Marriage in Islam is a solemn covenant, a God-given blessing, and a means of expressing love and compassion.
Islam tolerates divorce in view of the imperfections of human nature. While the continuity of marriage is taken for granted, it does not exclude the other possibility. People’s hearts and minds change over time for different reasons. An outright prohibition would have meant we are living in an “ideal” world devoid of deficiencies. Such a prohibition would be incompatible with the Islamic ideology which prescribes only what is humanly attainable. The change may be unavoidable and lead to alienation between spouses and thus defeat the purpose of marriage. The Quran refers to grounds for divorce in this context. If the spouses may not be able to observe the limits set by Allah or implement His laws of marital life, then a divorce may be negotiated. Divorce is generally resorted to when marital life becomes impossible and there is little chance of reconciliation.
In the event of disputes between the spouses, the Quran has specified certain preliminary steps such as admonishment in a kind manner to settle the disputes and sustain the marriage. If these preliminary steps fail, an effort must be made to resolve the dispute by arbitration:
“If you fear a breach between them (husband and wife) appoint a judge from his family and judge from her family, if they both (arbitrators) wish for peace, Allah will cause their reconciliation. Allah is All-Knowing, the Most Great.” (Quran 4:35)
When all effort towards reconciliation fail and there is no prospect whatsoever of reconciliation, then in such an event the husband may exercise his right of divorce as an instrument of last resort.
Divorce is defined as ‘dissolution of marriage’ and is mentioned in the Quran and Sunnah. Since marriage is a contract, divorce is seen as dissolution of that contract and deemed to certain conditions.
Categories of Divorce According to Five Rulings
1. Obligatory
Divorce becomes obligatory when there is unbearable harm, usually on part of the wife.
2. Disliked
Divorce done without a pressing necessity is disliked. It is not allowed for a husband to divorce his wife if there is no good reason because it results in harm, stress, and emotional pain which is forbidden.
3. Permissible
Divorce is lawful when a marriage fails to realize its objectives.
4. Recommended
A husband is recommended to resort to divorce if the wife does not adhere to her basic religious duties, in cases of negligence to Allah’s rights, or in cases of infidelity.
5. Forbidden
By scholarly consensus, divorce is forbidden during a woman’s menstrual period or the interval between a woman’s cycles in which they have enjoyed sexual intercourse.
All factors related to divorce – timing, preceding steps, and consequences – are check points imposing limitations on divorce. Several conditions must be met before a divorce can be “pronounced”[1] by the husband:
a) The husband must be sane, conscious, alert, and free from excessive anger. If he acts under the influence of intoxications, his divorce is invalid according to some jurists.
b) He must be free of external pressures. If he pronounces the divorce against his will, i.e. being under pressure, the pronouncement is void.
c) There must be a clear intention on his part to terminate the marriage.
d) Divorce must be given in the period of purity. The marriage contract cannot be cancelled at any time at the arbitrary will of the husband. The Quran state, ‘When you divorce women, divorce them at their prescribed periods.’ (Quran 65:1) The ‘prescribed periods’ referred to in the verse means the period of purity in which sexual relations have not taken place. The benefit of prescribing a fixed time is that the possibility of reconciliation remains, tempers may cool, and normal life may be restored in the period.
Iddah or ‘Waiting Period’
The concept of ‘waiting period’ will become clearer in the second lesson. For now, please understand the different types of iddah.
1. A woman who experiences menstruation, the mandatory period of waiting is three cycles:
‘And divorced women shall wait for three menstrual periods.’ (Quran 2:228)
2. Women who have passed the age of monthly cycles, shall wait for a period of three months:
‘And those of your women who have passed the age of monthly courses, their prescribed period if they have doubt is three months, and for those (minors) who have no courses (it is the same).’ (Quran 65:4)
3. In the case of pregnant women, the ‘waiting period’ is until delivery of the child:
‘The period of pregnant women is until they deliver their burdens.’ (Quran 65:4)
Correct Manner of Giving Divorce (Talaq)
1. A clear divorce with the words, ‘I divorce you,’ or ‘You are divorced,’ given by the husband to the wife in the period of purity in which sexual intercourse has not taken place. The husband is forbidden to say, ‘You are divorced three times,’ or repeat ‘You are divorced’ three times.
Also, the husband can divorce in writing (through a text message or whatsapp message) with the intention of divorce.
After the pronouncement, the wife is allowed to complete the period of iddah which differs in the case of different women. See Part 1 of the lesson.
