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Islam encourages partners in a marriage to show tolerance, patience and exemplary character. For example, Allah says in the Chapter of Women.
«and live with them in an amicable manner. If you dislike something of them, then perhaps you may dislike something and Allah makes therein much good.» [Soorah an-Nisaa, verse:19]
Sometimes due to circumstances their relationship may become strained. If the husband is the hostile one, then the noble Qur’aan says: «and if any woman fears hostility from the husband or being discarded by him, then there is no harm upon them to reconcile themselves. And reconciliation is better. [Remember that] hearts are occupied with self-interest but if you do good and are god-fearing then [know that] Allah is well-informed of your actions.» [Soorah an- Nisaa, Verse: 128]
Conflict Resolution, Effects and Methods of Divorce
If the wife is the hostile one, then the husband is allowed to exercise the following options:
«and those [wives] from who you fear hostility, advise them; then forsake them in bed; then strike them. So, if they obey you, then do not follow any channel against them…» [an-Nisaa, Verse 34]
If both spouses are creating discord, then arbitration should take place by appointing an arbitrator from both spouses’ sides. The noble Qur’aan advises:
«If you fear discord between them, then send an arbitrator from his family and an arbitrator from her family; if they both desire reconciliation, then Allah will create harmony between them.» [Soorah an- Nisaa, Verse 35]
As a last resort, when all the above fail, the spouses are unyielding and there remains no hope of reconciliation, then the Shar`iyyah gives permission of separation.
One should not be hasty for a separation. The ill-effects and consequences of it are great and innumerable. Some of the common ones are stated below:
- If the divorced couple had children, the children often grow up very insecure and instable. Even though, they may get equal time from both parties, they only have the care and affection of one parent at any given time, whereas they would have had the combined love, care and affection of two parents had their parents not been divorced.
- The ex-couple find that they have to contend with the crudeness of the society. A sort of stigma remains attached to them for a long time. Sometimes, the wife for example, was not at fault and she is a pious person with exemplary character, but then too, people may claim that she must have faltered somewhere for the husband to divorce her. The husband might experience difficulties in remarrying for the simple reason that women would be afraid to experience the same plight as his previous wife’s.
- Separation breeds animosity between the families of the divorced parties, which contributes to the ultimate break-up of society.
A separation can take place in various ways:
- 1 A divorce [at-Talaaq]
- 2 An annulment of the marriage [al-Faskh] either by paying an agreed compensation [khul`] or a judges [Qaadees] ruling.
The right of divorce lies vested in the hand of the husband. This is due to various reasons.
For example:
- In Islam, it is the husband’s duty to take care of the monetary expenses of the house and of his wife. Thus, to meet these expenses the husband toils and makes a great effort. Therefore, the husband would generally take cognisance of the consequences of separation.
- A woman is generally emotionally weak. If she had this right, she may exercise her right irrationally whilst giving vent to her emotions and forgetting the consequences.
If a woman desires separation on valid grounds, she may use the second route, which is to make an agreement of compensation with the husband or to take her matter to an Islamic court.
Limitations and Conditions
The Sharee`ah has made certain limitations upon the issuing of a divorce. This is due to the sanctity of the institution of marriage in Islam. If these limitations are adhered to, then the divorce will be regarded as one of solid grounds and the one who issued the divorce would not be sinful.
These limitations can be summarised into three core factors:
- The divorce must be due to a legitimate need.
According to most scholars, divorce is forbidden except in extreme circumstances. Therefore, if one issues a divorce for no valid reason, one would be sinful.
- The divorce must not be issued to the wife when she is experiencing hayd [menstruation].
It is narrated from Ibn Umar that he divorced his wife when she was menstruating. So, Umar mentioned it to the Messenger of Allah . The Messenger of Allah became angry upon hearing this and said:
«He should revoke her divorce and keep her until she stops menstruating. Then he should wait for another menstrual cycle and when she is not menstruating [for the second time] then if he wishes, he could now divorce her. Then he should divorce her before having physical contact with her…» [Saheeh al-Bukhari, Muslim, Aboo Daawood]
One possible reason for this is that the waiting period of the woman [the `Iddah] must not become prolonged. This is because if the divorce is issued in the menstruation period, that cycle is not considered among the three cycles of the waiting period.
Therefore, the woman will have to wait an additional fourth cycle, whereas she normally would have to wait for only three cycles. Another reason is that the husband naturally has disinclination towards the wife in the period of menstruation and this could lead to an unfair issuing of divorce.
- Not more than one divorce should be issued at one time.
For the divorce to be legally valid, there are certain conditions that have to be fulfilled.
