Marriage as prescribed by God is the lawful union of a man and
women based on mutual consent. Ideally, the purpose of marriage is to foster a
state of tranquillity, love and compassion in Islam, but this is not always the
case. Islam discourages divorce but, unlike some religions, does make
provisions for divorce by either party.
God provides general guidelines for the process of divorce with
emphasis throughout on both parties upholding the values of justice and kindness
in formalizing the end to their marriage (see Surah 2: 224-237 for general
guidelines regarding divorce).
God encourages the husband and wife to appoint arbitrators as the
first step to aid in reconciliation in the process of divorce. If the reconciliation
step fails, both men and women are guaranteed their right to divorce as
established in the Qur'an, but the question lies in what is the procedure for
each. When a divorce is initiated by the man, it is known as talaq. The
pronouncement by the husband may be verbal or written, but once done, a waiting
period of three months ('iddat) must take place in which there are no sexual
relations even though the two are living under the same roof. The waiting
period helps prevent hasty decisions made in anger and enables both parties to
reconsider as well as determine if the wife is pregnant. If the wife is
pregnant, the waiting period is lengthened until she delivers. At any point
during this time, the husband and wife are free to resume their relationship,
thereby stopping the divorce process. At this time, the husband remains
financially responsible for the support of his wife.
The divorce initiated by the wife is known as khu" (if the
husband is not at fault) and entails the wife giving her dowry to end the marriage
because she is the "contract" breaker. In the instance of talaq where
the husband is the "contract" breaker, he must pay the dowry in full
in cases where all or part of it was deferred.
In the case that the husband is at fault and the woman is interested
in divorce, she can petition a judge for divorce, with cause. She would be
required to offer proof that her husband had not fulfilled his
responsibilities. The judge would make that determination based on the facts of
the case and the law of the land. It the woman had specified certain conditions
in her marriage contract, which were not met by the husband, she could obtain a
conditional divorce.
The controversy with divorce lies in the idea that men seem to
have absolute power in divorce. The way the scholars in the past have
interpreted this is that if the man initiates the divorce, then the
reconciliation step for appointing an arbiter from both sides is omitted. This
diverges from the Qur'anic injunction. The differences in powers of the husband
and wife with regard to divorce can be extracted from the following verse:
...but, in accordance
with justice, the rights of the wives (with regard to their husbands) are equal
to the (husbands ;) rights with regard to them, although men have precedence over
them (in this respect). And God is almighty wise. (2:228)
It is in the next verse, according to existing interpretations,
the reason for the small difference:
Men shall take full care
of women with the bounties which God has bestowed more abundantly on the former
than on the latter, and with what they may spend out of their possessions. And
the righteous women are the truly devout ones, who guard the intimacy which God
has (ordained to be) guarded. (4:34)
It is clear that the Qur'an states there is a "degree"
of difference with regards to the rights of men and women in divorce, but it is
not clear "how much" and "what" privileges a man is
entitled to. This is what has been interpreted by the jurists. It should also
be noted if the difference is due in part to the man being the financial
supporter, then it must follow that if the woman shares or is the main
financial contributor to the family that this privilege should apply to her as
well.
Many of the laws regarding divorce are the scholars' interpretations
of the relatively few Qur'anic references. As with all human laws, they must
adapt to dynamic circumstances. Issues like custody have become controversial.
For example, the Qur'an advises the husband and wife to consult each other in a
fair manner regarding their children's future after divorce (2:232-3)
Various laws regarding custody of the children have been
legislated by a few of the jurists. Some jurists have stipulated that custody
of the child is awarded to the mother if the child is under a certain age and
to the father if the child is older. There is no Qur'anic text to substantiate
the arbitrary choosing of age as a determinant for custody. Similarly with
regard to the issue of alimony, the Qur'an addresses the ex-husband's financial
obligation to his ex-wife but it does not provide a specific formula for the
amount of support (2:241, 65:4-7). This is open for negotiation between parties
and should be in proportion with the husband's financial income.
There has been much distortion and propagation of mistruth about a
woman's rights in the matters of marriage and divorce. It is only with
self-education and awareness of the Qur'anic text that both men and women can
come to know the truth of what God has prescribed and to evaluate the scholarly
interpretations closely to ensure that the spirit of justice is carried out:
When you divorce women
and they fulfill the term of their (Iddat), either take them back on equitable
terms or set them free on equitable terms; but do not take them back to injure them,
(or) to take undue advantage; if anyone does that, he wrongs his own soul. Do
not treat God's Signs as a jest, but solemnly rehearse God's favors on you, and
the fact that He sent down to you the Book and Wisdom, for your instruction.
And fear God, and know that God is well-acquainted with all things. (2:231)
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Knowing
the rules of divorce is important for both spouses. Although only the husband
can initiate divorce, the wife must be aware of its implications so that she
can conduct her affairs in accordance with the religion should the divorce
take place.
Divorce
is of two types: explicit or implicit.
The
explicit is that which takes place regardless of the intention and its
statement bears only one meaning according to the language. This includes
using the word divorce for example, I divorce you or answering yes to the
question do you divorce your wife?
The
implicit can bear several meanings and divorce takes place only if there was
an intention for it with the initiation of the statement. Some examples are,
“go back to your parents”, “you are on your own”, or “start calculating your
iddah”.
Additionally,
divorce can be made contingent on a matter such as saying if you do so and so
then you are divorced, in such a case should the woman do the mentioned
matter then she will become divorced.
When
a woman is divorced she must wait out her iddah before marrying another and
before leaving her home (except for a need such as to gain her sustenance or
to learn/teach the obligatory knowledge). If a woman gets her menstrual
period then her iddah is 3 cleanliness periods. If she has reached the age of
menopause then her iddah is 3 lunar month and if she is pregnant then it is
when she delivers.
^Iddah
from divorce or separation
During
the iddah period, the husband can return her to the marriage by saying I now
return you to my marriage, unless this was the 3rd divorce. A 3
tiered divorce takes place if the husband says I divorce you by 3 for example
or I divorce you once but intending for the 3 tiered divorce to take place or
if this is the third time in which he divorced her even if those times are
separated by lengthy time intervals. In such cases, the wife is divorced by
three.
A
marriage may be terminated (by divorce) and re-initiated twice (with the
above statement) without needing a new contract provided this is done during
the iddah. If the idda has passed then a new contract is required. If after a
3 tiered divorce the couple want to be re-married then she must finish her
current iddah, marry another man, have sexual intercourse with him, have him
divorce her, finish that iddah, and only then can she remarry the first man
but with a new contract. If this process is not undertaken the couple cannot
be together and if they are then it is an unlawful relationship.
In
addition, divorce is classified into 3 types. Permissible, ie not sinful,
sinful, and neither nor.
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