Divorce
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Divorce or Ṭalāq (Arabic: طَلاق), is the cancellation of the bond of marriage. In Islam, divorce is a permissible, legitimate action, but according to some hadiths, it is a halal detested by God most of all. The Qur'an has recommended that if there is a disagreement between a husband and a wife, their relatives try to make a reconciliation between them in order to prevent a divorce between them. The Qur'an has offered some rulings as well as some pieces of advice with respect to divorce. There is a sura in the Qur'an regarding the divorce, known as Sura al-Talaq (Qur'an 65).
ِِDivorce is a kind of iqa' (one sided disposition), that is, unlike marriage, it is a unilateral action done by the man. There are many rulings for the divorce. For example, in a consummated marriage, the woman cannot be divorced during her Menstruation or nifas (postpartum bleeding) unless she is pregnant. Also, two just men should witness the recitation of the marriage formula of the divorce.
There are two kinds of divorce: Rij'i (returnable) and Ba'in (irrevocable). In the returnable divorce, the man can return to the woman during the period of 'idda (waiting period), that is, without making a new marriage contract. But in the irrevocable divorce, the man cannot return to the woman.
Definition
Divorce is the cancellation of the bond of marriage. Just like marriage, it is done by reciting a special formula,[1] but unlike marriage, it counts as an iqa' (one sided disposition), that is, it is unilaterally enforced by the man.[2]
In Islam
Divorce is legitimate and permissible in Islam,[3] but according to hadiths, it is a halal that God hates the most,[4] which shakes the foundations of the Divine Throne.[5]
There is a hadith in Mir'at al-'uqul from Imam al-Sadiq (a) according to which, God loves a home in which a married couple lives, and hates a home in which a divorce took place, and there is nothing hated by God more than divorce.[6]
Divorce is not pleasant in the Qur'an as well. The Qur'an 4:35 has recommended that if there is a dispute between a wife and a husband, their relatives should moderate between them and try to make a reconciliation[7]: "and if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever Knowing and Acquainted [with all things]".[8]
Qur'anic Rulings about Divorce
Here are some Qur'anic rulings concerning divorce:
- Observing the woman's rights
"And when they have [nearly] fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms".[9]
This verse is concerned with returnable divorce in which the man can return to his divorced wife during the waiting period, that is, he can make her, his wife again without a new marriage contract. The verse commands men to treat their wives well and observe their rights during the waiting period, whether they want to return to them, or want to part with them.[10]
- Not preventing the couple from remarriage
"And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their [former] husbands if they agree among themselves on an acceptable basis".[11]
The verse commands the relatives of the woman not to prevent her from remarrying her former husband.[12]
- Giving the divorced wife a gift
"And for divorced women is a provision according to what is acceptable—a duty upon the righteous." [13]
Shiite scholars believe that the verse is concerned with women who do not have a mahr in an unconsummated marriage. According to this ruling, it is obligatory to give a gift to these women.[14]
Sura al-Talaq
There is a sura in the Qur'an which is mostly concerned with the rulings of divorce, and thus, it came to be called "Sura al-Talaq" (Qur'an 65). The sura has twelve verses concerning the rulings and pieces of advice regarding divorce.[15]
Rulings
Here are some rulings of divorce:
- At the time of divorce, the women should be pure from menstruation and nifas (postpartum bleeding). The condition does not apply to a woman with an unconsummated marriage or a pregnant woman.
- The man should not have had sexual intercourse with his wife during her last period or postpartum bleeding. Otherwise, in order to divorce the woman, he has to wait for her to be on her period again and then be pure. The condition does not apply to a woman younger than nine, a pregnant woman, and a menopausal woman.
- The marriage formula of divorce should be recited in Arabic.
- Two just men should witness the divorce.[16]
Types
Given the man's right to return to marriage, there are two types of divorce: Rij'i (returnable) and Ba'in (irrevocable). The latter is of 5 types. Each type of divorce has its own rulings.
