Part of the purpose of marriage is to achieve peace and tranquillity among the spouses. Allaah says:
“And among His Signs is this that He created for you mates from among yourselves that you may dwell in tranquillity with them and He has put love and mercy between your (hearts); verily in that are Signs for those who reflect." (Q30 [Rum]: 21).
Even though the continuity and permanence of marriage is taken for granted marital union does not entirely exclude the fact that people's minds change in different ways for different reasons. When spouses cannot observe the limit of Allaah regarding marriage then divorce may be negotiated. When this happens, it should be negotiated within the atmosphere of kindness, peace and compassion.
Types of Divorce
Dissolution of marriage is broadly divided into two revocable and irrevocable divorce. The divorce which is revocable is the first or second Talaaq (divorce) with which the husband can take his wife back because Allaah says:
"The divorce is twice" (Q2[Baqarah]:229)
i.e. revocable divorce. It should take place within the 'Iddah because Allaah says:
“And their husbands have the better right to take them back in that period" (Q2[Saqarah]:228).
By taking her back, the husband should not have the intention of harming her; he should be meaning to bring her back to a real marriage...
For this to be possible the divorce should be Talaaq [not another kind of divorce]. If it is any other kind of annulment then he cannot take her back because the divorce Allaah talks about is Talaaq:
“And divorced women [Al-Mutallaqaat i.e.women divorced by Talaaq]...” (Q2[Saqarah]:228)
If however the husband divorces his wife for the third time then it becomes irrevocable. Then she is no longer permissible for him unless she marries another husband in a genuine marriage in which he has intercourse with her, then he divorces her genuinely and she waits out the 'Iddah following that divorce. Allaah says:
"So If a husband divorces his wife (Irrevocably he cannot after that remarries her until after she has married another husband and he has divorced her." (Q2[Baqarah]:230)
This rule equally applies to one who pronounces the divorce three times at once.
PREREQUISITE FOR VALIDITY OF DIVORCE
Dissolution of marriage is not done arbitrarily and must be done according to set rules for its validity to be established.
Divorce occurs only with Marriage: Divorce is only valid when both spouses are legally married. If their union is not valid under the Shari’ah then there is no contract to be dissolved. Allaah says:
"O you who believe! When you marry believing women and then divorce them ...” (Q33[Ahzab]:49)
The Rasul (sallaallaahu alayhi wa sallam) said:
"There is no divorce but after marriage." (Hakim)
Clarity of Intention: The divorce pronouncement could be made in clear or figurative terms. Either way there should be a clear intention of divorce and the intention should be well understood by both spouses. Each spouse must also be informed that a divorce has taken place if one of them is absent. Fatimah bint Qais (RA) reported:
"My husband Abu Amr b. Hafs sent Ayyash b. Abu Rabi'a to me with a divorce." (Muslim)
Qatadah (RAH) added that:
"If someone divorces his wife just in his mind, such an unuttered divorce has no effect." (Bukhari)
Divorce in a state of drunkenness & madness: Divorce pronounced in these states is not valid. Uthman (RA)said:
“A divorce given by an insane manor a drunk is not valid." And Ibn Abbas (RA) also added “A divorce given by a drunk or given under compulsion is not valid." (Bukhari)
Not in Jest: Even when in jest pronouncement of divorce is binding. The Prophet (sallaallaahu alayhi wasallam) said:
"There are three things which whether undertaken seriously or in jest are treated as serious: marriage divorce and taking back a wife after divorce which is not final." (Abu Dawud)
Timing of Divorce: To be valid, divorce must be done in a state of 'purity' of the woman. That is, when she is fully recovered from the 'regular menstruation and the usual postnatal- blood discharges. In addition the husband must not have had sex with the wife within the period of purity in which divorce is intended. (see Tafsir section Page18).
