Short Answer

Filing for a civil divorce is not equivalent to an Islamic divorce pronouncement. In Islam, a statement of divorce must only be said or written by a man. The wording used must be unambiguous such as saying ‘I divorce you’ or ‘You are divorced’. Filing for divorce in most countries does not meet these requirements.

What the Scholars Said

Imam Al-Kasani said, “divorce will come into effect with clear and unambiguous writing, or with the understood gesture of a dumb person, for the clear written word is in place of verbal utterance.” (Bada’i as-Sana’i, 3:100)

Imam Ibn Abidin said, “If the husband requested another person to write the declaration of divorce for him, and he (the writer) after writing it, read it out to the husband who took the divorce paper, signed and stamped it, and sent it to his wife, divorce will be effected if the husband admits that it is his writing.” (Radd al-Muhtar 3:246-247)

My Opinion

Divorce may take place through assigning another person as agent [tawkīl], even if that person is not a Muslim. Therefore, it has been argued by some that if a husband files for divorce in a court, he is in theory appointing the court as his agent to divorce his wife on his behalf. When the court issues a final decree/judgment of divorce, it will count as one irrevocable (bā’in) pronouncement of divorce. However, this reasoning is not strong since petitioning for divorce by a court is significantly different than appointing them as an agent to transact for you. It has also been argued that if a wife files for divorce in a court, she is in theory appointing the court as her agent to ask for a release (khulʿ) from her husband. If the husband clearly indicates his consent for the divorce to proceed, this could indicate that he has appointed the court as his agent to issue a release (khulʿ) on his behalf. So it has been said that the Islamic divorce from the husband is considered valid once the court issues a final decree/judgment of divorce. However, this reasoning is even more problematic since the husband usually has no choice in the matter and is virtually ‘coerced’ into the divorce, especially with courts that accept ‘no-fault’ divorces. Therefore, the reality is that after a final decree/judgment of divorce, the two remain Islamically married until an Islamic divorce occurs. Sometimes a couple may want to legally divorce for economic or other reasons but remain husband and wife in Islam. For an Islamic divorce to occur, the man must pronounce an Islamic statement of divorce either before petitioning the court, after petitioning, or after the final decree/judgment has been issued.

Advice

People have a mistaken notion that filing for divorce or receiving a final judgment results in an automatic Islamic divorce. This is very dangerous because one spouse might remarry assuming they are no longer married, though they are. The best way for a woman is to contact the husband and have him pronounce divorce, if he is reachable and willing, and her waiting period [iddah] will begin from that point on.

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Shaykh Mustafa Umar