Divorce

Divorce

Excerpts from the book: A summer of Islamic Jurisprudence by Salih Al-Fawzaan.


Divorce is the dissolution of the bond of marriage or part of it. The ruling on divorce varies according to the different situations. It can be permissible, detestable, desirable, obligatory, or prohibited. So, it can involve any of the main five rulings.

Divorce is permissible when the husband needs it because of his wife's ill conduct, the harm caused to him by keeping his wife, and the non-fulfilment of the legal objective of marriage by keeping her.

However, divorce is detestable if there is no need for it, as when there is no problem between the married couple; some scholars deem it prohibited in such a case. According to the preponderant view, divorce is permissible with detestability in this case, for the Prophet (PBUH) says:

“The most detestable lawful act in the Sight of Allah is divorce” [1]

(related by Abu Dawood and Ibn Majah, and the men of its chain of transmitters are trustworthy)

In this hadith, The Prophet (PBUH) refers to divorce as lawful though it is detestable in the Sight of Allah, indicating it's detestability-based on permissibility in this case. The reason for its detestability in this case is that it puts an end to a marriage that fulfils the legally desired interests.

On the other hand, divorce becomes desirable if the wife suffers harm during her marital life, such as when there is dissension between her and her husband or when she dislikes him. In this case, maintaining the marriage causes more harm to the wife, while the Prophet (PBUH) said

“One should not harm others not should one seek benefit for oneself by causing harm to others”

Divorce becomes obligatory for the husband if the wife is neither righteous nor upright on the religious level. For example, the wife may be so negligent in prayer that she abandons it or performs it belatedly, while the husband is unable to rectify her, or she may be morally dishonest. In such cases, it is obligatory for the husband to divorce her according to the preponderant view in this regard. Ibn Taymiyah (r) said, “If the wife commits adultery, it is not for the husband to keep her. Otherwise, he is considered a cuckold (2)”. Similarly, if the husband is neither righteous nor upright concerning religion, it is obligatory for the wife to ask for a divorce, or separate from him by release against remuneration (Khul'). It is not for the wife to stay with him as long as he is negligent of his religious duties.

If the husband has sword not to have sexual relations with his wife and then the waiting period of four months passes and he still refuses to do so and expiate for his oath, it is obligatory for him to divorce her, and he must be forced to do so. This is because Allah, The Exalted, says:

“For those who swear not to have sexual relations with their wives is a waiting time of four months, but if they return [to normal relations] – then indeed, Allah is Forgiving and Merciful. And if they decide on divorce - then indeed, Allah is Hearing and Knowing.”(Quran: AL-Baqarah: 226-227)

It is prohibited for the husband to divorce his wife while she is in her menses, during her period of confinement, during her state of major ritual impurity (i.e. the period between the wife's menstruations) in which he has already had sexual intercourse with her. The husband is also prohibited to divorce his wife thrice at a time, as we will point out soon in detail, Allah willing.


The proofs of legality of divorce are illustrated in Quran, the Sunnah (Prophetic Tradition) and the consensus of scholars. Allah Exalted be He, says:

“Divorce is thrice...” (Quran: Al-Baqarah: 229)

Allah also says:

“O Prophet, When you [Muslims] divorce woman, divorce them for [the commencement of] their waiting period...” (Quran: At-Talaq:1)

Moreover, the Prophet (PBUH) says:

“Divorce belongs only to the one who takes hold of the leg (i.e. the husband)” [3][4]

(Related by Ibn Majah and ad-Daraqunti, and there are other hadeeths indicating the same meaning)

Besides, many scholars report the consensus of faqihs and the legality of divorce.

The wisdom behind divorce is clear, and it is one of the merits to this great religion, Islam. When necessary, divorce becomes the legal solution to marital problems, Allah, Exalted be He, says:

“...then [after that], either keep [her] in an acceptable manner or release [her] with good treatment...”(Quran: Al-Baqarah: 229)

Allah also says:

“But if they separate [by divorce], Allah will enrich each [of them] from His abundance. And ever is Allah Encompassing and Wise.”(Quran: An-Nisa: 130)

Divorce is a relief and a good solution when there is no longer a benefit out of keeping the marriage tie, or when the wife is harmed by staying with her husband, or when either of the married couple is immoral, defiantly disobedient, and irreligious, unlike the other.

The communities prohibiting divorce always suffer many serious social problems such as the spread of suicide, crime, and the corruption of family life. The great religion of Islam permits divorce and makes proper rules to regulate it in order to achieve the desired interests and repel any possible evil, and this is the typical way of Islam in all its great laws and regulations that maintain the interests of humans in the long and short run. Therefore, we praise Allah, Exalted by He, for His bounty and bestowal of Islam upon us.

