DIVORCE IN ISLAM

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.
Allaah provides general guidelines for the process of divorce with emphasis on
both parties upholding the values of justice and kindness in formalising the end to
their marriage (see [Quran 2: 224-237] for general guidelines regarding divorce).
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.
The divorce initiated by the wife is known as Khul' (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.
The controversy regarding the seeming inequity in divorce lies in the idea that men
seem to have absolute power in obtaining a divorce. The interpretation of scholars
in the past has been that if the man initiates the divorce, then the reconciliation
step for appointing an arbiter from both sides is omitted. This understanding
diverges from the Quranic injunction. Any difference in powers between the
husband and his wife with regard to divorce can be extracted from the following
verse (which means): {...And due to them [i.e., the wives] is similar to what is
expected of them, according to what is reasonable. But the men have a degree
over them [in responsibility and authority]. And Allaah is Exalted in Might and
Wise.} [Quran: 2:228]
In the following verse, according to existing interpretations, Allaah gives the
reason for the small difference in the verse (which means): {Men are in charge of
women by [right of] what [qualities] Allaah has given one over the other and what
they spend [in support] from their wealth. So righteous women are devoutly
obedient, guarding in [the husband's] absence what Allaah would have them
guard.} [Quran: 4:34]
Thus, it is clear that there is a 'degree' of difference with regards to the rights of
men and women in divorce, and that the greater right that men were given is due
to their being the leaders and financial supporters of the household. This,
however, does not mean that women are inferior to men or that they are second-
class human beings.
Many of the laws regarding divorce in some Muslim countries are based upon
Quranic references on the subject. As with all human laws, they must adapt to
dynamic circumstances. Issues pertaining to custody have become controversial.
For example, Allaah in the Quran advises the husband and wife to consult each
other in a fair manner regarding their children's future after divorce, as this verse
states (which means): {…If they both desire weaning through mutual consent from
both of them and consultation, there is no blame upon either of them.} [Quran:
2:233]
Some jurists stipulate that custody of the child is awarded to the mother if the
child is under a certain age and to the father if the child is older. There is no
Quranic evidence of age being a determinant for custody. Similarly with regard to
the issue of alimony, in the Quran the ex-husband's financial obligation to his ex-
wife is mandated, but a specific formula for the amount of support is missing;
Allaah Says (what means): {And for divorced women is maintenance according to
what is acceptable – a duty on the righteous.} [Quran 2:241] This is open for
negotiation between parties and should be in accordance with the husband's
financial ability.
There has been much distortion and propagation of misunderstanding about a
woman's rights related to marriage and divorce. Only with self-education and
awareness of the Quranic text are men and women able to learn the truth that
Allaah has prescribed and understand the scholarly interpretations in order that
the spirit of justice is realised. Allaah Says (what means): {And when you divorce
women and they fulfil their term [of their 'Iddah], either keep them according to
reasonable terms or release them according to reasonable terms, and do not keep
them, intending harm, to transgress [against them]. And whoever does that has
certainly wronged himself. And do not take the verses of Allaah in jest. And
remember the favour of Allaah upon you and what has been revealed to you of the
Book [i.e., the Quran] and wisdom [i.e., the Prophet's Sunnah] by which He
instructs you. And fear Allaah and know that Allaah is Knowing of all things.}
[Quran 2:231]
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