Divorce in Islam

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In the ṭalāq divorce, the husband pronounces the phrase "I divorce you" (in Arabic, talaq) to his wife. A man may divorce his wife three times, taking her back after the first two (reconciling). After the third talaq they can't get back together until she marries someone else. Some do a "triple ṭalāq", in which the man says in one sitting "I divorce you" three times (or "I divorce you, three times", "you're triple divorced"). Many Islamic scholars believe there is a waiting period involved between the three talaqs, pointing to Quran 65:1[Quran 65:1] and various hadiths. However the practice of "triple ṭalāq" at one sitting has been "legally recognized historically and has been particularly practiced in Saudi Arabia."[1]

Shia and Sunni Muslims have different rules for performing a ṭalāq divorce. According to some Sunni schools of jurisprudence, each talaq utterance should be followed by a waiting period of three menstrual periods for women or three month (iddah), when the couple are supposed to try to reconcile with the help of mediators from each family, until the third and final ṭalāq. Some Sunnis who believe the practice of triple talaq in one is wrong; nonetheless accept it as final, especially the Hanafi schools of jurisprudence.

Shias don't have the concept of verbal "Triple Divorce" i.e. just uttering the phrase "I divorce you" three times. Shi'a practice also has a iddah waiting period when the couple are supposed to try to reconcile with the help of mediators from each family, but requires two witnesses for the declaration of ṭalāq.[2] If the couple breaks the waiting period, the divorce is voided. After the waiting period is over, the couple is divorced and the husband is no longer responsible for the wife's expenses, but remains responsible for the maintenance of the children until they are weaned.

It is also possible for a woman to petition a qadi (judge of Muslim jurisprudence) for a divorce under certain conditions. The circumstances which are regarded as acceptable vary amongst the four Sunni groups of Islamic schools of jurisprudence.

Talaq[edit]

The Sunni Muslim husband may initiate the divorce process by pronouncing the word talaq, the formula of repudiation, three times. The first two times the talaq is pronounced, it may be withdrawn. But the third time it is pronounced, the divorce is irrevocable. There are a range of systems specifying the requisite formalities to complete an irrevocable divorce, i.e., whether some period of time must elapse between each pronouncement of talaq, whether there must be mediation, or the need for witnesses. According to the Quran which is the book on which Islam is based, there is a waiting period. In countries where polygyny is permitted, there is no waiting period before the husband can remarry. The wife must usually wait three months after the third talaq has been spoken before remarrying (this period is known as iddah).[3][4][5][6]

The talaq is endorsed by several scholars of the Sunni theology, and some in the Zaydi theology. It consists of the husband saying the phrase "I divorce you" (in Arabic, talaq) to his wife, three times.[7]

Shīʻa and Sunnī have different rules to engage a talaq. The talaq has three steps:

  • Initiation
  • Reconciliation
  • Completion

(Shia do not use the procedure to end a temporary marriage (Nikah mut‘ah), since Shi'a view Islamic divorce as a procedure stemming from a conflict rather than a decision. The Shi'a annul the temporary marriage (Nikah mut‘ah) at the end of the period, without any divorce being involved, since its duration was predetermined at the outset and there is not necessarily a conflict to resolve. Temporary marriage is not permitted in Sunni Islam.)

Initiation[edit]

This is the stage where the talaq process is initiated.

According to most Sunnī scholars it consists of:

  • The husband saying talaq once in the presence of his wife.

According to most Shīʻa scholars:

  • Making a public announcement that you are starting the divorce process.

The Quran supports divorce as follows:

  • O Prophet! When ye do divorce women, divorce them at their prescribed periods and count (accurately) their prescribed periods: And fear Allah your Lord: and turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some open lewdness, those are limits set by Allah: and any who transgresses the limits of Allah, does verily wrong his (own) soul: thou knowest not if perchance Allah will bring about thereafter some new situation. "

    — Qur'an, Sura 65 (At-Talaq), ayat 1[8]

In Talaq divorce, the husband does not have to use the exact words "I divorce thee" or "I divorce you." Shariah law allows for other phrases. Thus, there are two major types of talaq divorce declarations:

  • Talaq-Sirri—a clear declaration of divorce such as "I divorce thee"
  • Talaq-Kinaya—an "unclear" or "indirect" declaration of divorce, using words that are not exclusively prescribed for issuing divorce, but alludes and hints to it.[9]