Returnable Divorce
A returnable divorce is one in which the man can return to his wife, that is, he can make her his wife again without a new marriage contract. As long as the woman is in the waiting period ('idda) of a returnable divorce, all rulings of marriage apply between the wife and the husband except for a few ones.[17]
Irrevocable Divorce
It is a divorce in which the man does not have the right to return to his wife, whether or not the woman has a waiting period ('idda).[18]
The following are types of irrevocable divorces:
- Divorce of a woman in an unconsummated marriage,
- Divorce of a woman younger than nine,
- Divorce of a menopausal woman,
- Khul' divorce,
- Mubarat divorce,
- Third divorce.[19]
Waiting Period of Divorce
The period in which the woman cannot get married is called "'idda" (or waiting period). There are different types of 'idda, such as 'idda after divorce, 'idda after the death of her husband, and 'idda after a temporary marriage, which have different lengths. For a woman who regularly has periods, the 'idda extends to the beginning of her third period, and for a non-menopausal woman who does not have periods, the 'idda is three months.[20]
See Also
Notes
- ↑ Mishkīnī, Muṣṭalaḥāt al-fiqh, p. 356.
- ↑ Mishkīnī, Muṣṭalaḥāt al-fiqh, p. 97.
- ↑ Hāshimī Shāhrūdī, Farhang-i fiqh, vol. 5, p. 194.
- ↑ Kulaynī, al-Kāfī, vol. 6, p. 54.
- ↑ Ṭabrisī, Makārim al-akhlāq, p. 197.
- ↑ Majlisī, Mirʾāt al-ʿuqūl, vol. 21, p. 94.
- ↑ Kīyānī, "Ṭalāq dar adyān-i ibrāhīmī", p. 32.
- ↑ Qurʾān, 4:35.
- ↑ Qur'an, 65:2
- ↑ Ṭabāṭabāyī, al-Mīzān, vol. 19, p. 313.
- ↑ Qur'an, 2:232
- ↑ Ṭabāṭabāyī, al-Mīzān, vol. 2, p. 238.
- ↑ Qur'an, 2:242.
- ↑ Makārim Shīrāzī, Tafsīr-i nimūna, vol. 2, p. 215.
- ↑ Ṭabāṭabāyī, al-Mīzān, vol. 19, p. 311-312.
- ↑ Khomeini, Tawḍīḥ al-masāʾil, vol. 2, p. 518-522.
- ↑ Hāshimī Shāhrūdī, Farhang-i fiqh, vol. 5, p. 205-206.
- ↑ Khomeini, Tawḍīḥ al-masāʾil, vol. 2, p. 529-530.
- ↑ Mishkīnī, Muṣṭalaḥāt al-fiqh, p. 357.
- ↑ Mishkīnī, Muṣṭalaḥāt al-fiqh, p. 370-371.
References
- Hāshimī Shāhrūdī, Sayyid Maḥmūd. Farhang-i fiqh muṭābiq bā madhhab Ahl al-Bayt. Muʾassisa-yi Dāʾirat al-Maʿarif Fiqh al-Islāmī, 1392 Sh.
- Khomeini, Rūḥollāh. Tawḍīḥ al-masāʾil. Edited by Banī Hāshimī. Eighth edition. Qom: Daftar-i Intishārāt-i Islāmī, 1424 AH.
- Kīyānī, Riḍā. 1386 Sh. "Ṭalāq dar adyān-i ibrāhīmī darangī bar āmūzahā-yi kitābhā-yi āsimānī Qurʾān." Ḥāfiẓ-i Mihr 45.
- Kulaynī, Muḥammad b. Yaʿqūb al-. Al-Kāfī. Edited by ʿAlī Akbar Ghaffārī. Fourth edition. Tehran: Dār al-Kutub al-Islāmīyya, 1407 AH.
- Majlisī, Muḥammad Bāqir al-. Mirʾāt al-ʿuqūl. Edited by Hāshim Rasūlī Maḥallātī. Tehran: Dār al-Kutub al-Islāmī, 1404 AH.
- Makārim Shīrāzī, Nāṣir. Tafsīr-i nimūna. Tehran: Dār al-Kutub al-Islāmīyya, 1374 Sh.
- Mishkīnī, ʿAlī. Muṣṭalaḥāt al-fiqh wa iṣṭilāḥāt al-uṣūl. Beirut: Manshūrāt al-Riḍā, 1431 AH.
- Ṭabāṭabāyī, Muḥammad Ḥusayn al-. Al-Mīzān fī tafsīr al-Qurʾān. Qom: Daftar-i Intishārāt Islāmī, 1417 AH.
- Ṭabrisī, al-Ḥasan b. al- Faḍl al-. Makārim al-akhlāq. Fourth edition. Qom: al-Sharīf al-Raḍī, 1412 AH.