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DIVORCE OR TALAQ

Divorce is the separation of a married woman from her husband. A legal dissolution of the marriage contractor by a court or other body having competent authority. ^[1]

Marriage, as prescribed by Allaah, is the lawful union of a man and woman based on mutual consent. Ideally, the purpose of marriage is to foster a state of tranquillity, love and compassion in Islam, but this is not always the case. Islam discourages divorce but, unlike some religions, does make provisions for divorce by either party.

Talaq (Arabic: الطلاق‎) is the Islamic term for divorce. Talaq is a term used to end a marriage, or nikah, under the terms of Islamic law (Sharia). ^[2]

Table of Contents
Introduction Term Talaq Term Khula Quran Hadith Divorce as a last option Difference between Khula and Talaq When does divorce become invalid? Divorce rate in different countries See also References

Introduction

Term Talaq

Allaah encourages the husband and wife to appoint arbitrators as the first step to aid in reconciliation in the process of divorce. If the reconciliation step fails, both the man and woman are guaranteed the right to divorce as established in the Quran, but the difference lies in the procedure for each one. When a divorce is initiated by the man, it is known as Talaaq.

The pronouncement by the husband may be verbal or written, but once made, there is to be a waiting period of three months ('Iddah) during which there can be no sexual relations, even though the two are living under the same roof.

The waiting period helps to prevent hasty terminations due to anger and allows both parties time to reconsider as well as to see if the wife is pregnant. If the wife is pregnant, the waiting period is lengthened until she delivers. At any point during this time, the husband and wife are free to resume their conjugal relationship, thereby ending the divorce process. During this waiting period, the husband remains financially responsible for the support of his wife.

Term Khula

The divorce initiated by the wife is known as Khul or Khula'(if the husband is not at fault) and requires that the wife return her dowry to end the marriage because she is the 'contract-breaker'. In the instance of Talaaq, where the husband is the 'contract-breaker', he must pay the dowry in full in cases where all or part of it was deferred, or allow the wife to keep all of it if she has already been given it in full.

In the case that the husband is at fault and the woman is interested in divorce, she can petition a judge for divorce, with cause. She would be required to offer proof that her husband had not fulfilled his marital responsibilities. If the woman had specified certain conditions that are Islamically accepted in her marriage contract, which were not met by the husband, she could obtain a conditional divorce. ^[3]

Quran

Allaah provides general guidelines for the process of divorce with emphasis on both parties upholding the values of justice and kindness in formalizing the end to their marriage (see Quran Surah Baqrah 2: 224-242 and Surah talaq 65:1-4] for general guidelines regarding divorce). ^[4]

Hadith

Narrated 'Abdullah bin 'Umar: that he had divorced his wife while she was menstruating during the lifetime of Allah's Apostle . 'Umar bin Al-Khattab asked Allah's Apostle about that. Allah's Apostle 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, whereupon, if he wishes to keep her, he can do so, and if he wishes to divorce her he can divorce her before having sexual intercourse with her; and that is the prescribed period which Allah has fixed for the women meant to be divorced." Sahih al Bukhari 5251 (Volume 7, Book 63, Number 178)

“Any woman who asks her husband for a divorce (khul‘) without due cause, then the scent of Paradise is Haraam(unlawful) for her (i.e. she will not smell it).”Abu Dawood 2226, at-Tirmidhee 1187 and Ibn Maajah 2055^[5]

Divorce as a last option

Although divorce being allowed in Islam is a sign of the lenience and practical nature of the Islamic legal system, keeping the unity of the family is considered a priority for the sake of the children. For this reason, divorce is always a last choice, after exhausting all possible means of reconciliation.

For example, Allah addresses men asking them to try hard to keep the marriage, even if they dislike their wives: And live with them in kindness. For if you dislike them - perhaps you dislike a thing and Allah makes therein much good. Quran Surah Nisa 4 :19

Also the following ayath is addressed to women asking them the same thing:

And if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of settlement between them - and settlement is best. And present in [human] souls is stinginess. But if you do good and fear Allah - then indeed Allah is ever, with what you do, Acquainted.Quran Surah Nisa 4 :128

Again, the following ayath is addressed to the family or the society for the same purpose of rescuing this bond, which God did not make easy to break:
And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever Knowing and Acquainted [with all things]. Quran Surah Nisa 4 :35

But, if after exhausting all methods of reconciliation, the hatred between the husband and wife is still greater than tolerance, then divorce becomes inevitable. Here comes the genius of the Islamic law, which holds practical, rather than unrealistic approaches, towards real situations. The ultimate aims of marriage, as well as any other aspect of human life, are to achieve happiness and virtue. So, when people are denied their right to end an unhappy marriage, these two aims are seriously violated. This is, as the couple will live in suffering, which may lead them to marital infidelity. Thus divorce in this case – if weighed up to the disaster of family disintegration - will be less disastrous. ^[6]

Difference between Khula and Talaq

Khula‘ is not regarded as a divorce (talaaq), but it is an annulment of the marriage. The wife cannot go back to the husband after khula‘ except with a new marriage contract.

One of the differences between annulment and divorce is that annulment is not counted as a talaaq, so if you go back to your husband now, he still has the option of three talaaqs.

But if he has given you one talaaq and your ‘iddah has ended, if he does a new marriage contract with you, he only has two talaaqs left.

Any word that is indicative of separation, accompanied by payment of compensation on the part of the wife, is khula‘.

What indicates that khula’ is not the same as talaaq is the fact that in the case of a revocable talaaq after consummation of the marriage, there are specific rulings which are not applicable in the case of khula’.

That the husband has more right to take her back.
When the husband issues a talaaq, is it counted as one of three, and after the third it is not permissible for the wife to go back to him until she has been married to another man and that marriage has been consummated.
‘Iddah in the case of talaaq is three menstrual cycles. ^{[7] [8] [9]}

When does divorce become invalid?

In some cases, uttering the words of divorce become invalid. Among these cases is when the husband is:

Drunk.
Forced to utter them by someone else.
In a complete loss of temper to the extent that he is unaware of what he is saying.
In an abnormal state of mind, such as temporary madness, epilepsy or in a coma.

In such cases, divorce is null and void. ^[10]