[10][11] Islamic scholar Ibn Abdul-Wahhab gives as examples of talaq kinaya declarations: "you are void", "you are clear", "you are irrevocable", "you are cut off", "you are concluded", "you are a free woman", "you are forbidden".[12]

According to at least one school of Islam Talaq-Kinaya will result in irrevocable divorce (Talaq-Baayin) if the husband intended to give talaq, but does not count if he did not intend to indicate divorce.[9][13]

Reconciliation[edit]

  • According to Sunnī and Shīʻa jurisprudence, the couple is supposed to try to reconcile during the waiting period, with the help of mediators from each family. If the couple breaks the waiting period by engaging in sexual intercourse, they are deemed to have been reconciled and the divorce is voided. This is said in the Quran in the following ayats:

"And if you fear a breach between the two, then appoint judge from his people and a judge from her people; if they both desire agreement, Allah will effect harmony between them, surely Allah is Knowing, Aware."

— Qur'an, Sura 4 (An-Nisa), ayat 35[14]

"O you who believe! when you marry the believing women, then divorce them before you touch them, you have in their case no term which you should reckon; so make some provision for them and send them forth a goodly sending forth."

— Qur'an, Sura 33 (Al-Ahzab), ayat 49[15]

It is also said in the Quran that during that waiting period the wife must not be forced to leave her husband's home nor should she leave it herself unless the wife has committed indecency of some sort, in which case it is permitted for her to leave the house.

"O Prophet! when you divorce women, divorce them for their prescribed time, and calculate the number of the days prescribed, and be careful of (your duty to) Allah, your Lord. Do not drive them out of their houses, nor should they themselves go forth, unless they commit an open indecency; and these are the limits of Allah, and whoever goes beyond the limits of Allah, he indeed does injustice to his own soul. You do not know that Allah may after that bring about reunion. "

— Qur'an, Sura 65 (At-Talaq), ayat 1[8]

Completion[edit]

After the completion of the talaq procedure, the couple are divorced, and she becomes non-mahram for him and so they must observe the hijāb rules.

  • Shīʻa scholars understand that when the waiting period (ʻidda) is over, the talaq procedure is completed. Two witnesses [16] are required to witness the completion of the talaq.

The relevant parts of the Qur'an are:

Thus when they fulfil their term appointed, either take them back on equitable terms or part with them on equitable terms; and take for witness two persons from among you, endued with justice, and establish the evidence (as) before Allah. Such is the admonition given to him who believes in Allah and the Last Day. And for those who fear Allah, He (ever) prepares a way out."

— Qur'an, Sura 65 (At-Talaq), ayat 2[17]

"And when you divorce women and they reach their prescribed time, then either retain them in good fellowship or set them free with liberality, and do not retain them for injury, so that you exceed the limits, and whoever does this, he indeed is unjust to his own soul; and do not take Allah's communications for a mockery, and remember the favor of Allah upon you, and that which He has revealed to you of the Book and the Wisdom, admonishing you thereby; and be careful (of your duty to) Allah, and know that Allah is the Knower of all things."

— Qur'an, Sura 2 (Al-Baqara), ayat 231[18]

Aftermath[edit]

  • Even if divorce separates a man from his wife, he has to seek her help in caring for the child or another female if the mother agrees.
  • A husband who divorces his wife 3 times cannot remarry her until she has married another man and he also has divorced her.[19]

In practice:

  • In most Islamic states it is generally unacceptable for a divorced woman to live alone (as is usually also the case with unmarried women). In most situations women who find themselves divorced will return to live with their parents or to the household of another close relative.

And when you have divorced women and they have ended-- their term (of waiting), then do not prevent them from re-marrying their husbands when they agree among themselves in a lawful manner; with this is admonished he among you who believes in Allah and the last day, this is more profitable and purer for you; and Allah knows while you do not know."

— Qur'an, Sura 2 (Al-Baqara), ayat 232[20]

"And there is no blame on you respecting that which you speak indirectly in the asking of (such) women in marriage or keep (the proposal) concealed within your minds; Allah knows that you will mention them, but do not give them a promise in secret unless you speak in a lawful manner, and do not confirm the marriage tie until the writing is fulfilled, and know that Allah knows what is in your minds, therefore beware of Him, and know that Allah is Forgiving, Forbearing. "

— Qur'an, Sura 2 (Al-Baqara), ayat 235[21]

"For divorced women Maintenance (should be provided) on a reasonable (scale). This is a duty on the righteous."

