Summary of 7.45 Dissolution of Marriage I
First, we emphasized that the right to seek divorce in an unsuccessful and unhappy marriage is a principle which applies in Islam to both wife and husband.’ Divorce is not the exclusive right of the husband and we talked about the four different cases.’ Second, we said that the mechanism and procedure of divorce may vary in the case of a husband than the in the case of the wife.’ They may be similar in some cases but are not necessarily identical and we discussed the reasoning for these variations and that it basically relates to the question of equity.’ Third, we started discussion some of the main conditions and restrictions that Islam imposes on the process of divorce, some of which relate to divorce under the stat of anger and to what extent that can be valid.’ We also talked about the prohibition of divorce under certain periods of time: monthly cycle, postpartum (up to 40 days) or even divorcing her right after she ends her cycle if intimate relations took place during this fresher purity.
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7.46 Dissolution of Marriage II
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Host:’ Why is divorce prohibited during these times?
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Jamal Badawi
First, prohibition of divorce during the feminine monthly cycle has good reason.’ It is because during the cycle the woman is likely to be in a state of fatigue, irritation, some degree of tension and this is why the Quran calls the cycle as athan or hurt which appears in (2:222).’ In addition to the hurt, irritation and possible tension on the part of the wife during this cycle in Islam it is prohibited for the husband to have any matrimonial/intimate relationship with his wife and this may generate tension from his side too.’ Under these circumstances it is quite possible that misjudgment or haste may take place and one or the other or both rush into a rash decision to end their marital relationship and destroy the family unit.’ In Islamic Law this mandatory requirement that one should not divorce during this period gives a chance to overcome this period and see if one of the sides or both sides is serious about divorce.’ The reason for prohibition for divorce during the postpartum period is similar to the cycle.’ During this time intimate matrimonial relationship is not permissible and a woman has even more need for care both physically and psychologically and the last thing she wants in this circumstance is divorce.’ When a woman is pregnant divorce can be uttered but it does not become effective till the child is born.’ The third prohibition of divorce is after the monthly cycle during fresh purity if matrimonial relationship takes place.’ In this case it would be wise to find out find out if the wife is pregnant or not which is important for two reasons.’ One is to make sure of the lineal identity of the child.’ A husband who was planning to divorce his wive discovers that she is pregnant and gets excited about the birth of a new baby may have a change of mind or heart and this may change things on his part or her part.’ This is why a beautiful reference is made in (65:1) where it says that this waiting period should be given because maybe God will bring about a new situation.’ This possibly means reconciliation.
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Host:’ If all of the rules that you just mentioned are observed does the divorce become effective immediately?
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Jamal Badawi:
Not necessarily, even here there is a certain waiting period.’ In Islamic terminology this is called idah which is referred to in chapter 65 of the Quran.’ This waiting period is after the divorce is uttered and before it becomes effective.’ This period is most commonly three months.’ It is defined in the Quran in (2:228) ‘Divorced women shall wait concerning themselves for three monthly periods.” Whether this is interpreted as the beginning or ending of three monthly cycles it amounts in most cases to about three months.’ This period however, could be longer as indicated in the answer to the previous question.’ If a person divorces his wife while she is pregnant then the waiting period extends till after she delivers the baby which could extend up to nine months.’ This is indicated in the Quran in (65:4).’ However the waiting period could be less than three months.’ If a person divorces his wife during the end of ‘fresh purity’ a day before the new cycle starts the waiting period can be reduced to two months or less depending on the natural cycle for every woman (which is different from woman to woman).’ In some rare cases like khulu’ or self redemption which we discussed in a previous program some jurists like Ibn Abass, Ahmad and Ibn Tymia based on the saying of the Prophet narrated in Al Nassai says that the period in this case could be reduced to one cycle or one month.’ The waiting period presumes that marriage has been consummated, however if marriage has not been consummated and divorce took place then there is no waiting period.’ The Quran is clear on this in (33:49) which says that if this kind of divorce takes place then there is no mandatory waiting period.’ In Islamic Law during the waiting period (after the utterance of divorce and before it becomes effective) intimate relationships are forbidden.’ If intimate relations take place it would be tantamount to reconciliation and revocation of the divorce.