These conditions govern five aspects of the divorce.
These are the conditions surrounding…
- The one issuing the divorce
- The intention
- The object of the divorce or where it is effective
- The wordings
- The One Issuing the Divorce
The husband must be physically and mentally mature such that he understands the details and implications of divorce.
Note the rulings of the divorce of the following people:
– An insane or unconscious person: مجنون
His divorce is rendered ineffective by Sharee`ah.
– An intoxicated person: سكران
According to the preferred view in the four schools of thought in fiqh, his divorce is effective if he became intoxicated in an impermissible manner. This is a form of punishment for him.
– A coerced or compelled person: مكره
According to the majority of scholars, his divorce is ineffective.
- The Intention
The intention of divorce is an important aspect of the divorce. If one did not have the intention of divorce but intended something totally different, like teaching the rulings of divorce or narrating an incident then the words would not entail divorce.
Divorce in jest:
The divorce is effective due to the tradition of the Messenger of Allah narrated by Abū Hurayrah : «Three things are such that their seriousness and jest is severe. They are: marriage, divorce and to revoke a divorce.» [Aboo Daawood]
- The place where the divorce is effective or the one upon whom it takes place
The woman must be in one’s marriage for the divorce to take effect.
- The Wordings
- There is consensus of the jurists upon the validity of a divorce issued in Arabic or in any other language, whether or not it was issued verbally or in writing or by the sign language of one who cannot speak or write.
- It the divorce is uttered verbally, it can take one of two forms:
صريح. 1 : An explicit, clear, unambiguous, direct statement of divorce.
E.g.: A husband says to his wife: «You are divorced!»
There is no need to look at the intention here and the divorce will take place immediately.
كناية. 2 : An implicit, indicative, indirect statement of divorce.
E.g.: A husband says to his wife: «Pack your bags and leave!»
This type of divorce only takes place after the intention is clarified.
Divorce in Islam – Khul`a
When a woman needs to separate from her husband on valid grounds and he is not willing to divorce her, she has two options: The first is Khul`a (which will be discussed now) and the second is to ask an Islamic court to annul the marriage.
What is Khul`a? It is a separation of the husband from the wife in lieu of compensation from the wife to the husband and it takes place by the use of certain wordings.
Khul`a could be seen as a form of subtle inducement given to such a husband who is not ready to issue a divorce. The benefits of this for the woman is that she gets relief and freedom from the husband in such a manner that he may not revoke the divorce.
Khul`a is established in Islam from the Qur’an and Sunnah.
The Qur’an says: «There is no harm upon them (the spouses) in that which she (the wife) ransoms herself with.» (al-Baqarah, v:229)
From the Sunnah is the narration of Ibn Abbas:
«The wife of Thabit bin Qays came to the messenger of Allah and said : «O, messenger of Allah! I cannot find any defect in him with regards to his character religion, but I fear not being grateful in Islam.» So the Messenger of Allah said (Since she had valid grounds for asking for divorce, that was that she knew that she will not fulfill the rights of marriage with him as her husband, the Messenger of Allah permitted her to give back the garden which he had given her in lieu of divorce. This was the first Khul`a in Islam.
Its Rulings
It is sunnah (i.e. according to the tradition of the Messenger of Allah) for the man to accept her redemption except if there are no valid grounds for it.
The Messenger of Allah said: to the husband:
«Accept the gift (back) and divorce her once.» [Bukhari/ Nasa’iy]
As for the woman, under normal circumstances without any justification, it is prohibited for her to ask for a divorce.
The Messenger of Allah said:
«Whichever woman asks her husband for divorce without any valid reason, then the fragrance of paradise is prohibited upon her.» [Saheeh al-Bukhari and Muslim]
If the husband puts the wife into such a position where she is forced to pay the compensation unwillingly then Khul`a does not take place and the woman will not be obliged to give anything. The Qur’an says:
«Nor should you treat them with harshness so that you may take away part of the dower.» [Soorah an-Nisaa’, v:19]
Khul`a can be done while the wife is in the state of menstruation, unlike other divorces, since the woman in Khul`a wants relief and freedom from the husband and will not be harmed if her waiting period is extended. This is because by means of Khul`a, a Talaq Ba’in is attained. A Talaq Ba’in is such a divorce which leaves no room to be revoked. Since the woman is completely divorced in such a manner, she will not be harmed by an extended waiting period.
Resource:
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ICO’s Publications – Islamic Studies curriculum – Grade 12/ Part1
https://www.iconetwork.com/product/islamic-studies-grades-12-students-textbook/