Divorce in Islam

Divorce in Islam involves the pronouncement by a husband of the Arabic phrase ṭalāq (lit. "I divorce you") to his wife. The mere pronouncement of the phrase by a man divorces him from his wife, although many countries today have additional procedures to register divorces, especially after attempts at reconciliation have been exhausted. Three simultaneous declarations of divorce are considered three separate divorces, after which the couple are considered to be permanently separated and cannot remarry without meeting certain conditions.

Talaq

The husband may initiate the divorce process by pronouncing the word talaq, the formula of repudiation, or a statement of equal meaning in another language such as "I divorce you." A single pronouncement is sufficient to suspend the marriage, but after three divorces, the divorce is irrevocable unless the wife has remarried, consummated the marriage, and is divorced by her new husband with honest intention, and not merely to allow her to remarry her former husband. When three pronouncements of divorce are declared at once, they are considered three separate divorces and the divorce is irrevocable afterwards; a minority opinion of the Hanbali school regards three simultaneous pronouncements as a single divorce, but this is rejected in most legal schools. Confusion over the procedure, status, and binding nature of divorce pronouncements is a common question brought before Islamic authorities. A wife cannot initiate the divorce unless her husband agrees to it (see Tafwid below) or she wins the approval of a qadi, who can annul the marriage or divorce the couple for issues such as deception during the betrothal, impotence, failure to provide maintenance, disappearance, or physical or psychological abuse (particularly in the Maliki school). Today, most countries have official procedures before the state registers the divorce, as in the case with marriages, but the religious implications exist with or without official recognition.

There is a period of separation after a divorce during which the husband and wife can reconcile without a new marriage contract, and she is prohibited from remarriage. This period lasts for the span of three menstrual cycles, three months, or until the end of pregnancy. Shia practice, which stipulates that the divorce must be a public pronouncement, also encourages witnesses to be present at the end of the separation period to confirm that the couple has chosen not to reconcile.[1][2][3][4]

In some cultures, it is generally improper for a woman to live alone, and after being divorced, a woman will return to her family home.

And when you have divorced women and they have ended-- their term (of waiting), then do not prevent them from re-marrying their husbands when they agree among themselves in a lawful manner; with this is admonished he among you who believes in Allah and the last day, this is more profitable and purer for you; and Allah knows while you do not know."
— Qur'an, Sura 2 (Al-Baqara), ayat 232[5]
"And there is no blame on you respecting that which you speak indirectly in the asking of (such) women in marriage or keep (the proposal) concealed within your minds; Allah knows that you will mention them, but do not give them a promise in secret unless you speak in a lawful manner, and do not confirm the marriage tie until the writing is fulfilled, and know that Allah knows what is in your minds, therefore beware of Him, and know that Allah is Forgiving, Forbearing. "
— Qur'an, Sura 2 (Al-Baqara), ayat 235[6]
"For divorced women Maintenance (should be provided) on a reasonable (scale). This is a duty on the righteous."
— Qur'an, Sura 2 (Al-Baqara), ayat 241[7]

After divorce, Qur'an specifies responsibilities regarding child maintenance in 223rd verse of Second Chapter.[8][9] Qur'an also prohibits interventions from the previous husband in the divorced woman's life in 232nd verse of second chapter.[10]

Following are some of the cases regarding child custody decided by Muhammad:

Tafwid (delegation)

In the context of Islamic personal status law the term tafwid (lit. delegation) refers to a type of talaq (talaq al-tafwid or tafwid al-talaq) in which the power of initiating the divorce is delegated to the wife.[11] This delegation can be made at the time of drawing up the marriage contract or during the marriage, with or without conditions.[11] Classical jurists differed as to the validity of different forms of delegation.[11] Most modern Muslim-majority countries permit this type of divorce in some form.[11]

Lian

Lian (also called mulaana) occurs when a husband accuses his wife of adultery without supplying four witnesses, and the wife denies having committed adultery. In a Lian divorce, the husband "swears four times that his accusation is true, followed by a fifth oath in which he invokes the wrath of God upon himself if he is lying". The wife neutralizes his claim by responding with four oaths of her own, the fifth of which calls upon her the wrath of God if her husband is telling the truth. (If she refuses to take the oath, she is presumed guilty and subject to the punishment for adultery.)

