Introduction
We live in a challenging and different era, as commitment and respect has become very scarce. Once upon a time, whenever there was a problem, an uncle or aunt, an elder a scholar or just a wise friend would get involved, and even if the person hated the advice, or was being condemned for their wrongdoing, they would rectify themselves. They feared the backlash of family, criticism of elders, isolation of community, and just never wanting to tarnish their reputation, or their family’s reputation. You really cannot tell how people turn out, even those close to you.
It has become very rare to see this in our society now, unfortunately. Muslim communities have expanded, and in our globalised world, there are many external influences affecting our values. Materialism, Individualism, Western culture, weak ideology and akhlaq, and so on.
Marriage has become very hard as well. Besides the difficulty of selecting a spouse, we have unnecessary flashy ceremonies, expensive receptions, and high mahrs. The topic of mahr needs to be discussed on its own, but this is where so many brides-to-be get it wrong. It could be her, or it could be her parents, deciding what the mahr is, assuming that the higher it is, the more secure of a relationship she will have. How shameful is it for a woman to believe her value can be equated to a number of gold coins, or property, or an amount of money.[1]
My sister, high mahr will not secure your rights. An expensive honeymoon will not bring you closer. Him pampering you does not mean he is loyal to you. Abandoning your values does not mean he will forever love.
The most important thing is the correct selection of a spouse, based on our Quranic principles and the many recommendations given to us by our Maʿṣūmīn (a.s.). Further details for this must be discussed in another place, but I suffice with sharing the following narration:
A man came to Imām Ḥasan al-Mujtabā (a.s.), asking him whom he should marry his daughter off to, and the Imām (a.s.) said:
زَوِّجْهَا مِنْ رَجُلٍ تَقِيٍّ، فَإِنَّهُ إِنْ أَحَبَّهَا أَكْرَمَهَا، وَإِنْ أَبْغَضَهَا لَمْ يَظْلِمْهَا.
Marry her to a pious man, because if he loves her, he will be kind to her, and if he starts to hate her, he will not oppress her.[2]
Taqwā, or piety and God-wariness has become rare. We do not see as many God-fearing people anymore. Society is more fixated on civil law and only fear laws legislated by governments.
So, in this situation, what do we do as Muslims, when a wife wishes to break away from the marriage, but the husband refuses to grant her a divorce?
Who Has Authority to Divorce?
In Islam, a marriage contract can be dissolved by divorce. There are different types of divorces, according to who it is being petitioned by.
- Rajʿī is the revocable divorce, petitioned by the husband.
- Khulʿī is the irrevocable divorce, petitioned by the wife.
- Mubārāt is the irrevocable divorce, petitioned by both.
- Ghiyābī/Wilāʾī, petitioned by wife when husband refuses to grant divorce, Islamic authority over-rides husband’s authority and issues divorce.[3]
In all three cases, granting the divorce is in the hand of the husband. Only the husband can divorce,[4] and if he refuses there is the fourth case, which is extremely difficult and prolonging to obtain.
When the husband refuses to grant divorce, even when it is petitioned by the wife, and even when she forfeits her mahr (or remaining of it), what does the wife do?
If she is in an Islamic country, where there is an Islamic judiciary system, she can go to the Islamic judge, and he will deal with it. I am not talking about civil court in an Islamic country. If the civil court divorces her, and not Islamically, she will still be Islamically married. What I mean here is an Islamic court, with an Islamic judge (ḥākim sharʿī), who is a Mujtahid, or has official authorisation from a Mujtahid.
But what do you do if you are not in an Islamic court, and do not have access to a ḥākim sharʿī, or you were not able to convince the ḥākim sharʿī that you deserve a ṭalāq ghiyābī and no longer wish to be with this man?
The answer is you will suffer and stay in limbo, until your husband feels like divorcing you. He can bribe you, and not only ask you to return back to him everything he’s given you, he can ask for more money on that. He can get you to comply to his demands, as long as they are within your capacity. You will stay under his mercy. Unfortunately, I have experienced these cases many many times.
Is there a solution to get out of this oppressive state?
Yes.
Simply by placing conditions within your marriage contract that you do in your Nikah ceremony. They are called “conditions within the contract” (shurūṭ dhimn al-ʿaqd).
My sister, with all the emotions you have, and all the romantic feelings, and excitement of getting married, please consider adding simple clauses to your marriage contract. It is like a prenup agreement, where you add conditions that any genuine person would definitely agree with. This is put in the marriage contract document (ʿaqdnāmeh/nikāḥāmeh).
The condition is that the wife acts as the husband’s agent (wakīl) to divorce herself from him, should he violate these conditions.
The husband-to-be should not feel intimidated, or insecure about these conditions, and he should be more than willing to cooperate. If the topic is approached in the right way, with respect, and to preserve the relationship and happiness from both sides, he and his family will accept. It does not mean you are starting off with pessimism, or do not trust him, or suspect him or you’re dwelling on negative things. Not at all.
You might know who he is now, and be sure about his character, but you do not know how he will be in a few years. You do not even know how you will be in a few years. None of us do. What if he is bipolar, or becomes insane, or…
It might be that he does not have malice intent. He loves you a lot, and cannot live without you. He is in denial, and believes you are being too emotional. You despise him, for whatever reason, or just lost interest in him, but he is clinging on and wants to keep you. Everyone is trying to convince him to divorce, but he refuses.
This is why you need to be safe. Add it to your marriage ceremony, and forget about it. In shaa Allah you will never need to use it.
What are the Conditions?
Adding conditions within the marriage contract will safeguard both the groom and the bride, and avoid any future problems or altercations.
