Summary of 7.44 “Marital Problems”
The main issue that was raised is that divorce in Islam is not as easy as some may think.’ There are preventative measure that may take place like the careful selection of one’s spouse and trying to live by Islamic Law with each other.’ Also, there are measures that can be taken in case there are disputes that would help contain it.’ There are certain measures that can be taken between husband and wife and if they do not work they can bring relatives in some sort of arbitration.’ In no case should swearing or cruelty be resorted to.’ All of these measures preventative or otherwise do not prejudice the right of the woman to seek divorce or otherwise.
‘
7.45 Dissolution of Marriage I
‘
Host:’ The common notion is that divorce is the exclusive right of the husband; can you clarify this?
Jamal Badawi
This is the common but is not true.’ In fact this is one of four forms of dissolution of marriage in Islam.’ In fact in terms of tradition the most common is that the husband unilaterally divorces the wife.’ But there are cases in Islamic law where the wife unilaterally can divorce her husband.’ Third, there are cases where the wife can initiate and obtain divorce through and Islamic court.’ Fourth, there are cases can be obtained by mutual agreement.’ To say that divorce is the exclusive right of the husband is a common mistake.’ The right to seek an end to an unhappy and unsuccessful marriage is established and applies to both husband and wife.
‘
Host:’ Under what conditions can the wife unilaterally divorce her husband?
‘
Jamal Badawi:
There are two basic cases where the wife can unilaterally use that right.’ One is called delegated repudiation called ismah.’ If the wife at the time of marriage or afterwords agrees with the husband that the right to divorce is transferred to her then if and when she desires she can divorce him unilaterally.’ This however has to be part of the nuptial contract.’ The second case is called conditional repudiation.’ This means that at the time of negotiating the marriage contract the wife could stipulate that the husband is obliged to fulfill certain duties or if the husband commits certain acts against her then she would have the right to divorce him. ‘Marriage contracts are both religious and civil contracts where conditions which are not contrary to Islamic Law must be implemented and enforced.’ There may be differences between the different jurists as to the nature and format of these two types but there is a basis for unilateral divorce by the wife.
‘
Host:’ How can she seek divorce through the judicial process?
Jamal Badawi:
There are several grounds for divorce through the judicial process.’ I will cover seven.’ First is the inability or refusal for the husband to provide for his wife, even if his wife is rich.’ In Islam it is the full responsibility of the husband to maintain his wife.’ This is the opinion of the majority of jurists such as Malik, Shafi’i and Ahmad.’ Hanafi said that if it is temporary poverty and he is still able to maintain his family to the best of his ability the marriage can not be dissolved.’ The second basis is abuse or mistreatment such as cruel or sever beating (wife battering to which 10% of women in North America seem to be subjected to).’ This is completely forbidden in Islam.’ Likewise cursing or swearing at one’s wife or forcing her to do something to do something that is wrong from the Islamic point of view.’ A third case can be impotence on the part of the husband which recognizes the natural instinctive right of the wife as is recognized for the husband as well.’ A fourth ground could be a serious or incurable disease or insanity.’ Fifth an extended absence or desertion of the husband.’ There are two cases for this.’ One where the whereabout of the husband is known in which case the judge can give him a time frame in which to come back to his wife or she would be ranted divorce.’ Second is if the whereabouts of the husband are not known the judge can give a specific waiting period and then divorce the wife after that.’ Some say that six months (Malik) and others say one year (Ahmad).’ Sixth the long imprisonment of the husband whether it is interpreted as divorce (Malik) or annulment (Ahmad) she has the right to get out of the marriage.’ There are cases of annulment such as deception at the time of marriage by giving false information or concealing important information in which case the wife is entitled to seek divorce.
‘
Host:’ When is mutual consent divorce applicable?
Jamal Badawi:
there are two basic cases when this is applicable.’ One is known as mubara’a or mutual agreement to release each other from the vow of marriage.’ In which case they can agree among themselves as to what the conditions are for the divorce.’ Second, is the case of khulu’ which some translate as self redemption.’ This would be the case of a wife who is unhappy with her husband but she can not fault him in any legal sense (he is fulfilling his duties and responsibilities) and she fears that if this relationship continues she may tempted to fall into error.’ In this case they could agree among themselves that she can return to him any financial privilege that she obtained from him by way of marital gifts in return for the dissolution of the marriage.’ There is a referance to khulu’ in the Quran in (2:29) but there are two observations about that form.’ One that a wife should not ask for khulu’ unless there is good reason.’ As the Prophet indicated in Ahmad and Alnasa’i it is not proper for a woman to seek this kind of desolation if there is not good reason behind it.’ Second, even if the husband refuses the dissolution it must be imposed on him.’ In fact there is a story at the time of the Prophet narrated in Bukhari and Al Nassa’i where a man by the name of Thabit Ibnu Khais who’s wife wanted to use the right of khulu’ and he loved her and did not want to do it but the Prophet instructed him to take back his orchard (which she offered to give back) and divorce her.’ A third observation in Islam is prohibited from trying to oppress or pressure his wife so that she offers the marital gift in order for her to get out of the relationship.’ This is not regarded as fair and in (4:19) there is mention of this.’ In this particular type of dissolution of marriage could take place at any time.
