As-Salamu `alaykum! My wife seeks divorce for the mere reason of being no more interested in our marital life. Now, the question is: To whom the custody of children goes after divorce, bearing in mind that we have three children under five. As far as I know, the mother has the right to keep the children in her custody until they reach puberty, then they should be moved to their father. If I refused to divorce my wife, she will seek divorce through courts. Am I allowed in this particular case to claim the custody of children?
Wa `alaykum As-Salamu wa Rahmatullahi wa Barakatuh.
In the Name of Allah, Most Gracious, Most Merciful.
All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.
Dear brother in Islam, we would like to thank you for the great confidence you place in us, and we implore Allah Almighty to help us serve His cause and render our work for His Sake.
Marriage is indeed a sacred bond that brings together a man and a woman by virtue of the teachings of the Qur'an and the Sunnah. Thus, each partner in this sacred relationship must treat the other beautifully and properly.
A man must not divorce his wife to bring harm upon her, as this constitutes an act that demolishes this noble establishment, breaks the woman’s heart, and possibly separates the woman from her children without any reason. Thus, the separation between a man and his wife [without just reason] was considered one of the major and grave sins, and one of the most beloved actions of Satan, as was narrated in a number of hadiths. It is also forbidden for a woman to ask for a divorce without a sensible reason.
The Prophet (peace and blessings be upon him) said: "Among lawful things, divorce is most hated by Allah." (Reported by Abu Dawud) The spouses should avoid divorce as much as possible. If they have difficulties and problems they should try to work out their differences and seek help from their relatives, friends or professional counselors. They should also consider and think of the future of their children and the destructive effects of divorce on their children's future. However, if the differences are irreconcilable then divorce is permissible, but it should be done in a decent manner.
In this regard, Allah Almighty says: "When ye have divorced women, and they have reached their term, then retain them in kindness or release them in kindness. Retain them not to their hurt so that ye transgress (the limits). He who doeth that hath wronged his soul. Make not the revelations of Allah a laughing stock (by your behavior), but remember Allah's grace upon you and that which He hath revealed unto you of the Scripture and of wisdom, whereby He doth exhort you. Observe your duty to Allah and know that Allah is Aware of all things." (Al-Baqarah: 231) The Prophet (peace and blessings be upon him) says, "No harm shall be inflicted or reciprocated in Islam."
As for the custody of children, we see that daughters should remain with their mother until they get married. As for male kids, they should remain with their mother until they reach the age of puberty, and then shifted to their father in order to get acquainted with the traits of manhood.
May Allah guide you to the straight path and direct you to that which pleases Him.
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Allah Almighty knows best.