Home>>Divorce in Islam

Divorce in Islam


  • Islam has a very balanced approach to the issue of divorce. Islamic law gives the right of marriage dissolution to both husband and wife. The husband's right of marriage annulment is termed as Talaaq while the wife's right of annulment is called Khula.

    Many Muslims as well as non-Muslims perceive that Islamic approach to the issue of marriage termination is very parochial and that the institution of divorce in Islam is predominantly male chauvinistic. This view is perpetuated mostly because of ignorance about the pristine Islamic teachings which are usually covered under layers of cultural presumptions. It is partly due to Muslims ignorance of their own teachings and partly because the topic is discussed in the backdrop of Judeo Christian debates and discussions vise a vise bill of divorcement. Hebrew Bible's concept of divorce is thoroughly parochial. It is derived from the Patriarchal treatment of the issue. Abraham hands out the bill of divorcement to Hagar not due to any mistake on her part but just because Abraham's other wife Sarah disapproves of Hagar. Details are given in Genesis 21 in the following words:

    1. And Sarah saw the son of Hagar the Egyptian, whom she had born to Abraham, mocking.
    2. And she said to Abraham, Cast out this slave and her son; for the son of this slave shall not be heir with my son, with Isaac.
    3. And the thing was very grievous in Abraham's sight because of his son.
    4. And God said to Abraham, Let it not be grievous in your sight because of the lad, and because of your slave; in all that Sarah has said to you, listen to her voice; for in Isaac shall your seed be called.
    5. And also of the son of the slave will I make a nation, because he is your seed.
    6. And Abraham rose up early in the morning, and took bread, and a bottle of water, and gave it to Hagar, putting it on her shoulder, and the child, and sent her away; and she departed, and wandered in the wilderness of Beersheba.

    The Book of Deuteronomy chapter 24 establishes the following reasons for a divorce.

    1. When a man has taken a wife, and married her, and it comes to pass that she finds no favor in his eyes, because he has found some uncleanness in her; then let him write her a bill of divorcement, and give it in her hand, and send her out of his house.
    2. And when she has departed out of his house, she may go and be another man's wife.
    3. Her former husband, which sent her away, may not take her again to be his wife, after she is defiled; for that is abomination before the Lord; and you shall not cause the land to sin, which the Lord your God gives you for an inheritance.

    Divorce is the true prerogative of a husband. He can issue it or retract it based upon his whims. Talmud puts it in the following words: If a man says, Give this Get to my wife and this writ of emancipation to my slave, he is at liberty, if he wishes, to retract from both. (Gittin 9b)

    The male authority in this matter is so well established in the Jewish law that the husband is not required to have any reason to divorce other than liking another woman or disliking her cooking. The Mishna presents it in the nutshell:

    "MISHNAH. BETH SHAMMAI SAY: A MAN SHOULD NOT DIVORCE HIS WIFE UNLESS HE HAS FOUND HER GUILTY OF SOME UNSEEMLY CONDUCT, AS IT SAYS, BECAUSE HE HATH FOUND SOME UNSEEMLY THING1 IN HER.2 BETH HILLEL, HOWEVER, SAY [THAT HE MAY DIVORCE HER] EVEN IF SHE HAS MERELY SPOILT HIS FOOD,3 SINCE IT SAYS,4 BECAUSE HE HATH FOUND SOME UNSEEMLY THING IN HER.5 R. AKIBA SAYS, [HE MAY DIVORCE HER] EVEN IF HE FINDS ANOTHER WOMAN MORE BEAUTIFUL THAN SHE IS, AS IT SAYS, IT COMETH TO PASS, IF SHE FIND NO FAVOUR IN HIS EYES.6"

    The New Testament, on the other hand, is too restrictive of the institution of divorce.

    It was also said, 'Whoever divorces his wife must give her a certificate of divorcement. But I tell you, whoever divorces his wife, except on the grounds of adultery, causes her to commit adultery; and whoever marries a woman who has been divorced commits adultery.. (Matt. 5:31-32) And he said to them, 'Whoever divorces his wife and marries another, commits adultery against her; and if a woman divorces her husband and marries another, she commits adultery.' (Mark 10:11-12)

    Marriage is a divinely sanctified unity. No human being has the right to annul it. What therefore God has joined together, let no man put asunder. (Matt. 19:6, Mark 10:9.) St. Paul in 1 Corinthians 10-11 says: "Now, for those who are married I have a command that comes not from me, but from the Lord. A wife must not leave her husband. But if she does leave him, let her remain single or else go back to him. And the husband must not leave his wife."

    The Qur'an states that a husband has to divorce his wife twice for the marriage to be properly annulled.