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Host:’ In the instances where there is a waiting period, where would the wife stay and who would be responsible for her upkeep and living expenses?
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Jamal Badawi:
The answer is clearly found in the Quran in chapter 65 where it says that during the waiting period the woman is entitled to remain in her own household, as if divorce did not take place, and she should not be forced out of her house nor should she even leave unless there is a necessity but she is still part of the household.’ The responsibility for full maintenance during this period falls on the husband’s shoulders.’ In chapter 65 it makes it clear that not only is the divorce wife entitled to financial support but also to good treatment.’ In (65:6) it says that the husband should provide them housing, they should not be annoyed or restricted.’ So she is entitled to both kindness as well as provisions.’ There are good reasons behind that.’ First the wife during the waiting period will be closest to her husband and if she is close to him in the same household it might act as a test of love.’ If there is true love between both of them and this was a matter of them getting angry with one another or a result of a rash decision this waiting period could be a chance for reconciliation.’ Reconciliation can occur through verbal statement that the divorce is revoked, a tender touch, a nice word or if intimate relations take place during the waiting period it would be regarded as revocation of the divorce.’ If revocation takes place there is no need for a new marriage contract.’ No court is involved int this even though some jurists say that it is desirable to have witnesses if this revocation takes place.’ One should also add that a wife who is divorced according to this method then the divorce is revoked would be deemed as having used up one of the two revokable divorces.’ Even though the husband goes back to his wife during the waiting period he is deemed as having used up one of the two revokable divorces.
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Another possible reason for this waiting period is to make sure whether the wife is pregnant which would then establish the lineage of the child.’ A third reason is that if after the waiting period if both parties are determined to end the marital relationship the waiting period can serve as a transitional period in which both sides get ready and adjust to the kind of situation that they are bound to face after their marriage ends.’ As indicated earlier during the waiting period the wife is technically regarded as a wife.’ Jurists say that if the husband or wife die during this period they would be treated as husband and wife in terms of inheritance.
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Host:’ After a wife is divorced is remarriage permissible or is it a sin?
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Jamal Badawi:
It is not regarded as a sin in Islam to remarry because divorce can not automatically be presumed to be her error.’ It could be her fault, her husband’s fault, both their faults or ti could not be a fault of either of them but simply a mismatch.’ This is why the Quran in (4:130) says ‘But if they disagree (and must part), Allah will provide abundance for all from His all-reaching bounty: for Allah is He that careth for all and isWise.” This means that in the case of divorce God may provide each of them from His bounty and give them a new life with a new spouse where they end up with a happy marital life.’ If we assume that divorce is mainly her fault the Islamic attitude is that she should be given another chance.’ Also, marriage is very much encouraged in Islam and it doesn’t encourage people to remain unmarried for the rest of their lives.’ What happens to a woman who is divorced when she is 22 years old?’ Why should she be condemned to live alone for the rest of her life?’ In Islam there is no stigma attached to the question of remarriage.’ There may be some cultures, Muslim or non Muslim, which regard with suspicion or stigma a divorced woman or man but this has nothing to do with Islam.’ Islam looks at it as a simple matter of mismatch without implying that remarriage is sinful.’ Remarriage is not only permissible to a new husband but also to the ex-husband.’ In other words after the laps of the waiting period and there is no conciliation and the first divorce became effective she would be permitted to marry her ex for a second and a third and final time.’ The Quran in (2:232) prohibits anyone from trying to prevent the wife from reconciling with her old husband of course within the limits of second or third time.’ No one should stop her if they decide to get back together and start a new life.’ In any case if divorce takes place and the waiting period has already elapsed and they want to reconcile it must be with a new contract, new marital gift and possibly new conditions.
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Host:’ Can you comment about a woman who has been divorced by the same husband for the third time?’ Can there be no reconciliation in this case?
