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Rulings on Divorce - I

Thursday 28-06-2012

Allah The Almighty has made marriage a source of tranquility, affection and mercy. However, disputes may arise between the spouses which spoil a good relationship. The causes of dispute...

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Allah The Almighty has made marriage a source of tranquility, affection and mercy. However, disputes may arise between the spouses which spoil a good relationship. The causes of dispute between spouses might be trivial and thus, remediable or avoidable. The wife should behave wisely and not be hasty to ask for divorce for the slightest causes. The Messenger of Allah, sallallaahu ‘alayhi wa salam, said: “Any woman who asks her husband to divorce her without a compelling reason, will not find the smell of Paradise.” [Ahmad, Abu Daawood, At-Tirmithi and Ibn Maajah]

But, sometimes the causes of dispute might be too strong to solve by any endeavor to make reconciliation between the spouses. At that point, the only solution is to terminate the marital relationship, where the couple leave each other: {But if they separate [by divorce], Allah will enrich each [of them] from His abundance.} [Quran 4:130] divorce is the best way to terminate the marital relationship when it becomes too difficult to continue. It entails detaching the sound marital bond on the part of the husband with a specific expression.

Allah The Almighty gave the husband the right of effectuating divorce for reasons that include:

- Being keen on keeping the marital home from collapsing. Had the right of effectuating divorce been in the hand of the wife, who is known for being emotional, which sometimes makes her reckless, the family safety would have more likely been vulnerable to risk, but the man is wiser and less liable to becoming irritated.

- Divorce brings about such financial obligations on the husband like the postponed dowry, maintenance during the term of ‘Iddah (waiting period), and a gift of compensation: and these things force the man to reconsider divorcing his wife, that is if the more significant reasons do not prevent him. Furthermore, the woman is entitled to put a condition that the right of effectuating divorce is in her hand. She also has the right to terminate her marriage if her marital life with her husband has become difficult, through other means such as Khul‘ and separation by the court if the cause is reasonable.

The Islamic Sharee‘ah (Islamic legislation) restricted the man's right of divorce by limits, which include:

1- Divorce should not occur for a trivial cause inconsiderable under the Sharee‘ah. The man has to know that he is responsible before Allah The Almighty for his indulgence in using that right. This is not an easy matter; and the Messenger of Allah, sallallaahu ‘alayhi wa salam, said: "Of all the lawful acts the most detestable in the sight of Allah is divorce." [Abu Daawood]

2- Divorce should be during the woman’s period of Tuhr (state of purity from menses), in which the man has not had sexual intercourse with his wife. But, if he divorces his wife during the period of her menstruation, or during the period of her Tuhr in which he has had sexual intercourse with her, divorce would become effectuated and the divorcing husband would carry a sin according to a group of scholars. However, other scholars had a different opinion, seeing that divorce in such a state would not become effectuated.

3- The three pronouncements of divorce should not be uttered simultaneously in the sense that only one pronouncement of divorce should be uttered. If one divorces thrice at one time, or in one session, it would be regarded as three divorces according to many scholars, and considered as only one divorce according to other scholars.
Kinds of divorce:

There are two kind of divorce:

• Revocable divorce:

This is when the first or second divorce is pronounced by the husband on his wife with whom he has consummated the marriage, on the condition that it is not in return for compensation (as in the case of Khul‘). This divorce entails no separation consequences so long as the wife is in the period of ‘Iddah, during which the husband has the right to take her back and she becomes lawful for him. However, if the period of ‘Iddah is over without taking her back she then becomes divorced from him and she is unlawful for him except with a new contract and dowry.

• Irrevocable divorce:

Irrevocability is divided into: minor irrevocability and major irrevocability.

Minor irrevocability: This applies to the first and second divorce, after the period of ‘Iddah is over. It is called so because the husband has the right to remarry his wife but with a new contract and dowry; and he only has the right to the remaining number of divorces upon her. If he has divorced her once, two divorces remain; and if he has divorced her twice, only one final divorce remains.

Minor irrevocable divorce applies in the following cases: Divorce before consummation of marriage, divorce in return for compensation (i.e. Khul‘) according to the scholars who consider Khul‘ as divorce, and divorce because of a defect in case of being the first or second time.

Major irrevocability: This applies to the divorce for the third time, after which it is impermissible for the man to remarry his wife unless she marries another and he consummates the marriage with her and then divorces her, and she fulfills the term of ‘Iddah. In this case, if the first husband wants to re-marry her, a new contract and dowry are necessary.

 

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