Divorce

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Divorce

Bismillahir Rahmanir Raheem

DIVORCE IN ISLAM
IMPORTANT INFORMATION ABOUT A MUCH ABUSED PRIVILEGE

The abuse of talaaq or divorce by husbands that is being currently witnessed has reached alarming proportions. This has prompted us to enlist some important rules of the Shariah regarding divorce so that husbands (present and future) may understand the significance and importance of this very sensitive and serious Shar’ee institution and acquaint themselves with the necessary laws. These rules have been taken from The Quran, Hadith, and books of Fiqah.

SOME SAYINGS OF RASOOLULLAH (sallallahu alaihi wasallam) ON TALAAQ

"The most detested of halaal things by Allah is divorce." (Hakim, Abu Dawood)

"Marry, but do not divorce (without a real need), for Allah does not love such men and women who taste a lot (i.e. they marry and divorce often)." (Tibraani)

"Women should not be divorced except for lewdness." (Tibraani)

"Marry, but do not divorce, for the Throne of Allah shudders over talaaq." (Ibni Adee)

"Those women who contrive to get talaaq, or force their husbands (by disobedience) to divorce them, are hypocrites (munafiqs)." (Nasaa-ee)

"If a woman seeks talaaq from her husband without a pressing need then the fragrance of Jannat becomes haraam upon her. (Ahmad, Haakim)

Another hadith has it that the most beloved to Iblees from among his army of devils are those who create enmity and division between husband and wife. (Muslim, Ahmad)

RULES OF DIVORCE

C Islam has vested the right to divorce with the husband only, and not the wife. This is so because of the weak nature and temperamental instability of the wife. However, it appears that even the husbands of today have lost their self-control and stability, hence this spate of divorces in the Muslim community. Lack of such control, erratic mood swings, impulsiveness, anger, etc. are the factors contributing to what Rasoolullah (sallallahu alaihi wasallam) described as one of the signs of qiyamat (i.e. increased divorce rate). Such husbands need spiritual (not marital) counselling and guidance to counter this spiritual deficiency.

C As stated above, the wife cannot divorce the husband.

C The Arabic for divorce is talaaq. Whether one uses the Arabic word talaaq or the English term divorce, the result is the same.

C Divorce in the Shariah is only there to fulfill a need, and that need is to terminate the nikah when it (the marriage) has irretrievably broken down and there is no means of conciliation, and this after all efforts to bring the parties together again have failed.

The husband has been made the owner of three talaaq. But this does not mean that he must issue three and only then will the nikah end. Only one talaaq is enough to do the job. Since the purpose of talaaq is to fulfill a need as a last resort, the husband only has to pronounce talaaq once, and the nikah will be over. It is a gross misconception on the part of people to believe that only when three talaaq are issued does the nikah break.

After talaaq has been given, the wife must sit in iddat, which is normally three menstruation periods. After this iddat the nikah is over and she may marry another man of her choice.

If the husband has issued one or two talaaq, he has the right to take the wife back without making a new nikah while she is still in the iddat mentioned above, irrespective of whether she wants to come back or not. In this particular case the wife has no say at all.

The husband may take her back in the iddat by saying verbally: "I have taken my wife back" or by a sexual advance such as kissing or sexual intercourse, etc. It is preferable, not compulsory to say he is taking her back in front of two witnesses.

But after the expiry of the iddat, (when 1 or 2 talaaq were given) the husband and wife can only get back together again by making a new nikah with a new dowry. And this is if the wife agrees to come back. If the woman does not agree to come back after the iddat, no one can force her because the moment the iddat ends, she is no longer his wife. In this case the woman has got a choice of her own (whether to come back to her former husband or not).

IF THE HUSBAND ISSUES ONE TALAAQ, HE HAS TWO LEFT, EVEN IF THE TWO PARTIES CAME TOGETHER AGAIN. AND IF HE GAVE TWO TALAAQ, HE HAS ONLY ONE LEFT, EVEN IF THEY RECONCILED DURING THE IDDAT OR AFTERWARDS (THROUGH A NEW NIKAH). So remember, once a talaaq is given, it is deducted from the total sum of three which the husband initially had.

