Islam 5.3 Divorce and remarriage
Objectives: The procedures for divorce and remarriage, and to consider their significance. Divorce is a legal ending of a marriage. Remarriage: when people who have been married before, marry each other again.
Divorce (Talāq) in Islam:
Talāq, when used at a time of need, is a sound solution just like a medicine which when used in the correct manner for the correct symptoms, it benefits (with Allah’s permission). But if it is used wrongly or misdiagnosed, it harms those involved. In divorce, there is a removal of harm from both the husband and wife when there is a need for it. It is legislated in Islam, and in it, there is tremendous wisdom. It is considered to be from the virtues of Islam when applied correctly.
It is reported from the Prophet (peace and blessings be upon him) that he had said: “Of the things that have been made permissible, the most disliked to Allah is the divorce.” (Abu Dawood, no. 2178, a weak narration, see Al-Irwā of Al-Albāni, no. 2040). Though this narration is weak, and not ascribed to the Prophet directly, many of the scholars have agreed with its sentiments, i.e. that a man should not divorce his wife, and nor should a woman seek a divorce from her husband unless every avenue of reconciliation has been exhausted. The scholars have stated that divorce is disliked and destructive when it is done without just cause and reason.
So, a divorce that is allowed is when there is a need such that there is no desire from either side to continue the marriage and there is no benefit that is attained in continuing the relationship, so in this situation, divorce is permitted because it provides a solution to their dilemma.
A divorce is disliked in Islam when the marriage is good, and the relationship is harmonious. In this case, divorce is disliked because it results in the destruction of a household, breaking apart of the family and children for no good reason or benefit, so in this case, it is disliked. And concerning this, the scholars state: It is the most hated of the permissible matters. None rejoices in such a divorce except Shaytān and the envious, corrupt people in society.
Some rules of divorce:
Allāh stated: “The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness. And it is not lawful for you men to take back from your wives any of the Mahr (bridal dowry) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e.g. to deal with each other on a fair basis).” (2:229)
This verse shows that a man is allowed to divorce his wife only twice, and then take her back if they reconcile after the first and second pronouncements. If he divorces her for the third time, they cannot return back to each other. A divorce is pronounced only after all attempts of reconciliation and peace are exhausted. Allah stated: “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.” (4:35)
However, if there is no chance of reconciliation, the husband must wait until his wife’s menstrual period is over – when she is pure from it and he has not yet had intimate relations with her, he says to her only once: “You are divorced” in the presence of two witnesses. It is better to also write his pronouncement down on paper, dating, witnessing and signing it as written evidence (in case it is forgotten or disputed), though a divorce is still valid even without writing, and it should be witnessed. ‘Imrān Ibn Husayn (radiyallahu ‘anhumā) was asked about a man who got divorced, then he took her back but he did not take witnesses. He said: “Take witnesses when divorcing her and when taking her back.” (Abu Dawood, no. 2186, and authenticated by Al-Albāni in Al-Irwā, 2078). In a narration of Bayhaqi (7/373) and At-Tabarāni in Al-Kabīr (18/420): ‘Imrān Ibn Husayn (radiyallahu ‘anhumā) was asked about a man who took his wife back but did not take witnesses. So he said, “This is not from the Sunnah. He should inform witnesses now, and seek Allah’s forgiveness.”
Allah stated: “And divorced women shall wait after being divorced for three menstrual periods, and it is not lawful for them to conceal what Allah has created in their wombs if they believe in Allah and the Last Day. And their husbands have the better right to take them back in that period if they wish for reconciliation. And the women have rights over their husbands [as regards living expenses] similar to those of their husbands over them [as regards obedience and respect] to what is reasonable.” (2:228)
So once a man has divorced his wife, her waiting period (Arabic: ‘iddah) is three menstrual periods unless she is pregnant in which case the waiting period extends up until the baby is born. He must still provide for her, and he cannot seize the dowry he gave upon marriage and she must still be respectful to him. Within this waiting period, a man may return back to his wife if there is reconciliation or a change of heart, and a softening of feelings for each other. So the waiting period (the ‘iddah) serves two purposes: 1) to establish whether the woman is pregnant, 2) to give each side a chance to rectify and reconcile if they wish to do so.
The scholars differ as to the ‘iddah period of the irrevocable divorce (i.e. the waiting period after the third pronouncement). Al-Fawzān stated in Tas-heel Al-Ilmām (4/432) that the waiting period after the third talāq is pronounced is one menstrual cycle because there is no taking the wife back after it. So the only thing that needs to be established is whether she is pregnant, and that is known after just one menstrual cycle. Also, in the case of an irrevocable talāq, he does not have to provide for her any further provision or shelter. So the marriage comes to an end once a woman has completed her menstrual cycle (three cycles in the case of the first or second talāq, and one cycle in the case of a third talāq or khula’) — once she is pure from menstrual bleeding and she has bathed, she can get married.
Rule 1: If a husband wishes to return to his wife after the first pronouncement of divorce, he may do so within the waiting period (‘iddah). If he delays returning to her and the waiting period expires – due to the end of three menstrual cycles or after childbirth if she was pregnant – the couple may marry again as they did when they first got married, with all of the necessary conditions upon a new contract of nikāh.
