Divorce in Islam

Divorce

Divorce, in the terminology of the jurists, is "the abolition of the bond of marriage."(1) Only the man is entitled to initiate divorce. Divorce was known in the Arab Peninsula before the lifetime of Muhammad, and it meant a final and immediate dissolution of the marriage contract. The Qur´an, however, introduced new regulations that were not known to its contemporaries.(2)

The judgments regarding divorce occurring in the sources of fiqh can be summarised as follows: Only the man has the right to divorce, and he does not have to give any reasons.(3) Yet it is regarded as abominable, even forbidden by the Hanafites. The Qur´anic basis for divorce comes in the two verses: "Divorce is [pronounced] twice; then honourable retention or setting free kindly" (Sura al-Baqara 2:229), and "O Prophet, whenever you [and other Muslims] divorce women, divorce them when they have reached their period" (Sura al-Talaq 65:1). As to the Hadith, we find evidence for the permissibility of divorce in what `Abdullah Ibn `Umar narrated: that he had divorced his wife while she was menstruating during the lifetime of God's Messenger. `Umar Ibn al-Khattab asked God's Messenger about that. The Messenger of God said, "Order him [your son] to take her back and keep her till she is clean and then to wait till she gets her next period and becomes clean again. Then if he wishes to keep her, he can do so; but if he wishes to divorce her he must do so before having sexual intercourse with her. This is the prescribed period [number of days] which God has fixed for the women meant to be divorced."(4)

Hanifite jurists hold that divorce can be one of the following three: excellent, good, or hateful (the one effected at once). The excellent one is when a man pronounces his wife divorced one time while she is clean, having abstained from having intercourse with her since her previous menstruation, with the intention of remarrying her. The good divorce is when a man pronounces his wife divorced three times; on the first, the second, and the third menstruation respectively, while she is clean, having not had intercourse with her. As to the hateful, or atypical divorce, it is to divorce one's wife twice or three times during her menstruation all at once.(5) A free woman should be pronounced divorced three times, and a bondwoman twice. Hateful divorce is also permissible.(6)

In order for divorce to be effective, no goodwill or proper prayer are required. It is effected by the man's saying, "You are divorced," or "I have divorced you." If a man says, "You are divorced from here till Syria," it is one revocable pronouncement of divorce. If he says, "You will be divorced in Mecca [or at Mecca]," her being divorced will be in effect in all other countries. And if he says, "You are divorced before I marry you," it will be no divorce at all. However, if he says "You are divorced if I do not divorce you," or "until I divorce you," or "when I have not divorced you" and she keeps silent, then divorce is in effect. But if he says, "You are divorced unless I do not divorce you," or "if I have not divorced you," she will not be divorced till her death.(7)The jurists are in agreement that divorce can be effected not only through explicit pronouncement, but by implication or in writing as well.(8) Accordingly, a man can say, "Start on your legal period," "Cleanse your womb," or "You are one [time]!" Jurisprudents have gone into detail in regard to this point.(9) If a man pronounces his wife divorced one time, he has the right to have her back during her legal period without her permission. It is enough for him to say, "I have returned to you," or "I retain you."(10) It seems that man's right to have his wife back had been misused during the lifetime of Muhammad: a man would divorce his wife and "return" to her before her legal period was over in order to divorce her afresh, thus forcing her to pay him back the bridal gift he had given her. This compelled Muhammad to correct this situation, so that we now read in the Qur´an: "When you divorce women, and they have reached their term, then retain them honourably or set them free honourably; do not retain them by force, to transgress; whoever does has wronged himself. Take not God's signs in mockery! .....Fear God, and know that God has knowledge of everything" (Sura al-Baqara 2:231-232), and "If he divorces her finally, she shall not be lawful to him after, until she marries another husband" (Sura al-Baqara 2:230). In confirmation of this judgment, the Hadith has it that: "Rifa`ah's wife said to the Messenger of God, "Rifa`ah divorced me finally, and `Abd al-Rahman married me after him. But what he has [namely his penis] is as [limp as] the border of the garment [this means he was impotent]." The Messenger of God asked, 'Do you perhaps want to return to Rifa`ah?' She said yes. But he said, 'No, not until you enjoy intercourse with [`Abd al-Rahman], and he with you.' "(11)

The Dutch orientalist Juynboll states that Muhammad meant to provide a settlement for women through the Qur´anic statement "until she marries some husband other than him [in between]."(12)

Jurisprudents of all schools of thought believe that a man is not obliged to state any reason if he divorces his wife.(13) Yet some modern writers and scholars claim the contrary. Al-Sabuni says, "If all means of reconciliation between the spouses fail, then divorce is inevitable. One of the necessities that make divorce permissible is suspicion on the part of the husband of his wife's behaviour. For example, if he knows that she cheated him [by committing adultery], will he let her spoil his offspring and ruin his life, or will he divorce her? There are other reasons such as impotence or any other sickness that renders it impossible to have an intercourse, any contagious disease that can be transmitted to the other partner, or any of these various similar reasons. God, high to be praised, made it imperative in His law that divorce should be effected over two separate times in between two periods of cleansing [from the menstruation], as the holy Tradition indicates. If the husband desires to retain her, he can, and if he still wishes to divorce, he then can effect the divorce finally. Only a couple that should not remain wedded, for the good of the family and their own good, will be divorced after all this consideration and long-suffering."(14) Often Muslim writers boast about the Islamic law permitting divorce and the judgments of divorce. They claim that Christianity, and its man-made laws that prohibit divorce except on the basis of adultery, place conditions on it that rendered it next to impossible, which contradicts human nature.(15)

We conclude this chapter with the assertion of al-Aqqad: "The law of the holy Qur´an includes both the divine and the secular aspects of life. All the religious sanctity it includes falls under the fact that marriage was supposed to be stripped of its social and sexual benefit, so that worship of God should prevail against the wills of the spouses."(16)