Office Of Grand Ayatollah Sayyid M.S.Al-Hakeem - Books-Islamic Laws Simplified - Divorce

Books Islamic Laws SimplifiedDivorce

  Marriage

Oaths, Vows and Covenants

DIVORCE
 
 
Divorce is Allah Almighty’s most detested of the permissible deeds.
 
Divorce and Its Formula
 
Divorce is a unilateral resolution which results in the separation of a husband and wife after permanent marriage, and it takes places by an affirmation of the husband, who may be represented by an agent, his guardian, or the hakim shar’i in some circumstances, like in the event of the husband being missing, or if he refuses to provide for his wife, or if he becomes insane.
 
Ruling 680: The formula of the divorce which should be pronounced by him is: “[Name] Taliq,” mentioning the name of his wife. Alternatively he can say “Anti Taliq,” (You are divorced) addressing his wife. Divorce by way of gesture and writing is not sufficient, as long as one can speak; and as long as one is able to recite the formula in Arabia, it is necessary to do so; this is so for all types of divorces.
 
Ruling 681: If he says: “Anti Taliq” three times or twice, it will not be regarded as a divorce three times or twice; rather, it is not even considered as a single divorce based on an obligatory precaution.
 
The Conditions of Divorce
 
Ruling 682: The divorcer must be adult, sane, rational, willing, and he must be intend for the divorce to take place.
 
Ruling 683: The divorcee must be specified. She must not be in her menstruation period or during her lochia discharge (nifas), and she must not have had sexual intercourse since the last menstruation period. This condition does not apply if she does not have menstruation periods although she is of the age of menstruation, or she has reached the age of despondency (i.e. the age of fifty, or sixty if she is from the tribe of Quraysh), or she is pregnant, or if the marriage was not consummated.
 
Ruling 684: The divorce must not be conditional, so if one says, for example: “You are divorced if you leave the house,” the divorce does not take place.
 
Ruling 685: The divorce must take place in the presence to two adil male witnesses.
 
Ruling 686: If any of the conditions mentioned above are not fulfilled, the divorce is invalid and the two are still considered to be married.
 
The Rules of Divorce
 
Ruling 687:There are two types of divorces:
(1)   Irrevocable divorce: in this type of divorce, the husband is not permitted by the Sharia to return to his marriage. This type consists of the divorce of a non-adult girl, the divorce of an unconsummated marriage, the divorce of a woman who has reached the age of despondency, the divorce of khula’ and mubarat, and the third divorce.
(2)   Revocable divorce: this is when the husband can return to his wife, as long as she is in the waiting period (iddah), and this type consists of all other manners of divorces.
 
Ruling 688: If a man divorces his wife and returns to his marriage within the waiting period, the marriage is resumed. If he divorces his wife again, he can return to the marriage again. However, if he divorces her for the third time she becomes forbidden for him to marry again, unless she marries somebody else and this marriage then ends. If a man divorces his wife nine times, she becomes forbidden for him forever.
 
Ruling 689: As long as his wife is in the waiting period of a revocable divorce, a man can return to his matrimonial relationship with his wife, and this can be done verbally or by conduct in any manner that indicates his return, such as saying to his wife: “I take you back”, or by having sexual intercourse with her, or kissing her with the intention to return. It is recommended to have one’s return witnessed.
 
The Waiting Period (Iddah)
 
The waiting period must be observed by the woman in three situations:
 
(1) On the death of her husband; the waiting period is four months and ten days, and if she is pregnant then her waiting period is the greater of the mentioned period and the end of her pregnancy.
 
Ruling 690: The waiting period for the widow starts from the time that she comes to know of his death. During this period, she is required to abstain from self-beautification. It makes no difference whether the widow is old or young, or whether the marriage was permanent or temporary.
 
(2) On the ending of a marriage; the marriage may be ended by divorce in a permanent marriage, or by the annulment of the marriage, or it becoming void. In temporary marriage there is no divorce, so the marriage is ended by the specified period ending or by the husband waiving the remaining period. .
 
Ruling 691: For the waiting period in this situation to be obligated it is necessary for the woman to be between the ages of nine and fifty lunar years – or sixty years if she is a descendent of Quraysh – and that the marriage was consummated; as an obligatory precaution, the waiting period should be observed when the semen of the husband enters the vaginal passage without intercourse.
 
Ruling 692: The waiting period in this situation begins when the cause occurs, e.g. when the divorce takes place, or the temporary marriage ends, or the marriage is annulled, the waiting period begins then.
 
