Divorce in Islam
Divorce laws in Islam are the perfect example of a flawed system that leads to volatile and unstable family dynamics. They cause so much pain and suffering in the family. As a Muslim, divorce laws in Islam used to cause me a lot of confusion. I could not understand how a perfect divine being would come up with such strange laws that aren’t well designed. There is terrible and great suffering in Muslim families because of these terribly formulated laws. Men often regret uttering the words of divorce, and women often feel responsible for “angering their husbands” and causing him to utter divorce. It causes terrible sadness and mental grief for families who end up in this situation
A personal example
For a personal example of how Islamic divorce laws hurt families check out this personal story of mine:
A quick explanation of divorce in Islam
A man can say “DIVORCE” (or any phrase that means divorce) to his wife. She is then in a “partially divorced” state. If he “takes her back” (by saying I take you back or showing her by touching her/kissing her) she is back to “not divorced”, but she has one strike. If he doesn’t take her back in the waiting period (3 menstrual periods), it’s over. 1). It seems like this waiting period was put in place in order to ensure that if the woman got married again, they would be sure who the father was.
If he took her back twice now, there is only one final chance left. The third time this happens their relationship is permanently severed.* They are no longer allowed to be alone together and it would be as haram as having unmarried sex if they slept together after that. If they did this and got caught the punishment would be public lashings.
In the case that she is pregnant when divorced, her waiting period is extended to until she delivers the baby. If this is her third divorce, her husband cannot take her back and once the baby comes the marriage is over.
The waiting period is described in the Quran as follows:
Divorced women remain in waiting for three 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 more right to take them back in this [period] if they want reconciliation. And due to the wives is similar to what is expected of them, according to what is reasonable. But the men have a degree over them [in responsibility and authority]. And Allah is Exalted in Might and Wise. (Quran 2:228)
After three divorces, whether they had kids or not doesn’t matter. If the woman just delivered — doesn’t matter. It’s over. Too bad for your kids or new baby. Too bad for you. Allah wanted it this way. So you must now start from scratch and find a new spouse or live single the rest of your life.
I know many couples break up and get back together. Sometimes time apart is all you need. This is what Islam should have focused on. Separation that requires both parties to say “yes” to come back together. A separation that either can initiate. Sometimes your spouse might have some issues that need to be resolved before you can return to them — maybe they are abusive, involved with drugs or excessive drinking, or maybe they just aren’t treating you with respect and showing you commitment. Sometimes it can take a year or more to solve these issues apart. This permanent divorce system doesn’t allow for making up. It’s not necessarily the case that three divorces will happen in 1 year. They can happen over a 10-year marriage. And then you have lost your wife forever*
Fatwa sites and scholars are riddled with questions about the validity of people’s marriage. So much mental energy and anguish because the laws weren’t designed well.
The power to divorce is in men’s hands
What god would give men final authority to break up a marriage in a relationship while women have to ask a judge for it? A man-made god of course. How is this fair? How does it make sense? Shouldn’t the couple work out things together and have equal right to end the relationship? In any other contract agreement both parties have a fair right to end it. But with Islamic law, the woman must go to a judge to request it, whereas a man can literally spit out a few words a matter of times over a few months and a lifetime of marriage is destroyed.
The Prophet (ﷺ) said: If any woman asks her husband for divorce without some strong reason, the odour of Paradise will be forbidden to her.
As I was taught when the hadith says even the smell of paradise is forbidden that means she will not go to paradise.
Does Muhammad say anything similar for men asking for divorce without a strong reason? Actually, men do not ask for divorce, they simply divorce. There is a statement we do find criticizing divorce:
the Messenger of Allah said: “The most hated of permissible things to Allah is divorce. ” (Ibn Majah)
My only question is, if Allah hates it so much, why is it so easy?
