Am I eligible to remarry now?

Question

I am a 29 years old female residing in Karachi, Pakistan. I applied for Khula from my ex husband in August 2012 but before the judgement of the khula took place, he sent me a divorce deed on the 11th of September 2012. He also registered the divorce deed at the union council on the 24th of September 2012. We have a two years old son as well whose present custody is with me. I'm scheduled to get remarried now and want to keep my son with me.

The problem is, even after the completion of 90 days my ex-husband hasn't gone to the union council for the confirmation of the divorce and that's why I haven't received the divorce certificate issued by the union council. My ex-husband is blackmailing me urging that he will only go for the confirmation if I surrender my son's custody to him, which I don't want at any cost; because my ex husband is an alcoholic and my son is a minor aged only two. I have gotten the true copy of the divorce deed from the family court with the family court stamp on it.

As per Islamic law my 90 days Iddat period is over, so:

1. Can I get remarried now?
2. Will I loose the custody of my son after getting remarried?

Answer 1

Actually all state-related paper work is for recording events for further civil rights (like Children attribution, Nafaqa, Mot'a,..). It has nothing to do with the Islamic marriage itself.

Here's a considerable fatwa (in Arabic) that permits Islamic Marriage without paper work for the reason: Paper work takes too much time!

Answer 2

There are two parts to this question.

1. Purely islamic view of the situation
2. Assessing the situation from Law point of view (i.e. Pakistani Law).

In Islam, a husband is not required to serve papers or go to court to divorce his wife. He simply has to utter the words "I divorce you" to his wife and divorce is done. No witnesses are required (Sunni Islam). But witnesses are required in Shia Islam. If this is the case then of course you have gotten divorce. This law will supersedes any other law that is governed in your country. For reference to witnesses check my own question, Why doesn't divorce require witnesses (Sunni View)?

In case of child custody, usually custody is given to mothers for upbringing their small children until the age of 7 or 9. After that children can choose for themselves who they want to live with. During this time the father has to provide financial support for the child. But this is only if the mother does not remarry. If she remarries, she will likely loose custody of her children. In this case you can argue that your husband drinks so you have a case!

Coming to your specific case, your husband gave you a divorce deed and after googling it, it does mention 2 witnesses names and husband issues the divorce himself. To me this sounds like a divorce, although it may not be called a complete divorce. The fact that it needs to be confirmed by you husband is just a law hitch. From Islamic point of view, once divorce is issued, it cannot be taken back. If someone have issued it once, he can still re-marry her ex-spouse but one divorce has been done already. Also in divorce deed, page 2, I see that the person writes the divorce statement three times to make sure all three divorces has been used.

Just for info, I am no expert on issuing any verdict on this. To my simple brain, if someone issues a divorce once, it is done. No retreat.

Some useful links that are are helpful in this matter are

custody of children in Islam 1

custody of children in Islam 2