The time of menses is, a difficult time of fatigue, depression and irritability. This may lead to hasty actions and misjudgements! A woman, at her period of purity is usually fresh and pleasant desirous and desirable to her husband: Divorce in this period is unlikely to be rash, thoughtless or irresponsible.
Means and Manners of Divorce
A divorce could be at the instance of the husband or on the initiative of the wife by mutual agreement and by the ruling of a shari'ah judge.
By The Husband
Marriage termination at the instance of the husband comes in various means. The first means is through the pronouncement of divorce. The second is by turning away from her. The third means is making a statement which makes her unlawful to him and by swearing an oath that she committed adultery.
Pronouncing Divorce: The husband would pronounce the statement of divorce. There is no particular statement for this purpose. Any statement that is understood as meaning divorce implicitly or explicitly is sufficient. The pronouncement must be within her 'Iddah (prescribed periods). Allaah says:
"O Prophet! When you divorce women, divorce them at their 'Iddah (prescribed periods)" (Q65 [Talaq]: 1)
i.e. when she is pure as stated above.
A divorce pronounced during a woman's menstrual period is not valid in Islam. It is also sinful for the man to pronounce the divorce more than once (at onetime). When Allaah's Messenger was informed of a man who had divorced his wife with all the three pronouncements (without any interval between them) he rose in anger and said:
"Is sport being made of Allaah's Book while I am among you?"(Nasai).
Al-Eelaa (Ceasing Relations): This is where the husband takes an oath not to approach (have sex with) his wife. In the Jahiliyah (pre-Islamic days) there was no time limit on this oath and this practice. A cruel man could leave his wife hanging for her entire life neither treating her as a wife nor divorcing her. Allaah however put a four-month limit to such an oath.
For those who swear to cease relations with their wives is awaiting period of four months. Then, if they resume relations, verily Allah is Forgiving, Merciful."(Q2 [Saqarah]:226)
This is not considered a proper way to end al-Islamic marriage. Ibn Umar (RA) narrated:
"When a period of four-hour months elapses, the one who swears to stay away from his wife must be-made-to-return to her or divorce her and the divorce is not valid till the 'husband himself pronounces it." (Bukhari)
Ali bin Abu Talib (RA) said:
"When a man vows not to cohabit with his wife, the woman will riot be divorced even if four months should pass until the case is taken to a judge and the husband be compelled either to divorce or cohabit (with her):"(Muwatta).
Some scholars equated this to the irrevocable divorce while others equated it to a single divorce meaning that they can remarry after it. Allaah knows best.
Adh-Dhihaar (Obscene Oath Which Prohibits):Adh-Dhihaar is another practice which dates back to the times of pre-Islamic ignorance. It is where the husband makes a statement like: "You are to me like my mother's back." (i.e. [I declare you] sexually unlawful for me) Allaah says:
“As for those who make their wives unlawful to them by Dhihaar, those are not their mothers. Their mothers are none others than those who gave birth to them. They surely utter a reprehensible statement and a lie."(Q58[Mujaadilah]: 2)
If a man commits this he may not approach his wife until he makes expiation for the statement he has made. Ibn Abbas narrated that
"When a man makes his wife unlawful for himself it is treated like an oath for breaking which atonement must be made:"(Muslim)
The atonement is to free a believing slave or fast two consecutive months or feed sixty poor people in that order according to his ability. (Q58:3)
By The Wife
In certain situations, the wife has the means to dissolve the marriage unilaterally. The first of those means open to her is the Puberty Option. This is where a girl is married before puberty. When she reaches puberty, she has the right to confirm or reject the marriage. A virgin girl came to the Prophet (sallaallaahu alayhi wa sallam) and mentioned that her father had married her against her will, so the Prophet (sallaallaahu alayhi wa sallam) allowed her to exercise her choice." (Ahmad)
The second means is "empowerment" where the husband gives the wife the right to pronounce divorce on his behalf. Thus, in some sense it is a divorce by the husband (with the pre-specified" power of attorney" from him), actually initiated by the wife. Masruq (RA) reported: "I do not mind if I give option to my wife (to get divorce) once, hundred times, or thousand times after (knowing it) that she has chosen me (and would never seek divorce). I asked Aisha (RA) (about it) and she said: Allaah's Messenger (sallaallaahu allayhi wa sallam)gave us the option, but did it imply divorce? (It was in fact not a divorce; it is effective when the women actually avail themselves of it.)" (Muslim) This and other provisions should never be abused.