THREE TALAAQ

If the husband gave his wife three talaaq then the nikah breaks immediately and there is no way the two can get back together again. This is the strongest form of talaaq. The wife is now forever haraam upon the husband.

Our menfolk should therefore be very, very careful in the utterance of talaaq. So often the husband blurts out three talaaq in anger, sometimes to spite the wife, or to frighten her, or punish her. Little do we realise we are spiting none but ourselves. We are only punishing ourselves. It is a classical example of cutting off the nose to spite the face. After such a rash utterance, only then does the severity of the matter hits home. By then it is too late to change anything. We referred earlier to impulsive behaviour, to anger and rashness. This, plus ignorance of the laws of talaaq is what propels the husband to make such utterances which he rues for the rest of his life. Take note of the following laws.

For a divorce to be effective it is not necessary that it must be in writing. A verbal talaaq, be it one, two, or three is effective and enough to sever the bond of nikah. It is wrong to believe that only a written talaaq is valid. The law of the Shariah clearly states that a talaaq uttered with the tongue is valid and takes effect.

Similarly, the husband does not need to have the Imam who made his nikah in his presence when divorcing his wife. Even in the absence of such an Imam the divorce is still binding.

There is no need for witnesses when issuing talaaq. When the husband utters a divorce, even if no witnesses are present, such a divorce is valid and effective according to Shariah.

There is no need for the wife to be present when giving divorce. A talaaq issued in the absence of the wife is valid and effective according to the Shariah.

Many people believe the above items are requisites for a divorce, hence they feel justified in blurting out a talaaq to "scare" the wife. They falsely think that since there are no witnesses, or nothing has been given in writing, or the Imam is not present, the divorce cannot take effect. But this is a highly erroneous and dangerous belief, one that has already lured many a husband into marital misery. We reiterate, a divorce uttered with the tongue is valid, even if the wife is not present, or has not heard the words of divorce, or the talaaq was not given in writing, or there are no witnesses who heard the divorce being uttered. All these are not conditions for the validity of talaaq.

The moment a husband thinks of divorcing his wife, we suggest that he goes to the Ulema for advice on how to go about it. We appeal: Please do not be hasty in issuing a talaaq until you have consulted the Ulema. If the man contemplates divorce for whatever reason, consult Ulema on which type of divorce to issue. In so doing you will safeguard your Deen and your nikah as well.

Should the marriage reach a point where talaaq is the only way out then let the husband follow this simple and safe procedure:

Issue only one talaaq. And then leave the wife to sit in her iddat. He must separate himself from her by not sharing the bed and not mixing, but they both may stay in the same house. The wife must spend her iddat in the house provided for her by the husband. After a few days or weeks (before the iddat ends) should the couple wish to make up, they may come together again as explained above. If the iddat expires and they then wish to reconcile, a new nikah can be made and the couple may live happily ever after. But by issuing three talaaq, all hope of reconciliation is destroyed.

One talaaq is therefore enough. Some wives (or in-laws) insist and impose upon the husband to issue three. And the husband, like a fool, goes and does exactly that! There is absolutely no such thing. One talaaq is enough and will break the nikah.

Three talaaq are valid even if they are uttered in one sentence, in one phrase, or in three different sentences, or they are uttered in one gathering or on three separate occasions. It makes no difference.

EXAMPLES OF THREE TALAAQ:

[Talaaq, talaaq, talaaq] [I divorce you thrice] [I give you three talaaq] [I divorce you, I divorce you, I divorce you] [I give you talaaq, I give you talaaq, I give you talaaq] [You are divorced] (repeated thrice) [You’ve got three talaaq]

IN ALL THE ABOVE THE WIFE BECOMES FOREVER HARAAM UPON THE HUSBAND.

If a husband issued one talaaq and took his wife back, there are now two talaaq left. After some years he issues another talaaq; there is now only one left. Another five years later, for example, he divorces his wife again. Now he has used up all three talaaq and everything is finished between him and his wife. They cannot come back to each other again. So the lapse of time between the different occasions of talaaq does not make any difference. Eventually they all add up.

To be continued, Insha-Allah

Issued by: Jamiatul Ulema Eastern Cape, P.O. Box 8072, Schauderville, Port Elizabeth, South Africa.