    A divorce is only permissible twice: after that, the parties should either hold together on equitable terms, or separate with kindness. It is not lawful for you, (men), to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is not blame on either of them if she give something for her freedom. These are the limits ordained by Allah; so do not transgress them if any do transgress the limits ordained by Allah, such persons wrong (themselves as well as others).

    The Prophet of Islam (PBUH) has commanded to overlook any possible negatives in favor of multiple positives found in every wife. Divorce is permitted as a surgery if nothing else works to save the marriage. There are three kinds of divorce in Islam. First is retractable divorce (Raji'ee). If the divorced is pronounced only once then the husband and wife can get back to each other and resume marital relations without any outside intervention. The second divorce is still retractable but with outside intervention (Ba'in). The husband and wife cannot resume marital responsibilities until the marriage contract Nikah is renewed with new dowry. The third pronouncement makes it non-retractable. It makes the marriage nullified for good. The same couple cannot rejoin in marriage contract except that the wife marries another man and then that person divorces her by his own choice, not as a premarital contract or implicit or explicit understanding, or after his natural death. The Qur'an states that:

    So if a husband divorces his wife (irrevocably), he cannot, after that, remarry her until after she has married another husband and he has divorced her. In that case there is no blame on either of them if they reunite, provided they feel that they can keep the limits ordained by Allah. Such are the limits ordained by Allah which He makes plain to those who understand.

    The final divorce is required by the Qur'an and by the Sunnah to be given at least twice, once during each month period. The second divorce can be given in the second month after wife's second purification period. The third and the final divorce could be given in the third month. The husband has the right to retract divorce in the first two instances while third divorce is not revocable as explained above. This is what the Prophet had asked Ibn Umar to do when he divorced his wife during her monthly cycle.

    Nisa'ee r reports that the Prophet became exceedingly angry when a person pronounced three divorces in one sitting. Such an act is abominable and tantamount to playing with the Book of Allah SWT.

    The Islamic law requires a cooling period so that decisions about divorce are not made in hurry or based upon instantaneous emotional outbursts but based upon thoughtful considerations. Some scholars require presence of two witnesses for the divorce to be lawful. They argue that as marriage cannot be contracted except in the presence of two witnesses, it cannot be nullified without the presence of two witnesses. This was the opinion of Imam Ali bin Abi Talib, Imran bin Hussain from among the Companions and Ata, Ibn Sireen, Imam Muhammad al-Baqir and Ibn Juraij among the Successors. Many scholars had followed them in maintaining such a view in an effort to make divorce harder to come by. This group of scholars supports their position by the following verse of Surah al-Talaaq:

    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. 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.

    Al-Tabari reports that Ibn Abbas was of the opinion that two witnesses are needed both for divorce and for retraction of divorce.

    Abd al-Razzaq reports that Imran bin Hussain admonished the person who did not call for witnesses while divorcing his wife.

    Abu Dawud and Ibn Kathir also report the same opinion.

    The majority of the classical scholars maintain that two witnesses are recommended but not required by the Islamic law. There are many incidents reported in the authentic books of Hadith where the Prophet (PBUH) invalidated the marriages without asking for two witnesses. Moreover, the majority opinion also maintains that the three divorces will come into effect even if a husband pronounced them in one sitting though such a divorce is against the Sunnah. They quote the following verses and Prophetic report to support their argument.

    So if a husband divorces his wife (irrevocably), he cannot, after that, remarry her until after she has married another husband and he has divorced her. In that case there is no blame on either of them if they reunite, provided they feel that they can keep the limits ordained by Allah. Such are the limits ordained by Allah which He makes plain to those who understand.

    They argue that the Qur'an does not specify any mechanism about the divorce but gives a generic statement "if a husband divorces his wife". A husband can give one, two or three divorces. Therefore divorce is applicable if pronounced thrice at once even though it goes against the established Sunnah. They also quote the verses like the following:

    There is no blame on you if ye divorce women before consummation or the fixation of their dower; but bestow on them (a suitable gift), the wealthy according to his means, and the poor according to his means; a gift of a reasonable amount is due from those who wish to do the right thing.

    The Prophet (PBUH) is reported to have approved the three divorces in one setting as valid but against the Sunnah divorce.

    Such a Talaaq is called Bid'ah. Many scholars like Ibn Taymiyyah, Ibn al-Qayyam, Ibn Hazm and others do not consider it as a lawful divorce while the other just count it once and not three. The majority of classical scholars accept that such a divorce will be counted as three because the person intended so. Divorce is among the three things which are taken seriously even if performed in a non-serious mode, as the Prophet (PBUH) hinted at it in one of the famous Hadith.

