Laws of Divorce in Islamby Amani Aboul Fadl Farag, from IslamOnline.net
September 3, 2002
Divorce as a last option:
Although divorce being allowed in Islam is a sign of the lenience and practical nature of the Islamic legal system, keeping the unity of the family is considered a priority for the sake of the children. For this reason, divorce is always a last choice, after exhausting all possible means of reconciliation. For example, Allah addresses men asking them to try hard to keep the marriage, even if they dislike their wives:
... live with them on a footing of kindness and equity. If ye take a dislike to them it may be that ye dislike a thing, and God brings about through it a great deal of good.
- Surah 4 Verse 19
Also the following verse is addressed to women asking them the same thing:
If a wife fears cruelty or desertion on her husband's part, there is no blame on them if they arrange an amicable settlement between themselves; ...
- Surah 4 Verse 128
Again, the following verse is addressed to the family or the society for the same purpose of rescuing this bond, which God did not make easy to break:
If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, God will cause their reconciliation: For God hath full knowledge, and is acquainted with all things.
- Surah 4 Verse 35
But, if after exhausting all methods of reconciliation, the hatred between the husband and wife is still greater than tolerance, then divorce becomes inevitable. Here comes the genius of the Islamic law, which holds practical, rather than unrealistic approaches, towards real situations. The ultimate aims of marriage, as well as any other aspect of human life, are to achieve happiness and virtue. So, when people are denied their right to end an unhappy marriage, these two aims are seriously violated. This is, as the couple will live in suffering, which may lead them to marital infidelity. Thus divorce in this case if weighed up to the disaster of family disintegration - will be less disastrous.
Methods of divorce:
Men have the right to divorce. If a man dislikes keeping his marriage for any reason, he divorces his wife and compensates her financially by paying her what is termed mut'a payment. This is in addition to the regular financial sustenance for her living, in case she has the custody of their children.
Divorce becomes in effect once the husband utters or writes down any of the legal formulae of divorce such as: ‘I divorce you’ or ‘you are divorced’…etc. The husband can do these either by himself or through a messenger.
In case it is the woman's desire to end the marriage, the situation becomes different. Her reasons might be that she has received ill treatment, the husband is unable to sustain her financially or he is sexually impotent. She can prove these defects in front of the judge, then the judge grants her divorce with a full access to all her financial rights.
Also, if the husband was good to her but she does not want to keep on for an emotional reason, then she asks for what is termed khul'. This means to be granted divorce but without any access for financial rights, plus paying back the husband the dowry that he already paid on marrying her.
Categories of divorce:
Divorce is of three categories:
In case divorce happens through the husband, he can take his wife back within three months. This is without any legal procedures, if they decide it - like they regret their rushing in divorce. In this case, the divorce is termed as raj'i or returnable divorce.
But in case of khul', which is the second category, the husband can't remarry his divorcée till all the legal procedures are done, all over again, and the husband pays new dowry for her.
Divorce can happen three times in the couple's lifetime. The third divorce falls in the third category, because they cannot go back to one another, till after the wife ‘happens’ to marry someone else, then ‘happens’ to get divorced by him. In this case, she can go back to her first husband. Such a tough rule was made as a punishment and a way of preventing people from misusing this tolerant ruling of permitting divorce. The word ‘happens’ is parenthesized because the woman's new marriage and divorce should come naturally without planning, as many people might do to legalize her return to the first husband!
When does divorce become invalid?
In some cases, uttering the words of divorce become invalid. Among these cases is when the husband is:
In such cases, divorce is null and void.
Post divorce procedures:
After divorce, it is obligatory for the woman not to get married to another man, except after three complete mentruation cycles, if she is not pregnant. If she is, then she has to wait till she gives birth, so that the paternity of the child is not confused. This period of time is termed as ‘iddah. However, even if the woman no longer has menstruations (e.g. after menopause), she should still wait for three months. So there is more to the 'iddah than just the issue of paternity.