Nikah Talaq (Divorce) – SS3 Islamic Studies Lesson Note (First Term)

Talaq (divorce) is the breaking of the marriage bond.

Behavioural objectives

By the end of the lesson, students should be able to:

1. Define talaq and explain why Islam teaches against divorce.
2. State the evils of divorce.
3. Name and explain the four kinds of divorce.
4. Distinguish between revocable and irrevocable divorce.
5. Explain Iddah, its uses and its duration in different cases.
6. State the rules for the custody of children after divorce.

What is talaq (divorce)?

Talaq is the ending of a marriage by divorce, allowed in Islam only as a last resort.

• Purpose of marriage: a lifelong partnership in which both partners find security and happiness.
• Family role: the couple establish a family and bring up their children.
• When problems arise: one or both partners may want to separate.
• If problems are solved: the marriage continues.
• If problems are not solved: the marriage may end in divorce.
• Related rules: Islam also sets rules for the waiting period (Iddah) and for the custody of children.

Why does Islam teach against divorce?

Islam teaches against divorce because it harms the couple, the children and the family.

• Reconciliation first: 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 All-Knowing, well acquainted with all things.” (Qur’an 4:35)
• Arbitration: one arbitrator comes from the husband’s family and one from the wife’s family.

When is divorce allowed?

Divorce is allowed only as a last resort, after all efforts to live together in peace have failed.

• Laid down procedure: Allah allows divorce only through the procedure He has set.
• Allah’s provision: “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)

What are the evils of divorce?

The evils of divorce are the harm it causes to the couple, their children and their families.

• Enmity: the two families and the couple may become enemies.
• Poor upbringing of children: children lose the care and guidance of both parents together.
• Displeasure of Allah: divorce is allowed only as a last resort, so using it carelessly displeases Allah.
• Sadness: one or both parties suffer grief and loneliness.
• Weakening of family ties: relatives on both sides drift apart.

What are the kinds of divorce?

There are four kinds of divorce: talaq, khul, faskh and mubarah.

Talaq

• Talaq: divorce at the instance of the husband.

Khul

• Khul: divorce at the instance of the wife.

Faskh

• Faskh: divorce by court order.

Mubarah

• Mubarah: divorce by mutual agreement of husband and wife.

What is the difference between revocable and irrevocable divorce?

A divorce is either revocable, which can be cancelled, or irrevocable, which cannot be reversed.

• Revocable divorce (Talaq raji): a talaq that may be reversed, so that the couple resume married life.
• Irrevocable divorce (Talaq bain): a divorce that cannot be reversed.

What are the other means of dissolving a marriage?

Besides talaq, khul, mubarah and faskh, three other practices affect a marriage: li’an, ila and zihar.

What is li’an (mutual imprecation)?

Li’an is the process of self-cursing used when a husband accuses his wife of adultery (zina) or rejects a child’s paternity.

• When it is used: the husband alleges adultery, or rejects the paternity of a child on the ground of alleged infidelity.
• Effect: the marriage is irrevocably dissolved.
• Source: Qur’an 24:6-9.

Steps of li’an:

1. The husband swears four times in the name of Allah that his allegation is true.
2. On the fifth time, he invokes the curse of Allah on himself if he is lying.
3. The wife may accept the allegation by refusing to swear. She is then punished for zina.
4. If she denies it, she swears four times in the name of Allah that he is lying.
5. On the fifth time, she invokes the wrath of Allah on herself if he is telling the truth.
6. The oaths end the marriage, since trust no longer exists in it.

• If the husband refuses to swear: and he cannot produce four reliable male witnesses, he is punished with eighty lashes of the cane.

What is al-Ila (oath of conjugal suspension)?

Ila is a husband’s oath not to have sexual relations with his wife.

• Before Islam: a husband could make this vow and leave his wife neither divorced nor treated as a wife.
• Qur’anic rule: “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.” (Qur’an 2:226-227)
• Option one: the husband resumes the marital relation within the four months.
• Option two: if he does not, the wife begins her Iddah after the four months.
• After the Iddah: the wife is free to marry someone else.

What is zihar?

Zihar is a husband’s comparison of his wife’s back with his mother’s back.

• Meaning: he treats his wife as forbidden to him, like his mother.
• Islamic ruling: Islam condemns the practice (Qur’an 58:2).
• Expiation (kaffarah): the husband must free a slave, or fast two months running, or feed sixty poor people (Qur’an 58:3-4).

What is Iddah?

Iddah is the waiting period a woman must observe after the divorce or death of her husband.

• Main rule: she cannot remarry while she is in Iddah.

What are the uses of Iddah?

1. Reconsideration: after a first or second divorce, it gives time for reconciliation.
2. Pregnancy test: it shows whether the woman is pregnant by the divorced husband. This prevents disputes over a child’s paternity.
3. Maintenance: if the wife is pregnant, it ensures her support and care until she delivers.
4. Mourning: after a husband’s death, it gives time to recover from grief before any new marriage.

• Proposal rule: it is unlawful to make a formal marriage proposal to a woman in Iddah. A man may only hint at his intention (Qur’an 2:235).

How long is the Iddah?

The length of Iddah depends on the woman’s condition.

How must a divorced woman be treated during Iddah?

A divorced woman must be kept in the home and treated kindly during her Iddah.

• Qur’an 65:1: “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 (husbands’) homes, nor shall they leave, except in case they are guilty of some obvious illicit deed. And those are the limits of Allah, and whoever transgresses the limits of Allah has indeed wronged himself. You know not that Allah may thereafter bring some new things to pass.”
• Qur’an 65:6: “Lodge them (divorced wives) where you dwell, according to your means, and do not ill-treat them so that they are made to leave…”

Who has custody of children after divorce?

Custody (hadanah) is the care and upbringing of children after the divorce or death of a parent.

• The Prophet’s ruling: a divorced woman asked whether she or the husband had the right of custody of the child.
• His reply: “You (the wife) have a better right to have him (the son) as long as you do not remarry.” (Ibn Majah)

How long does custody last?

• Girl: custody lasts until she is married.
• Boy: custody lasts until he attains puberty.
• After that: he or she can live anywhere, as circumstances dictate.

What is the order of priority for custody?

Under the shari’ah, custody goes to the following persons in this order:

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

Source: Hashiyat al-Dasuqi, vol. 2, p. 527.

Evaluation

1. What is talaq?
2. State four evils of divorce.
3. Name the four kinds of divorce and say who or what each is made by.
4. State three uses of Iddah.
5. How long is the Iddah for a pregnant woman, a widow, and a woman who has stopped menstruating?

Assignment

1. Explain the difference between revocable divorce (Talaq raji) and irrevocable divorce (Talaq bain), stating the effect of each on the couple.