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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).
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 one, two or triple talaq. Sunnis also believe it to be wrong and against various Hadiths but accept it as final, especially Hanafi schools of jurisprudence if a man did utter it, i.e. the triple talaq in one go. The view on acceptability of this varies amongst the four Sunni groups of Islamic schools of jurisprudence. In all Sunni schools of jurisprudence, each talaq utterance should be followed by a waiting period of three menstrual periods for women or three month (iddah), when the couple are supposed to try to reconcile with the help of mediators from each family, until the third and final talaq.
It is also possible for a woman to petition a qadi (judge of Muslim jurisprudence) for a divorce under certain conditions. The circumstances which are regarded as acceptable vary amongst the four Sunni groups of Islamic schools of jurisprudence.
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 sinful (haraam). Shi'a practice requires two witnesses,[2] followed by a waiting period (iddah) when 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.[3] The Shi'a annul the temporary marriage at the end of the period, without any divorce being involved, since its duration was predetermined at the outset, and there is not necessarily a conflict to resolve.
Such type of temporary marriage is not permitted in Sunni Islam, and is regarded as sinful and not even considered a marriage. Although, Sunnis accept it was permitted in the early days of Islam but subsequently prohibited by Muhammad in various hadith.
After the waiting period is over, the couple is divorced and the husband is no longer responsible for the wife's expenses, but remains responsible for the maintenance of the children, until they are weaned (qu'ran).
Contents [hide]
1 Talaq
1.1 Initiation
1.2 Reconciliation
1.3 Completion
1.4 Aftermath
2 Khula
3 See also
4 Notes
5 External links
[edit]Talaq
The Muslim 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 polygyny 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).[4][5][6][7]
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.[8]
Shīʻa and Sunnī have different rules to engage a talāq. The talāq has three steps:
Initiation
Reconciliation
Completion
[edit]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 .
O Prophet! When ye do divorce women, divorce them at their prescribed periods, and count (accurately), their prescribed periods: And fear Allah your Lord: and turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some open lewdness, those are limits set by Allah: and any who transgresses the limits of Allah, does verily wrong his (own) soul: thou knowest not if perchance Allah will bring about thereafter some new situation. "
— Qur'an, Sura 65 (At-Talaq), ayat 1[9]
[edit]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. This is said in the Quran in the following ayats:
"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, Allah will effect harmony between them, surely Allah is Knowing, Aware."
— Qur'an, Sura 4 (An-Nisa), ayat 35[10]
"O you who believe! when you marry the believing women, then divorce them before you touch them, you have in their case no term which you should reckon; so make some provision for them and send them forth a goodly sending forth."
— Qur'an, Sura 33 (Al-Ahzab), ayat 49[11]
It is also said in the Quran that during that waiting period the wife must not be forced to leave her husband's home nor should she leave it herself unless the wife has committed indecency of some sort, in which case it is permitted for her to leave the house.
"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) Allah, your Lord. Do not drive them out of their houses, nor should they themselves go forth, unless they commit an open indecency; and these are the limits of Allah, and whoever goes beyond the limits of Allah, he indeed does injustice to his own soul. You do not know that Allah may after that bring about reunion. "
— Qur'an, Sura 65 (At-Talaq), ayat 1[9]
[edit]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 waiting period (ʻidda) is over, the talāq procedure is completed. Two witnesses [12] are required to witness the completion of the talāq.
The relevant parts of the Qur'an are:
Thus when they fulfil their term appointed, either take them back on equitable terms or part with them on equitable terms; and take for witness two persons from among you, endued with justice, and establish the evidence (as) before Allah. Such is the admonition given to him who believes in Allah and the Last Day. And for those who fear Allah, He (ever) prepares a way out."
— Qur'an, Sura 65 (At-Talaq), ayat 2[13]
"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 Allah 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) Allah, and know that Allah is the Knower of all things."
— Qur'an, Sura 2 (Al-Baqara), ayat 231[14]
[edit]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.
And when you have divorced women and they have ended-- their term (of waiting), then do not prevent them from re-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, Sura 2 (Al-Baqara), ayat 232[15]
"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; Allah 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 Allah knows what is in your minds, therefore beware of Him, and know that Allah is Forgiving, Forbearing. "
— Qur'an, Sura 2 (Al-Baqara), ayat 235[16]
"For divorced women Maintenance (should be provided) on a reasonable (scale). This is a duty on the righteous."
— Qur'an, Sura 2 (Al-Baqara), ayat 241[17]
After divorce, Qur'an specifies responsibilities on divorcee and divorcer on behalf of their children.[18][19] Qur'an also prohibits interventions from the previous husband in the divorced woman's life.[20]
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
[edit]Khula
Main article: 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, or in non-Islamic areas an Islamic community panel, 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-menopauseal, i.e. ceased menstruating. This is to ensure she is not pregnant.[21] If the woman is pregnant, then the waiting period is until she gives birth.
Women's right to initiate divorce is often limited compared with that of men in the Middle East. While men can divorce their spouses easily, women often face legal and financial obstacles.[22][23] For example, in many cases the woman must repay her dowry and marriage expenses. She may also be required to forfeit child custody.[22][23] However, this contentious area of religious practice and tradition is being increasingly challenged by those promoting more liberal interpretations of Islam.
[edit]See also
Annulment
Annulment (Catholic Church)
Get (divorce document)
Marriage in Islam
Rights and obligations of spouses in Islam
[edit]Notes
^ jahiliyya
^ 'Aalim Network QR Witnesses for Marriage ]
^ nikah mut'ah
^ Freeland, R, "The Use and Abuse of Islamic Law", Volume 73, The Australian Law Journal, 130
^ Hasan, A, "Marriage in Islamic Law - A Brief Introduction", (March, 1999) Family Law, 164
^ Hinchcliffe, D, "Divorce in the Muslim World", (May, 2000), International Family Law, 63
^ South African Law Commission, Islamic Marriages and Related Matters, Project 59. July, 2003. [1]
^
http://www.irfi.org/articles/articles
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