The statement of divorce is valid when pronounced by a legally qualified, free-willed, sane husband or by his authorized representative, as the Prophet (PBUH) says:

“Divorce belongs only to the one who takes hold of the leg (i.e. the husband).”

However, a Muslim becomes legally unqualified to divorce if his mental faculties are lacking due to something excusable, such as being insane unconscious, asleep, a sufferer from a disease that causes unawareness such as pleurisy, being forced to drink an intoxicant, or taking aesthetic for medical treatment. If one in any of the aforementioned cases pronounces the spoken form of divorce, the divorce is not legally effective. To illustrate, Al-Bukhari related in his Sahih (Authentic book of Hadith) that 'Ali Ibn Abu Talib (r) said:

“Every divorce is permissible except that by an insane man” [5]

This is because sanity is the principal upon which a legal judgement is based. On the other hand, if a person's mental faculties are lacking due to his willingly taking intoxicant, scholars differ about the validity of his divorce in such a case, in general, the four imams as well as a group of Muslim scholars maintain that such divorce is valid.

If a person is forced to divorce his wife, and he divorces her in order to avoid injustice, oppression, or persecution, his divorce is not legally effective. This is because the Prophet (PBUH) says:

“There is no divorce or emancipation in case of duress” [6]

(Relate by Ahmed, Abu Dawood, and Ibn Majah)

Moreover, Allah, Exalted be He, says:

“Whoever disbelieves in [i.e. denies] Allah after his belief...except for the one who is forced [to renounce his religion] while his heart is secure in faith...”(Quran: An-Nahl: 106)

Though disbelief is more serious then divorce, Allah pardons those who pretend to be disbelievers under duress. Thus, divorce, with great reason, is not legally effective when the husband is forced to do it. However, divorce can be valid under duress. This is in case the husband has sworn not to have sexual intercourse with his wife and then four months pass an he still refuses to have sexual intercourse with her and expiate for his oath.

When a man is in a state of anger but still aware of what he is saying, his divorce is valid in this case. Yet, if he is too enraged to be aware of what he is saying, his divorce is deemed void. Moreover, if a man utters the statement of divorce jokingly, his divorce is deemed valid though he does not mean it, as he meant to utter the spoke form of divorce. And, Allah knows best.


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Footnotes

1. Abdu Dawood (2178)[2/438] and Ibn Majah (2018) [2/500]
2. See Majmu 'ul-Fatawa (32/141)
3. This expression, namely “taking hold of a woman's leg”, in Arabic, impies having sexual intercourse with her. Thus, the meaning of the hadith is that the husband is the only one to whom the right of divorce belongs.
4. Ibn Majah (2081) [2/532] and ad-Daraqunti (3946) [4/24]
5. Al-Bukhari [9/481], At-tirmidhi (1194) [3/496]
6. Abu Dawood (2193) [2/446] and Ibn Majah (2046) [2/514]

Khula’: definition and how it is done

Question:

What is khula and what is the correct procedure? If the husband does not want to divorce the wife, can the divorce still happen? What about in societies like America, where women who don’t like their husbands (in some case, because the husbands are religious). The women think that they have the freedom that if they don’t like the men, they can divorce them.

Answer:

Praise be to Allaah.

Khula’ means the separation of the wife in return for a payment; the husband takes the payment and lets his wife go, whether this payment is the mahr (dowry) which he gave to her, or more or less than that.

The basic principle concerning this is the verse in which Allaah says (interpretation of the meaning):

“And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal-money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allaah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allaah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul‘ (divorce)”

[al-Baqarah 2:229]

The evidence for that from the Sunnah is that the wife of Thaabit ibn Qays ibn Shammaas (may Allaah be pleased with him) came to the Prophet (peace and blessings of Allaah be upon him) and said, “O Messenger of Allaah, I do not find any fault with Thaabit ibn Qays in his character or his religious commitment, but I do not want to commit any act of kufr after becoming a Muslim.” The Prophet (peace and blessings of Allaah be upon him) said to her, “Will you give back his garden?” Because he had given her a garden as her mahr. She said, “Yes.” The Prophet (peace and blessings of Allaah be upon him) said to Thaabit: “Take back your garden, and divorce her.”

(Narrated by al-Bukhaari, 5273).

From this case the scholars understood that if a woman cannot stay with her husband, then the judge should ask him to divorce her by khula’; indeed he should order him to do so.

With regard to the way in which it is done, the husband should take his payment or they should agree upon it, then he should say to her “faaraqtuki” (I separate from you) or “khaala’tuki (I let you go), or other such words.