Rule 2: If he divorces her another time, making it now two pronouncements, the same conditions apply as in ‘Rule 1’ above.
Rule 3: If he pronounces the divorce for the third time, then this is called an ‘irrevocable divorce’. He cannot return to his wife in the waiting period, nor can he remarry her after the waiting period. She must now marry someone else with a true intent and desire to marry. If this new marriage fails after working to make it work, she may then remarry her first husband. Important: It is not allowed for a woman to marry another man with the intention of divorce so as to remarry her first husband. The Prophet Muhammad (peace and blessings be upon him) stated that people who do that or facilitate such a marriage are under Allah’s curse.
Mistakes in divorce:
1). It is not allowed for a man to divorce his wife on her menstrual cycle. However, if he does so, the divorce is valid but he is sinful for divorcing her during that time. This is the saying of the majority of the scholars based upon the fact that when Ibn ‘Umar (radiyallāhu ‘anhumā) divorced his wife while she was menstruating (Bukhari, no. 5332), the Prophet commanded him “to take her back” (Muslim, no. 1471-1) which proves that the initial pronouncement was valid as Shaikh Al-Fawzān stated, because if the talāq was invalid he would not have commanded him to take her back. (Tas-heel Al-Ilmām, 5/8)
2). It is not allowed for a man to say “you are divorced” three times in one sitting, so as to make the divorce irrevocable in one go. This was forbidden in the time of the Prophet and his Companions. If a man was to do that, then he has opposed the Prophet’s Sunnah. And the scholars differ as to whether it is counted as three pronouncements or only one pronouncement of divorce. What is closer to the Sunnah is that it is counted as one divorce and not three. Abu Dawood (no. 1922, authenticated by Al-Albāni) reports that Ibn ‘Abbās (radiyallāhu ‘anhumā) said: “Abu Rukānah divorced Umm Rukānah, so Allah’s Messenger (salallāhu ‘alaihi wassallam) said to him: ‘Take back your wife.’ Abu Rukānah said, ‘But I divorced her with three talāq pronounced [in one sitting].’ The Messenger (salallāhu ‘alaihi wassallam) said, ‘I already know that, take her back.’” In narration reported by Ahmad (no. 2387) and authenticated by Al-Albāni (Al-Irwā, 7/145), Ibn ‘Abbās (radiyallāhu ‘anhumā) said, “Rukānah divorced his wife in one sitting with three pronouncements of talāq. Then he grieved over losing her. So the Messenger of Allah (salallāhu ‘alaihi wassallam) said to him, ‘The three [in one sitting] are considered as one talāq.’”
3) It is forbidden to joke, play or lie when pronouncing talāq — if a man utters talāq in any of these states, it is valid and one cannot say, “I was only joking” or “I was testing you” or “I was lying”. Abu Hurayrah (radiyallahu ‘anhu) said that Allah’s Messenger (salallāhu ‘alaihi wassallam) said, “There are three matters, whether they are undertaken seriously or in jest are taken seriously [in Islam]: Nikāh (marriage), divorce and taking one’s wife back (raj’ah).” (Abu Dawood, no. 2194 and the books of Sunan; authenticated by Al-Albāni in Al-Irwā 1826).
Read more about divorce here.
A woman’s right to separate:
A woman is not allowed to ‘pronounce’ a divorce upon her husband if she wishes to exit the marriage but she may apply to ‘dissolve the marriage’ (in Arabic: khula’) by going to a judge if she lives in a Muslim country, or apply to a Sharī’ah Council in a non-Muslim country. Allah stated: “Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back the dowry for her Khula’ (dissolving of the marriage).” (2:229) The Shari’ah Council must be experts in Islamic Law (and not partisan to a madhhab) so that a wrong decision is not made. On her application, the woman will have to explain why she wants a separation. There are many reasons why she may be granted a khula’: husband’s adultery, domestic violence, desertion, not providing for her or their children, drug and alcohol abuse, violation of the marriage contract, inability to be intimate, unable to make her pregnant, etc. The council will want to discuss the wife’s application with the husband to make sure that serious attempts at reconciliation have been made. If the desire to separate is the wife’s, and the khula’ is issued, then the dowry is returned to the husband, and her ‘iddah period before she can re-marry is one menstrual cycle. She must wait until her next menstrual cycle, then once it is complete and she has bathed from it, she may marry. I will write about the khula’ in more detail in another article (inshā’-Allah).
Once they are separated through divorce or khula’, Islam encourages marriage because men and women are not truly complete or truly productive in society unless they are married.
Children after divorce:
It is the father’s responsibility to provide for his children, so the divorced fathers are expected in Islam to pay for their children’s upbringing. It is generally agreed that young children should stay with their mother but there are different opinions about what should happen when they are older or when the mother remarries. I have discussed the issue of child custody here (part 1) and here (part 2).
- Faisal and Umaimah are to be divorced after being married for six years. They have tried to reconcile but it hasn’t worked. How does Faisal divorce his wife?
- What are the rules after divorce that a couple must know?
- Is it allowed for a man to divorce his wife three times in one go? Explain your reasons.
- Why does Islam have a waiting period for the woman?
- “Divorce is disliked even though Allah made it permissible” – explain why it is permitted.
- How does a woman exit a marriage since she is not allowed to pronounce a divorce?