INTRODUCTION
Even though in Islam divorce is permissible, it is not something our religion likes. There are many narrations that speak about how detested it is, so much that one tradition says the Throne of Almighty God trembles each time a divorce occurs.
Imam Ja’far al-Sadiq (a.s.) has said:
(إنَّ الله عزّ و جلّ یحبّ البیت الذی فیه العرس، و یبغض البیت الذی فیه الطلاق، و ما من شیء أبغض من الطلاق.)
Indeed, God loves a house in which a wedding is held, and hates a house in which a divorce is conducted, and there is nothing more detested than divorce. [Wasa’il al-Shi’a, vol. 22, p. 7]
Imam Muhammad al-Baqir (a.s.) quotes that the Prophet (s.a.w.) has said:
(أوصانی جبرئیل علیه السلام بالمرأة حتی ظننت أنّه لا ينبغي طلاقها إلّا من فاحشة مبیّنة.)
Gabriel (a.s.) advised me to take care of women (a wife) so much that I presumed divorce is not permissible unless a wife performs an explicit act of unfaithfulness and infidelity. [Makarim al-Akhlaq, vol. 1, p. 248]
As Islam discourages divorce, at times it could be the only option available. I will mention a few reasons as to why divorces occur and how we can prevent it from happening:
Hearts drifting away: Due to not having the skill of communication, and the inability to express what one feels, gradually without noticing the heart starts to drift away and emotions start to die down. It could start with just not talking with one another, and lead to apathy and lack of passion in fulfilment of sexual needs of each other, and spiral downwards. This becomes critically dangerous and could also be the main factor for why people get divorced. When there is mistreatment, lack of harmony, bad conduct, constant pickering and nagging, it all creates a negative atmosphere and volatile situation. If couples learnt the skill of how to communicate to one another it would not have reached such stage.
Extra-marital affairs: Intimacy and sex is a fundamental part of marriage, and both the husband and wife must make sure their partner is sufficiently sexually gratified. This means that the husband/wife must tend to themselves and put effort to be attractive to the other. Islam certainly does emphasise on Hijab – for both men and women – and in particular for women to cover themselves and to only show their attractive features to their husbands. If such things are not observed and one has not disciplined themselves with self-restraint, their eyes could linger away and seek lust elsewhere. This of course could lead to looking for relationships outside the marriage, bringing about many problems which ultimately could lead to divorce.
Mistreatment: Being rude, disrespectful, quarrelsome, stubborn and arrogant is another prime reason for most divorces. Islam strives to pre-empt these factors and strengthen the cornerstones of the holy institution of family by prescribing various rights and responsibilities for men and women. In addition, it advises against selfishness, egocentricity, autocracy, and recalcitrance, and advocates tolerance, forgiveness, and resolving differences with reason, fairness and affection.
Abuse: This could be verbal, emotional, or physical, and Islam has a lot to say about this and how toxic a relationship will become once any of these evil elements enter into a household.
Addictions: To give preference to illegal or haram habits over one’s spouse ruins the entity of marriage, like gambling, alcohol, womanising, and so on. The rights of a spouse must always precede everything else.
TYPES OF DIVORCE
Important note: Please refer to detailed books of Fiqh and also the view of your Marja’ taqleed for further information
Raj’i (Revocable) Divorce: Here, the husband wants the divorce. The husband must have the intention of divorce while stating, “My wife is divorced.” He must also name her by name or point her out, if he has more than one wife. The divorced wife is considered to be his wife as long as she is in the ‘iddah, the legal waiting period for divorce. The husband can revoke the divorce by stating it, verbally, or through an action that indicates the revocation as long as she is still in the period of the ‘iddah. The divorced wife must complete her ‘iddah, in her husband’s house, and it is not permitted for the husband to remove her from there. In addition, it is not permissible for her to leave the house except with his permission, otherwise she is considered to be disobedient and her right to alimony is revoked.
Ba`in (Irrevocable) Divorce – which are of two types:
Khul’i Divorce: The wife petitions the divorce and she wishes to terminate the relationship. In this case she must forfeit her mahr or anything else. If she has received parts of her mahr, she can forfeit the remaining, and if she has received all her mahr she can forfeit something else (anything of value, like the home TV, or $50). The husband could also request some conditions and will divorce based on fulfilment of accepting such rational terms if applicable. Once the divorce is conducted the wife becomes non-mahram to her husband, even though she is still in her ‘iddah of divorce, and they can only return with a new marriage contract.
Mubarat Divorce: The request for divorce is petitioned mutually by both wife and husband, and the wife must forfeit (badhl) as well.
Juristic Divorce: This type of divorce is one in which the legal jurist passes a divorce verdict in favour of the wife who approached him to do so because of the husband’s disobedience of the law by not giving her her rights. This type of divorce is irrevocable, meaning that the husband cannot take reclaim his divorced wife within the ‘iddah, unless a new marriage contract is initiated.
Authorisation, and Authorisation to Authorise (Wikalah/Wikalah fi al-Tawkil)
The husband is to give Wikalah to conduct the divorce on his behalf, and also allow for a third person to be authorised to conduct the divorce if in case the initial person authorised wishes to delegate a third person to recite the divorce. This is called wikalah fil-tawkeel.
Authorisation is given by filling in the application form.
Important Conditions for Divorce
- In order for the divorce to be valid it must occur while the wife is outside of her menstrual cycle, and during that time of purity the husband has not been intimate with the wife. It is for this reason that the wife must specify when her next menstrual cycle starts and finishes.
- The divorce must be conducted in front of a minimum of two just righteous and highly pious men.
- The wife must observe her ‘iddah once the divorce is conducted.
The ‘Iddah:
This is a defined period of time, which is specific to the woman after she is divorced or after the death of her husband. It is not permitted for the divorced woman or the widow to become engaged or married before the completion of her ‘iddah. During this period, the divorcee is legally still considered to be the wife of the husband. As for the widow, the waiting period is considered a period of mourning.
‘Iddah of Divorce: That she sees the blood of three menstrual cycles after which her ‘iddah will be completed. The ‘iddah period starts from the time of the divorce, and not from when she finds out about the divorce.
‘Iddah of a pregnant woman: Here, the waiting period ends with her giving birth.
‘Iddah of a woman that does not menstruate (due to illness or other reasons): This is three months.
‘Iddah of a wife who has been granted the divorce of the religious jurist: That she sees the blood of three menstrual cycles after which her ‘iddah will be completed.
‘Iddah of a menopausal woman: There is no ‘iddah in this case.
‘Iddah of a wife who has not had intercourse with her husband at all: There is no ‘iddah in this case.
Request for Islamic Divorce
After exhorting all ways to reconcile, knowing your rights, and reading this brief information, you can apply for an Islamic divorce and receive a documented Islamic Divorce Certificate.
You will need to:
- Ensure parents and elders are aware of decision.
- Fill in Authorisation for Divorce form.
- Supply photocopy of legal divorce, passport and drivers licence.
- Allow up to two weeks to receive the Islamic Divorce Certificate.
You are able to do this in person, or via email as long as all documentation is correct and complete.
Please fill in the Authorisation for Divorce form:
Once the Wikalah for Divorce is received the Islamic Divorce will be recited within a few days and two original copies will be sent out to both husband and wife.
If you have any queries or need further explanation please email enquiries@sheikh-alsalami.org.au
