Divorce

The Prophet (ṣall Allahu ʿalayhi wa sallam صلى الله عليه وسلم‎) declared that “Among lawful things, divorce is most hated by Allah”. Divorce leads to unhappiness, the break-up of families, and the breakdown of traditional values, but Islam recognises that refusing an unhappily married couple the opportunity to divorce risks greater damage to their faith and long-term happiness.

Even though divorce is permissible in Islam, there are certain restrictions and limitations that husbands and wives must be aware of.  The Qur’an and the Ahadith describe all the laws of divorce as well as the laws of marriage, but remind us that divorce must be a last resort.

It must also be remembered that reconciliation may be possible. The Qur’an requires that the couple appoint an honorable and reliable person from each of their families to work together to seek reconciliation 

“Should you fear that division will arise amongst them, appoint an arbitrator on the husband’s side and an arbitrator on the wife’s side from amongst their relatives and send them to them.  As soon as they desire peace and reconciliation, the Lord will vouchsafe it to them for he is all-knowing and wise.” [Qur’an 4:35]

There is also a chance that, in time, a divorced couple will find that their separation has helped them to rediscover the reasons why they married in the first place, and they subsequently enter a new, stronger marriage with each other.

The right of a husband to divorce his wife

In Islam, the right of divorce is given only to the husband (except in certain situations described below).

A husband can divorce his wife by saying or writing a phrase that cannot be misinterpreted and leaves no room for doubt, for instance “I have divorced you” (talluqtuki),  “You are divorced” (anti taliq) or “I am your husband no longer”. This method of divorce is known as talaaq and can only be effective if the wife hears or reads the phrase. It must also be made in front of two witnesses:

“Two just persons from amongst yourselves shall bear witness to the evidence before God when a divorce is settled.” [Qur'an 65:2]

Once the talaaqhas been made, the husband and wife may continue to live in the same house for a waiting period, or ‘Iddah (or `Iddat), of three months, but they cannot touch each other or have intercourse during this time. If they do, the divorce cannot take effect. ‘Iddah is not possible if a couple marry but divorce without having had intercourse. The husband must continue to support his wife financially during the `Iddah, but she is not obliged to do anything for him.

During the `Iddah the husband can cancel the divorce and the marriage can continue, but if there is no reconciliation by the end of the ‘Iddah, the marriage is terminated.

It is important to recognise that it is not necessary to say the talaaq three times; once is enough to instigate divorce proceedings. This is often the source of some confusion upon which even the opinions of judges differ. Many people think that the divorce will not be effective unless talaaq has been said three times. Some think that this constitutes only one divorce; some count it as all three divorces. Some will allow the fact that the husband used the triple talaaq for emphasis and did not mean talaq mughallaz. Consequently, it is advisable to only say talaaq once. In any case, the triple talaaq is considered unIslamic as it is likely to have been repeated in anger.

A husband who has divorced his wife once may reconcile and divorce her twice more, but the third divorce (also known as the irrevocable divorce or talaq mughallaz) cannot be undone. After the talaq mughallaz, a couple can never be together again (and are probably not meant to be together anyway).

“A divorce (Ta’alaq) is only permissible twice: after that the parties should either hold together on equitable terms, or separate with kindness.” [Qur’an, Surah Baqarah, v 229]

The right of a wife to divorce her husband

Contrary to popular belief, especially in the Western world, Islam recognises the wife’s right to end the marriage under certain circumstances, and a husband can grant his wife the right to divorce him in the same way as he can divorce her (by saying or writing it), although it is called Khul` when the wife divorces the husband in this way. Khul` is irrevocable and requires the wife to return her marriage dowry.

A wife can seek a divorce from the courts if her husband has failed to meet the terms of their marriage contract, perhaps by treating her badly, refusing to support her financially, taking another wife without consultation or committing adultery, regularly making sudden journeys with no explanation, or because they simply cannot tolerate each other.

Alternatively, if a wife becomes stubborn, demanding or mean-spirited, or deliberately dissatisfies her husband socially, sexually, or within the family, she may leave her husband no option but to divorce her.

