Category: Divorce
Fatwa#: 19495
Asked Country: South Africa

Answered Date: Oct 13,2011

Title: Does a divorce take place if the husband and wife have not had intimate relations for 5 years?

Question

My friend has 3 children and for nearly 5 years she has no relationship with her husband. They live in the same house for the sake of the children.
For 17 years she has lived in a rented house. My friend has told him for years to buy a house. He has the money but is not interested in buying a house. Not sure what his reasons are.

1. Are they still regarded as husband and wife? As they have had no relationship for 5 years.
2. If not regarded as Divorced, she wants to get a divorce but carry on living in the same house for the sake of the children. Is this permisable?

Answer

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

Marriage is a bond of love which manifests itself in many different ways.  Love is expressed verbally, physically, mentally and even spiritually.  According to Maslow’s hierarchy of needs, belongingness and love is one of the essential needs of a human being.  If one is deprived of such a need, the deprivation can impact an individual’s ability to form and maintain emotionally significant relationships.  Hence, the physical manifestation of love is necessary just as any other medium of expression. [i] 

In principle, the absence of intimate relations between a couple has no impact on the validity of their marriage.[ii]  They will still be regarded as husband and wife.  However, the absence of intimate relations can have serious implications upon the marriage.

Our understanding is that the wife wants to get a divorce due to her needs not being satisfied by her husband.  Shari’ah does not promote divorce.  It is the last resort after exhausting all efforts in other avenues.

Firstly, the wife should turn to Allah Ta’ālā and plead to Him for His grace and bounties.  The husband may need therapy.  He should arrange an appointment with specialists in this field.  The husband should seek the counsel of the scholars also.  Not fulfilling the rights of the spouse is a grave sin.  The husband must understand the need of spiritual rectification.  He should be advised to connect himself with scholars who are specialists in the science of spiritual rectification. 

Finally, the family should do more together.  Love has to be created in the home.  The husband must realise he has a family.  Eat lunch and supper together every day.  The parents should engage with their children on a daily basis.  The family should go on a holiday to start afresh.  A change of environment can have a very positive result.

In such cases, the Qurān advises us the following:

“And if you fear dissension between the two (husband and wife), send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever Knowing and Acquainted [with all things].”[iii]

Hence, you must seek the counsel and help of your family and your husband’s family to resolve this situation.  You have to be strong and courageous to resolve this situation.  Oppression is totally prohibited in Shariah.  The husband has no right whatsoever to treat his wife in such manner.  Nobody deserves to live in fear in the four walls of their own home.

If a husband and wife divorce, they are strangers to one another.  They cannot live together under the same roof.             

It is very unfortunate to learn about your situation.  We sincerely make duā to Allah the Almighty he grants you relief and ease.  Amīn.

And Allah Ta’āla Knows Best

Mawlana Faraz Ibn Adam,
Student Darul Iftaa

UK

 

Checked and Approved by,
Mufti Ebrahim Desai.
www.daruliftaa.net



[ii] لا يصح وقوع الطلاق إلا ب : صيغة مخصوصة أو ما يقوم مقامها والصيغ المخصوصة بالطلاق إما صريحة أو كناية

 وما يقوم مقام الصيغة الصريحة هي: الكتابة المرسومة المستبينة وإشارة الأخرس والإشارة الى العدد بالأصابعمصحوبة بلفظ الطلاق (الأحكام الشرعية في الأحوال الشخصية ج 2 ص 536 دار السلام)

[iii]  وَإِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فَابْعَثُوا حَكَمًا مِنْ أَهْلِهِ وَحَكَمًا مِنْ أَهْلِهَا إِنْ يُرِيدَا إِصْلَاحًا يُوَفِّقِ اللَّهُ بَيْنَهُمَا إِنَّ اللَّهَ كَانَ عَلِيمًا خَبِيرًا (سورة الننساء رقم الآية 35)

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