— Qur'an, Sura 2 (Al-Baqara), ayat 241[22]

After divorce, Qur'an specifies responsibilities on divorcee and divorcer on behalf of their children.[23][24] Qur'an also prohibits interventions from the previous husband in the divorced woman's life.[25]

Following are some of the cases regarding child custody decided by Muhammad:

  • Abu Hurairah narrates that a woman came to Muhammad and said, "My husband wants to take away from me this child even though he has brought over water for me from the well of Abu ‘Anbah and given me a lot of benefit." Muhammad replied, "Both of you can cast a lot on this." When the husband heard, he said, "Who will quarrel with me regarding this son of mine?" Muhammad said, "O son! This is your father and this is your mother; grasp the hand of the one you want to hold." The child grasped the mother's hand and she took him away. Sunnan Abu Dawood 2277

Khula[edit]

Main article: Khula

Khula is the right of a woman in Islam to seek a divorce or separation from her husband. A Muslim woman may petition a qadi, or in non-Islamic areas an Islamic community panel, to grant her divorce if the husband refuses. The waiting period (iddah) of a woman who seeks a divorce is one menstrual cycle or one month if she is post-menopauseal, i.e. ceased menstruating. This is to ensure she is not pregnant.[26] If the woman is pregnant, then the waiting period is until she gives birth.

Women's right to initiate divorce is very limited compared with that of men. According to shari'a law, there are two reasons a wife may be granted divorce: when she can prove that the husband did not have intercourse with her for more than two months or if the husband does not provide her with what she needs for living such as food and shelter. While men can divorce their spouses easily, women face legal and financial obstacles.[27][28] For example, in many cases the woman must repay her dowry and marriage expenses. In general she also has to forfeit child custody, if the child is older than seven years. Even if she is granted child custody, she has to give it to the father when the child reaches the age of seven.[27][28]

Lian[edit]

Lian (also called mulaana) occurs when a husband accuses his wife of adultery without supplying four witnesses, and the wife denies having committed adultery. In a Lian divorce, the husband "swears four times that his accusation is true, followed by a fifth oath in which he invokes the wrath of God upon himself if he is lying". The wife neutralizes his claim by responding with four oaths of her own, the fifth of which calls upon her the wrath of God if her husband is telling the truth. (If she refuses to take the oath, she is presumed guilty and subject to the punishment for adultery.)

This type of divorce is based on Quranic verses[Quran 24:6-9] instructing the husband to "swear four times ...".[29] Normally, if a man accuses a woman of adultery who is not a relative of his, he is required to prove it with four witnesses, and is subject to the punishment of qazf—being flogged with eighty stripes[Quran 24:4]—if he cannot.[30] [31]

There are three conditions of lian.

  1. The state of marriage between the spouses should be continuing.
  2. The marriage contract must be valid. For instance, if there were no witnesses to the couple's marriage, mulaana is not applied.
  3. The husband must be liable to be a witness and not to have been given the punishment of qazf before.[30][32]

Dowry (mahr) in divorce[edit]

A mahr (Arabic: مهر‎) is an agreed upon compensation for the wife that is obligatory on the husband before the act of intercourse occurs, especially in Shia Islam. In recent years some younger women have agree to marry with high amounts of mahr with the intention to divorce shortly after for an easy profit.[where?] In these cases the Islamic jurisprudence has clear guidance depending on who asks for the divorce and whether or not the wife is still a virgin. If the husband asks for a divorce and intercourse has occurred, he pays full mahr; if the husband asks for a divorce and the wife is still a virgin, the husband pays half the dowry; if the wife asks for a divorce and she is not a virgin, the husband pays half the mahr; and if the wife asks for a divorce and is still a virgin, then no mahr is required to be paid by the husband. However, there may be other financial obligations depending on the length of marriage, whether there are any kids involved and their ages, and the property that they own under joint ownership.

Other financial obligations in divorce[edit]

Depending on the length of marriage, whether intercourse occurred or not or if any children are involved and income levels for either husband or wife, the husband may be required to provide a monthly maintenance support for the children to ensure their well-being. However, unlike the American laws where the couple split assets earned during the marriage, Islamic laws does not entitle the wife to a split of the husband's assets at divorce.

