Question: I am a Muslim woman married to a Muslim man. Four months ago my husband divorced and this is the second divorce as he had already divorced a year ago. Now he wants me to come back to him, but I refused to come back to him. My question is: do I have the right under Sharia law to insist on not going back to him and to demand confirmation of the divorce and custody of my two children, aged three and five? Please advise.
Answer: Article 108 of the personal status law stipulates: “The husband has the right to recover his divorced, if the divorce is revocable and as long as the wife is within her waiting period. If the divorcee’s waiting period expires, she can come back to him through a new contract.
The waiting period for the non-pregnant divorcee is three purities for those menstruating and the woman is believed to expire within a reasonable time. (Section 139)
Article 104 of the same law on divorce forms states: Repudiation is retractable or non-retractable:
1. Retractable repudiation terminates the marriage only after the expiry of the waiting period (Idda).
2. Non-retractable repudiation terminates the marriage as soon as it occurs. It can take one of two forms:
A) Repudiation with the right to remarry: The divorced woman can only return to the man who divorced her after a new marriage contract and a new dowry.
B) Final and definitive repudiation: The divorced woman cannot return to the man who divorced her until the expiry of the waiting period (Idda) of another spouse who had a carnal relationship with her. , by virtue of a valid marriage.
If your waiting period was over and you have accomplished the three purities then you are in repudiation form with the right to remarry. Your husband will only be able to accept you after a new marriage contract and a new dowry.
In such a case, you have the right to file a lawsuit in court to ask for the confirmation of the divorce and to ask for custody of your children.
With regard to children, placement (custody) is a right of the mother established for her from the date of birth of the child until the date fixed for the expiry date of the custody of a woman, in accordance with the provisions of article 156 of the law — when the male child reaches the age of 11 and the female child reaches the age of 13, unless the court decides to extend this age in favor of the mother for the benefit of the child, until the male child reaches adulthood and the female child marries.