Divorce (Islamic)

In Islam there are separate rules for divorce for men and women under the terms of Islamic law (sharia). When a man has initiated a divorce the procedure is called ṭalāq (Arabic: الطلاق‎). When a woman has initiated a divorce it is called khula (Arabic: خلع‎).

The rules for Islamic divorce vary among the major Islamic schools of jurisprudence. Most importantly Shia and Sunni Muslims have different rules for performing an Islamic divorce. Sunni practice requires no witnesses, and allows a husband to end a relationship by saying the triple talaq. Shi'a scholars view the triple talaq (in one sitting or at one time) as a pagan pre-Islamic custom,[1] forbidden by Muhammad, but reinstated by Umar ibn al-Khattab, and thus forbidden (haraam). Sunni scholars agree to the facts, but deem it lawful (halal) anyway.

In some Sunni schools of jurisprudence, for example Shafi'i, it is possible for a woman to petition a qadi ("judge of Muslim jurisprudence") for a divorce under certain conditions.[clarification needed]

Shi'a practice requires two witnesses[2] followed by a waiting period[3] where the couple are supposed to try to reconcile with the help of mediators from each family. If the couple breaks the waiting period, the divorce is voided.

Since Shi'a view Islamic divorce as a procedure stemming from a conflict rather than a decision, they do not use the procedure to end a temporary marriage.[4] The Shi'a annul the temporary marriage at the end of the period, without any divorce being involved, since there is not necessarily a conflict to resolve.

After the waiting period is over, the couple is divorced and the husband is no longer responsible for the wife's expenses.

Contents

Talaq

The husband may initiate the divorce process by pronouncing the 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 The first two times the talaq is pronounced, it may be withdrawn.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. In countries where polygamy 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).[5][6][7][8]

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. [9]

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

  • Initiation
  • Reconciliation
  • Completion

Initiation

This is the stage where the talāq process is initiated.

According to most Sunnī scholars it consists of:

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

According to most Shīʻa scholars:

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

The Triple Talaq in one sitting doesn't find any place in Quran and is termed as unIslamic.

  • Sura 65.1 (partial) translated by Shakir
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) God, your Lord...
  • Sura 2.228 (partial) translated by Shakir
And the divorced women should keep themselves in waiting for three courses; and it is not lawful for them that they should conceal what God has created in their wombs, if they believe in God and the last day...

Reconciliation

  • 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.

The appropriate verses from the Quran are:

  • Sura 4.35 translated by Shakir
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, God will effect harmony between them, surely God is Knowing, Aware.
O you the Elevated and Chosen Servant of Allah! [inform about the procedural code] when you people, the husbands, pronounce decision of divorcing your such wives with whom you had maintained intimate matrimonial relations, for revoking Nikah then divorce your wives for their respective intervening time-interval [which is known to the respective husband; and this pronouncement will publicly suspend the peculiar right/permission granted by Nikah] and you husbands count down the intervening time period. [there is no intervening period which husbands need to count for such wives whom divorce is given without having intimate association [sexual intercourse and they can be honourably seen off instantly to her parent's house or to the one/place where she was a maid-servant-33:49]
[divorce and counting intervening period is a serious matter] and you people, the divorcing husbands, remain cautious, heedful, afraid of Allah, your Sustainer Lord.
You do not expel/exit the divorcee wives [during the intervening time-period] from THEIR homes,

Completion

After the completion of the talāq procedure, the couple are divorced, the husband is no longer responsible for the wife's expenses and she becomes non-mahram for him and so they must observe the hijāb rules.

  • Shīʻa scholars understand that when the ʻidda is over, the talāq procedure is completed. Two witnesses ref are required to witness the completion of the talāq.

The relevant parts of the Qur'ān are:

  • Sura 65.2 translated by Shakir
So when they have reached their prescribed time, then retain them with kindness or separate them with kindness, and call to witness two men of justice from among you, and give upright testimony for God. With that is admonished he who believes in God and the latter day; and whoever is careful of (his duty to) God, He will make for him an outlet.
  • Sura 2.231 translated by Shakir
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 God 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) God, and know that God is the Knower of all things.

Aftermath

  • If the wife is divorced for the third time (i.e. married once, divorced once, married the second time, divorced the second time, and so on), then she becomes "harām" for her former husband. Otherwise, the couple would be able to remarry.
  • 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. He must pay for her expenses.

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.

The relevant part of the Qur'ān is:

  • Sura 2.232-3 translated by Shakir
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 God and the last day, this is more profitable and purer for you; and God knows while you do not know.
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) God and know that God sees what you do.
  • Sura 2.235 translated by Shakir
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; God knows that you win 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 God knows what is in your minds, therefore beware of Him, and know that God is Forgiving, Forbearing.
  • Sura 2.241 translated by Shakir
And for the divorced women (too) provision (must be made) according to usage; (this is) a duty on those who guard (against evil).

After divorce, Qur'an specifies responsibilities on divorcee and divorcer on behalf of their children.[10][11] Qur'an also prohibits interventions from the previous husband in the divorced woman's life.[12]

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

  • Abd-Allah ibn Umar narrates that a lady came to Muhammad and said: "For this son of mine, it is only my belly which was his abode, and my breasts which were his vessel and my lap which was his dwelling place. Now his father has divorced me and wants to take him away from me." Muhammad replied, "You are more entitled to keep him until you marry again." Sunnan Abu Dawood 2276
  • Abu Hurairah narrates that in 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

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 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-menopause i.e. ceased menstruating. This is to ensure she is not pregnant.[13] If the woman is pregnant, then the waiting period is until she gives birth. There is still the need for witnesses when seeking a khula as in a talaq.

See also

Notes

  1. ^ jahiliyya
  2. ^ 'Aalim Network QR Witnesses for Marriage ]
  3. ^ iddah
  4. ^ nikah mut'ah
  5. ^ Freeland, R, "The Use and Abuse of Islamic Law", Volume 73, The Australian Law Journal, 130
  6. ^ Hasan, A, "Marriage in Islamic Law - A Brief Introduction", (March, 1999) Family Law, 164
  7. ^ Hinchcliffe, D, "Divorce in the Muslim World", (May, 2000), International Family Law, 63
  8. ^ South African Law Commission, Islamic Marriages and Related Matters, Project 59. July, 2003. [1]
  9. ^ http://www.irfi.org/articles/articles_151_200/triple__talaq.htm
  10. ^ Amin Ahsan Islahi, Tadabbur-i-Qur'an, 2nd ed., vol. 1, (Lahore: Faran Foundation, 1986), p. 545
  11. ^ "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]
  12. ^ "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]
  13. ^ Divorce laws in Pakistan

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