Divorce Law in Islam – Rules – Process
Divorce law in Islam has an unique and special regulation which nowadays has implemented to all the moslem people in the world. This article will describe the procedure for divorce law in Islam.
All people expect that they can live forever and ever until the death do apart with the one they love. They vow and bound their relationship into marriage and expecting that the relationship between the spouses should ideally be based on love (mawadda wa rahmah) according to Qur’an 30:21
“And of His signs is that He created for you from yourselves mates that you may find tranquillity in them; and He placed between you affection and mercy. Indeed in that are signs for a people who give thought”.
However, in some couples, the relationship cannot be as harmonious as they expected. One choice is separated and decide to divorce. Divorce law in Islam quoted in Qur’an 2:231-232 (Al-Baqara)
“And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself. And do not take the verses of Allah in jest. And remember the favor of Allah upon you and what has been revealed to you of the Book and wisdom by which He instructs you. And fear Allah and know that Allah is Knowing of all things”
“And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their [former] husbands if they agree among themselves on an acceptable basis. That is instructed to whoever of you believes in Allah and the Last Day. That is better for you and purer, and Allah knows and you know not”
Basically, the divorce law in Islam is regulated in Sharia which is intepreted in traditional Islamic jurisprudence (Fiqh) that implemented by moslems. There are some type of divorce law in Islam which is legal categories: talaq (repudiation), khulʿ (mutual divorce), judicial divorce and oaths.
In classical Islamic law, commonly the husband has right to break the marriage relationship by simply annoucing to his wife that he repudiates her verbally. It does not need the justification approval, only say talaq and the marriage is over. It is because in traditional term, the husband has the financial responsibilities he has to bear.
The right procedure of pronouncing divorce by the husband (talaq) consisting of:
- The wife is in a state of purity
Divorce should be given when the wife is in a ‘state of purity’, in other words when she is free from menstrual period and the husband had not had sexual intercourse with her. Thus, Giving divorce during the menstrual period has been forbidden in the hadith, on the good grounds, during the menstrual period wife doesn’t give any her affective side towards a husband. Therefore, husband is not attracted towards his wife, and in her state of cleanliness thereafter he may turn towards her and may give up the idea of divorcing her.
2. Only one divorce be given
The husband may say to the wife: “I divorce you ‘‘. He should not add any numbers to his divorce. If the divorce is being written on paper then it may be clearly stated that it is one divorce (revocable).
3. In the presence of two witnesses
It is stated in Surah Talaq (Surah At- Talaq-2): “And call to witness two just men among you“. That means its required two men for being witness in case there is no misunderstanding in the future.
4. The woman divorced has her waiting term (Iddat)
It is that period in which a divorced woman cannot be re-marry before the end of this period of iddat, and he should provide her maintenance during this time financially. The term of iddat is for three menstrual periods. Similarly it is incumbent upon the divorced woman that she should pass her period of iddat in her husband’s house. According to The Qur’an 2:228 (Al Baqarah)
“Divorced women shall wait, keeping themselves apart, for three menstrual periods.”
When the third menstrual period is over, the period of iddat ends. And if the woman is not menstruating, then the period of iddat is three lslamic months, that is from the day the divorce is given till the end of three lunar months.
“And for such of your women as despair of menstruation, if you doubt, the period (of waiting) shall be three months, and also for those who have it not” (Surah At- Talaq-4).
And if the woman is pregnant, then her period of waiting is the termination of her pregnancy (delivery):
“And for those with child, their period shall be till they bring forth their burden.” (Surah At-Talaq-4).
5. Chance for Revocation During the Period of Waiting
During the period of waiting (iddat) a husband can return to her, i.e. take her back as wife. For this revocation of divorce, two just men should be called as witnesses.
6. First Revocable Divorce
If he has not returned to her or revoked the divorce, then after the period of waiting (iddat) is over, the woman would separate from the man as well leaving from the man’s house. It could take effect to ‘First revocable divorce’ which both the ex-husband and the ex-wife desire, they can re-marry. In other words after the period of iddat, man has no right of revocation, however if he wants to bring her back as a wife, there is an opportunity for him to marry her again with her willingness.
7. The Second Revocable Divorce
During this period of waiting, the husband can, if he wishes, return to his wife, i.e. take her back as wife. And if the period of iddat is over, then he can re-marry her with her willingness. The divorce in which the husband has the right to return to his wife or take her back as wife or to revoke his divorces are the first and second divorces, that is the divorces given on two occasions. In the holy Qur’an it is ordained:
“Divorce is to be given two times, and (a woman) must be retained in good manner or re/eased grace fully.” (Surah Baqarah : 229)
8. The Third Revocable Divorce
If after giving the second divorce, the husband has revoked his decision and taken her back, but in spite of efforts smooth relations did not prevail again, and the husband wants to divorce her. Then, this time he should arrive at a decision with more careful consideration, because this is the divorce of the third occasion, in which the husband has neither the right of revocation, nor can he re-marry after the passing of the period of waiting unless the woman has married with other man then has been divorced by the second husband.
