Fiqh of Marrage – Divorce

marriage1Dissolution of Marriage in the Shari’a
Why Should Marriages be Terminated?

In order for the institution of marriage to fulfill its goals as described earlier, divorce must be allowed in certain situations. Those religions and/or societies which deviated from this point and imposed the fiction of “till death do us part” in all cases have been responsible for untold human misery and sin. This law is not suited to human nature and Islam does not force us to apply laws which are extreme – neither celibacy, permanent marriage without the possibility of divorce, nor promiscuity and mayhem (the most popular one in our time).

Islam gives us two important social goals in this regard:

• The “eradication” of single people of marriageable age as much as possible by facilitating marriages

• Setting up a social environment where all relations between men and women outside of marriage can be completely eliminated.

About the first point, Allah said:

• “Marry the single among you and the pious among your male slaves and your female slaves. If they are poor, Allah will free them from need from His bounty and Allah is Generous, Knowing.” [Noble Quran 24:32]

The second point is clear from the fact that Islam prescribed 100 lashes or stoning by death for men or women who commit fornication/adultery. Allah warns us in several places to “stay far away from” this act. Also, the Prophet (peace and blessings be upon him) said in a hadith: “The most fearsome trial from which I fear from you is the trial of women.” (If he (peace and blessings be upon him) had been speaking to women, this would have been: “the trial of men”).

Obviously, part of facilitating these objectives is not to imprison spouses in a marriage which is not satisfying mentally or physically. Some of them will surely cave under the pressure and seek other outlets for their needs, destroying the moral fiber of society. In such cases, termination of the marriage becomes preferable.

Also, one of the most important goals of marriage is to raise a new generation of Muslims who will carry the message and practice of Islam forward. The family is the first source of guidance and happiness. If they are brought up in a situation where they can easily see the displeasure and unhappiness of their parents – and especially if Shaitan finds a way to connect this in their minds to Islam in some way – the problems in that family may be passed on to the children corrupting their behavior and possibly even their Islam.

Divorce and the various other means which Islam provides to terminate a marriage are provided to men and women in Islam in order to further the attainment of these goals – either within an existing marriage or by removing it. Divorce should not be “ugly”. When it becomes necessary, it should be done with consideration, dignity and kindness. Allah said:

• “Then, when they reach the term appointed, either take them back in a good manner or separate from them in a good manner…” [Noble Quran 65:2]

The Means by Which a Marriage May be Terminated

There are a variety of ways in which a marriage becomes terminated in Islamic law either automatically or on the initiative of the husband, the wife or a judge. It is true that the “power” of divorce is in the hands of the husband and not the wife, but this does not mean by any stretch of the imagination that the woman has no ability whatsoever to put an end to the marriage if she is mistreated, unsatisfied or unhappy. Men who convince their wives that they have absolutely no recourse unless they decide to divorce them have deviated in their Islam, misled and oppressed.

The means of terminating a marriage in Islamic law is a very important topic and one about which many Muslims are ignorant or misinformed. Because of this ignorance, many are forced to live miserable lives because they don’t realize the options which are available to them. This is true for both Muslim men and Muslim women. The following outline shows the various ways in which a marriage may be terminated:

By the husband

Divorce
Al-Ilaa (an oath not to have relations with her)
Adh-Dhihar (an oath that she has been unfaithful)

By the wife

Option of puberty
By empowerment

By mutual consent

Al-Khul’a (“ransom”)
Arbitration

By a judge

At the insistence of the husband

The wife has a defect
The wife has a serious character deficit making them “unequal” or inappropriate for each other
Al-li’an where the husband swears an oath four times that she committed adultery

At the insistence of the wife

The husband has a defect
The husband has a serious character flaw making them “unequal”
Husband is missing and presumed dead
Husband is not supporting her
Husband mistreats her
Husband fails to perform marital obligations
Husband commits inequality between multiple wives

On his own initiative

Marriage contract has a fatal flaw
Husband refuses to comply with a judge’s order to divorce.

Dissolution at the Hands of the Husband

The husband can unilaterally bring and end to the marriage by one of four means: 1) divorce, 2) turning away from her for four months, 3) making a statement which makes her unlawful to him, and 4) swearing an oath that she committed adultery.

Al-Ilaa (Ceasing Relations)

This is where the husband takes an oath not to approach his wife. This is what is referred to in the following verse:

“For those who swear to cease relations with their wives is a waiting period of four months. Then, if they resume relations, verily Allah is Forgiving, Merciful.” [Noble Quran 2:226]

In the jahiliya (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. In Islam, a four month limit has been put on such an oath. Within this limit, Allah forgives this behavior. After four months, the husband must either resume relations with his wife or end the marriage. If he does nothing after four months and continues to boycott her bed, then the marriage is over. Some scholars were of the opinion that it doesn’t ends automatically and she must raise the issue to a judge. This is not considered a proper way to end an Islamic marriage. In general, if the husband does not break his oath and return to his wife within the four month period, he will have brought an end to the marriage and would have committed a wrong in the process. Some scholars equated this to three divorces and said that those two may never marry again unless she is married to someone else, that marriage is consummated and later terminated. Others equated it to a single divorce meaning that they can remarry after it.

Adh-Dhihar (Obscene Oath Which Prohibits)

Adh-Dhihar 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.” This implies that the woman becomes forever forbidden. It is referred to in the Quran:

“As for those who makes their wives unlawful to them by dhihar, 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.” [Noble Quran 58:2]

Clearly, this is a forbidden act, since Allah described it as “a reprehensible statement and a lie”. If a man commits this, he may not approach his wife until he makes an expiation for the statement he has made. His expiation is to free a believing slave, fast two consecutive months or feed sixty poor people in that order according to his ability.

Dissolution by the Wife

In certain unusual situations, the wife has the means to dissolve the marriage unilaterally. The first of these is called the “option of puberty”. This is where the girl is married before puberty. When she reaches puberty, she has the right to accept or reject the marriage.

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.

This is something with no direct evidence for it from the Quran and the Sunnah and appears to be something never practiced by the Companions and the early generations. Nonetheless, there seems to be a valid legal logic that if the man has this authority, then he should have the authority to delegate it to her. However, if this practice becomes widespread or if men find they cannot get married without offering it, then the ruler should ban it because it is a fundamental contradiction of the Shari’a. If Allah intended for women to have the power of unilateral divorce, He (Most High) would have given it to them.

Dissolution by Mutual Consent

The husband and wife may agree on an end to the marriage or on a divorce. This is done by what is known as khul’a, which will be discussed later, or by arbitration, as discussed earlier.

Jazakallahu Hairan – www.islamswomen.com
women in islam – Facebook

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