For women to initiate divorce is called “Khula”. Khula’ (Arabic: خلع) means the separation of the wife in return for a payment; the husband takes the payment and lets his wife go, whether this payment is the mahr (bridal gift) which he gave to her, or more or less than that. The Quran states:
“And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal-money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allaah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allaah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul‘ (divorce)” (Quran 2:229)
And in the hadith we have this story:
The wife of Thaabit came to the Prophet and said, “O Messenger of Allaah, I do not find any fault with Thaabit in his character or his religious commitment, but I do not want to commit any act of kufr after becoming a Muslim.” The Prophet (peace and blessings of Allaah be upon him) said to her, “Will you give back his garden?” Because he had given her a garden as her mahr. She said, “Yes.” The Prophet said to Thaabit: “Take back your garden, and divorce her.” (Bukhari)
Triple Talaq
Triple Talaq (all three divorces at once) is something not recommended, but has existed since the time of Muhammad and was historically counted as three, i.e. as a permanent irrevocable divorce. This is done by saying “I divorce you three times” in however manner you like:
If it was three simultaneous divorces, then you have disobeyed Allah with regard to the way in which divorce should be conducted and your wife has become irrevocably divorced.”
(Nasai)
Also similarly stated here when Abu al-Sahba asked Ibn Abbas:
Enlighten us with your information whether the three divorces (pronounced at one and the same time) were not treated as one during the lifetime of Allah’s Messenger (ﷺ) and Abu Bakr. He said: It was in fact so, but when during the caliphate of ‘Umar (Allah be pleased with him) people began to pronounce divorce frequently, he allowed them to do so (to treat pronouncements of three divorces in a single breath as one). (Muslim)
This is considered an “innovation” but still counts as a permanent binding triple divorce according to the four schools of thought, while the salafis consider it only to count as one based on the ruling of Umar above.
Therefore, if a man pronounced three divorces at once by stating to the wife: “I divorce you three times” or by saying: “I divorce you”, three times, then three divorces will be effected and the divorce will be irrevocable. This is the position held by all the Sunni schools of Islamic law, i.e., Hanafi, Shafi’i, Maliki and the Hanbali. This was also the view of the overwhelming majority of the Sahaba (Allah be pleased with them all) and Tabi’in (followers). Only the Ja’fariyya sect amongst the Shi’a and those who followed the literal meaning of the texts, like Imam Ibn Taymiyya and his student Ibn al-Qayyim differed with this view. (IslamQA.org)
The entire relationship hangs on a man’s mood
How is it that a marriage which is supposed to be a lifetime commitment can be destroyed by a petty squabble Many spouses are put in a doubtful situation when three divorces are pronounced; it can cause severe mental anxiety. They are stuck between keeping the family together and the fear of God and Hell. Fatwa sites are riddled with questions about whether the marriage is still valid.
The most common question is always “is a divorce pronounced under anger valid?”
This fatwa site says that the unanimous opinion of the four schools of thought is yes:
According to the vast majority of scholars of the four schools of thought, the divorce of an angry person is binding. There are some that say that if a person’s anger caused them to lose sense of reality, then it would not be binding. This is because they have become like an insane person.
And this site explains more clearly that “unless you are insane” it’s binding:
Finally that stage which is between the above two stages in that one was extremely angry but not to the point of insanity, and was aware of what one was saying. In this case also, talaq will also occur. (Raddul Muhtar p.452 v. 4)
Normally it can be said that the anger does not reach the level of insanity as mentioned above therefore divorce is valid and will take place.
There are a plentitude of fatwas on this question. Here are just a few from the hundreds you will find if you search:
- Divorced his wife 5 times
- Divorce in a moment of anger
- Divorce in a state of anger
- Divorced his wife three times in a moment of anger
- Conditional divorce and divorce in a state of extreme anger
What this shows us is that this is a major problem in the Muslim community. No such similar problem exists in non-Muslim communities as they can simply have a fight and make up without having to worry about saying some magic words that permanently sever their relationship.
A superior system would require the couple to seek a judge after a mandatory 1 week or separation, if either party wanted get a divorce. Now, cool heads will prevail. No false divorces based on emotion or temporary anger.
Is this because women are more emotional?
Was Islamic divorce law designed this way because women are “too emotional”? No, simply put these laws are designed for men to control women.
Well first of all, the biggest problem with that argument is we can see just how many families have problems with this rule and how many men initiate divorce and then immediately regret it. This shows that the design of this rule as it currently stands, was a terrible idea.
What do we know about men, women, and their emotions?
