Divorce in the Islamic context

Divorce historically has been regarded as a solution to marital problems and it existed in different
communities before arrival of Islam. But the way people in their community approached to divorce law
was different. Based on Islamic point of view family disputes should be resolved patience and selfcontrol and divorce is considered as last solution. Islam does not recommend divorce among family, but
it is only allowed when the two parties (man and woman) are not agreeing to continue anymore.

Divorce is considered as the final solution for marital problems. In connection with this natural
phenomenon that marriage is rooted in human nature, the separation is also something innate. It is
naturally that when couples are trying to eliminate obstacle and reached to an agreement but they
discover that the life is not going to pleasant anymore and therefore they purpose separation. Divorce,
like other social phenomenon has a lot of discomfort and misfortune not to husband and wife but it
deeply affects all family members. That is why, its highly insisted in Islam that divorce should be the last
solution for family disputes. Allah provides general guidelines for the process of divorce with emphasis
on both parties upholding the values of justice and kindness in formalizing the end to their marriage (see
[Quran 2: 224-237] for general guidelines regarding divorce).

Requirement for Divorce

The person who is purposing divorce, he or she must have reached puberty and be capable of making a
decision1. This means that the divorce of demented and child is not accepted, but the separation
between demented person and his wife would be possible in a specific situation by the order of judge.

He or she must be sane, conscious, alert, and free from intoxication or anger;[76]He or she must be free
from external pressure;[77] His or her intention must be clear;[78]

Kind of Divorce

1. Talaqu ar Raji (revocable divorce)

2. Talaq-al-Baain (irrevocable divorce)
3. Talaaqul Mughallazah (permanently irrevocable divorce)
4. Khula
5. Faskh
1. Talaqu ar Raji (revocable divorce)
Talaqu ar Raji or revocable divorce is the kind of divorce where the divorce can happened when the
husband express divorce to his wife in a very open and clear terms. For example, the husband says you
are divorced or the husband says I divorce you. In this situation the wife is divorced. As a principle rule
when a wife marriage is end either by divorce or by death of the husband. Based in Islamic rule wife has
to set for a waiting period which is called Iddah in Arabic. O Prophet ! when you divorce women, divorce
them for the prescribed period, and thereafter reckon the period; and fear ALLAH, your Lord. ... And if
you are in doubt as to the prescribed period for such of your women as have despaired of monthly
courses, then know that the prescribed period for them is three months, and also for such as do not
have their monthly courses yet. And as for those who are with child, their period shall be until they are
delivered of their burden. And whoso fears ALLAH, HE will provide facilities for him in his affair. S. 65:1,4

The iddah will be three menstrual cycles if she experiences menses, three months if she does not
experience menses or at child birth if she is pregnant. The husband now has the choice of revoking his
divorce before the expiry of the Iddah period. The husband may revoke his divorce by verbally expressing
his desire to take her back into his nikaah or by having physical contact with her by way of kissing,
fondling, touching her with passion or having intercourse with her. If the husband does not revoke the
divorce during the Iddah period, the divorce becomes irrevocable. Now, if he wishes to take her back (ie
after the Iddah period has lapsed), he can only do so by performing a new Nikah.
As it is said before, when a wife is divorced by her husband she have to wait for at least three months but
in case when is husband is died then the waif has to wait for four months and ten days before planning
to marry someone else. This period is basically set for the reason; if the women become pregnant she has
to wait until to birth the child. This way the child indent become clear otherwise is the women woman
does not complete the iddah period the child identity would a doubt. If it became clear that she is not
pregnant then she can be free to remarry.

In other case, when someone marry and there no sexual intercourse in this situation the women not
obliged to complete the Iddah period. As it is said in Quran, O you who believe: When you marry
believing women and then divorce them before you have touched them, no period of idda (waiting) have
you to count in respect of them: so give them a present and set them free in a graceful manner. S.
33:49.

