Divorce
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Question:
This is a letter from the questioner, Hayam Hisham Ghuli, from Iraq, Basra Governorate. In fact, her letter is lengthy, but the situation is not clear unless one reads it. She says:
My husband divorced me at the beginning of my ninth month of pregnancy at the judge of the Sharia court in our country, and my husband repeated the formula of divorce after the judge. Among the terms of this formula, he said: "One revocable divorce." Then, after eighteen days had passed since the divorce, I gave birth to my first child. Then my mother, my husband, and I went to the Shaykh to repeat the formula of divorce in his presence, because we do not uphold the court's contract, or its divorce, unless the formula is repeated in the presence of the Shaykh. Although the two formulas do not differ fundamentally from each other, the Shaykh's formula is more detailed than the judge's wording. The important point is that we went to the Shaykh, who is a distinguished Shaykh, and I do not doubt his integrity. Before he divorced me, he asked me whether I had gifted any of my deferred mahr to my ex-husband. I answered yes, and I had indeed done so in exchange for receiving the remainder in cash. At that point, the Shaykh said: "Then your divorce will be a khul' divorce." And indeed, he divorced me via khul', despite the fact that we, the two spouses, my husband and the father of my child, disliked this khul' divorce. Then we authenticated the divorce paper I took from the Shaykh inside the court, and the court acknowledged the khul' nature of our divorce and considered it a minor irrevocable divorce, as stated in the content of the authenticated divorce paper.
My question is: My husband wishes for me to return to him, and I do as well, especially since our return would preserve the future of our only son. Is it permissible for me to return to him, despite the fact that the Shaykh divorced us via khul' after the court divorce, which was in the form of one revocable divorce, even though the period between the two divorces was eighteen days, and my husband did not take me back during that time? Rather, I remained divorced and observing the waiting period until I gave birth, and then we went to the Shaykh as I explained previously?
And if it is not permissible for me to return to my ex-husband except after marrying another man and being divorced by him, is it permissible for this marriage to be nominal only, lasting for a short time after the contract, and then the divorce occurs? And if this is also not permissible, is it permissible for me to return directly to the father of my child without marrying another man, in exchange for giving me an expiation, or fasting, or any other deed that you guide us to?
Please advise us—may Allah reward you—my future and my child's future depend on your answer, which I hope, from Allah, will be clear and explicit, as is my experience with your sound answers. Whatever the answer may be, I do not dare to transgress the limits of Allah . I note that I observed the waiting period until I gave birth, according to the court's divorce, and I did not observe the waiting period after the Shaykh's divorce. However, when the divorce paper taken from the gentleman was authenticated in the court, it stated that I am obligated to observe the Sharia waiting period, and it specified its date from the date of the divorce, but I did not observe it. Do I owe an expiation if this waiting period was required?
Answer:
This divorce concerns the court, and the court looks into the matter. It is more knowledgeable about the reality, as long as the certificate was issued by it and it took charge of looking into the subject. It is the one that reviews this. You, the questioner, and your husband should review this with the court, and the court will look into what is permissible and what is forbidden. In it is sufficiency and blessing, if Allah wills.
And it is known that if the divorce occurred before the delivery of the pregnancy, and the husband did not take her back, then the woman exits the waiting period by delivering the pregnancy. Whenever she delivers the pregnancy, she exits the waiting period, and no divorce follows her, if the husband did not take her back after the divorce that occurred while she was pregnant. If he did not take her back before the delivery of the pregnancy, then she is separated by the delivery of the pregnancy, and no divorce follows her after that.
In any case, the court looks into the matter, and in what it sees is sufficiency, if Allah wills. And if the husband wishes to take me back in that, I refer him to the court so that we may know the truth. Then a fatwa will be issued on the basis of that, from me or from the court, and there is no harm in that. We ask Allah for success and guidance for everyone.
The presenter: But the court's statement that this divorce is considered a minor irrevocable divorce?
The Shaykh: In any case, if the divorce was one... for a consideration, it is a minor irrevocable divorce. If he divorces her once or twice for a consideration, the scholars call it a minor irrevocable divorce. That means: he does not take her back, but she becomes lawful for him with a new contract. This is the meaning of the minor irrevocable divorce. That is: he does not have the right to take her back without a contract; rather, a new contract is necessary, like the woman whom he divorced once or twice and who exited the waiting period. He does not have the right to take her back after the waiting period, but it is lawful for him to marry her with a new contract. So, if he divorces her for a consideration, it is called khul', and it is called a khul' divorce, and this separation is called a minor irrevocable separation. That means: the contract makes her lawful, and she does not become lawful by taking her back only; rather, a new contract is necessary, but she does not need a new husband; rather, this new contract is sufficient. This is what is intended.
As for the major irrevocable divorce, this is not made lawful except by a new lawful husband who has intercourse with the woman, who marries her and has intercourse with her. The major irrevocable divorce is when he divorces her with the final, third divorce. Then this is a major irrevocable divorce that does not become lawful for her first husband until she marries another husband with a lawful marriage, not a marriage for the purpose of making her lawful, and the new husband has intercourse with her, and then he separates from her afterwards by death or by divorce. Then, if she exits the waiting period after that, she becomes lawful for the first husband after this new lawful marriage in which there was intercourse. Yes.
The presenter: May Allah reward you.
