Divorce due to absence of the husband is the madhhab of Imaam Maalik and Ahmad; in order to avoid harm or to protect the woman from harm. It is the right of the woman to demand for divorce when the husband is away from her even if there is provision of money for her.
The following are the conditions for this:
1. The reason for the absence of the husband from the wife is not accepted;
2. The wife is harmed by his absence;
3. He is away from the town or city in which she lives; and,
4. A year has passed and the wife has endured the pain for a whole year. If he is away from his wife and he has an excuse, then that is acceptable like seeking for knowledge or on business trip or he is working outside the town they live. Divorce is not permissible and also if he still lives in the same city with her, divorce is not permissible.
It is equally her right to seek divorce because of the harm she passed through due to her husband being away from her, not missing. However, a year must have passed and she must be feeling lonely and she fears that she might do something that Allaah has made haraam. Fixing a year is Maaliks position. Some say three years while Imaam Ahmad said six months because this is the maximum period a woman could endure her husbands absence.
This was the response of Hafsah (RA) when Umar (RA)asked her about it. In both Maaliks and Ahmads madhhabs this is equally the case with someone imprisoned if he was jailed for three years. This is the final ruling. After a year she can seek for divorce if, as a result of the absence, she has encountered difficulties. If this is established by a judge, they will be divorced. However, it should be noted that the more appropriate time a woman should wait for her missing husband before she can remarry is four years.
It is reported from Said ibn al-Musayyab (RAH) that Umar ibn al-Khattaab (RA) said, "The woman who loses her husband and does not know where he is, waits for four years, then she does Iddah for four months, and then she is free to marry." (Muwatta)
Imaam Malik (RAH) said, "If she marries after her Iddah is over, regardless of whether the new husband has consummated the marriage or not, her first husband has no means of access to her." "... and if her (missing) husband reaches her before she has remarried, he is more entitled to her." It is also attributed to Umar ibn al-Khattaab (RA) that he said, "Her first husband chooses when he comes either her brideprice or his wife." (Muwatta hadeeth 29.52)
This article was culled from the publications of Deen Communication Limited