In Islamic laws, divorce is extremely condemned; thus, it should be avoided as much as possible. When a husband and wife have to divorce, some laws must be followed.
Lesson 44: Laws of Divorce
When the divorce formula is recited with conditions, the marriage contract ends.
A- Conditions for Divorce
In Islamic laws, the husband has the right to divorce his wife in the following conditions:
One: The Conditions of Man
- He must be an adult (Bāligh);
- He must be sane (ʿĀqil);
- He must have the intention (Qaṣd) to divorce his wife;
- He must have free will (Ikhtiyār) to divorce his wife (Issue 2651).
Tow: The Conditions of the Woman
- The woman must be free of menstruation (Ḥayḍ) and
lochia (Nifās) at the time of divorce.
- She must not have had sexual intercourse with her husband in the period of purity after ḥayḍ and Nifās (Issue 2652).
Tree: The Conditions for Divorce Formula
- The formula of divorce must be recited in correct Arabic.
- Two justice men must hear it.
Fure: The Divorce of a Woman During Menstruation and Lochia
The Divorce of a woman during menstruation and lochia is invalid except in the following three cases it is valid:
- The husband has not had sexual intercourse with the woman after marriage.
- It is known that she is pregnant;
- Her husband is absent and has no access to her, whether she is pure or not (Issue 2653).
B- The Types of Divorce
Divorces are two types: revocable divorce and irrevocable divorce.
First part: Irrevocable Divorce
One: The Meaning of Irrevocable Divorce
An Irrevocable divorce means that after the divorce, the husband can not rejoin his wife without a new marriage contract.
Two: Cases of Irrevocable (Bā’in) Divorce
- The divorce of a woman whose husband has not had sexual intercourse with her after the marriage contract.
- The third divorce of a woman who has divorced three times.
- The divorce of a woman whose nine lunar years have not been completed;
- Divorce of a menopausal woman (over 50 years of age);
- A divorce is called khul‘ and mubārāt (Issue 2675).
Three: Khulʿ Divorce
In a khulʿ divorce, there is separation and displeasure on the part of the woman, and she does not want to live with him; therefore, she gives her dowry (mahr) to her husband, who consents to the divorce. It is known as a ‘khulʿ’ divorce.
Formula (Ṣīghah) of Khulʿ Divorce
- If the husband himself wants to recite the formula (Ṣīghah) of khulʿ divorce, and the name of his wife is Fāṭimah, for example, after receiving the property, he says: «زَوْجَتِيْ فَاطِمَةُ خَلَعْتُهَا عَلَىٰ مَا بَذَلَتْ»
)zawjatī fāṭimah khalaʿtuhā ʿalā mā badhalat(
“I give my wife Fāṭimah a khulʿ divorce upon accepting what she has given.”
As a recommended precaution, he should also say:
«فَهِيَ طَالِق» (fahiya ṭāliq)
She is divorced.
- If a woman appoints an agent to give her dowry to her husband, and the husband appoints the same person to divorce his wife, for example, if the name of the husband is Moḥammad, and the name of the wife is Fāṭimah, the agent must recite the formula of the divorce in the following way:
«عَنْ مُوَکِّلَتِيْ فَاطِمَةَ بَذَلْتُ مَهْرَهَا لِمُوَكِّلِيْ مُحَمَّدٍ لِيَخْلَعَهَا عَلَيْهِ».
)ʿan muwakkilatī fāṭimah badhaltu mahrahā limuwakkilī muḥammad liyakhlaʿahā ʿalayh(
“On behalf of my client Fāṭimah, I give her dowry to my client Muḥammad so that he gives her a khulʿ divorce
upon accepting it.”
Then, the agent says immediately:
«زَوْجَةُ مُوَکِّلِيْ خَلَعْتُهَا عَلَىٰ مَا بَذَلَتْ فَهِيَ طَالِقٌ».
)zawjatu muwakkilī khalaʿtuhā ʿalā mā badhalat fahiya ṭāliq(
“I give my client’s wife a khulʿ divorce upon accepting what she has given, and so she is divorced”.
She is divorced (Issue 2683).
Four: Mubārāt’divorce
- In mubārāt’ divorce, the husband and wife’s dislike for each other is reciprocal, and the separation and dissatisfaction are on both sides of them.
- The wife pays an amount of money not more than dowry for her husband to divorce her; it is known as a ‘mubārāt’ divorce (Issues 2657 & 2677).
Formula (Ṣīghah) of Mubārāt’Divorce
- If the husband himself want to recite the formula, for example, if the name of his wife is Fāṭimah, he must say: «بَارَأْتُ زَوْجَتِيْ فَاطِمَةَ عَلَىٰ مَا بَذَلَتْ فَهِيَ طَالِقٌ».
)bāraʾtu zawjatī fāṭimah ʿalā mā badhalat fahiya ṭāliq(
“I give my wife Fāṭimah a mubārāh divorce upon accepting what she has given.”
- If the man appoints an agent, the agent must say:
«عَنْ قِبَلِ مُوَکِّلِيْ بَارَأْتُ زَوْجَتَهُ فَاطِمَةَ عَلَىٰ مَا بَذَلَتْ فَهِيَ طَالِقٌ».
(ʿan qibali muwakkilī bāraʾtu zawjatahu fāṭimah ʿalā mā badhalat fahiya ṭāliq)
“On behalf of my client, I give his wife Fāṭimah a mubārāh divorce upon accepting what she has given, and so she is divorced.”
