Islam and Divorce
The Prophet (peace and blessings be upon him) said: “Among lawful things, divorce is the most hated by Allah (SWT).” (Reported by Abu Dawud – Book of Prophet’s (pbuh) sayings)
Marriage, as prescribed by Allaah (SWT), is the lawful union of a man and woman 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.
Allaah (SWT) provides general guidelines for the process of divorce with emphasis on both parties upholding the values of justice and kindness in formalising the end to their marriage (see [Quran 2: 224-237] for general guidelines regarding divorce).
Allaah 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 the man and woman are guaranteed the right to divorce as established in the Quran, but the difference lies in the procedure for each one. When a divorce is initiated by the man, it is known as Talaaq.
The pronouncement by the husband may be verbal or written, but once made, there is to be a waiting period of three months (‘Iddah) during which there can be no sexual relations, even though the two are living under the same roof.
The waiting period helps to prevent hasty terminations due to anger and allows both parties time to reconsider as well as to see 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 conjugal relationship, thereby ending the divorce process.During this waiting period, the husband remains financially responsible for the support of his wife.
The divorce initiated by the wife is known as Khula’ (if the husband is not at fault) and requires that the wife return her dowry to end the marriage because she is the ‘contract-breaker’. In the instance of Talaaq, where the husband is the ‘contract-breaker’, he must pay the dowry in full in cases where all or part of it was deferred, or allow the wife to keep all of it if she has already been given it in full.
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 marital responsibilities. If the woman had specified certain conditions that are Islamically accepted in her marriage contract, which were not met by the husband, she could obtain a conditional divorce.
The controversy regarding the seeming inequity in divorce lies in the idea that men seem to have absolute power in obtaining a divorce.
Divorced women remain in waiting for three periods, and it is not lawful for them to conceal what Allah has created in their wombs (pregnancy) if they believe in Allah and the Last Day. And their husbands have more right to take them back in this [period] if they want reconciliation. And due to the wives is similar to what is expected of them, according to what is reasonable. But the men have a degree over them [in responsibility and authority]. And Allah is Exalted in Might and Wise. [Quran: 2:228]
In the following verse, according to existing interpretations, Allaah gives the reason for the small difference in the verse (which means):
Men are in charge of women by [right of] what [qualities] Allaah has given one over the other and what they spend [in support] from their wealth. So righteous women are devoutly obedient, guarding in [the husband’s] absence what Allaah would have them guard.} [Quran: 4:34]
Thus, it is clear that there is a ‘degree’ of difference with regards to the rights of men and women in divorce, and that the greater right that men were given is due to their being the leaders and financial supporters of the household. This, however, does not mean that women are inferior to men or that they are second-class human beings.
EVALUATE AND TRY TO RECONCILE
Divorce is permitted in Islam as a last resort if it is not possible to continue a marriage. Certain steps need to be taken to ensure that all options have been exhausted and both parties are treated with respect and justice.
In Islam, married life is described as one filled with mercy, compassion, and tranquility. Marriage is a great blessing. Each partner in the marriage has certain rights and responsibilities, which are to be fulfilled in a loving way in the best interests of the family.
Unfortunately, this is not always the case. When a marriage is in danger, couples are advised to pursue all possible remedies to rebuild the relationship. Divorce is allowed as a last option, but it is discouraged. The Prophet Muhammad (pbuh) once said, “Of all the lawful things, divorce is the most hated by Allah.”
For this reason, the first step a couple should make is to really search their hearts, evaluate the relationship, and try to reconcile. All marriages have ups and downs, and this decision should not be arrived at easily. Ask yourself, “Have I really tried everything else?” Evaluate your own needs and weaknesses; think through the consequences. Try to remember the good things about your spouse, and find forgiveness patience in your heart for minor annoyances. Communicate with your spouse about your feelings, fears, and needs. During this step, the assistance of a neutral Islamic counselor may be helpful for some people.
