Divorce in Islam

The Divorce 101

There are many misconceptions regarding divorce, particularly in the Indian subcontinent. With TV dramas stringing endless storylines out of these misconceptions, there is much need for clarity on  the topic.

Divorce should not be the creation of a problem. It should only be a solution.

First Divorce could be – Talaq-Raj’i – revocable

In Islam, for a husband to divorce his wife he only needs to state ‘I divorce you’ once. After this there is the waiting period, known as iddah (which is three months). Once the iddah is over, the divorce is Islamically established. The couple are free to go their own ways.

If the couple decide to get back together after this point, they would need to go through a new nikkah and all that it entails.

If the couple change their mind, they may get back together again before the waiting period is over. They do not need a new nikkah.

Second Divorce might be – Talaq-Raj’i – revocable as well

This entire scenario can be repeated a second time.

The couple may remarry after the iddah is over.

Third Divorce – Talaq-Ba’in – irrevocable

If the couple got back together twice (after the completion of two iddahs) and the husband decides to divorce his wife a third time, it is the last possible termination of their marriage.

The first two divorces are called Talaq-Raj’i – revocable. The third divorce is called Talaq-Ba’in – irrevocable.

Background

The Islamic divorce laws stopped the practice in times of jahiliya when men would perpetually divorce and remarry their wives as a means of mistreating them. Marriage is not a game, and allowing two divorces gives couples the chance to reassess their lives, but does not let them trivialise their choices.

Talaq-Ba’in

Ba’in, which comes from the root word ‘abana’, meaning to cut, is an irrevocable divorce. Once a divorce has been pronounced three times, the couple are not able to have a nikkah with each other again unless the wife has remarried someone else (without planning this marriage as a mean to get back to her first husband) and then been divorced or widowed by him.

Narrated Ali ibn AbuTalib:

The Prophet (ﷺ) said: Curse be upon the one who marries a divorced woman with the intention of making her lawful for her former husband and upon the one for whom she is made lawful. Abu Dawoud.

If a woman does remarry, it is important that this marriage is consummated, and not just a paper marriage.

A man who came to the Prophet (peace be on him) as his wife wanted to return to him after a marriage to someone else, said that she should not return until she had had intercourse with the new husband. In other words, the new marriage had to be a complete marriage, not a sham.

Narrated `Aisha:

A man divorced his wife thrice, then she married another man who also divorced her. The Prophet (ﷺ) was asked if she could legally marry the first husband (or not). The Prophet (ﷺ) replied, “No, she cannot marry the first husband unless the second husband consummates his marriage with her, just as the first husband had done.” Bukhari.

Pronoubcing talaq three times in one go

It is completely unnecessary to pronounce talaq three times when one talaq is sufficient to divorce a couple. If a man says ‘I divorce you. I divorce you. I divorce you,’ in one go it is disliked. There are two opinions on whether this counts as three divorces and becomes immediately irrevocable (talaq ba’in baynouna kubra) or whether it only counts as one. During the time of the Prophet (peace be on him) it was considered as one, though in the time of Omar (may Allah be pleased with him), it was considered as three. A couple would need to refer to an expert to untangle this mess.

Is a Witness required for a divorce to be valid?

Witnesses are not required from either side but it is generally better if they are present. In Surah Talaq Allah Almighty says:

‘So, when they (the divorced women) have (almost) reached their term, then either retain them with fairness, or part with them with fairness.  And make two just men from among you witnesses (of your either decision). And (O witnesses,) keep your testimony upright for the sake of Allah. That is what anyone who believes in Allah and the Last Day is exhorted to do. Whoever fears Allah, He brings forth a way out for him’. (65:2)

The Woman’s Right to Divorce – Khul’

Allah Almighty has given men certain rights and responsibilities over women. In Surah Nisa, He says:

‘Men are caretakers of women, since Allah has made some of them excel the others, and because of the wealth they have spent.’ (4:34)

Divorce is a man’s prerogative. However this does not mean that either partner should inflict harm on the other, nor should they accept harm from the other.