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Jamal Badawi:
If divorce has already taken place twice between the same husband and wife.’ So they got divorced reconciled, divorced again and reconciled again and then divorce takes place for the third time, this is evidence of one of two things: there is a serious problem or that one or both of them is not serious, has no respect for the marital relationship and takes it to lightly.’ Whatever reason is behind it restoration and respect for marriage is needed and that is why under Islamic Law if a person divorces the same wife for the third time it becomes an irrevocable divorce.’ There is only one rare case when they may get back together.’ This is specified in the Quran that if after the third divorce the wife gets married to another person for the purpose of permanence (not to get around the law) and it so happens, without premeditated or deliberate intentions, that the second husband divorced her or died then she would be entitled to remarry her ex.’ Islam made it clear that it should never be done for the purpose of tahlil just having a formal contract for the purpose of letting the wife go back to her original husband.’ If one follows Islamic Law in this case it would be a very rare case that this happens.’ If the husband divorces his wife three times in one time (by saying it three times) does it become irrevocable or is it counted as one divorce?’ There was’ a weak interpretation after the one of the great Caliph Omar that in order to punish people he said that if one says it three times it becomes irrevocable.’ Many other jurists like Ibn Alkayim did not agree with him.’ They referred to a variety of sayings for Prophet Muhammad (PBUH) as narrated in Ahmad and Abu Dawood of a man who divorced his wife three times in the same breath and he came to the Prophet and said that he loves her and could he revoke it.’ The Prophet asked him if he said it in the same time and the man answered in the affirmative and the Prophet said that he could revoke it if he wished.’ They conclude from this that even if one says it a hundred time in the same time it would still be counted as one.’ It makes sense because the purpose of Islamic Law is to provide opportunity for reconciliation.’ Even jurists like Abut Hanifa say that there should be a one month period between each divorce.’ So if a man divorces his wife and returns her, he should wait a month before divorcing her again, there should be time between them.’ One should not reconcile one day and divorce his wife again the next day.’ The wisdom of legislation here is to give a chance for reconciliation.
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Host:’ What happens with financial matters and custody after divorce?
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Jamal Badawi:
If divorce takes place before marriage is consummated the answer is in the Quran in (2:237) and it says if you divorce your wife before touching her (a symbol of consummating the marriage) then she would be entitled to half of the marital gift.’ For example if the marital gift they agreed on was $5000 she is entitled to $2500 unless she forgives it.’ This is a kind of consolation to her.’ If divorce takes place after marriage is consummated then the wife is entitled to a number of things.’ First, she would be entitled to the entire marital gift (whether she has received part of it or not-whatever she did not receive would become due).’ Second, she would be entitled to keep all gifts given during engagement or afterwords.’ Third,’ she is entitled for full maintenance for the whole waiting period which is usually 3-9 months.’ Fourth, if she has a suckling baby (they agree to suckle the baby) she would be entitled to payment for providing this for her child.’ Even though this is an instinctive thing if she is divorced the husband would be responsible to provide for her so she can stay in good health and look after the baby.’ Fifth, if she has custody of the baby or small child which is usually the case she is entitled to child support for all the needs of the child.’ Sixth, some jurists believe that she is entitled to some kind of divorce consolation gift.’ This is mentioned in the Quran in (2:231 and 236).’ Some interpret that giving some sort of consolation as being highly desirable, highly encouraged and others understand it as being a requirement.’ Some laws provide (I read about the law in Syria) up to one year of maintenance even after she has taken all the other financial privileges.
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In the matter of custody the rule is that the mother is more entitled to the custody of a small child.’ The age vary depending on the opinion.’ Some say that the mother is more entitled till the age of 7.’ Some say that in the case of a daughter the mother is entitled to keep her till she becomes an adolescent and some say till she gets married (because she needs guidance as a wife and mother).’ There are two basic conditions for this: first that the mother be fit (both in terms of her mental capacity and reputation).’ If the mother has mental illnesses then she would not get custody of the child.’ Fitness could refer to good reputation; a divorce’s reputation which is in question would not automatically be entitled to the custody of a child because again it may effect his or her moral upbringing.’ A second major point is that according to one saying of the Prophet (PBUH) is that she is entitled to the custody as long as she does not remarry.’ For her to remarry endangers the interest of the child as the man may be dominant and may not care or treat well a child of another person.’ This of course applies to the other side but in the case of a wife the danger might be greater for the child.’ If we study Islamic Law and the question of custody we find that there is more bias towards the female side.’ Even though the responsibility for custody is both for husband and wife but it is stronger towards the female side of the wife before it passes on to the female side of the husband’s family.’ If no female is available then perhaps custody could pass to the male side of the family.’ The idea here is that the female has more compassion towards the child.
