Ask the Law: Does wife have the right to refuse to return to her divorced husband even if he insists?

Divorce case

Question: I am a Muslim woman married to a Muslim man. Four months ago, my husband divorced me and this is the second divorce because he had already divorced me a year ago. Now he wants me to come back to him, but I have refused to return to him. My question is, do I have the right, according to Sharia law, to insist on not returning to him and to demand confirmation of the divorce and custody of my two children, who are three and five years old? Please advise.

Answer: Article 108 of the Personal Status Law says: ‘The husband is entitled to get back his divorcee, should the divorce be revocable and as long as the woman is within her waiting period. Should the divorcee’s waiting period expire, she may return to him by way of a new contract.’

The waiting period for the non-pregnant divorcee is three purities for those who have their menstruation and the woman is to be believed at the expiry of this period within a reasonable time. (Article 139)

Article 104 of the same law regarding divorce forms states: Repudiation is either retractable or non-retractable:

1. The retractable repudiation does not put an end to marriage unless after the expiry of the waiting period (Idda).

2. The non-retractable repudiation ends the marriage upon its occurrence. It may take one of the following two forms:

A) Repudiation with right to remarry: The divorcee may not return to the man who divorced her except after a new contract of marriage and a new dowry.

B) Final and decisive repudiation: The divorcee may not return to the man who divorced her except after expiry of the waiting period (Idda) from another husband who had carnal knowledge of her, pursuant to a valid marriage.

If your waiting period had finished and you completed the three purities then you are in the form of Repudiation with right to remarry. Your husband may not accept you except after a new contract of marriage and a new dowry.

In such a case, you have the right to file a case in front of the court to request for the confirmation of divorce and to request the custody of your children.

Regarding the children, fosterage (custody) is a mother’s right established for her from the date of birth of the child and until the date determined for the expiration date of a woman’s custody, in accordance with the provisions of Article 156 of the law — when the male child reaches 11 years of age and the female child reaches 13 years of age, unless the court decides to extend this age in favour of the mother for the benefit of the child, until the male child attains adulthood and the female child marries.