‘
Host:’ Why can’t the wife have the right to a unilateral divorce under any circumstance?
Jamal Badawi:
We must distinguish between two things.’ One is the principle established in Islamic Law for the right of either husband or wife to seek an end to a miserable or difficult unsuccessful marriage.’ First of all to say that the wife should have the same right to divorce her husband unilaterally, with no reason, except for the cases that were outlined may not be to the best interest of the family or the wife herself.’ Aside from the fact that this reduces the chances for dissolution of marriages, we can also remember four points.’ First of all, the purpose of marriage in Islam is continuation and not divorce. While the man is capable of being emotional and making compulsive discussions to divorce his wire it is fair to say that a woman on the average is more emotional than a man.’ This is not a deficiency but part of her function as a wife and more importantly as a mother.’ It is not a deficiency to be emotional.’ The danger of this is that she may destroy her family and future and then regret it when it is to late to correct.’ Second, while there is no winner in the case of divorce, everyone loses at least psychologically, the man or husband in Islamic Law stands to lose much more in the case of divorce.’ If he initiates divorce the wife is entitled to the entire marital gift whether the part that she received or that is due to her (it becomes due to her immediately).’ She is entitled to full maintenance during the waiting period which could be 3 months or if she is pregnant 9 months.’ Third, she would be entitled to child support if she has the custody of the child which is usually the case when the child is young.’ Fourth, according to some jurists she is also entitled to a consolation payment in the case of divorce: some say that she should get one year of maintenance at the expense of the husband.
‘
When we look at it the other way around we find that the wife does not suffer financial loses as a result of divorce.’ Her property before marriage remains intact and does not transfer to her husband whether she is married or divorced.’ She does not have to pay a penny of anything that she earns on her property to her husband or her household.’ This shows that in the case of divorce it is the man who stands to loose a lot more financially based on Islamic Law.’ This may act as a natural deterrent on the husband taking compulsive actions when it comes to diverse because he stands to lose a great deal more than the wife does.’ On the other hand it would be unfair with all the financial security and privileges given to the wife and not the husband that she could at any time divorce her husband and still keep all the gifts and property that he has given her whether or not she has a good reason for divorce.’ A third point is that if Islamic Law did not provide some control on this any unscrupulous woman could get married and divorced as she wishes and every time she would get the marital gift (which can be substantial) and perhaps exploit him.’ Islamic Law does not only protect the wife but also protects the husband who is also entitled to some protection against possible exploitation.’ The fourth point is that with all of these controls as indicated before if the woman has a genuine reason to ask for divorce the avenues are open in the variety of ways we have already described.
‘
Host:’ Why aren’t both sides required to seek divorce only by the court of law? With no unilateral rights for either sides?
Jamal Badawi:
First, if there is an agreement between both sides and they find that this is beneficial to them as in the cases we described earlier (Mubara’a or Khulu’); why should the court impose its own will on them?’ I am not saying that society has no say but this agreement may mutually advantageous to both of them.’ More importantly to have divorce through courts result in lots of delays (as any family judge can tell you) and during this period a wife is prohibited from remarrying and sometimes it takes years in litigation.’ Secondly, to go to court for a family problem without strong justification generates a situation where every side would have to justify to the judge that his or her spouse is at fault while trying to reveal all weaknesses.’ This is not a very pleasant situation.’ This bitterness that results in legal litigation could destroy any opportunity for future reconciliation.’ Another reason is that divorce and marriage are very personal; there could be a very personal and private reasons for people to seek divorce.’ People who are not involved directly in the marital relationship might have difficulty appreciating and evaluating this situation.’ There are however cases where injustice is inflicted unless the Islamic Court of Law can step in.’ In this case Islam has an open door.’ But Islam does not encourage every case to be presented before a court of law.’ We have seen in the previous program that family arbitration could solve the problem or private arrangement between husband and wife might save the marriage without undue interference on the part of others.’ Even in the case where the husband uses the unilateral right to divorce it is not something that takes place spur of the moment but has certain restrictions and conditions in order to be valid.