This form of divorce does not terminate the marriage completely much less does it entail any resentment or cruelty. She may not be evicted from the home, nor should she leave it, unless she had committed an offense of indecency. The husband is obliged to keep her in the same house and provide her adequately as she was provided before divorce for the duration of the probationary “waiting period.”
2. After pronouncing the divorce, the husband is entitled to return to his wife in the sense of resuming normal conjugal relations before the expiration of her iddah. This “return” does not require a marriage ceremony or a new nikah. The basis for ‘returning’ is in the Quran:
“And their husbands are best entitled to take them back.” (Quran 2:228)
“And take two witnesses endued with justice from among you.” (Quran 65:2)
3. Upon the expiration of the iddah (the waiting period), the wife is free to remarry. She can remarry her previous husband with a new nikah (a new marriage contract) or she may marry another man.
4. It is better that the pronouncement of divorce in step 1 is mentioned to two witnesses so as to avoid any disputes.
5. If after pronouncing the divorce two times and ‘returning’ to the wife after each one during her iddah, the husband pronounces the divorce the third time, it is considered ‘irrevocable.’ After the third time, he cannot revoke it during the iddah and have his wife back.
Consequences of Divorce
1. The wife is released from the marriage contract by the husband. If he does not revoke the divorce, she is not regarded as his wife.
2. After the conclusion of the mandatory iddah (waiting period), the wife is free to marry another person.
Khul’ – Woman’s Divorce
Muslim jurists agree in principle that certain situations related to the husband’s situation justify a wife’s request for divorce. Long absence without knowing his whereabouts, long imprisonment, refusal to financially provide for the wife, severe poverty, and impotence are major reasons under which a wife may seek legal release from her marriage. Another set of circumstances which may involve either spouse is desertion, serious chronic illness, insanity, deceptive misrepresentation at the conclusion of the marriage contract, mistreatment, and moral laxity. If either spouse is involved in any of these situations, the other may justifiably seek divorce or annulment. In short, a husband cannot compel a woman to live with a man she dislikes.
Islam has given the right of talaq (divorce) to the husband who can exercise this right in case of necessity and with certain conditions. What if the woman is tormented, abused, and suffers from ill-treatment? What if a woman begins to dislike her husband due to his physical appearance, bad treatment, religious incompatibility, or aging? What recourse does she have? She can ask her husband to divorce her. She can return him the dowry and ask for khul’ (termination). Khul’ without compensation is valid. The essence of khul’ is the desire on part of the woman to end the marriage and separate from her husband.
“But if you fear that they may not be able to abide by the bounds set by Allah, there is no blame on either of them is she returns what has been given.” (Quran 2:229)
In case of khul’, the woman has to wait (iddah) for one menstrual period after khul’. During this period, the husband cannot take her back. After her iddah, she is free to remarry. If she wants to go back to her husband at a later date and he wants that too, they can remarry with a new marriage contract and a new dowry if they believe they can keep the limits ordained by Allah.
If he refuses to let her go, she has recourse to an Islamic court (if there is one) or a similar entity and demand that her marriage be dissolved. They have the authority to annul or dissolve the marriage. Some Muslim minority countries like India and Singapore allow Muslims to settle such matters in religious courts with limited jurisdiction. If you live in a country where one is not available, please consult a religious authority, scholar, or imam for consultation.
Transfer of Right of Divorce to Wife in Pre-Nuptial Agreement
Although the concept of ‘transferring divorce’ to one’s spouse has been explored by certain Muslim bodies and organizations around the world, the correct opinion regarding it is that it is not an option that is supported by Islam.
In general, a separation between husband and wife is a “tri-concept”. A part lies with the husband in the form of ‘divorce’, another with the wife in the form of ‘khul’’ (termination initiated by a woman) and the last with a Muslim judge in the form of ‘faskh’ (an annulment).
Transferring the right of divorce to one’s spouse is something scholars have discussed and have given an almost unanimous opinion regarding it. It cannot be done, and if done, it is not acceptable, except within a very limited scope. The reason for this is in the words of Allah: “Men are responsible for women.” The Prophet, may the mercy and blessings of Allah be upon him, further indicated this saying: “Every condition that goes against what is in the Book of Allah or the Sunnah is false, even if it be 100 conditions.”
The only instance in which this would be accepted is if a man has decided to divorce his wife for a valid reason, and he then tells his wife, “You may divorce yourself.”
In the end, the issue of transferring the right of divorce to one’s wife is usually explored due to the high rates of divorce in certain Muslim communities. This in itself will not lessen the divorce rate, it may even increase it! Only knowledge, a pure understanding of faith and good manners will prevent the rise of divorce in any community.