In both cases, there is no problem if instead of
«عَلَیٰ مَا بَذَلَتْ» (alā mā badhalat)
He says: (bimā badhalat) «بِمَا بَذَلَتْ»
She is divorced (Issue 2684).
Five: Laws of Khulʿ’ and Mubārāt’divorce
- The formula (Ṣīghah) of the khulʿ’ and mubārāt’ divorce must be recited in correct Arabic (Issue 2686).
- during the ‘Iddah of a khulʿ or mubārāt divorce, the wife can change her mind and take her property back, and if she does so, the husband can return to her without a new marriage contract and make her his wife (Issue 2687).
Second Part: Revocable Divorce
One: The Meaning of Revocable Divorce
- In revocable divorce, the husband can rejoin his wife during the ‘Iddah.
- The laws of a legal wife still apply to a woman who has revocable divorced;
- a) Her husband is obligated to pay her alimony (Nafaqa).
- b) It is unlawful for a man to expel his wife from the house.
- c) They will inherit from each other.
Tow: Methods of Return
In the case of a revocable divorce, a man may rejoin without reciting the formula of marriage to his wife in two ways:
- He states something that implies he is returning to her as his wife.
- He performs acting with the intention of returning to her (Issue 2677).
The Third Part: Divorce by Islamic Ruler
The Islamic ruler declares divorces in the following cases:
- A strong disagreement between husband and wife causes a fear of corruption, so the husband refrains from paying alimony or divorcing without a legal reason.
- A woman whose husband is missing and in serious trouble (Majmaal-Al-Ahkam, Issue 684).
The Fourth Part: End of Temporary Marriage
In a temporary marriage (mutʿah), there is no divorce, so the marriage ends when the period of the marriage expires or when the man gives her the remaining period.
C- ‘Iddah of Divorces
The ‘Iddah is the waiting period after divorce for a woman. When the divorce formula is recited, the ‘‘Iddah begins. In ‘Iddah, women have different levels, so the types of ‘Iddah are in the following.
The First Part: Women Without an ‘Iddah
The following Women do not have an ‘Iddah, and they can marry immediately after divorce.
- A woman who hasn’t completed nine lunar years;
- A woman whose husband has not had sexual intercourse with her;
- A woman is in menopause, even if she has had sexual intercourse (Issue 2663).
Second Part: Women Who Have a ‘Iddah:
- If a woman is at the age of menstruation but does not menstruate, she must keep an ‘Iddah for three lunar months after her divorce (Issue 2665).
- A woman who menstruates must become pure again after the third menstruation; her ‘Iddah ends
(Issue 2664).
- When a pregnant woman is divorced, her ‘Iddah ends after the child is born or miscarried (Issue 2667).
The Third Part: The ‘Iddah of Death ‘Iddah
If a woman whose husband has died must keep the ‘Iddah of death (ʿIddat al‑Wafāt).
- If she is not pregnant, she must keep ‘Iddah of death for four lunar months and ten days after the death of her husband, regardless of whether she is a minor (ṣaghīrah) or not, she is a postmenopausal (ya’isah) or not, her marriage is permanent or temporary, or her husband has had sexual intercourse with her or not.
- If she is pregnant, she must keep ‘Iddah until her child is born; if her child is born before four lunar months and ten days have passed, she must wait until four lunar months and ten days have passed after the death of her husband (Issue 2670).
The Fourth Part: ‘Iddah for Temporary Marriage
- In the temporary marriage, a woman’s ‘Iddah is two complete menstrual periods after the marriage ends.
- She must observe forty-five complete days as a period of ‘‘Iddah if she does not see Ḥayḍ.
- If she is pregnant, her ‘Iddah ends when the child is born (Issue 2668).
D-Laws of Guardianship (Custody and Training of a Child)
Guardianship of a child is the right and responsibility of its parents for a specific period. When a child reaches the age of legal responsibility (blough), the mother and father lose their right to custodianship.
One: The Meaning of Custody
Child custody means the keeping and upbringing of a child.
Two: Period of Custody
The custody of the daughter for seven years is her mother’s right. So is the son as a precaution (iḥtīyāṭ). After this period, the father has the responsibility of custodianship.
Three: The Conditions of Custody
A woman who custody of a child must have the following conditions:
- She must be sane (ʿĀqil);
- She must be a Muslim;
- She has not married another person if her husband is alive )Majmaal-Al-Ahkam, issue 677).
F- Laws of Alimony
One: The Meaning of Alimony
Alimony is the property spent on the necessary expenses of the spouse, children, relatives, and the like to continue living, including food, clothing, housing, etc. They receive the alimony are called “Wājib-un-Nafaqah.”
- The ‘Wājib-un-Nafaqah’ persons are of three types:
- a) The permanent wife;
- b) Father, mother, grandfather, and grandmother as the line goes up.
- b) Children and grandchildren as the line goes down (Majmaal-Al-Ahkam, issue 680).
- A woman’s alimony is obligatory on her husband, even if the woman has wealth and the husband is poor.
- It is mandatory for a son to pay alimony to his parents if the parents are poor and the son is wealthy (Majmaal-Al-Ahkam, issue 680).
Exercises:
- What is the ruling on revocable divorce?
- What are three types of women who do not have an ‘Iddah?
- In a khuls’ divorce, who wants the divorce?
- What are the cases of divorce by Islamic ruler?
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