See also[edit]

Notes[edit]

  1. ^ DeLong-Bas, Natana J. (2004). Wahhabi Islam: From Revival and Reform to Global Jihad (First ed.). Oxford University Press, USA. p. 173. ISBN 0-19-516991-3. 
  2. ^ 'Aalim Network QR Witnesses for Marriage ]
  3. ^ Freeland, R, "The Use and Abuse of Islamic Law", Volume 73, The Australian Law Journal, 130
  4. ^ Hasan, A, "Marriage in Islamic Law - A Brief Introduction", (March, 1999) Family Law, 164
  5. ^ Hinchcliffe, D, "Divorce in the Muslim World", (May, 2000), International Family Law, 63
  6. ^ South African Law Commission, Islamic Marriages and Related Matters, Project 59. July, 2003. [1]
  7. ^ Triple Talaq
  8. ^ a b Quran 65:1
  9. ^ a b "If the husband said You are not my wife". Darul ifta Burmingham. October 16, 2011. Retrieved 18 July 2014. 
  10. ^ Hasyim, Syafiq. Understanding Women in Islam: An Indonesian Perspective. Equinox publishing. p. 115. 
  11. ^ "talaq divorce bain and raji". Islam helpline. Retrieved 18 July 2014. 
  12. ^ DeLong-Bas, Natana J. (2004). Wahhabi Islam: From Revival and Reform to Global Jihad (First ed.). Oxford University Press, USA. p. 176. ISBN 0-19-516991-3. 
  13. ^ Fatawa Darul Uloom Deoband p.400 v.9
  14. ^ Quran 4:35
  15. ^ Quran 33:49
  16. ^ ref
  17. ^ Quran 65:2
  18. ^ Quran 2:231
  19. ^ Quran Al Baqara:Verse 230.
  20. ^ Quran 2:232–233
  21. ^ Quran 2:235
  22. ^ Quran 2:241
  23. ^ Amin Ahsan Islahi, Tadabbur-i-Qur'an, 2nd ed., vol. 1, (Lahore: Faran Foundation, 1986), p. 545
  24. ^ "And the mothers should suckle their children for two whole years for him who desires to make complete the time of suckling; and their maintenance and their clothing must be-- borne by the father according to usage; no soul shall have imposed upon it a duty but to the extent of its capacity; neither shall a mother be made to suffer harm on account of her child, nor a father on account of his child, and a similar duty (devolves) on the (father's) heir, but if both desire weaning by mutual consent and counsel, there is no blame on them, and if you wish to engage a wet-nurse for your children, there is no blame on you so long as you pay what you promised for according to usage; and be careful of (your duty to) Allah and know that Allah sees what you do." Qur'an, [Quran 2:223]
  25. ^ "And when you have divorced women and they have ended-- their term (of waiting), then do not prevent them from marrying their husbands when they agree among themselves in a lawful manner; with this is admonished he among you who believes in Allah and the last day, this is more profitable and purer for you; and Allah knows while you do not know. Qur'an, [Quran 2:232]
  26. ^ Divorce laws in Pakistan
  27. ^ a b "Divorced from Justice: Women’s Unequal Access to Divorce in Egypt". Human Rights Watch. 1 December 2004. Retrieved 2 February 2013. 
  28. ^ a b Hamada, Suad (18 March 2010). "The Hard Way Out: Divorce by Khula". The WIP. Retrieved 2 February 2013. 
  29. ^ "Lian". Oxford Islamic Studies Online. Oxford Islamic Studies. Retrieved 18 July 2014. 
  30. ^ a b DÖNDÜREN, Hamdi. "Will you give information about Lian: the method of ending a marriage due to adultery?". Questions on Islam. Retrieved 18 July 2014. 
  31. ^ "Instant Divorce after Lian [quotes from quran and hadith]". Divorce in Islam. Retrieved 18 July 2014. 
  32. ^ al-Kasani, ibid, III, 24; Ibnu'l-Humam, ibid, III, 259; al-Maydani, ibid, III, 75,78; Ibn Abidin, Raddul-Mukhtar, Egypt, n.d., II, 805 ff.

External links[edit]


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