Other circumstances when a wife can present herself to the courts to seek a divorce include situations when her husband has neglected her by failing to provide for her maintenance, or when she or her husband have refused the other their marital rights. In such cases, the Qadhi (Muslim judge) may require the husband to treat his wife correctly, to pay her maintenance, and for the couple to be reconciled with each other. If he refuses, the judge will require the husband to divorce his wife.

In other situations, the judge may require the husband to separate from his wife if he cannot prove claims he has made against her, for instance if he has accused her of being unchaste or unfaithful, or of giving birth to a child that is not his. Likewise, if the husband is away from his wife for more than six months the wife can seek to divorce him.

A wife does not always need to go to court to get a divorce. If her husband has a chronic disease, has been declared insane, or has a physical defect that prevents him from having intercourse, the wife can be given haqq-i-faskh, the right to annul the marriage, by the Feqh.

Please note that haqq-i-faskh is different from the khul` divorce, mainly as it does not require the wife to give up her claim to financial support.

The `Iddah

The `Iddah is a period of time agreed by the Feqh in which a divorced or widowed woman is unable to marry another man. The `Iddah also offers a “breathing space” for the husband to be reconciled to his wife and to continue with the marriage.  If during this time the husband decides he does not want to divorce his wife, he only needs to say so. There are no legal or religious requirements.

However, if the couple is not reconciled by the end of the `Iddah (three months following talaaq, one month following kuhl’), the divorce is deemed complete.  The husband is no longer responsible for the maintenance of his former wife and they become non-mahram to each other.

In some cases – such as experiencing hatred towards her husband - the wife can end the marriage quickly during the `Iddah simply by repaying a large part of her marriage portion (or giving her husband some of her own property) and not accepting any money from her husband as part of a divorce settlement. However, this type of divorce can be reversed during the `Iddah if the wife changes her mind and the husband agrees.

When divorce is not granted

Divorce is not granted if:

• the husband or wife who issued it was drunk, angry, or forced to do so;
• the husband issued it during his wife’s menstruation period;
• the couple has had intercourse between the wife’s latest menstruation and when the divorce was issued, in case a child has been conceived and the wife would need to calculate her `Iddah;
• the wife is pregnant – divorce cannot take place until after the child has been born.

Allah (Subhaanahu Wa Taala سبحانه و تعالى) said: “Women who are divorced shall wait, keeping themselves apart, three (monthly) courses. And it is not lawful for them that they should conceal that which Allah has created in their wombs if they are believers in Allah and the Last day. And their husbands would do better to take back in that case if they desire a reconciliation. And they (women) have rights similar to those (of men) over them in kindness, and men are a degree above them.”

Al-Faskh

Al-Faskh means revoking the marriage, perhaps because of flaws in the marriage contract, or because there are other issues that prevent the marriage from succeeding.  Examples of situations that may result in Al-Faskh include:

• if either of the couple renounce their Muslim faith to become non-Muslim (committing apostasy) the marriage contract is instantly revoked;
• if a non-Muslim husband comes to Islam and his wife remains an unbeliever (unless she is Christian or Jewish);
• if a non-Muslim wife comes to Islam while her husband remains an unbeliever, no matter what his religion is;
• if the marriage contract was signed by a father or grandfather on behalf of their son or daughter. In these circumstances, the child can revoke the contract when they become of age.

After the divorce

If a divorce takes place, the husband and wife keep their property and money separate after marriage. Younger children will generally stay with their mother if she chooses (and if she is Muslim). However, if one of the parents is unfit to raise the children Islamically, the other parent will have custody of them. The father should continue to pay for his children’s upkeep.

Allah (Subhaanahu Wa Taala سبحانه و تعالى) said: “The duty of feeding and clothing nursing mothers in a seemly manner is upon the father of the child.”

Conclusion

Remember: every marriage will go through a rocky patch now and again, and most couples can resolve their differences by talking to each other and understanding how each other feels. Even so, Islam acknowledges that even the strongest of marriages may fail for any number of different reasons. However, divorce should always be the last resort for any couple.