Talaaq (i.e., divorce) is the right of the husband, and does not take place unless it is done by him, because the Prophet (peace and blessings of Allaah be upon him) said: “Talaaq is the right of the one who seizes the leg (i.e., consummates the marriage)” i.e., the husband. (Narrated by Ibn Maajah, 2081; classed as hasan by al-Albaani in Irwa’ al-Ghaleel, 2041).

Hence the scholars said that whoever is forced to divorce his wife by talaaq wrongfully, and divorces her under pressure, then his divorce is not valid. See al-Mughni, 10/352.

With regard to what you mention, that a woman in your country might arrange her own divorce through the man-made laws, if this is for a reason for which it is permissible to seek a divorce, such as disliking her husband, not being able to stay with him or disliking him because of his immoral ways and indulgence in haraam actions, etc., there is nothing wrong with her seeking divorce, but in this case she should divorce him by khula’ and return to him the mahr that he gave to her.*

But if she is seeking divorce for no reason, then that is not permissible and the court ruling on divorce in this case does not count for anything in terms of sharee’ah. The woman still remains the wife of the man. This gives rise to a new problem, which is that this woman is regarded as a divorcee in the eyes of the (man-made) law, and can re-marry after her ‘iddah ends, but in fact she is still a wife and not a divorcee.

Shaykh Muhammad ibn Saalih al-‘Uthaymeen (may Allaah have mercy on him) was asked about a similar matter and said:

Now we have a problem. The fact that she is still married to him means that she cannot marry anyone else, but according to the court ruling she is apparently divorced from him, and when her ‘iddah ends she can re-marry. I think that the only way out of this problem is that good and righteous people should get involved in this matter, to bring about reconciliation between the man and his wife. Otherwise she has to give him some payment, so that it will be a proper shar’i khula’.*

Liqa’ al-baab al-Maftooh by Shaykh Muhammad ibn ‘Uthaymeen, no. 54; 3/174.


Islam Q&A

http://www.islamqa.com/en/ref/26247

What is Iddat?

1. In a case of Khul'a where the husband has conceded to Khul'a the Iddat period of a woman is for her to wait until her first monthly cycle is over.
2. In all other cases, she has to wait until her third monthly cycle is over..
3. If a woman is non-mensurant she has to wait for three lunar months.
4. She is required not to contract any marriage during her Iddat period. In case she Remarries during the Iddat period her marriage will be considered as invalid.

http://www.islamic-sharia.org/divorc...s-iddat-2.html

Different types and periods of ‘idda (waiting period)

Question:

What are the different types of ‘ idda (waiting period) and what are their extents?

Answer:

According to the Islamic shari’a, the ‘idda is a waiting period with certain exigencies required of a woman when the appropriate condition exists—either divorce or death (of her husband). As for divorce, the ‘idda for a pregnant woman is until she delivers her child, and for one who still menstruates, it is three menstrual cycles, whereas for one who is either too young or too old to menstruate, it is three months.

As for the widow whose husband has passed away, if she is pregnant then her ‘idda is until she delivers her child; otherwise, it is four months and ten days

IslamQA.com

What is the relationship of a woman to the man who has divorced her?

Question:

Is it permissible for me to go out with my ex-husband in the company of our children on occasion, so that they can be together with both parents like other children. That is done is public places. Also, he does not pray – is the money that he spends on them haraam?.

Answer:

Praise be to Allaah.

If a man has issued the last of three talaaqs (divorces), or he has divorced her once or twice and her ‘iddah has ended, then she becomes a stranger (non-mahram) to him, and it is not permissible for her to be alone with him or to touch her or to look at her.*

The relationship of an ex-husband with his ex-wife is like his relationship with any other non-mahram woman. The fact that they have children does not justify his looking at her, being alone with her or travelling with her. He can go out with his children without her being there, or she can be present with one of her mahrams, without doing any of the haraam things that we have mentioned.*

Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) said:*
A thrice-divorced woman is a stranger (non-mahram) to the man like any other non-mahram woman, so the man does not have the right to be alone with her, just as he does not have the right to be alone with any non-mahram woman. And he cannot see of her what he cannot see of any non-mahram woman, and there are no special rulings concerning the relationship between them (other than the rulings governing all interactions between non-mahrams).*

Al-Fataawa al-Kubra, 3/349.*

With regard to accepting what the divorced husband spends on his children, there is no reason not to do so, even if he does not pray. She should remind her children of the importance of advising their father to pray, and may Allaah guide him through this advice.*

If the mother fears that her children may be adversely affected by their kaafir father or that he may lead them to do something that Allaah has forbidden, it is not permissible for her to allow them to go out with him, because their going out with him is causing them harm.*

And Allaah knows best.

Islam Q&A

http://islamqa.com/en/ref/36548/%E2%80%98iddah