The migration to the West has increased, leading to the formation of Arab and Islamic communities within those Western societies, where there is no Islamic judicial system governed by Islamic Sharia. Some Muslim women find themselves separated from their husbands and are forced to resort to Positive laws.

But, what is the legitimacy of resorting to Positive laws, especially in divorce cases?

To clarify this challenging issue, we present the fatwa of Sheikh Muhammad Taqi Usmani ⁽¹⁾ on this matter, along with some other fatwas:

Firstly, the ruling on the dissolution of a Muslim woman’s marriage by a non-Muslim judge:

Sheikh Muhammad Taqi Usmani believes that the dissolution of the marriage contract in this case is not considered valid according to Islamic Sharia. This is derived from the ayah: “And never will Allah give the disbelievers over the believers a way [to overcome them].” (An-Nisa: 141) and “O you who have believed, do not take the disbelievers as allies instead of the believers. Do you wish to give Allah against yourselves a clear case?” (An-Nisa: 144). Imam Abu Bakr al-Jassas commented on this ayah: “The ayah implies a prohibition on seeking help from disbelievers, relying on them, resorting to them, and trusting them, indicating that a disbeliever does not deserve authority over a Muslim in any way.” ⁽²⁾ In the “al-Majmu' Sharh al-Muhadhab” book, it is mentioned that the judge cannot be a disbeliever, hypocrite, slave, or little. According to Ibn Qudamah, “A judge cannot be appointed unless he is a mature, sane, Muslim, free, and righteous.” ⁽³⁾

This means that the conditions of testimony—Islam, sanity, and maturity—are necessary to be appointed as a judge and for the validity of his ruling thereafter. Therefore, it is not permissible for a Muslim woman to resort to the courts of non-Muslims to dissolve her marriage. If she does so, the marriage is not considered dissolved in Islamic Sharia.

Secondly, ruling on the dissolution of marriage by Muslim centers:

Accordingly, is it permissible for Islamic centers in non-Muslim communities to act as Sharia judges in dissolving marriages for valid religious reasons? Sheikh Usmani answers that mainly the marriage contract is in the husband's hands. Therefore, it is not permissible for a woman to divorce herself or dissolve her marriage with her husband under normal circumstances. However, there are situations in which she may resort to a Sharia judge, who may then dissolve her marriage through his general authority. This is due to well-known reasons, with some differences among scholars. These reasons include the husband being missing, impotent, insane, doesn’t provide for his wife, or harms her in an unbearable way. According to the Hanafi, Shafi'i, and Hanbali schools of thought, dissolution can be done by a Sharia judge. 

As for the Maliki school of thought, they argue that the Muslim collective can act as a substitute for a Sharia judge in resolving disputes between Muslims in cases where there is no Sharia judge.

The scholar al-Disuqi states: “Know that the righteous Muslims act as a judge in such cases and in every matter where reaching a judge is difficult or because the judge is unrighteous.” This indicates that the Muslim collective acts as a judge, not only in non-Muslim countries where there is no Sharia judge but also in Muslim countries where there is a Muslim judge who is not righteous.

As for the opinion of the European Council for Fatwa and Research, it states on its official page regarding divorce by a non-Muslim judge: “Originally Muslim should resort to a Muslim Judge or any acting Muslim judge. But there is no Muslim judge in the non-Muslim countries.  Consequently whoever inters into marriage contract according to the laws of these countries should carry out the divorce judged by a non-Muslim judge as entering into marriage contract according to non-Muslim laws means implicitly accepting the results one of which is that divorce can only be carried out by judge.  According to the majority, this can be considered general authorization, even if it is not explicitly expressed.  The jurisprudential sentences judged by non-Muslim judge should be carried out for the sake of public interest and to avoid chaos and disorder.”

We conclude with another fatwa on this matter by Sheikh Yusuf al-Qaradawi, in response to a question about a woman living in England who wants a divorce, on the program “al-Shariʿa wa-l-Ḥayah” (The Sharia and Life) on the Al-Jazeera channel: “She resorts to arbitration by two arbitrators from each her and her husband’s people or to an Islamic center or Islamic community, and their ruling is binding, and if not, the judgment of a non-Muslim judge is executed; otherwise, we have left women to be judged by men, oppressing them with no hope or solution.”