If, after thoroughly evaluating your marriage, you find that there is no other option than divorce, there is no shame in proceeding to the next step. Allah gives divorce as an option because sometimes it is truly the best interest of all concerned. Nobody needs to remain in a situation that causes personal distress, pain, and suffering. In such cases, it is more merciful that you each go your separate ways, peacefully and amicably.
Recognize, though, that Islam outlines certain steps that need to take place both before, during, and after a divorce. The needs of both parties are considered. Any children of the marriage are given top priority. Guidelines are given both for personal behavior and legal process. Following these guidelines may be difficult, especially if one or both spouses feel wronged or angry. Strive to be mature and just. Remember Allah’s words in the Quran: “The parties should either hold together on equitable terms, or separate with kindness.” (Surah al-Baqarah, 2:229)
ARBITRATION
The Quran says: “And if you fear a breach between the two, appoint an arbiter from his relatives and an arbiter from her relatives. If they both desire reconciliation Allah will affect harmony between them. Verily Allah has full knowledge, and is aware of everything.” (Quran – 4:35)
A marriage, and a possible divorce, involves more than just the two spouses. It affects children, parents, and entire families. Before a decision is made about divorce, then, it is only fair to involve family elders in an attempt at reconcilation. Family members know each party personally, including their strengths and weaknesses, and would hopefully have their best interests at heart. If they approach the task with sincerity, they may be successful in helping the couple work their issues out.
Some couples are reluctant to involve family members in their difficulties. One must remember, though, that a divorce would affect them as well — in their relationships with grandchildren, nieces, nephews, etc. and in the responsibilities they would face in helping each spouse develop an independent life. So the family will be involved, one way or the other. For the most part, family members would prefer the opportunity to help while it is still possible.
Some couples seek an alternative, involving an independent marriage counselor as arbiter. While a counselor may play an important role in reconciliation, this person is naturally detached and lacks personal involvement. Family members have a personal stake in the outcome, and may be more committed to seeking a resolution.
If this attempt fails, after all due efforts, then it is recognized that divorce may be the only option. The couple proceeds to pronouncing a divorce. The procedures for actually filing for divorce depend on whether the move is initiated by the husband or the wife.
CHILD CUSTODY
In the process of divorce, issues pertaining to child custody have become controversial.
In the event of divorce, children often bear the most painful consequences. Islamic law takes their needs into account and makes sure that they are cared for.
The financial support of any children — both during marriage or after divorce — rests solely with the father. This is the children’s right upon their father, and Islamic courts have the power to enforce child support payments, if necessary. The amount is open for negotiation and should be in proportion with the husband’s financial means.
The Quran advises the husband and wife to consult each other in a fair manner regarding their children’s future after divorce (2:233). This verse specifically holds that infants who are still nursing may continue to breastfeed until both parents agree on the period of weaning through “mutual consent and counsel.” This spirit should define any co-parenting relationship.
Islamic law stipulates that physical custody of the children must go to a Muslim who is in good physical and mental health, and is in the best position to meet the children’s needs. Different jurists have established various opinions of how this might best be done. Some have ruled that custody is awarded to the mother if the child is under a certain age, and to the father if the child is older. Others would allow older children to express a preference. Generally, it is recognized that young children and girls are best cared for by their mother.
Since there are differences of opinion among Islamic scholars about child custody, one might find variations in local law. In all cases, however, the main concern is that the children are cared for by a fit parent who can meet their emotional and physical needs
For example, Allaah in the Quran advises the husband and wife to consult each other in a fair manner regarding their children’s future after divorce, as this verse states (which means):
{…If they both desire weaning through mutual consent from both of them and consultation, there is no blame upon either of them.} [Quran: 2:233]
There has been much distortion and propagation of misunderstanding about a woman’s rights related to marriage and divorce. Only with self-education and awareness of the Quranic text are men and women able to learn the truth that Allaah has prescribed and understand the scholarly interpretations in order that the spirit of justice is realised.