2. Talaq-al-Baain (irrevocable divorce)

Talaq bain is or irrevocable divorce is the kind of divorce when a husband in a successive manner says at
the same time the word divorce to his wife. Or if the divorce happen before consummation of marriage

If a husband says three times divorce (Talaq) to his wife, then the divorce happens and in this situation
the husband cannot remarry his wife until the woman marry other person and received divorce from
her new husband. This is the way that wife can remarry her first husband.

Khula or deposal of Marriage

In Khula a wife can ask for divorce or Khula is wife right for deposal of marriage. In this situation the wife
has to pay money for her divorce, in other word she has to buy her right. But still husband consent is
necessary for this proposal. The main difference between deposal and divorce is that in deposal of Khula
the woman has the right.

Womens property is not divided during a divorce.[58] Whatever a woman earns or is given
before and during the course of the marriage remains her property if the marriage ends.[59] This
prevents men from taking advantage of womens property or wealth through marriage. On the
other hand, the mans property is divided if a divorce occurs according to the couples marriage
contract.[60] A woman is entitled to support and maintenance from her former husband if she
requires.[61] There are also special instructions if divorce occurs before the marriage is
consummated and before or after the dowry is set.[62]
Islam also instituted a three-month waiting period for women called Iddah.[63] During this threemonth period women are not permitted to re-marry.[64] The basic reason for this rule is to

determine whether the woman was pregnant before she remarried so the proper father could
be ascertained.[65] This practice also ensures the childs identity and lineage can be accurately
determined.[66] A husband and wife are also allowed to attempt reconciliation during the
waiting period.[67] However, men are specifically instructed not to take back their wives to
injure or take undue advantage of them.[68]

Determining the proper procedure for divorce is highly dependent upon the timing of the
divorce, the reasons for divorce, the clients Islamic School of Thought (Hanafi, Hanbali, Maliki,
and Shafi), whether he or she is Sunni or Shiite, and the circumstances surrounding the
divorce.[69] The scope of this article cannot cover all the conceivable scenarios or grounds for
divorce but will seek to address the basic requirements for divorce. [70] It is important to keep in
mind different schools of thought can cause some variances in the basic structure described
below.

Requirements for divorce

As stated earlier, Muslims in America seeking a divorce still have to comply with the laws of the
United States.[71] However, most Muslims will seek to follow the laws regarding divorce in
America but will also want documents reflecting their religious beliefs and their marriage
contract.[72] Either a man or woman can initiate a divorce.[73] Before a Muslim starts official
legal action he or she must meet the following requirements:[74]

He or she must have reached puberty and be capable of making a decision;[75]

He or she must be sane, conscious, alert, and free from intoxication or anger; [76]
He or she must be free from external pressure;[77]
His or her intention must be clear;[78]

Divorce must take place after the wifes menstrual period and no sexual relations have occurred
since her period ended.

If all the above factors are present, either the husband or wife can pursue a divorce or they can
pursue a divorce jointly and amicably. This will involve going through the normal divorce
proceedings according to American law but will also involve reviewing the terms in the
marriage contact and drafting language that incorporates prior agreements and ends the
contract.
There are also several levels of revocability of divorce in Islam.[79] If a client approaches a
practitioner claiming the divorce is revocable the best course of action is to consult an Islamic
scholar. This can be a complicated question that will likely require an Islamic scholar to listen to
both sides and make a determination. Islam has a strong tradition of alternative dispute
resolution that will help resolve complex matters surrounding divorce.[80]

It is also important to keep in mind that although divorce is permitted in Islam, it is not
encouraged. The Prophet Muhammad stated of all the permitted acts divorce is most
displeasing to God (Allah).[81] The Quran further states: Live with them (your wives) on a
footing of kindness and equity. If you dislike them it may be that you dislike something in which
Allah has placed a great deal of good.[82] Muslims truly view divorce as a last result and many
Muslims seek counseling and extensive assistance to avoid divorce. If a client is coming to a
practitioner to carry out a divorce it has likely been a very long and difficult religious and
personal decision.