Thirdly, conditions for Muslims acting as judges in non-Muslim countries:

According to the Maliki school of thought and those contemporary scholars who concur, Sheikh Usmani believes that Islamic centers in non-Muslim countries should act as a collective to perform this duty. However, they must adhere to all necessary conditions for their judgments to be accepted from a Sharia perspective. Based on what the Maliki jurists have mentioned, these conditions can be summarized as follows:  Top of Form

• Number of Muslims: Scholars of the Maliki school have varied on the minimum number of individuals constituting the group acting as a judge. Some have argued that the minimum number of members of the group should be three men. Sheikh Muhammad 'Ilish stated, “The term 'group' implies that one person is not sufficient, and likewise two.” ⁽⁵⁾ Others have mentioned that the minimum number of the group could be two. Al-Dardir in the “Al Sharh Al Kabeer” book stated, “By the Muslim community, he meant two righteous individuals or more.” It is preferable that the number of the group does not fall below three to avoid variations in opinions, and because when righteousness is lacking, the number should be increased, even if some argue for the sufficiency of one or two individuals.
• The Muslim Community Characteristics: As for the qualifications of the members of the Muslim collective, the Maliki jurists have only mentioned righteousness as a requirement. They have not stipulated that the group must always consist of scholars. However, it is reasonable to assume that this group must have knowledge of the Sharia rulings related to the case they are handling. For example, if the group is ruling in marriage, they must be knowledgeable about the Sharia reasons for divorce, proving methods, and related matters. Therefore, it is highly appropriate for this group to consist of Sharia scholars. If the required number of scholars is not available, at least one member should be a scholar, and all members should learn the necessary Sharia rulings under the supervision of trustworthy scholars, or they should not issue judgments without consulting jurists.
• Action in Case of Disagreement: If the group consists of three men, is it permissible for its judgment to be issued by majority rule? Maliki jurists did not address this issue, but it appears from their statements that the judgment of the Muslim collective is only valid with the agreement of its members. Al-Baji stated, “If the group agreed on a ruling and decreed it, then it is valid,” and ibn Kinanah in “Al-Majmu'ah” also said it. This is because “if they agree on a judgment issued by two men or more, they are not obliged to follow one man's judgment over another.” ⁽⁶⁾

• Authority of the Muslim Collective in dissolving marriage: In light of the above, the correct conclusion for non-Muslim women seeking dissolution of their marriage in a non-Muslim country is to resort to a group appointed for this purpose by scholars and Islamic centers in that country. This group should undertake all necessary Sharia procedures in this regard. After taking the necessary steps to ensure that there is a legitimate reason justifying this dissolution, it is permissible for them to dissolve it, for the woman to be granted a divorce on behalf of her husband, or for the death of the husband to be adjudged in case of his disappearance, as explained in the books of Fiqh. Their judgment is considered valid from a Sharia perspective. After the annulment of her marriage by the Muslim collective, it is permissible for the woman to marry another man after the passing of her Iddah (the period of waiting) and after the dissolution becomes valid legally. It is also permissible for her to bring her case to the courts of that country to obtain a divorce or dissolution. This is not because this legal procedure is considered valid in Sharia, but rather to avoid problems that may arise if her legal right to dissolve her marriage is not recognized. And Allah knows best.

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(1) He is Muhammad bin Taqi bin Muhammad Shafi'i bin Muhammad Yasin Ali, one of the scholars of Sunni Islam. He was born in 1943 in the village of Deoband in the Saharanpur district of India, in a household known for knowledge. His father, Sheikh Mufti Muhammad Shafi', taught and issued fatwas there for 12 years. He attended Darul Uloom, the school established by his father, where he received education in Persian and Urdu.

(2) “Ahkam al-Quran” by al-Jassas, (2/291), Lahore edition.

(3) “Al-Mughni” by Ibn Qudama.

(4) Footnote by Al-Dasuqi of the “Al-Sharh Al-Kabeer” book, (2/519), under the chapter on maintenance.

(5) “Minh al-Jalil” by Sheikh 'Ilish, (2/385).

(6) “Al-Muntaqa” by al-Baji, (5/227).

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