Men and women are both emotional but in different ways. Men are typically taught to hide their emotions. They are often taught not to cry, or to “take it like a man”. This does not mean men are less emotional, rather that they process it differently. Women have some advantages over men — research shows they are better able to recognize and process the negative emotions of others better than men do. 2) This means that a woman can better see and understand when her spouse is upset even if he doesn’t make it obvious. Men are less likely to be sensitive to such things. In more egalitarian societies, women are able to lead and manage large organizations when given the opportunity. There are many examples of women in such positions such as Sheryl Sandberg, COO of Facebook, who is considered the 10th most powerful woman in the world according to Forbes.3) How is it in Islam women are not even given the right to divorce and outside of Islam they can successfully manage 10,000+ employees, having the ultimate authority to fire all of them at a moment’s notice if they felt cuts would benefit the company? If women were so emotionally unstable how can they successfully manage some of the largest organizations in the world? The reason why women don’t thrive in certain societies is because men put them in lower positions because they don’t see their full potential. Islam is guilty in this as well.
Strange rule to get back together
She has to marry someone else, have sex with him, and then he can divorce her. Say what? Did I just say that? Yes. You are not supposed to do this intentionally, but it has to be an honest “sex+divorce”. Now, who made up this stuff? God?
“And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband” (Quran 2:230)
This hadith explains it:
“The Prophet was asked about a man who divorced his wife three times, then another man married her and he closed the door and drew the curtain, then divorced her before consummating the marriage with her. He said: “She is not permissible for the first one (to remarry her) until the second one has had intercourse with her.”” (Nasai)
Why does Allah make divorce so easy and then come up with such rules to deter it being used? It reminds me of how the punishment for adultery is so severe but there has to be four witnesses (never happens). Someone clearly didn’t think this through very well.
In the following fatwa a man divorced his wife in anger. To save his marriage a family friend “married” and presumably had sex with his “ex” wife so that he could marry her again. Halala here means a man marrying a lady and having sex with her followed by divorce so that she can go back to the first husband.
I have kids with my wife and I divorced her in anger. To help us get back together a family friend did nikah with my wife without stating any Halala condition but we all knew that we are doing this nikah for halala purpose… (edited for clarity)
BBC also published an article on the topic of Halala “marriages”: The women who sleep with a stranger to save their marriage
It should be noted that a halala marriage is forbidden
The Prophet (ﷺ) said: Curse be upon the one who marries a divorced woman with the intention of making her lawful for her former husband and upon the one for whom she is made lawful.
Does this sound like something God would come up with? What possible scenario would you imagine your exwife getting re-divorced and then marrying her? For all intents and purposes, you would lose her forever after the third divorce. Except this is too painful for most people to deal with.
Men can put any sort of conditions on divorce.
Strangely in Islam you can make a conditional irrevocable divorce to your wife. If you say “If you eat candy even once more you are divorced”, this is final and binding and cannot be undone. It’s like a magic spell (or curse) that hangs on your life forever. Look at how much stress this causes to poor women who have to go through this. This doesn’t just happen to women in the middle east. This happens even in Canada. I personally know an individual who in anger told his wife “if you touch my phone again you are divorced.”
In this fatwa a man threatened his wife that if she brings up a certain topic again she would be divorced. But she went ahead and brought it up anyway. So he got scared and started wondering if he really meant to say what he did, and whether their marriage is valid, or they are now divorced. It’s a terrible situation, all created by the messed up rules of Islam.
Question: Is it possible to cancel a conditional divorce? For example somebody says to his wife ” you are divorced if you enter this house,” and then before she has an opportunity to enter this house he regrets what he said and wants to cancel his statement.
Answer: Unfortunately, it would not be possible to retract such an utterance. As such, when the wife enters the house intended in the statement, one revocable divorce (raj`i) will occur.
http://seekershub.org/ans-blog/2013/07/07/is-it-possible-to-cancel-a-conditional-divorce/
Here are some examples of real conditional divorces from fatwa sites:
During quarreling with my wife, I told her: “I swear by Allah The Almighty if you re-talk in this matter again, it would be the last thing between us.” After a while, a question is raised within myself feeling unrest: what did I mean by saying “the last thing between us”? A little afterwards, my wife did re-talk in that matter, then I closed her mouth with my hand saying to her: Haven’t I sweared not to re-open this matter again? I left her and went to the sitting room talking to myself that divorce is due now. After calming down and considering, I am sure I have not intended real divorce but just to prevent her from opening that matter again. I didn’t mean divorce anyway, just wanted to keep her away from discussing this matter, as I know divorce depends on intention. Please clarify me.
https://islamqa.info/en/147889
I said to her: If I tell you to do something that does not involve disobedience to Allaah and you do not obey me in it, then you will be divorced, and if you lie to me a second time, you will be divorced.
https://islamqa.info/en/119209
I said to my wife: If you check my mobile phone you are divorced. I am worried that she will check my mobile phone. What is the solution?.