‘
Host:’ What are some of the conditions which are necessary for the validity of divorce?
‘
Jamal Badawi:
In order for divorce to be valid the husband must be sane, conscious, under no compulsion (example: his father telling him to divorce his wife) and he should mean what he says when he utters divorce.’ Second, the words used for divorce should be clear and unequivocal, whether it is said directly or indirectly in writing, in person or through a messenger.’ Third, a person can not divorce his wife at any time, there are restrictions regarding certain periods where divorce is forbidden. Fourth, it should be noted that the first three conditions eliminate a person who is under the influence of drugs or alcohol, intoxicated.’ It also excludes people who utter divorce without being serious.’ In certain cultures people say ‘oh you must do this or that or I’ll divorce my wife.” This is regarded as laghoo, vein talk which is not to be taken seriously and some jurists say that atonement for uttering this would be to feed 10 poor people or to fast three days but divorce will not take place.’ This precludes the case of divorce under certain states of anger.
‘
Host:’ Almost all divorce occurs with some anger: how do we distinguish between the different states of anger which may result in the validation or invalidation of divorce?
‘
Jamal Badawi:
A very nice subdivision was suggested by one of the great jurists Ibn Alkhaim and he said there are three possible degrees of anger.’ There is the case which is so extreme to the point where the person does not really want to say what he is saying, does not appreciate or understand what he is uttering.’ This is an extreme case.’ He said that the consensus of Muslim jurists is that this type of divorce is invalid.’ This is analogous to a person who is out of his mind and does not result in automatic disillusion of the family.’ The second case is a case where the person has a moderate degree of anger and of course no one divorces unless there is some anger.’ There is a type of anger where the person fully understands what he says and has premeditated intention to end the marital relationship.’ The consensus among Muslim jurists is that this is a valid divorce.’ The one that is rather controversial is what may be called a medium degree of anger, where the person is not totally out of his mind but he utters divorce without appreciating the consequences of this utterance.’ And as soon as he utters the divorcee he starts regretting it and wondering why he did it.’ On this case the jurists differed some say it is valid and others say it is invalid.’ The opinion that seems to be more consistent with various facets of Islamic Law is that it does’t validate divorce.’ There are a number of reasons behind giving more credence to this interpretation, first there are several sayings of the Prophet (PBUH) narrated in Ahmad, Abu Dawood, Alhakim and Ibn Maja in which the Prophet says that there is no divorce in the case of ikhlak which is the case when the person is in a strong state of anger.’ In fact in another saying of the Prophet (PBUH) narrated in Bukhari he said Divorce is only when there is deliberate intention, not something casual or that happens spur of the moment or an outburst of emotions.’ Secondly, in the Quran a principle is established in terms of an oath which could be analogous in (2:225) ‘Allah will not call you to account for thoughtlessness in your oaths, but for the intention in your hearts; and He is Oft-forgiving, Most Forbearing.” A third point is that at a medium degree of anger where a person doesn’t appreciate the consequences of utterance he may be analogous to a person who is intoxicated which we indicated would invalidate the pronouncement of divorce.’ Finally, the lack of accepting this as a base for divorce seems to be consistant with the main purpose of Islamic Law which is to protect the family and maintain its integrity as much as possible.
Host: When is divorce not permissible?
‘
Jamal Badawi:
A husband can not divorce a wife during her monthly cycle except in the case of khulu’ or self redemption which we talked about before which could take place anytime.’ Second, even if she is going through her monthly cycle which one person called ‘fresh purity’ after the cycle is finished, he can not divorce her during this period if intimate matrimonial relations took place.’ In this case he has to wait till the following cycle then he can pronounce divorce.’ A husband in Islam can not divorce his wife during the postnatal recovery period after childbirth.’ Divorce under these circumstances or in these periods is regarded as contra-Sunna divorce, it is divorce that is contrary to the path of the Prophet.’ Some jurists go to the point of saying it is invalid and the husband is required to repeal it and then utter it in the permissible times.’ Of course if divorce has taken place and the required waiting period has elapsed a husband has no right to force his wife to stay without releasing her as is found in the Quran in (2:230) ‘When ye divorce women, and they fulfil the term of their (‘Iddat), either take them back on equitable terms or set them free on equitable terms; but do not take them back to injure them, (or) to take undue advantage; if any one does that; He wrongs his own soul. Do not treat Allah.s Signs as a jest, but solemnly rehearse Allah.s favours on you, and the fact that He sent down to you the Book and Wisdom, for your instruction. And fear Allah, and know that Allah is well acquainted with all things.” This shows that one should not hold his wife just for the purpose of hurting her, oppressing her or pressuring her once the various requirements had elapsed.
‘