Narrated Ibn `Abbas:

The wife of Thabit bin Qais came to the Prophet (ﷺ) and said, “O Allah’s Messenger (ﷺ)! 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 Messenger (ﷺ) said (to her), “Will you give back the garden which your husband has given you (as Mahr)?” She said, “Yes.” Then the Prophet (ﷺ) said to Thabit, “O Thabit! Accept your garden, and divorce her once.” Bukhari.

He loved her dearly and had also spent generously on her. His mahr (gift on marriage) had been a garden. The Prophet (peace be on him) asked her husband – after he tried to reconcile between them but it didn’t work- to take his garden back and to divorce her.

Narrated Ibn `Abbas:

The wife of Thabit bin Qais came to the Prophet (ﷺ) and said, “O Allah’s Messenger (ﷺ)! 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 Messenger (ﷺ) said (to her), “Will you give back the garden which your husband has given you (as Mahr)?” She said, “Yes.” Then the Prophet (ﷺ) said to Thabit, “O Thabit! Accept your garden, and divorce her once.” Bukhari.

This is an important narration as it shows that women have the right to leave their husbands if they are unhappy in a marriage. Thabit was heartbroken and could be seen crying in the streets of Madinah, however a marriage has to work for both partners and if it does not, then each should have an exit from the situation. This is why Sometimes women should always stipulate their right to seek divorce in their nikkah contract.

When a woman initiates divorce it is called ‘khul’ or release. She cannot pronounce talaq on her husband. The couple are separated by consent that he will grant a talaq and she will pay some compensation, for example return her ‘mahr’ or pay a different sum that they have negotiated.

Khul‘ is equivalent to talaq ba’in, as the husband has no right to revoke this, but the couple may re-marry each other with a fresh nikkah. If the husband does not agree, the wife would need to approach a Shariah Court to have the marriage dissolved. This is called Kul’.

The Missing Husband

If a husband goes missing, a woman does not automatically get a divorce, she would need to approach the Shariah court for advice. With some differences between the scholars for how long she should wait before she gets the divorce.

Divorce under British Law

A couple that has been married by the law of the land in addition to their nikkah would need to go through the civil courts to get legally divorced in addition to having an Islamic talaq or khula. In Islam (if there is no maintenance of children involved) the husband gives the mahr and three months maintenance in case of talaq, and in the case of khula only the three moths maintenance (with some differences among the scholars). However according to the laws of the country, the ‘urf’ (social customs) may be that assets are split between a couple. In this scenario it is not haram for the wife to get more than her mahr after a divorce with the consent of her husband.

Not Trivialising Divorce

Divorce can be pronounced verbally, over the phone, or even by text.

If the statement is made in anger and then regretted later, it cannot be unsaid. So it is very important that such statements are not made without careful thought.

Allah’s Messenger (peace be on him) said:

‘There are three matters in which it is not permissible to joke: marriage, divorce and emancipation (of slave).’Abu Dawoud and Tirmidhi.

Marriages should only be conducted for the right reasons in the first place – not to please parents or society, or because the wife wants a provider or the husband wants a carer for his parents. Money alone does not provide security in relationships. For a marriage to work there ought to be attraction and compatibility. There are complex issues to be addressed when marriages begin to break down. Proper advice should be sought before relationships get beyond repair. We should not seek resolutions to our problems online or on Islam Channel. We must not be hasty or overly emotional in our decisions. Rather, such decisions must be made calmly and carefully, as the wrong decision could wreck numerous lives with wide-reaching repercussions.

Divorce during Menstruation

It is makruh (disliked) to divorce a wife while she is on her period. This is abusing the rights which Allah Almighty has given men.

We have to be graceful in difficult times and it is bad form to time a divorce to coincide with a woman’s time of the month. Abdullah bin Omar divorced his wife while she was menstruating and Omar (may Allah be pleased with him) went to Prophet (peace be on  him) who commanded him to take her back and divorce her in her time of purity.

Iddah – the Waiting Period after Divorce

Once a divorce has been pronounced, there is a period of waiting called ‘iddah’.

The iddah for women who menstruate is three menstrual cycles.

The iddah for women who are post-menopausal is three months.

