Divorce: Some Misconceptions
by Muhammad Azam
Lack of proper Islamic knowledge about divorce has led to some misconceptions in society. A comprehensive review of various aspects of divorce can help people understand what divorce actually is.
Islam has taken all possible measures to make marriage a happy and lasting relationship. Marriage in Islam is a civil contract (nikah) between a man and a woman to live together as husband and wife. It automatically confers mutual rights and duties upon the parties which both must remain mindful of.
The Quran and the holy Prophet (Peace be upon him) have stressed that both partners should act kindly and fairly with each other. However, for all married couples to have disagreements now and then is quite natural. In case a serious disagreement occurs a procedure is recommended in Islam to help reconcile the situation before a divorce. This arbitration procedure and the steps before the actual termination of marriage are described below.
(I) The two parties must try to settle their differences on their own. (II) If they fail, two arbitrators, one from the husband’s relatives, and one from the wife’s relatives, must be appointed to try to make peace and to settle their differences. (III) If this attempt also fails, then the husband or the wife may seek a divorce. (IV) In case divorce is served, a reconciliation time of three months is available (except if the parties have divorced each other for the third time). The two parties can reconsider their views and reunite in this waiting time. (V) However, if the above time limit expires and no reconciliation occurs, then the divorce becomes effective and marriage is terminated.
Islam encourages reunion of the two disputing parties and considers it meritorious to cancel divorce during the reconciliation time. From the given procedure, it is clear that Islam permits divorce only when it has become impossible for the parties to live together in harmony and also all attempts to make peace have failed. If both parties are willing to live together happily, in spite of the defects or drawbacks in the other, no power on earth can impose a divorce.
A Muslim is permitted to have recourse to divorce, provided there is ample justification for such an extreme measure. Islam does not believe in unlimited opportunities for divorce on trivial reasons. To curtail reckless use without reason, a tradition of the holy Prophet says that among all permitted things, God dislikes divorce the most. God has condemned the Muslims who use their legal rights of divorce except on legitimate grounds and in unbearable condition. In the absence of a genuine reason, no Muslim can justify a divorce in the eyes of either religion or law.
Islam assumes that a normal Muslim will act responsibly and conscientiously while exercising the option of divorce. A substantial dower (mahr) at the marriage settlement will check any rashness on the husband for divorce (talaq). In addition, any lawful condition can be agreed to on the eve of marriage as a safeguard against a rash decision; for example, that the marriage can be dissolved only by mutual consent of both parties. In Pakistan, this question in the marriage contract (nikah nama) is usually crossed out or deliberately ignored.
Islam does not favor to endanger marriage by allowing divorce. On the contrary, it insures it by the very same option, for the wrong person would know that the other person can free himself or herself from injustice and harm by divorce. By realizing that marriage is binding only as long as it is functional and successful, both parties would do their utmost to make their marriage fulfilling before doing anything that might affect the continuance of marriage. Divorce makes each party careful in choosing the other partner before marriage and also in treating that partner later.
The holy Quran refers to some causes when divorce may become necessary, but it does not restrict them to a fixed list. The grounds to seek divorce are entrusted to the individuals’ conscience. The general cause of divorce in Quran is the hopeless failure of one or both parties to discharge their marital duties and to live together with kindness, peace and compassion. There may be a reason for aversion between both the spouses which may not seem important to an arbitrator but which may be sufficient to spoil the marital relations between them.
For example, the holy Prophet allowed a woman to get divorce from her husband on the ground that she intensely disliked the husband’s ugliness, although the husband had not wronged the wife in any way. It is apparent that for divorce to be allowed, the genuineness and magnitude of the aversion is more important than the actual reason as perceptions of contentment and marital happiness vary between individuals of different temperaments, backgrounds, cultures and social status. In Islam, the husband has an absolute right of divorce and no consent is required from the wife. In a similar sense, Islam also allows the wife to seek divorce. However, the grounds to seek divorce by a wife vary from the Hanafi school to the more liberal Maliki school. To avoid these variations and assure that justice is done to both parties, each time, legislative reform has taken place slowly in different Muslim countries.
Therefore, the divorce cases go before a judge for a decision. In the Family Courts in Pakistan, reconciliation by arbitration is attempted during the court proceedings. The wife is entitled to seek divorce from her side with eventual consent of the husband (khula) or by dissolution of the marriage through a judicial order (faskh). The parties may also divorce each other by mutual aversion and consent (mubarat).
Through reform laws like the Dissolution of Muslim Marriages Act of 1939 the courts have established some suitable grounds (like mistreatment, desertion, serious illness, etc) and guidelines (like time limits, medical opinion, etc.) to judge whether to allow the wife a divorce. The wife or any third person (like the wife’s father) can also be delegated the right of divorce by the husband (tafwid), at the time of marriage or later, on conditions which are not against Islamic principles. For instance, if the husband fails to provide maintenance (nafaqa) for the wife for a certain period without good cause.
It should be noticed that a prolonged “separation” (tafriq) of the couple without a divorce is not acceptable or endorsed in Islam. In this state, the parties can neither enjoy the benefits of marriage nor are they free to marry anyone as unmarried persons. Continuous separation often leads to vices like illegal relationships in society. God protects people against such immorality and indignity. Islam gives a simple message to the married Muslims: Either you live together legally and happily, or else you separate by divorce in a dignified and decent way. In spite of this, some Muslim couples continue to live apart as ‘separated only’ without any divorce.
The concept of alimony at divorce as seen in the western society is not applicable in Islam. The Holy Quran repeatedly speaks of the post-divorce settlement in terms of fairness and kindness. If the husband initiates divorce then he pays the wife dower compensation and if the wife seeks the divorce then she pays the husband compensation but the actual amount is based upon the circumstances found by the court.
Apart from the well known talaq and khula, three other types of repudiation are referred to in Quran, namely the vow of abstention (ila), maternal comparison (zihar) and mutual oath swearing (lian). These three types of dissolution of marriage were mostly relevant to the norms prevailing in society at the Holy Prophets time. Today, ila and zihar are virtually extinct. However, lian was revived in Pakistan in 1979 by Ordinance VIII (Enforcement of Hadd).
In the absence of legal evidence, lian means in simplified sense that the husband takes oath about his wife’s unfaithfulness, while the wife takes oath about her innocence in a court. After both complete their oaths, the marriage is ended either by divorce from the husband or dissolved by the court. Under the special circumstances in which this marriage has ended, re-marriage to one another is prohibited. There are a few factors that are important in Islam that should be mentioned here: (1) The teachings of Islam have to be taken into account in “totality” to understand the circumstances. For example, ‘Islam permits polygamy’ but with an additional instruction that ‘justice be done to all the wives’. Hence, an instruction (which suits a person) cannot be selective and implemented without taking into account other “modifiers.” In the same way, divorce also has to be looked at in totality. (2) Many things in Islam change with the elements of the situation. For example, eating during normal days and during fasting. Divorce also changes in Islam based on the situation, from highly undesirable or nearly forbidden (without good reason) changing to highly recommended or nearly obligatory (in situations like when the wife is unfaithful).
Every attempt should be made to maintain a marriage, but sometimes in real life the husband and wife are unable to settle their differences even after family arbitration. What is the best course of action thereafter? Should divorce be taken or not? In Pakistan, it is often believed that no matter what happens, the couple must not divorce even when the marriage has failed beyond repair. This is sometimes due to the fear that divorce will bring disgrace to the family prestige or due to the idea that children will be harmed by divorce. The truth is that Islam recommends opposite to that course as the Quran and Sunnah and texts by Islamic scholars testify.