    Khula'ah

    Khula'ah is the prerogative of a wife as divorce is a male privilege. A wife does not have to have a lengthy list of genuinely Islamic reasons to initiate the process of Khulaah. She also does not need consent from her husband to do so. As divorce is a right of husband Khula'ah constitutes a thorough choice of a wife. We do not see any restrictions placed upon a wife in this regard by the Prophet (PBUH) himself. Jamilah bint Salul got Khula'ah through the Prophet (PBUH) just because she did not like her husband. The Prophet (PBUH) asked her to return the garden which she took as dowry from him.

    Imam al-Showkani argues that any discord between the husband and wife would constitute sufficient ground for her to demand emancipation from him. It does not have to be mutual as is clear from the above Hadith. Thabit bin Qais loves her but his wife Jamilah does not like him. The Prophet (PBUH) did not ask Thabit whether or not she should proceed with Khula'ah. He granted her Khula'ah without asking any questions just with one condition that the dowry is to be returned.

    The restrictions placed upon demands of Khula'ah by later jurists are based upon their Ijtihad in view of the customs of their societies as well as to curtail misuse of such a blank check to initiate the Khula'ah process. Moreover, Khula'ah can be finalized without a court as divorce can be exacted without any intervention from the court. Ibn Hajr puts the point in the nutshell:

    This was the tradition followed at the time of the four Caliphs and later rulers continued it as Sunan al-Bayhaqi reports:

    Unlike divorce, Khula'ah can be demanded during wife's monthly cycle or during even pregnancy and delivery periods. The wife becomes master of her own affairs and enjoys an absolute independence after the Khula'ah. The husband does not have the right to revoke the Khula'ah or demand a return to normalcy in marital relations. They can remarry with a new dowry and new Nikah contract if she agrees to it during her Iddah. The Iddah in this case is only one monthly cycle and not three as is the case with Talaaq. The following Hadith reported by Tirmizi manifestly supports this point.

    Although the majority of scholars maintain that the Iddah of Khula'ah is three monthly cycles as is the case with the Talaaq, many known authorities such as Ibn Umar, Ishaq, Ibn Taymiyyah and others argue that Khula'ah is different than Talaaq and its Iddah is just one monthly cycle. Al-Bayhaqi reports:

    Even if we accept the majority's opinion that the Iddah of an emancipated woman is three months, there is no discrimination in it against woman. The divorce and Khula'ah rules are treating the husband and the wife equally.

  • If and when a marriage unfortunately comes to an end, the problems of the parties involved should not in any way affect the children. Children are a trust (amanah) from Allah Most High and they should be treated and looked after in a proper manner.

    They have many rights, of which two are of utmost importance: to receive proper care and love, and the other proper upbringing (tarbiyah). These rights of a child can not be fulfilled except with the joint endeavour of the parents. The love, care and attention of the mother is just as important as the upbringing and training of the father.

    In light of the above, divorce should definitely be avoided as much as possible, especially in the case where there are children involved. The Messenger of Allah (Allah bless him & give him peace) said:

    Divorce is the most hated of all lawful (halal) things in the sight of Allah. (Sunan Abu Dawud, no. 2178)

    However, if divorce did take place, and both parties demand their rights, then the right of custody will be in the following way. In should be remembered here that there is nothing wrong in making a mutual arrangement, as long as there is no objection from those who have a right to custody:

    The mother has a right of custody for a male child until the child is capable of taking care of his own basic bodily functions and needs, such as eating, dressing and cleaning himself. This has been recognized at seven years of age.

    Imam al-Haskafi (Allah have mercy on him) states:

    The custody of a male child is the right of the mother until the child is capable of taking care of his own self. This has been approximated at seven years of age, and the Fatwa (legal verdict) has been issued on this age, as normally children are able to take care of themselves at this age. (See: Radd al-Muhtar, 3/566)

    In the case of a female, the mother has this right of custody until she reaches puberty. This has been declared at nine years of age. (al-Mawsili, al-Ikhtiyar li ta'lil al-mukhtar, 3/237)

    The right of custody will be taken away from the mother if she:

    1) Leaves Islam,
    2) Openly indulges in sins such as adultery and there is a fear of the child being affected,
    3) She does not attend to the child due to her leaving the house very often,
    4) She marries a non-relative (stranger) to the child by which the child may be affected,
    5) She demands payment for the upbringing of the child if there is another woman to raise the child without remuneration.
    In the above cases (when the mother no longer has the right to custody), this right then transfers to the following, in order:

    a) Maternal grandmother, and on up;
    b) Paternal grandmother, and on up;
    c) Full sisters,
    d) Maternal half sisters,
    e) Paternal half sisters,
    f) Maternal aunts,
    g) Paternal aunts,

    After all the avenues of the female have been exhausted as explained by the Jurists, the males have the right of custody in the following sequence:

    a) Father,
    b) Paternal grandfather,
    c) Real brother,
    d) Paternal brother,
    e) Maternal brother,

    The reason for this is that, in the early years, the mother and the other female relatives are more suitable for raising the young child (regardless of sex) with love, mercy, attention, and motherly care. The male child after reaching the age of understanding (7) is in need of education and acquiring masculine traits, which is why he is then transferred to the father. The female child, after reaching the age of understanding is in need of being inculcated with female traits, which she receives by living with her mother. After reaching puberty, she is in need of protection which the father offers.