Iddah does not apply to women whose marriages were not consummated. If there were no sexual relations there is no iddah. The woman would be free to re-marry immediately. This is explained in Surah Ahzab:

O You who have believed, when you marry believing women and then divorce them before you have touched them, then there is not for you any waiting period to count concerning them. So provide for them and give them a gracious release. (33:49)

For a pregnant women their delivery date is the end of iddah. It could be nine months, it could even be the day after the divorce was announced – once the baby is delivered their iddah is finished. They do not have a further waiting period.

The iddah for a breastfeeding woman is from when her menstrual cycle resumes. If she does not menstruate for two years, her iddah is not complete until three cycles have passed, regardless whether this is a long time or short one.

The exact calculation of when the cycle starts is a topic of discussion. The Hanafi opinion is that iddah begins when bleeding begins, whereas the Shafi opinion is that it begins before bleeding. Both sides have plenty of evidence. It is important because it could have consequences. For example, if a husband dies before his wife’s iddah is over, she is able to inherit from him.

Iddah (waiting period) after Death of Husband

It was Arab culture that a woman could not remarry for a year after the death of her husband. Allah Almighty enables women to remarry after four months and ten days of her husband dying. Iddah is applicable regardless how old the wife is.

Not Concealing What’s Inside

The Qur’an tells us that women must not conceal what Allah has created in their wombs. It is haram. What is inside the womb? It could be a child, it could also be hayd, i.e. bleeding, so the verse is reminding women that it is not permissible to lie about their menstrual cycle in order to expedite the end of the iddah. They should not let their emotions get the better of them.

Maintenance after Divorce

If a couple divorces and the wife is still breastfeeding, the husband has the financial responsibility of maintaining the child for two years during this time and providing basic necessities for his wife. Two years is the maximum time a child can be nursed and obligatory if a child refuses any other milk except for his/her mother’s. A judge would decide how much the maintenance payments should be.

Custody

A woman has custody of boys up to the age of seven, and girls to the age of nine. She is entitled to support until she remarries. If she remarries she loses custody of the children unless her husband agrees to her keeping the children.

If the husband dies, the child inherits from his estate, and this can be used in maintaining the child until he comes of age, as well as his mother for two years. The husband’s father would also inherit from his deceased son, and could also spend from the inheritance on his grandson and ex-daughter in law.

Mahr and divorce

The ‘mahr’ (wedding gift) is from the woman’s rights. A husband must not take back his mahr no matter how short lived the marriage was, unless the marriage was not consummated in which case he can take back half.

The mahr is like a demonstration of the husband’s ability to provide. There are two types of mahr: muqaddam (advanced) and delayed. The advance one is given before the walima.

If the mahr is huge it can be delayed and given later on demand. It is a debt and she is entitled to take this before her husband divorces her, if he has not given it before then. The husband cannot take back any jewellery or gifts given to his wife during the marriage either.

If the woman is divorced before the consummation of the marriage, she should not be called divorced as this stigmatises her unfairly.

Proposal of Marriage during Iddah

If a woman is in her iddah period, a man may make an indirect proposal such as ‘I would like to marry a woman like you’. The Prophet (peace be on him) proposed to Umm Salama indirectly by telling her that Allah Almighty would replace her late husband by a better one.

Stick Together if You Can

Allah Almighty encourages couples to hold together in their partnership and overcome their problems through kindness and mercy. He gives people multiple chances to do this and knows that it is human nature to regret a decision that was made without fully realising the awful consequences. It is Shaitan who rejoices to see a family unit fall apart with all the destruction that ensues.

Our Prophet (peace be on him) said:

Satan sets his throne on the sea, then he sends off his troops; the closest to him (i.e., most beloved) is he who causes the greatest trial. One would come to him and Satan would ask him: ‘What did you do?’ and, he would reply: ‘I did such-and-such.’ Satan would remark: ‘You have not done anything important.’ (This will continue) until one comes saying: ‘I did not leave him until he divorced his wife’, so Satan would bring him near to himself, saying: ‘Yes, you are the one, you are the one’.

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The law of Ila (withholding relations from a wife) 

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My Big Fat Asian Wedding

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Umm Hana has been studying with Shaykh Haytham Tamim since 2013 when she was inspired by the irresistible combination of spirituality and common sense, and desire to promote social justice, peace, harmony and tolerance.

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