Divorce in Permanent Marriage
- :Sachiko Murata
Adopted from the Book : "Temporary Marriage in Islamic Laws" by : "Sachiko Marata"
III. Divorce (Talaq)
The pillars of divorce differ according to the schools. The Hanafis and Hanbalis hold that there is only one pillar, i,e., the formula through which it takes place. In the view of the Shafi'is and Malikis, the pillars are (I) the existence of the husband and the wife, (2) the formula of divorce, and (3) the intention.1 The Shi'is maintain that the pillars are (1) the husband and wife, (2) the formula, and (3) two witnesses,2 The husband may divorce the wife, but not the reverse. In contrast to marriage, the wife's consent is not necessary.
The man must be in possession of his rational faculties, have reached physical maturity (except in the Hanbali view), and be acting of his own free will (except according to the Hanafis). The Hanbalis maintain that a youth who has not reached puberty but who understands the meaning of divorce and its consequences may divorce his wife of his own accord; the Hanafis say that even if the formula is pronounced under duress, it is still valid.3 To the views shared with the other schools, the Shi'is add that the husband must pronounce the formula with the intent of divorcing his wife, although unlike the Shafi'is and Malikis, they do not make this a pillar of divorce.4
The wife must be a free woman, a permanent wife, and faithful, since there is no divorce in the case of a slave woman, a temporary wife (in Shi'ism), or an adulteress.
The man must employ words in the formula that denote divorce directly or indirectly, though the Shi'is hold that the word 'divorce' itself must be employed. A dumb man may divorce his wife through gestures. The Malikis and Hanafis hold that a man may divorce his wife in writing.
The formula must be pronounced three times in the manner described below.
Divorce has two general categories depending on the time the man chooses to pronounce the formula: 'traditional' (sunni) divorce, which is permitted, and 'non-traditional' (bid'i) divorce, which is prohibited.
Whether divorce is traditional or non-traditional depends upon the woman's state of ritual purity when the man pronounces the formula and his manner of reciting the formula. During menstruation and confinement after childbirth a woman is ritually impure, and she does not become pure again until her situation changes and she performs the major ablution (ghusl). For the traditional divorce to take place, she must be in a state of ritual purity and her husband must not have had sexual intercourse with her during her last menstrual period (this condition is added for reasons of precision, even though sexual intercourse during that time is forbidden) or from the time she performed the major ablution after her period or confinement, According to the Shi'is, if the woman is in the state known as mustaraba (i,e., she is approaching menopause, her menstrual period is delayed, and she mayor may not be pregnant), the husband must wait three months in order to determine her condition, and only then can he divorce her.5 The man must pronounce the formula on three separate occasions separated by a specific period of time, as explained below.
Although non-traditional divorce is forbidden with certain exceptions in the view of some schools, it may still take place. It is divided into several kinds: A divorce given while the woman is in (I) her menstrual period or (2) confinement, (3) A divorce given by pronouncing the formula three times on a single occasion; here the Shafi'is maintain that this form of divorce is permissible.6 (4) Divorce when the woman is ritually pure after menstruation, but sexual intercourse has taken place; the Malikis hold that this form of divorce is not forbidden, only reprehensible (makruh ).
In spite of the fact that non-traditional divorce is forbidden, the Sunnis hold that the formula pronounced under any of the above conditions is still valid. However, the Hanafis and Malikis say that the man must return to his wife and consider himself as her husband; if he still desires to divorce her, he must wait until she has purified herself after her second menstrual period from the time he originally pronounced the formula and then pronounce it once more. If the man does not return to his wife, the divorce is valid, but the man has then definitely sinned against the shari'a; however, no punishment is to be inflicted in this world before the Day of Judgment,7.