The holy Qur’an directs: “So if a husband divorces his wife (after two times) he cannot after that remarry her until after she has married another husband (and he has divorced her).” (Surah Baqarah-230)
The commands concerning this third divorce are very Strict, and it is called Talaq-i-mughallazah Bainah’. The third divorce is not only ‘baain’ (separator/irrevocable) but is so absolute that the man and the woman cannot remarry even with mutual agreement. Unless the woman going married to another man then this other man divorces her by his own desire, and not in accordance with a pre-planned understanding, or unless he dies.
The ex husband can re-marry the ex wife if the ex wife has been divorced by the new husband or the new one die. The point in divorce law in Islam teach us that the man (a husband) should be wise with the decision about his marriage since when it is the third he divorce his wife, then he cannot take back or re-marry the ex wife.
One of the divorce law in Islam type is Khul’ or Khula. It is a procedure through which a woman can divorce her husband in Islam, by returning the gift (mahr) that she received from her husband. Based on traditional fiqh, and referenced in the Quran and hadith, khul’ permits a woman to ask a divorce with the mutual consent of the husband or a judicial decree.
Khul ‘ is as well quoted in Quran 4:128
“And if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of settlement between them – and settlement is best. And present in [human] souls is stinginess. But if you do good and fear Allah – then indeed Allah is ever, with what you do, Acquainted”
The most well known story that references khul’ and serves as the basis for legal interpretations is the story of Jamilah, the wife of Thabit ibn Qays, came to Prophet Mohamed (PBUH) “O Allah’s Apostle! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-Islamic manner if I remain with him.” On that Allah’s Apostle said to her, “Will you give back the garden which your husband has given you as Mahr?” She said, “Yes.” Then the Prophet ordered to Thabit, “O Thabit! Accept your garden, and divorce her once.” (As Narrated Ibn. Abbas).
After Khul, the woman should be enter the waiting perion (Iddah) as the talaq procedure, which is should not marry for 3 months period cycle or if the woman has been in menopause, then she should wait for 3 months. The Khul’ is for defending and protect woman right to decide the marriage if she does not have any secure in the marriage such as violence, abusing, etc.
The divorce law in Islam in modern era sometimes decide by the state law in the court. A marriage can also be dissolved by means of judicial divorce. Either spouse can petition a qadi court to obtain judicial divorce, but they must have the evident for dissolving the marriage. The court starts the process by appointing an arbitrator from each of their families in order to seek a mediated reconciliation. If this effort fails, the court adjudicates the dispute by apportioning fault for the breakdown of the marriage with the associated financial consequences.
Examples of fault are cruelty; husband’s failure to provide maintenance or pay the immediate installment of mahr; infidelity; desertion; moral or social incompatibility; certain ailments; and imprisonment harmful to the marriage. Judicial divorce can also be required over violations of terms stipulated in the marriage contract. Different legal schools recognized different subsets of these grounds for divorce.
One point divorce law in Islam is oaths by the husband. The husband can end marriage through three types of oaths: the oath of continence (Ila’ and izhar), the denial of paternity (liʿan), and conditional ṭalāq. The first two types were pre-Islamic practices confirmed by the Quran 2:226–227 (Al Baqara) for Ila and Quran (Al- Mujadila) 58:2–4 for izhar. Ila is an oath whereby the husband vows to refrain from sexual relations with his wife for at least four months.If he fulfils his oath, the marriage is dissolved; if he breaks it, the marriage continues.
In the izhar (or zihar) oath a man declares that his wife is as sexually prohibited to him as his mother. The husband is able to break the oath and resume the marriage. Breaking either oath requires expiation by means of feeding the poor or fasting. Meanwhile, in the li’an oath, the husband denies paternity of his wife’s child. The wife is given an opportunity to take an oath denying infidelity, and if she does so and the husband persists in his accusation, the marriage is dissolved by a judge and the couple can never remarry.
In the oath of conditional ṭalāq, the husband declares that he will divorce his wife if he or she performs a certain act. This oath can serve as a protection for the wife or as a threat by the husband, depending on the specified act.
Thus, there are some points in Divorce Law in Islam which is gained from Quran and Hadith, fit in the legal transformation in the modern era, in the judicial divorce.