This type of divorce is based on Quranic verses[Quran 24:6-9] instructing the husband to "swear four times ...".[12] Normally, if a man accuses a woman of adultery who is not a relative of his, he is required to prove it with four witnesses, and is subject to the punishment of qazf—being flogged with eighty stripes[Quran 24:4]—if he cannot.[13] [14]

There are three conditions of lian.

  1. The state of marriage between the spouses should be continuing.
  2. The marriage contract must be valid. For instance, if there were no witnesses to the couple's marriage, mulaana is not applied.
  3. The husband must be liable to be a witness and not to have been given the punishment of qazf before.[13][15]

Dower (mahr) in divorce

A mahr is an agreed upon compensation for the wife that is obligatory on the husband before the act of intercourse occurs, especially in Shia Islam. In these cases the Islamic jurisprudence has clear guidance depending on who asks for the divorce and whether or not the wife is still a virgin. If the husband asks for a divorce and intercourse has occurred, he pays full mahr; if the husband asks for a divorce and the wife is still a virgin, the husband pays half the dowry; if the wife asks for a divorce and she is not a virgin, the husband pays half the mahr; and if the wife asks for a divorce and is still a virgin, then no mahr is required to be paid by the husband. However, there may be other financial obligations depending on the length of marriage, whether there are any children involved and their ages, and the property that they own under joint ownership.

Other financial obligations in divorce

Depending on the length of marriage, whether intercourse occurred or not or if any children are involved and income levels for either husband or wife, the husband may be required to provide a monthly maintenance support for the children to ensure their well-being. However, unlike most Western laws where the couple split assets earned during the marriage, Islamic laws does not entitle the wife to a split of the husband's assets at divorce.

See also

Notes

  1. ↑ Freeland, R, "The Use and Abuse of Islamic Law", Volume 73, The Australian Law Journal, 130
  2. ↑ Hasan, A, "Marriage in Islamic Law - A Brief Introduction", (March, 1999) Family Law, 164
  3. ↑ Hinchcliffe, D, "Divorce in the Muslim World", (May, 2000), International Family Law, 63
  4. ↑ South African Law Commission, Islamic Marriages and Related Matters, Project 59. July, 2003.
  5. ↑ Quran 2:232–233
  6. ↑ Quran 2:235
  7. ↑ Quran 2:241
  8. ↑ Amin Ahsan Islahi, Tadabbur-i-Qur'an, 2nd ed., vol. 1, (Lahore: Faran Foundation, 1986), p. 545
  9. ↑ "And the mothers should suckle their children for two whole years for him who desires to make complete the time of suckling; and their maintenance and their clothing must be-- borne by the father according to usage; no soul shall have imposed upon it a duty but to the extent of its capacity; neither shall a mother be made to suffer harm on account of her child, nor a father on account of his child, and a similar duty (devolves) on the (father's) heir, but if both desire weaning by mutual consent and counsel, there is no blame on them, and if you wish to engage a wet-nurse for your children, there is no blame on you so long as you pay what you promised for according to usage; and be careful of (your duty to) Allah and know that Allah sees what you do." Qur'an, [Quran 2:223]
  10. ↑ "And when you have divorced women and they have ended-- their term (of waiting), then do not prevent them from marrying their husbands when they agree among themselves in a lawful manner; with this is admonished he among you who believes in Allah and the last day, this is more profitable and purer for you; and Allah knows while you do not know. Qur'an, [Quran 2:232]
  11. 1 2 3 4 John L. Esposito, ed. (2014). "Tafwid". The Oxford Dictionary of Islam. Oxford: Oxford University Press. (subscription required (help)).
  12. ↑ "Lian". Oxford Islamic Studies Online. Oxford Islamic Studies. Retrieved 18 July 2014.
  13. 1 2 DÖNDÜREN, Hamdi. "Will you give information about Lian: the method of ending a marriage due to adultery?". Questions on Islam. Retrieved 18 July 2014.
  14. ↑ "Instant Divorce after Lian [quotes from quran and hadith]". Divorce in Islam. Retrieved 18 July 2014.
  15. ↑ al-Kasani, ibid, III, 24; Ibnu'l-Humam, ibid, III, 259; al-Maydani, ibid, III, 75,78; Ibn Abidin, Raddul-Mukhtar, Egypt, n.d., II, 805 ff.

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