Ruling 693: On the ending of a marriage, the duration of the period differs according to the circumstances, as follows:
(a)   For a divorced Muslim woman, three complete gaps between her menstruation periods should pass, such that the first gap is when the divorce took place and she sees the menstruation bleeding for the third time after it. If she is of the age of menstruation, but she does not have them for any reason, then her waiting period is three lunar months. If she is pregnant, her waiting period will end when she delivers the baby.
(b)   For a woman who was in temporary marriage, two complete gaps between her menstruation periods should pass, such that the first gap is when the specified period of marriage ended or was waived. If she is of the age of menstruation but does not have them, then her waiting period is one-and-a-half lunar months. If she is pregnant, as an obligatory precaution, her waiting period will be the end of the mentioned period or the end of her pregnancy, whichever is longer.
(c)   For a woman whose marriage is annulled or has been deemed void, her waiting period is that of a divorce if the annulled or void marriage was permanent, and her waiting period is that of a temporary marriage if the annulled or void marriage was temporary.
 
(3) After mistaken sexual intercourse; the mistake should be that of the man, not the woman, i.e. the man should not have intended to commit a forbidden act. There is no waiting period for adultery.
 
Ruling 694: By mistaken sexual intercourse, a woman is required to observe the waiting period that is applicable to the waiting period of the divorced Muslim woman provided that she is of the age of menstruation, as explained above.
 
Ruling 695: The waiting period in this situation will begin when one realizes that he has made the mistake.
 
Ruling 696: During the waiting period of a revocable divorce, she is still considered to be like his wife; therefore he cannot marry her sister, nor can he marry a fifth wife if she was the fourth. If either of them die, the living will inherit the deceased. She should still obey him and allow him sexual enjoyment. He should provide for her and allow her to live with him, and it is impermissible for him to expel her from the house, unless she behaves with clear nastiness.
 
Ruling 697: If a woman is in her waiting period after separation from her former husband, she can remarry the same person without needing to observe the waiting period, even if her waiting period is a result of an irrevocable divorce, such as if it was a divorce of khula’, or the marriage was temporary and its period expired.
 
Divorce of Khula’ and the Divorce of Mubarat
 
Both of these types of divorces are obtained due to the wife’s demand for separation for which she makes a payment to her husband.
 
Ruling 698: For a divorce of khula’ to take effect and be valid, it is necessary for the woman to hate her husband to such a degree that she prevents him from his rights or makes serious threats in this regard. It is forbidden on the husband to harass and harm her so much so that she comes to commit such a sin. For a divorce of mubarat to take place, there should be mutual aversion and hatred from both sides.
 
Ruling 699: It is necessary for the payment made by the wife to be capable of being part of an exchange recognized by the Sharia, whether it is a tangible item, or a service, or a right. There is no limit on its quantity, except that in the divorce of mubarat the amount should not be greater than the dowry.
 
Ruling 700: The divorce is pronounced by saying: “[Name] Taliq Ala Ma Badhalat,” or “Khala’tu [Name] Ala [Amount],” or “Baara’tu [Name] Ala [Amount],” mentioning the name of the wife and the amount paid accordingly.
 
Ruling 701: It is not necessary to pronounce the divorce himself; he may appoint an agent to do so on his behalf. It may also occur by responding to the wife or her agent’s statement of divorce in the affirmative. For example, she may say intending divorce: “Faariqni Ala [Amount].” Then the man will say: “Radheetu Bi-[Amount].”
 
Ruling 702: A woman can seek the return of her payment, with three conditions:
(1)   She is still within her waiting period;
(2)   The payment is still in the ownership of her husband;
(3)   The Sharia allows the husband to return to her, and for this two matters must be fulfilled:
(a)   If he had not divorced her by khula’ or mubarat, the divorce would have been revocable;
(b)   The husband has not done anything which prevents him returning to her e.g. him marrying her sister.
 
There is a fourth condition for the divorce of khula’ in particular: that the woman stops transgressing against her husband and repents from sinning.
 
Dhihar and Eilaa
 
Dhihar: this is when the man makes his wife similar to any of his mahram relatives, like his mother or sister, with the purpose of making her forbidden for him while the marriage continues. If this takes place with all the conditions, the husband cannot have sexual intercourse with her unless he pays the expiation, or he divorces and remarries her.
 
Eilaa: this is when the man makes a vow never to have sexual intercourse with his wife. If this has taken place with all the conditions, then the man cannot have sexual intercourse with her until he pays the expiation.
 
The particulars of these two matters, including the conditions, consequences and resolutions, are given in the detailed books of Islamic law. The expiation which needs to be paid is mentioned in the chapter of Expiation.

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