Allaah Says (what means): {And when you divorce women and they fulfil their term [of their ‘Iddah], either keep them according to reasonable terms or release them according to reasonable 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 Allaah in jest. And remember the favour of Allaah upon you and what has been revealed to you of the Book [i.e., the Quran] and wisdom [i.e., the Prophet’s Sunnah] by which He instructs you. And fear Allaah and know that Allaah is Knowing of all things.} [Quran 2:231]
FILING FOR DIVORCE
When a divorce is initiated by the husband, it is known as talaq. The pronouncement by the husband may be verbal or written, and should only be done once. Since the husband is seeking to break the marriage contract, the wife has full rights to keep the dowry (mahr) paid to her.
If the wife initiates a divorce, there are two options. In the first case, the wife may choose to return her dowry to end the marriage. She forgoes the right to keep the dowry, since she is the one seeking to break the marriage contract. This is known as khul’a. On this topic, the Quran says, “It is not lawful for you (men) to take back any of your gifts except when both parties fear that they would be unable to keep the limits ordained by Allah. There is no blame on either of them if she give something for her freedom. These are the limits ordained by Allah so do not transgress them” (Quran 2:229).
In the second case, the wife may choose to petition a judge for divorce, with cause. She is required to offer proof that her husband had not fulfilled his responsibilities. In this situation, it would be unjust to expect her to also return the dowry. The judge makes a determination based on the facts, interpreted within the bounds of Shariah.
In any Islamic divorce procedure, there is a three-month waiting period before the divorce is finalized.
WAITING PERIOD (IDDAT)
After a declaration of divorce, Islam requires a three-month waiting period (called the iddah) before the divorce is finalized.
During this time, the couple continues to live under the same roof, but sleeps apart. This gives the couple time to calm down, evaluate the relationship, and perhaps reconcile. Sometimes decisions are made in haste and anger, and later one or both parties may have regrets. During the waiting period, the husband and wife are free to resume their relationship at any time, thus ending the divorce process without the need for a new marriage contract.
Another reason for the waiting period is as a way of determining whether the wife is expecting a child. If the wife is pregnant, the waiting period continues until after she has delivered the child. During the entire waiting period, the wife has the right to remain in the family home and the husband is responsible for her support.
If the waiting period is completed without reconciliation, the divorce is complete and takes full effect. The husband’s financial responsibility for the wife ends, and she often returns to her own family home. However, the husband continues to be responsible for the financial needs of any children, through regular child support payments.
DIVORCE FINALIZED
After the waiting period is over, the divorce is finalized. It is best for the couple to formalize the divorce in the presence of the two witnesses, verifying that the parties have fulfilled all of their obligations. At this time, the wife is free to remarry if she wishes.
Islam discourages Muslims from going back and forth about their decisions, engaging in emotional blackmail, or leaving the other spouse in limbo. The Quran says, “When you divorce women and they (nearly) 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…” (Quran 2:231) Thus, the Quran encourages a divorced couple to treat each other amicably, and to sever ties neatly and firmly.
To prevent damaging relationships, there is a limit on how many times the same couple may marry and divorce. If a couple decides to remarry after a divorce, this can only be done twice. The Quran says, “Divorce is to be given two times, and then (a woman) must be retained in good manner or released gracefully.” (Quran 2:229)
After divorcing and remarrying twice, if the couple then decides to divorce again, it is clear that there is a major problem in the relationship! Therefore in Islam, after the third divorce, the couple may not remarry again. First the woman must seek fulfillment in marriage to a different man. Only after she is divorced or widowed from this second marriage partner, would it be possible for her to reconcile again with her first husband if they choose.
This may seem like a strange rule, but it serves two main purposes. First, the first husband is less likely to initiate a third divorce in a frivolous manner, knowing that the decision is irrevocable. One will act with more careful consideration. Secondly, it may be that the two individuals were simply not a good match for each other. The wife may find happiness in a different marriage. Or she may realize, after experiencing marriage with someone else, that she wishes to reconcile with her first husband after all.
Prophet Muhammad (pbuh) said “A woman may be married for four reasons: for her property, for her rank, for her beauty, and for her religion (and character). So marry the one who is best in the religion and character and prosper”. (Bukhari and Muslim – Books of Prophet’s (pbuh) sayings)
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