Talaaq: Divorce

on the Scales of Islamic Sharia'h

By Bilal Abu Aisha

Verbalising Divorce Thrice at One Time

What is the legal status of three divorces given together at a time? There are four famous different opinions among the scholars on this issue. The first opinion, which is the opinion of the four dominant schools of thought, is three divorces given together at a time befall and the woman is divorced. The second opinion is if the woman has carried out sexual intercourse, then three will befall, and if she hasn't, then only one will happen. The third opinion is from the Mutazilah and Shia, which says that three divorces at a time are nothing and have no legal status at all. The fourth opinion is this is only to be counted as one divorce. Among these different views the fourth opinion is the strongest and most logical.

The opinion that three divorces uttered at once is to be only counted as one is the opinion of Abu Bakr As-Siddiq, Umar ibn AL-Khataab during the first two years of his Khilaafah, Abdur-Rahmaan ibn Awf, one of the ten companions given the glad tidings of Jannah, Abdullah ibn Mas ud, Ali ibn Abi Taalib, ibn Abbaas, ibn Taymiyyah and his student ibn al-Qayim, ibn Rajab al-Hanbali, Ash-Shawkaani, ibn Baaz, ibn Uthaymeen, the great scholar of hadith Shaikh Al-Albaani, and many others (May Allah have mercy on them).

The conclusive opinion of these great companions and scholars is from authentic texts, which shed light on this controversial issue. The following hadith reported by Muslim is one of the main sources of evidence, whereby ibn Abbaas (ra) narrated: In the time of Allahs Messenger (saw), Abu Bakr, and the first two years of the caliphate of Umar, the three pronouncements of divorce were regarded as one divorce. So Umar said: People have made haste in an affair they used to practice with patience, so supposing we execute it on them, so he executed it on them.

Anger is of three types. The first type is when anger is so intense, a person becomes no longer aware of what he is doing or saying. In this case the divorce does not count according to the majority of the scholars, because he is like one who is insane and mad, one who has lost all power of reason. The second is when his anger is intense but he understands what he is saying and doing, however the anger is so intense and he cannot control himself because the argument trading of insults or fighting has gone on too long, so his anger intensifies because of that. In this case, there is difference of opinion among the scholars. The most correct view is that divorce does not count because the Prophet (saw) said: There is no divorce and no freeing of slaves when it is done by force or in a state of intense anger.[iv] The third is mild anger. This is what happens when the husband is upset with his wife, or he is disappointed about something his wife has done. This mild anger is not so intense to make him lose his power of reasoning or self-control; hence the divorce is valid, according to the majority of the scholars. This is the correct answer regarding divorce uttered in anger, as was stated by ibn Taymiyyah and ibn al-Qayyim (May Allah have mercy on them).

Iddah is a period during which a woman waits after the death of her husband or divorce, and she is not allowed to marry during this period. The Muslim jurists have unanimously agreed on it as being waajib (obligatory), due to the explicitness of the Quranic injunction, whereby Allah saying: The divorced women shall wait concerning themselves for three monthly periods.[v]

There are three types of Iddah. The first one is of birth-a woman must wait until she delivers her child before she can remarry. A common erroneous idea among people is a pregnant woman cannot be divorced. Rather there is a consensus on this point among the scholars that this is a Sunnah divorce and heresy (bidah). There is no dispute regarding its validity.

The second type is the Iddah of menses, meaning a woman is not allowed to marry until she has three menstruations. As soon as the third period ends, Iddah ends. This is the view of many of the elite companions such as Umar, Ali and ibn Masud, and it was narrated by ibn al-Qayyim. This is also the view by the majority of contemporary scholars such as ibn Baaz and Uthaymeen.

The third type is the Iddah of months, which applies to women who have passed the age of menstruation. In this case, the Iddah is three months. As for a woman who is divorced by her husband before he has consummated his marriage with her, then there is no waiting period that applies to her, according to the Quran (Al-Ahzaab S:33 , V:49 ).

The woman whose husband has divorced her once or twice is instructed to spend her Iddah duration within her husbands house. Any woman leaving her home without the permission of her husband after he has uttered either the first or second divorce is in violation of the injunctions of Allah and His Messenger. A woman whose divorce is revocable (i.e. first or second divorce) may still uncover in front of her husband and adorn herself by applying make-up and perfume. She may speak to him and he may speak to her; she may sit with him and do anything with him apart from intercourse. The only instance in which he may have sexual relations with her is if he takes her back.

If the husband kisses and embraces his wife with the intention of taking her back, then taking her back is valid. To be on the safe side however, he should not fondle his wife until after he has clearly stated he is taking her back.

In the case where a husband is not sure as to whether he uttered the word of divorce at all, or as to the number of divorces he has uttered, then he should act on the basis of what is certain. So if he is not sure whether he has divorced her or not, the basic principle is divorce has not taken place, because in this instance marriage is something which is certain, and divorce is something concerning uncertainty. Based on the juristic principle certainty cannot be overridden by doubt, if the husband is uncertain as to whether he has divorced his wife once or twice, he should assume he has divorced her once, because this is what is certain.

The linguistic definition of khulumeans to take off the clothes or to take out. According to Sharia terminology, khulurefers to a womans right of cancellation of her marriage. Just as a man can divorce if he has a genuine objection, similarly, a woman may also have a khuluif she has a genuine excuse, and after returning the dowry (mahr or sadaaq). Some of the valid reasons for a woman to ask for a Khuluinclude disliking her husbands treatment (such as being hot tempered, over-strict, one who criticises her and rebukes her for the slightest mistake or shortcoming). Another valid reason is she may dislike her husbands physical appearance due to some deformity or ugliness, or one of his faculties is lacking. Other reasons a woman may instigate divorce is if her husband is lacking in religious commitment. For example, he doesnt pray, or does not fast in Ramadan without a proper excuse, or he goes to parties, whereby the barriers of Allah are transgressed (such as fornication, drinking alcohol, listening to singing and musical instruments). A woman may also ask for a divorce is if the husband deprives her of her rights of spending on her maintenance, clothing, and other essential needs, when he is able to provide these things; or, if her husband does not give a woman her conjugal rights and thus keep her chaste due to being impotent, or because he is unfair in the division of his time among co-wives. It is crucial to point out there must be a valid reason behind asking for a khulu. The Prophet (saw) said: If any woman asks for divorce from her husband without any specific reason, will not smell the fragrance of paradise.

The Iddah of a woman divorced by khuluis not the same as that of a woman who did not instigate the divorce. If the woman divorced by khuluis pregnant then her Iddah lasts until she gives birth, according to scholarly consensus[vi]. But if she is not pregnant, the scholars differed concerning her Iddah. Most of the scholars said she should wait for three menstrual cycles, because of the general meaning of the verse: And divorced women shall wait (as regards their marriage) for three menstrual periods. The correct view (and Allah knows best) is, it is sufficient for a woman divorced by khuluto wait for one menstrual cycle only. This is deduced from the hadith whereby the Prophet (saw) told the wife of Thaabit ibn Qays, when she divorced him by Khulu, to wait out the Iddah for one menstrual cycle[vii]. This hadith refers specifically to Khuludivorce, whereas the verse quoted above speaks of divorce in general. As for the permissibility of taking back a divorced wife by Khuluduring the Iddah, ibn Kathir (May Allah have mercy on him) said: There is unanimous agreement that the man who has divorced his wife by Khulumay take her back during the Iddah.

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