The Shi'is maintain that non-traditional divorce is invalid, with the exception of the form in which a man pronounces the formula three times at once; such a divorce is then irrevocable.8
In certain cases, the temporal categories delineated by 'traditional' and 'non-traditional' do not apply. Thus a man may divorce at any time a woman with whom he has not consummated the marriage, a girl who has not reached puberty, a woman who has reached menopause, and a pregnant wife. In three of the schools, these types of divorce are considered traditional, while the Shafi'is and Hanbalis hold that they are outside the classification.9 According to three of the schools, divorce initiated by the wife (khul' and mubarat, discussed below), divorce as a result of 'forswearing' (I'la, below V), and divorce ordered by a qadi have no temporal conditions. The Malikis and Shi'is hold that these are types of traditional divorce with the same temporal conditions.10
For a divorce to become final, in most cases the man must pronounce the formula on three different occasions, as described below. Technically, his first and second pronouncements are also divorces, but they are 'revocable' (rij'i). Hence, divorce may be divided into the revocable and irrevocable (ba'in) forms. In the following cases, divorce is irrevocable:
1. The divorce of a wife with whom marriage has not been consummated.
2. The divorce of a wife who has not yet reached puberty.
3. The divorce of a wife who has reached menopause.
4. Divorce initiated by the wife (khul' and mubarat).
5. The third divorce after two revocable divorces.
Once an irrevocable divorce has taken place, a man may not remarry his wife unless she first marries another man and consummates the marriage; having been divorced irrevocably from her second husband, she may then remarry her first. The second husband is known as the muhallil, as mentioned above. In such a situation, it would be normal practice for some sort of agreement to be made between the wife and her second husband. However, it is not permissible for a condition of subsequent divorce to be entered into the marriage contract. Outwardly the contract must be the same as for any permanent marriage.11
A woman who has been revocably divorced keeps the status of wife, and the husband may return to her and have sexual intercourse with her if he so wishes. But according to the Malikis, he must make the mental intention of returning to her before doing so; and according to the Shafi'is, he must express the intention verbally to his wife.12
It is permissible to include a condition of divorce in the marriage contract in certain cases. Hence, for example, a wife may stipulate that if her husband should marry a second wife, she will have the right to be divorced.
Although only the man has the right to pronounce the formula of divorce, the woman may take the initiative in khul' and mubarat. These two terms are almost synonymous, but in the case of khul', the wife must have an aversion to her husband; in muharat, there should be mutual aversion. In each case the wife agrees to pay her husband a certain amount of property in cash or kind if he divorces her. According to the Shi'is, the amount in muharat must not exceed the amount of the dower, while in khul' there are no conditions on the amount, These divorces are irrevocable, except according to the Shi'is, who hold that during her waiting period the woman may take back her property from her husband, in which case he has the right to conjugal relations.13 The Hanbalis maintain that khul' is a form of annulment, not divorce.14
Since these types of divorces are in reality a kind of contract, they require a declaration (ijab) and an acceptance (qabul). The woman must say something like: 'Divorce me in exchange for such and such', while the man must answer something like: 'I accept' or 'I divorce you'. The Sunnis hold that the husband may employ any number of words in the formula, such as 'divorce' or words derived from the same roots as khul' and muharat. The Shi'is say that the word 'divorce' itself must be employed.15
According to the Sunni schools, a third party may initiate a khul' divorce. In other words, he may offer the husband a sum in exchange for which the husband will divorce his wife. The Shi'is maintain that this is forbidden.16
The schools discuss in detail the nature of the property which may be exchanged in khul' and mubarat, differing on many minor points. In general it must be lawful and intrinsically valuable, like the property which constitutes the dower. If not, the divorce will be valid, but there is then a difference of opinion as to whether it is revocable or irrevocable.
1. Fiqh,IV, 280.
2. Sharh al-lum'a,vi, 11; Riyad,II, 168-75.
3. Fiqh, IV, 284.
4. Sharh al-lum'a, VI, 14-21; Riyad, II, 172.
5. Riyad, II,171.
8. Sharh al-lum'a, VI, 31-32; Riyad, II, 176.
9. Fiqh, IV, 305, and 307.
10. Ibid., 302; Sharh al-lum'a, VI, 36-37; Riyad, II. 176.
11. The necessity for the muhallil is established by Qur'an 2:230. , And if he divorces her finally, she shall not be lawful to him after that, until she marries another husband. If he divorces her, then it is no fault in them to return to each other.'
12. Fiqh, IV, 435-41.
13. Sharh al-lum'a, VI, 104-07; Riyad, II, 196.
14. Fiqh, IV, 424.
15. Sharh al-lum'a, VI, 87-89, and 111-13; Riyad, II, 107.
16. Sharh al-lum'a, VI, 90-95.
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