This is a letter from the questioner, Hayam Hisham Ghuli, from Iraq, Basra Governorate. In fact, her letter is lengthy, but the situation is not clear unless one reads it. She says:
My husband divorced me at the beginning of my ninth month of pregnancy at the judge of the Sharia court in our country, and my husband repeated the formula of divorce after the judge. Among the terms of this formula, he said: "One revocable divorce." Then, after eighteen days had passed since the divorce, I gave birth to my first child. Then my mother, my husband, and I went to the Shaykh to repeat the formula of divorce in his presence, because we do not uphold the court's contract, or its divorce, unless the formula is repeated in the presence of the Shaykh. Although the two formulas do not differ fundamentally from each other, the Shaykh's formula is more detailed than the judge's wording. The important point is that we went to the Shaykh, who is a distinguished Shaykh, and I do not doubt his integrity. Before he divorced me, he asked me whether I had gifted any of my deferred mahr to my ex-husband. I answered yes, and I had indeed done so in exchange for receiving the remainder in cash. At that point, the Shaykh said: "Then your divorce will be a khul' divorce." And indeed, he divorced me via khul', despite the fact that we, the two spouses, my husband and the father of my child, disliked this khul' divorce. Then we authenticated the divorce paper I took from the Shaykh inside the court, and the court acknowledged the khul' nature of our divorce and considered it a minor irrevocable divorce, as stated in the content of the authenticated divorce paper.
My question is: My husband wishes for me to return to him, and I do as well, especially since our return would preserve the future of our only son. Is it permissible for me to return to him, despite the fact that the Shaykh divorced us via khul' after the court divorce, which was in the form of one revocable divorce, even though the period between the two divorces was eighteen days, and my husband did not take me back during that time? Rather, I remained divorced and observing the waiting period until I gave birth, and then we went to the Shaykh as I explained previously?
And if it is not permissible for me to return to my ex-husband except after marrying another man and being divorced by him, is it permissible for this marriage to be nominal only, lasting for a short time after the contract, and then the divorce occurs? And if this is also not permissible, is it permissible for me to return directly to the father of my child without marrying another man, in exchange for giving me an expiation, or fasting, or any other deed that you guide us to?
Please advise us—may Allah reward you—my future and my child's future depend on your answer, which I hope, from Allah, will be clear and explicit, as is my experience with your sound answers. Whatever the answer may be, I do not dare to transgress the limits of Allah . I note that I observed the waiting period until I gave birth, according to the court's divorce, and I did not observe the waiting period after the Shaykh's divorce. However, when the divorce paper taken from the gentleman was authenticated in the court, it stated that I am obligated to observe the Sharia waiting period, and it specified its date from the date of the divorce, but I did not observe it. Do I owe an expiation if this waiting period was required?
Answer:
This divorce concerns the court, and the court looks into the matter. It is more knowledgeable about the reality, as long as the certificate was issued by it and it took charge of looking into the subject. It is the one that reviews this. You, the questioner, and your husband should review this with the court, and the court will look into what is permissible and what is forbidden. In it is sufficiency and blessing, if Allah wills.
And it is known that if the divorce occurred before the delivery of the pregnancy, and the husband did not take her back, then the woman exits the waiting period by delivering the pregnancy. Whenever she delivers the pregnancy, she exits the waiting period, and no divorce follows her, if the husband did not take her back after the divorce that occurred while she was pregnant. If he did not take her back before the delivery of the pregnancy, then she is separated by the delivery of the pregnancy, and no divorce follows her after that.
In any case, the court looks into the matter, and in what it sees is sufficiency, if Allah wills. And if the husband wishes to take me back in that, I refer him to the court so that we may know the truth. Then a fatwa will be issued on the basis of that, from me or from the court, and there is no harm in that. We ask Allah for success and guidance for everyone.
The presenter: But the court's statement that this divorce is considered a minor irrevocable divorce?
The Shaykh: In any case, if the divorce was one... for a consideration, it is a minor irrevocable divorce. If he divorces her once or twice for a consideration, the scholars call it a minor irrevocable divorce. That means: he does not take her back, but she becomes lawful for him with a new contract. This is the meaning of the minor irrevocable divorce. That is: he does not have the right to take her back without a contract; rather, a new contract is necessary, like the woman whom he divorced once or twice and who exited the waiting period. He does not have the right to take her back after the waiting period, but it is lawful for him to marry her with a new contract. So, if he divorces her for a consideration, it is called khul', and it is called a khul' divorce, and this separation is called a minor irrevocable separation. That means: the contract makes her lawful, and she does not become lawful by taking her back only; rather, a new contract is necessary, but she does not need a new husband; rather, this new contract is sufficient. This is what is intended.
As for the major irrevocable divorce, this is not made lawful except by a new lawful husband who has intercourse with the woman, who marries her and has intercourse with her. The major irrevocable divorce is when he divorces her with the final, third divorce. Then this is a major irrevocable divorce that does not become lawful for her first husband until she marries another husband with a lawful marriage, not a marriage for the purpose of making her lawful, and the new husband has intercourse with her, and then he separates from her afterwards by death or by divorce. Then, if she exits the waiting period after that, she becomes lawful for the first husband after this new lawful marriage in which there was intercourse. Yes.
The presenter: May Allah reward you.
Source
binbaz.org.sa
The Arabic text is copied verbatim from the original source, without any edits.