Nikah Talaq (Divorce) SS3 Islamic Studies Lesson Note

Talaq (Divorce) means the breaking of the marriage bond.

In Islam, marriage is intended to be a lifelong partnership wherein both partners find security and happiness and are able to establish a family and bring up their children (see chapter 52).

It occasionally happens however that a marriage runs into problems, and one or both of the partners want to separate. Sometimes these problems can be solved and the marriage continues, sometimes the problems are not solved and the marriage ends in divorce.

TEACHING AGAINST DIVORCE

Allah says: “If you fear a breach between them (Husband and Wife) appoint (two) arbitrators, one from his family and the other from her family, if they both wish to make peace, Allah will cause their reconciliation. Indeed, Allah is ever the All-know, well acquainted with all things.” Qur’an 4:35 

DIVORCE AS A LAST RESORT

If all efforts to live harmoniously as husband and wife fail, Allah allows divorce through a laid down procedure. The Qur’an states: “But if they separate (divorce) Allah will provide abundance for every one of them from his bounty, and Allah is ever All-sufficient, All-wise.” Qur’an 4:130

EVIL OF DIVORCE INCLUDE

1. Enmity
2. The poor upbringing of children
3. Displeasure of Allah
4. Sadness to one or both parties
5. Weakening of family ties
6. The wife’s beauty might have been reduced.

KINDS OF DIVORCE

There are basically four methods of divorce:

1. Talaq: Divorce at the instance of the husband
2. Khul: Divorce at the instance of the wife
3. Faskh: Divorce by court order.
4. Mubarah: Divorce by mutual agreement of husband and wife

REVOCABLE AND IRREVOCABLE DIVORCE

Divorce may be revocable (i.e. it can be recalled and cancelled) and it may be irrevocable (which cannot be reversed).

1. Divorce which cannot be reversed is known as (Talaq bain) irrevocable divorce.
2. Talaq that may be reversed to resume marital life between the couple is called (Talaq raji) revocable divorce.

OTHER MEANS OF DISSOLUTION OF MARRIAGE

The laid down procedures for divorce have been explained as Talaq, khul, Mubarah, and Faskh. There are other practices which have the effect of dissolution of marriage. The practices are Li’an, ila and Zihar

1. Li’an (Mutual imprecation)

1. If the husband alleges that the wife commits adultery or he rejects the paternity of a child on the ground of alleged infidelity on the part of the wife, then the process of li’an, self-cursing is adopted. Thereafter the marriage becomes irrevocably dissolved.
2. The Qur’an 24:6-9 explains that if the husband alleges zina against his wife, he will swear four times in the name of Allah on it and on the fifth swearing he shall invoke Allah’s wrath on himself if his allegation is false. If he refuses to swear and he cannot produce four reliable male witnesses to the alleged committal of Zina, he is to be punished with eighty lashes of the cane. If he makes the oath and the woman accepts, she is to be punished for zina and that ends the marriage but if she refutes it, then she shall swear four times and on the fifth time invoke the wrath of Allah on herself, if the husband’s allegation is true. This oath of innocence marks the end of the marriage since trust no longer exists in the marriage. The li’an terminates the marriage.

2. Al-Ila (Oath of conjugal suspension): It was the practice during the pre-Islamic period through which a husband vowed not to have sexual intercourse with the wife and she was thus left without divorce and without sexual intercourse. Qur’an 2:226-227 says: “In the case of those who swear not to be with their wives, the waiting period is four months, then if they go back, Allah is surely forgiving, merciful. 

And if they resolve on a divorce, then Allah is surely Hearing, knowing.” Islam directs that he either resumes the conjugal relation without four months or she commences her ‘Iddah’ after the expiration of the four months at the end of the Iddah, the wife is free to marry someone else.

3. Zihar (husband’s comparison of wife’s back with his mother’s)

IDDAH (waiting period) AND KIND TREATMENT OF DIVORCED WOMEN, TYPES AND VARIATIONS

WHAT IS IDDAH?

Iddah is a waiting period for a woman after the divorce or death of her husband. She cannot remarry another man while she is in Iddah. The uses of iddah include the following:

1. In the case of Iddah’s first or second divorce, it allows time for reconsideration and reconciliation.
2. It establishes whether the woman is pregnant by the divorced husband. This prevents any dispute over paternity of a child, which might arise if she were allowed to contract a new marriage at once.
3. In case the wife is pregnant, it ensures her maintenance and care until she delivers.
4. In the case of the death of the husband, it allows time for some recovery from the initial grief before deciding on any new marriage, since it is unlawful for a man to make a formal marriage proposal to a woman in Iddah, although he may hint at his intention. (Qur’an 2:235)

DURATION OF IDDAH

The duration of Iddah is generally speaking as follows:

1. In the case of a woman who menstruates, it is the period of three quru (monthly cycles). That is she should observe three full gaps between 3 monthly periods before the Iddah expires. (Qur’an 2:228)
2. In the case of a woman who is pregnant, her Iddah lasts until delivery (Qur’an 65:4).
3. In the case of a woman who has stopped menstruation or a girl who has not started, the Iddah is three months (Qur’an 65:4).
4. If a marriage was not yet consummated, there is no Iddah (Qur’an 33:49)
5. In the case of death of the husband, the iddah is four months and ten days (Qur’an 2:234).

QURANIC VERSES TOWARDS IDDAH

• Qur’an 65:1 states: “O prophet, when you divorce women divorce them through their Iddah and count their Iddah accurately and fear Allah your lord. And you Muslims must not turn them out of their (husband’s homes) or shall they leave except in case they are guilty of some obvious illicit deal. And those are the limits of Allah and whosoever transgresses the limits of Allah, then indeed has wronged himself. You know not, that Allah may thereafter bring some new things to pass.
• Qur’an 65:6 states: “Lodge them (divorce wives) where you dwell, according to your means, and do not ill-treat them that they may be made to leave…

CUSTODY OF CHILDREN AFTER DIVORCE 

In the event of divorce or death of the husband or wife Islam makes rules for the custody of the children (hadanah). The prophet responds to the enquiry of a divorced woman or whether she or the husband should have the right of custody of the children as follows:

‘You (the wife) have a better right to have him (son) as long as you do not remarry’ ibn Majah.

DURATION OF THE CUSTODY

The duration of the custody for a girl is until she is married and for a boy, it is until he attains puberty. Therefore, he or she can live anywhere, as dictated by circumstances. The order of priority for custody under the shari’ah are:

1. The mother of the children
2. Mother’s mother 
3. Mother’s grandmother (maternal, then paternal)
4. Mother’s sister (full, then maternal, then paternal)
5. Grandmother’s sister
6. Mother’s aunt
7. Father’s mother or father’s grandmother (maternal, then paternal)
8. Father
9. Child’s sister
10. Father’s sister

• (Hashiyat al-Dasuqi vol.2: p-527)