Laws of Divorce in Islam

by Amani Aboul Fadl Farag,

I'll try to supply as much information in this big subject as our small page can allow. In case you
need more details, I refer you to a useful book - Fiqh as-Sunnah - by Sayyed Sabiq – is
originally in Arabic, but you can find its English translation if you want.

Divorce as a last option:

Although divorce being allowed in Islam is a sign of the lenience and practical nature of the
Islamic legal system, keeping the unity of the family is considered a priority for the sake of the
children. For this reason, divorce is always a last choice, after exhausting all possible means of
reconciliation. For example, Allah addresses men asking them to try hard to keep the marriage,
even if they dislike their wives:
... live with them on a footing of kindness and equity. If ye take a dislike to them it may be that
ye dislike a thing, and God brings about through it a great deal of good.
- Surah 4 Verse 19
Also the following verse is addressed to women asking them the same thing:
If a wife fears cruelty or desertion on her husband's part, there is no blame on them if they
arrange an amicable settlement between themselves; ...

1/3
Laws of Divorce in Islam

- Surah 4 Verse 128

Again, the following verse is addressed to the family or the society for the same purpose of
rescuing this bond, which God did not make easy to break:
If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the
other from hers; if they wish for peace, God will cause their reconciliation: For God hath full
knowledge, and is acquainted with all things.
- Surah 4 Verse 35But, if after exhausting all methods of reconciliation, the hatred between the
husband and wife is still greater than tolerance, then divorce becomes inevitable. Here comes
the genius of the Islamic law, which holds practical, rather than unrealistic approaches, towards
real situations. The ultimate aims of marriage, as well as any other aspect of human life, are to
achieve happiness and virtue. So, when people are denied their right to end an unhappy
marriage, these two aims are seriously violated. This is, as the couple will live in suffering,
which may lead them to marital infidelity. Thus divorce in this case – if weighed up to the
disaster of family disintegration - will be less disastrous.
Methods of divorce:
Men have the right to divorce. If a man dislikes keeping his marriage for any reason, he
divorces his wife and compensates her financially by paying her what is termed mut'a payment.
This is in addition to the regular financial sustenance for her living, in case she has the custody
of their children.
Divorce becomes in effect once the husband utters or writes down any of the legal formulae of
divorce such as: ‘I divorce you’ or ‘you are divorced’…etc. The husband can do these either by
himself or through a messenger.
In case it is the woman's desire to end the marriage, the situation becomes different. Her
reasons might be that she has received ill treatment, the husband is unable to sustain her
financially or he is sexually impotent. She can prove these defects in front of the judge, then the
judge grants her divorce with a full access to all her financial rights.
Also, if the husband was good to her but she does not want to keep on for an emotional reason,
then she asks for what is termed khul'. This means to be granted divorce but without any
access for financial rights, plus paying back the husband the dowry that he already paid on
marrying her.

Categories of divorce:
Divorce is of three categories:
•    raj'i (returnable)
•    baynounah soghra (minor separation)
•    or baynouna kobra (major separation).
In case divorce happens through the husband, he can take his wife back within three months.
This is without any legal procedures, if they decide it - like they regret their rushing in divorce. In
this case, the divorce is termed as raj'i or returnable divorce.
But in case of khul', which is the second category, the husband can't remarry his divorcée till all
the legal procedures are done, all over again, and the husband pays new dowry for her.
Divorce can happen three times in the couple's lifetime. The third divorce falls in the third
category, because they cannot go back to one another, till after the wife ‘happens’ to marry
someone else, then ‘happens’ to get divorced by him. In this case, she can go back to her first

2/3
Laws of Divorce in Islam

husband. Such a tough rule was made as a punishment and a way of preventing people from
misusing this tolerant ruling of permitting divorce. The word ‘happens’ is parenthesized because
the woman's new marriage and divorce should come naturally without planning, as many
people might do to legalize her return to the first husband!

When does divorce become invalid?

In some cases, uttering the words of divorce become invalid. Among these cases is when the
husband is:
1.    Drunk.
2.    Forced to utter them by someone else.
3.    In a complete loss of temper to the extent that he is unaware of what he is saying.
4.    In an abnormal state of mind, such as temporary madness, epilepsy or in a coma.
In such cases, divorce is null and void.

Post divorce procedures:

After divorce, it is obligatory for the woman not to get married to another man, except after three
complete menstruation cycles, if she is not pregnant. If she is, then she has to wait till she gives
birth, so that the paternity of the child is not confused. This period of time is termed as ‘iddah.
However, even if the woman no longer has menstruations (e.g. after menopause), she should
still wait for three months. So there is more to the 'iddah than just the issue of paternity.

Source: IslamOnline.net

3/3