The husband and wife may agree to put an end to the marriage by or on a divorce. One of such means is through khul'a. This is where the woman seeks the cancellation of the marriage contract by returning her Mahr (dowry) back to the husband. The wife of Thabit bin Qais (RA) came to the Prophet (sallaallaahu alayhi wa sallam) and said, "O Allaah's Messenger, I do not find fault with Thabit bin Qais in respect of his character or religion, but I hate to be guilty of husband's disobedience in Islaam (if I remain with him)." The Prophet (sallaallaahualayhi wa sallam) asked her, "Will you give him back the garden which he has given you (as Mahr)?" And she replied, "Yes," so the Prophet said to him, “Accept the garden and divorce her once." (Bukhari)
Such divorce is irrevocable and the spouses are forever forbidden to each other.
Dissolution by Mutual Consent
Arbitration: If the affairs of the husband and wife worsen in spite of reconciliatory efforts, the Shariah judge chooses a trusted person from either of the family to examine their case whether it is best for them to part or to remain together. Allaah says:
“lf you fear a breach between them twain appoint (two)arbiters one from his family and the other from hers; if they wish for peace Allah will cause their reconciliation: for Allah has full knowledge and is acquainted with all things." (Q4[Nisaa]:35)
Their decision is binding if they decide on separation.
By The Judge
When the matter cannot be easily solved between the husband and wife, then legal solution is resorted to. A marriage through the Shariah legal process could be at the instance of either the husband or the wife. The Judge reserves the right to unilaterally dissolve the marriage.
Al-li'aan: This is where the husband swears an oath four times that his wife has committed adultery. If he is sure of this charge but does not have four witnesses (who witnessed the actual sin) as the Shariah requires, he would swear an oath of Lian.
A man of the Ansar came to Allah's Messenger (sallaallaahu alayhi wa sallam) and asked him thus: "If a man were to find a man with his wife and if he wereto talk about it, you would lash him; and if he kills him, you would kill him (in retaliation) and if he were to keep quiet, he would consume his anger. Thereupon the Prophet (sallaallaahu alayhi wa sallam) said: “Allaah, solve (this problem)" and he began to supplicate (before Him).
Then the following verses were revealed:
“And for those who launch a charge against their spouses and have (in support) no evidence but their own solitary evidence (can be received) if they bear witness four times (with an oath) by Allaah that they are solemnly telling the truth; And the fifth (oath) (should be) that they solemnly invoke the curse of Allah on themselves if they tell a lie. But it would avert the punishment from the wife if she bears witness four times (with an oath) byAllaah that (her husband) is telling a lie. And the fifth (oath) should be that she solemnly invokes the wrath of Allaah on herself if (her accuser) is telling the truth."(Q24[Nur]: 6-9).
Then he and his wife came into the presence of Allaah's Messenger (sallaallaahu alayhi wa sallam), and they invoked curses (in order to testify their claim).The man swore four times in the name of Allaah tha the was one of the truthful and then invoked a curse for the fifth time, saying: Let there be the curse of Allaah upon him if he were among the liars. Then she began to invoke a curse. Allaah's Messenger (sallaallaahu alayhi wa sallam) said to her:
"Just wait (and curse after considering it)", but she refused and invoked a curse. When she turned away, he (the Prophet) said: It seems that this woman shall give birth to a curly-haired black child. And so she did give birth to a curly-haired black child. (Muslim)
This article was culled from the publications of Deen Communication Limited