    In a Hadith recorded by Imam Abu Dawud in his Sunan, the Messenger of Allah (Allah bless him & give him peace) said to a woman who complained that her husband was intending to take her child away from her: "You are more rightful of the child as long as you don't marry." (Sunan Abu Dawud, no. 2276 & Mustadrak al-Hakim, 2/207)

    It should also be remembered that after the transferral of custody from the mother to the father, the boy remains in the custody of the father until puberty, at which point, if he is mature and wise, he is free to choose with whom to live, or to live on his own. As for the girl, custody remains with the father until she marries. (See: Qadri pasha, Hanafi articles, 498 & 499)

    Irrespective of who (mother/father) has the right of custody, the other party has visitation rights according to mutual understanding and consent. Generally, the party having the rights of custody use the child as a weapon to punish the other party by depriving them of visitation rights. This is totally against the concept of Islam and a severe, brutal and grave sin indeed, and also very harmful to the child. Unfortunately, many so called "religious" people are also involved in this heinous act.

    At all times, the father of the child is responsible for maintaining the child; in the case of a female, until she marries; while in the case of a healthy male, until he reaches maturity. In the case of a disabled child (male or female) the father is permanently responsible.

    When the mother has the rights of custody but does not have a shelter to stay in with the child, the father must provide shelter for both. (See: Radd al-Muhtar of Ibn Abidin)."

  • Yes, we'd like to clarify that intimate relations necessitate observing the 'iddah' (waiting period) after divorce. The absence of vaginal intercourse does not mean that you are not required to observe 'iddah'.

    Sheikh Ahmad Kutty, senior lecturer and Islamic scholar at the Islamic Institute of Toronto, Canada, stated,

    As you and your ex-husband have lived together as husband and wife, in the event of divorce, you are obligated to undergo the prescribed waiting period of three months or three menstrual cycles.

    The fact that you did not have vaginal intercourse does not mean that you are free from this requirement. The simple fact that you have had intimate relations is a sufficient ground for observing the 'iddah'.

  • In Islam, we commend your keenness on getting your self well-acquainted with Islam and its teachings, and we implore Allah Almighty to help us serve His cause and render our work for His Sake.

    As regards your question, we'd like to explain that 'Iddah' or a woman's post marital waiting period, is the period in which a woman waits before she may remarry to verify that she is not pregnant, or out of mourning for her deceased husband. (See: Ahmad ibn Naqeeb Al-Misri, The Reliance of the Traveler)

    Wisdom of 'Iddah and its Legitimacy:

    To discern whether the woman is pregnant or not.Shari`ah has ordained the period of 'Iddah' to avoid any confusion of lineage which may result from the woman's pressing need of marriage.The period a woman spends in `Iddah whether short or otherwise sheds light on the seriousness of marriage and how far it is a sacred bond.It allows the man and the woman to think twice before breaking up the family tie, especially in cases where divorce is revocable.

    (Source: The Kuwaiti Encyclopedia of Fiqh)

    Rulings Pertaining to 'Iddah':

    Widowed Woman:

    If a woman is widowed and is not pregnant, her waiting period ends after completing four months and ten days. Allah Almighty says, Such of you as die and leave behind them wives, they (the wives) shall wait, keeping themselves apart, four months and ten days (Al-Baqarah: 234)

    Widowed Woman Who is Pregnant:

    As for the widowed woman whom her husband dies while leaving her pregnant, her waiting period ends with the delivery of her baby. Allah Almighty says, ...And for those with child, their period shall be till they bring forth their burden (At-Talaq: 4)

    Divorced Woman:

    As for a divorced woman, her waiting period ends when three intervals between menstruations have finished, if she is not pregnant. Allah Almighty says: 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 hath created in their wombs if they are believers in Allah and the Last Day. And their husbands would do better to take them back in that case if they desire reconciliation. And they (women) have rights similar to those (of men) over them in kindness, and men are a degree above them. Allah is Mighty, Wise.

    (Al-Baqarah: 228)

    If the divorced woman - like the widowed one - is pregnant, her waiting period ends with the delivery of her baby.

    ('Abdul-Karim Zidan, Nazarat fi ash-Shari' ah al-Islamiyyah)

wedding muslim divorce

We are socially connected.

wedding muslim Tweeter wedding muslim Skype wedding muslim Facebook wedding muslim GooglePlus wedding muslim Linkedin