I have been separated from my husband for 1 full year and we have a 2 1/2 year old daughter. The main cause of concern is that I was made redundant and he was not providing for myself and our child. He has always had a problem with working.
I married him in 1993 in Pakistan. IT was a very happy semi arranged semi chosen marriage and even though he was abusive to me in Pakistan I loved him very much and brought him to England and visited him repeatedly though I was working to bring him to sponsor him. He came to England in July 1996 and My daughter was born in January 1998 and we completed the purchase of our first home in April 1998. The deposit money of £10,000 was given by my mother and father. Prior to that we lived with my parents.
In May 1998 he resigned from work and went on holiday to Pakistan. Since May 1998 he was working here and there was no fixed permanent work. The last time he hit me in Jan 1999 we separated. I took my child with me. He only saw her twice during that period Until June 1999 when I was made redundant and had to return home. He went to another town to work and did not send me a penny! when he returned I did not let him in I was scared and upset. Our marriage has broken down irretrievably yet I still feel I want to be with him. But I am too scared of the outcome if things go badly again. I do not trust him and I feel by reconciling I would be making my life and that of my child very difficult… WE will argue and he may or may not be violent but that is not a harmonious relationship. Marriage should be on the basis of trust, love and respect and mutual co-operation……. He does not like me to have friends. I have only two friends, whom I have known for 12 years and only the two. He does not like me to be with my family and yet his own family lives with us and come and go as they wish. At one time we had 4 adults and 2 children besides ourselves living with us and I was supporting everybody. I would not eat myself when I came from work for fear of expense. I have been asking Allah to guide me and help me in my troubled time. But if I do go ahead with divorce I would like to know what his Islamic right is on our child and the house. Can he make us move from there? I have paid the mortgage ever since we bought the house. And can he take our daughter from me by Islamic rights?
Please help and if I was to ask my husband if he wants to reconcile to give me the custody of our child and the full ownership of the house to try and regain some trust and security if I was to give the marriage another go would I be wrong in Allah’s view?
desperately looking for some answers and help.
Although every effort to reconcile with your husband and, thereby, saving the household from breaking-up would be in keeping with the spirit of the Shari`ah, yet the important question, which only the individuals directly concerned can answer, is whether there is any room for such reconciliation or not. If, in the opinion of the individuals, all efforts of reconciliation are likely only to prolong the mental and emotional trauma of living together, while remaining far apart, then a permanent separation (divorce) should be preferred over such reconciliation. In fact, it is precisely due to the possibility of such circumstances that the Shari`ah has kept the doors for divorce open. Thus, there is no harm in asking your husband to try reconciliation, but I would suggest that this should be done only if you truly feel that reconciliation is a real and workable possibility.
As far as the possession of the house and the custody of the child are concerned, both these decisions shall be subject to the law of the particular land (country) in which you reside. Nevertheless, an important factor in the decision regarding the possession of the house is likely to be the ownership document of the house. If the house was bought in your name, then it is yours and vice versa. The case of the custody of the child is also subject to the law of the particular land in which the child resides.
Islam does not give any specific directives for this case. However, from some of the reported decisions of the Prophet (pbuh) and the later Muslims, it seems that the decision should be based on the well being of the child. If the court feels that the mother of the child is likely to take care of the child in a better way, it may grant her the custody of the child and vice versa. It is based on this principle of the well being of the child that the mother is generally preferred for the custody of an infant, while importance is given to the child’s own preference, in case of a comparatively grown up child. It should be clear from the foregoing explanation that, according to the directives of Islam, the father does not have any prior rights to get the custody of the child, except in case the court (of the deciding authority) is of the opinion that it would be more beneficial for the child to live with the father. In any case – whether the mother is granted the custody of the child or the father – the provision for the day-to-day expenses of the child – till he attains the age of majority are the responsibility of the father.
These, in my opinion, are the basic principles on which Islam would like the decision regarding the custody of the child to be taken. Nevertheless, it should remain clear that if the matter is not resolved between the two individuals concerned, then the decision of the court (the competent authority) of the particular land in which the individuals reside is binding upon both the individuals concerned.
To avoid any complications in future, I would further like to advise you that in case you decide to move for the dissolution of your marriage (divorce) in England and are, subsequently, granted such resolution of marriage (divorce) by the competent authorities of England, then, before marrying another person (if you plan to do so) you should also inform and get your divorce registered with the competent authorities of Pakistan (place of the Nikah, as well as the place of residence of your husband). Such registration of divorce is particularly important if you plan to visit Pakistan. Missing out on such registration can easily create a number of legal complications for you.
18th July 2000