Having them, and no need to use them is better than not having them, but need them when problems arise.
In the official Iranian marriage contract, they have added twelve main clauses that any couple must sign for them to register their marriage. Of course, a clause is added that this is conditional to the approval of the court.
The conditions need to be sensible, sharʿī,[5] legal, honourable, in the interest of both sides, and something that the husband-to-be will agree on without dispute.
Here are some conditions that can be added,[6] to which both parties should agree on and add to the marriage contract:
- The husband abandons his wife for three months or more for any reason.
- The wife abandons her husband for three months or more for any reason.
- Ongoing violence or abuse of any sort towards the wife/children.
- Husband’s addiction to anything haram/illegal.
- Absence of the husband or his disappearance or imprisonment for three months or more.
Should the husband violate any of these conditions, the wife has the authority to divorce herself from him if the husband –God forbid– refuses to cooperate or set her free.
These conditions are to be added within the marriage contract formula. When the Nikah ceremony is being conducted, it must also be mentioned that there are “conditions within contract”. They are to have been agreed upon by both parties prior to the Nikah.
Of course, the details of the conditions do not need to be announced. You can request from the Sayyid/Sheikh to just say “ʿalā al-mahr al-maʿlūm wa al-shurūṭ al-maʿlūmah”.
There are more details, or technical aspects to the terminology used for the conditions within the contract, which the qualified scholar doing your Nikah will know of, or already have the template text ready. For example, what type of divorce you (the wife) have a wikālah for? You will need a wikālah fī tawkīl al-ghayr, so you can authorise someone else to recite the ṭalāq on your behalf. If it is rajʿī, you will need authorisation for the second and third ṭalāq, and so on.
If you need help with this, please contact me.
All of this is to make sure you are not stranded, and left in limbo, neither divorced to decide your future, nor happily married living with your husband.
My sister, I plead to you to have a serious look into this, and consider it. I suggest this before every marriage I conduct, and because both sides are over the moon with feelings, they do not consider it, but then later on regret.
Please Note:
Prior to your marriage, you are going to have a few meetings, with both families, or alone, just you and him, and discuss your views, requirements and expectations for marriage. These sessions are important, and you will both have something to say about what you want from each other. For example, you might say that you must finish your degree, or live in same city as your parents. These can be added to the conditions, or can be moral/ethical agreements that both families agree on and respect.
What I mean is not everything you both want has to be added to the list of conditions. You must look at the list of conditions as a way of getting out of the marriage if the husband refuses to grant your divorce. If he violates any of the non-written agreements that both families had, you have a choice of dealing with it, or, if you cannot tolerate it anymore, leave, wait for the three months to finish, then use your wikālah to divorce, if he refuses.
Another situation is you did not know he was stingy, and did not even think about discussing that. Or, he became promiscuous and got another woman pregnant. These things were not discussed, and not put in the list of conditions. It does not matter, because if you no longer wish to continue with the marriage, you ask him to divorce you, and if he refuses, you leave, allow three months to pass, and then divorce.
Problem and Answer
One might say our Wise Lord placed ṭalāq in the hands of the husband. How dare we question His legislation, and give it to the wife. A woman is emotional, and quick to react.
By having shurūṭ dhimn al-ʿaqd, you are being cautious about your unforeseen and unknown future, especially at a time where we do not live in an ideal Islamic society. No good woman wants to get divorced. If she had it all planned, or if she gives up quicker, even though things can be rectified and solved, then that is her loss. The husband should be happy that he is getting rid of her.
She will be held accountable for this on Judgment Day, as she destroyed a home and committed the most detested of halal acts, as stated by narrations.
Using Divorce as Leverage
This is a common practice, unfortunately, even among religious families. Husband says he won’t divorce unless she legally hands over the kids, or removes her court case against him for physical violence, or just to hurt her.
The husband’s authority to divorce must never be used as leverage against her.[7]
What if it’s too late, and you are already married?
If you did not have conditions in your marriage, and now have serious problems, and know your husband might be difficult to deal with, or will disappear, or has potential to refuse to divorce, you can make a binding contract with him. I have the template for this as well.
Conclusion
With all the excitement of getting married, completing half of your religion, along with the other arrangements you are making, add this as well. Introduce it in a subtle and respectful way, and if the husband-to-be or his family have an issue with it, I would consider this a red flag, and do not encourage you to pursue this marriage. Should you go ahead with marrying him, without the conditions to secure your rights, you will be responsible for the consequences. You cannot blame Islam, which is usually what happens, or your parents, or anyone else.
There are numerous ready-made contracts you can find online. Adjust them to your need, and use it.
Footnotes:
[1] Imām al-Ṣādiq (a.s.) has said:
فَأَمَّا شُؤْمُ اَلْمَرْأَةِ فَكَثْرَةُ مَهْرِهَا.
As for the shameful misfortune of a woman, it is her having a high mahr (bridal-gift).
Āmālī al-Ṣadūq, p. 329.
[2] Makārim al-Akhlāq, vol. 1, p. 204.
[3] For more information, refer to: https://sheikh-alsalami.org.au/2017/10/23/divorce-service-english/
[4] Refer to detailed explanations for this ruling.
[5] Some examples of non-sharʿī conditions that would be invalid to add are:
- No sex.
- Husband has no right to divorce.
- Something that is impossible to do, like to learn a foreign language in five days.
- Committing something haram.
- Adding something vague and ambiguous.
[6] I have these conditions in Arabic and Farsi. Please email me, and I will send you the template.
[7] See: Quran, al-Baqarah, 232.