If a man says to his wife: If you check my mobile phone you are divorced, the basic principle is that a revocable divorce (talaaq) takes place if she checks it, and it is not possible to cancel that. He has to warn his wife against checking the mobile phone lest divorce occur. If she does check it, one revocable divorce occurs
Scholars say you shouldn’t play games with divorce and threaten her over little things. But if you want to, you have all the power as a man. Do you not think that giving an excessive amount of power to one party in a relationship is dangerous?
In regard to the unequal power dynamic Islam creates in marriage, please see my video regarding hitting women:
Men can divorce women through any medium
The divorce does not have to be verbal. It can be written, texted, emailed, tweeted, anything.
Divorce issued in writing or via e-mail or text message counts as such so long as the intention to divorce is present or it is accompanied by signs that point to intention to divorce.
Also, a judge in a Muslim country can rule that even if he didn’t mean to divorce her but he said words to that effect, they are permanently divorced:
“If one says (to his wife) during a discussion on divorce “I have separated you (bayantuki)” or “I have no authority over you (la sultana li alayki)” or “I have released you (sarrahtuki)” or “I give you as a gift to yourself (wahabtuki li nafsiki)” or “I have freed your path/you are free to go (khallaytu sabilaki)”…… then divorce will come into effect. If, however, he (the husband) said, I did not intend divorce with my statement; his claim will not be accepted as true in a court of law [m: because he made this statement during a discussion on divorce]”. (Al-Fatawa al-Hindiyya, 1/375)
Of course scholars may disagree. The judge may disagree. Your entire relationship and children all hang in the balance of some judge’s interpretation and understanding of ancient words uttered in a time and place completely different. How sad is that. Compare that to modern secular law which for example in Canada requires you to be separated for 1 year before you can divorce (because many couples end up getting back together in this period). Which facilitates a family staying together and which leads to breakup and sadness? What do you think?
A divorce can occur anytime
It can be done when your wife is pregnant, it can be done when she is menstruating (there is some scholarly differences of opinion on this). Any divorce done in this period is perfectly valid. The following hadith explains this:
I asked Ibn ‘Umar (Allah be pleased with them) about the woman whom he had divorced. He said: I divorced her while she was in the state of menses. It was mentioned to ‘Umar (Allah be pleased with him) and he then made a mention of that to Allah’s Apostle (ﷺ), whereupon he said: Command him to take her back and when the period of menses is over, then (he may divorce her in the state of her purity. He (Ibn Umar) said: So I took her back, then divorced her in her purity. I (the narrator) said: Did you count that divorce which you pronounced in the state of menses? He said: Why should I not have counted that? Was I helpless or foolish?
https://sunnah.com/muslim/18/15
“Divorce (talaaq) during pregnancy is a valid divorce and counts as such.”
https://islamqa.info/en/106285
The scholars differed concerning a divorce that takes place when a woman has her monthly period, and there was a lengthy discussion as to whether the divorce counts or not. The majority of scholars are of the view that it does count as such and is regarded as a divorce. This is the view of the majority of scholars, include the four imams: Ahmad, al-Shaafa’i, Maalik and Abu Haneefah.
The contemporary opinion of Shaykh al-Islam Ibn Taymiyah is that divorce at the time of menses does not count4)
Strangely, a woman can be divorced even if the man doesn’t tell her5)
Rights of a divorced woman
While a woman is in her waiting period, she is entitled to maintenance and lodging. Once she is permanently divorced (3rd time), she is not:
Fatimah bint Qais said: “My husband divorced me at the time of the Messenger of Allah (ﷺ) three times. The Messenger of Allah (ﷺ) said: ‘You have no right to accommodation or to maintenance.’” (Ibn Majah)
If they have kids together, then she is entitled to some maintenance for the 2 years of breastfeeding and for her kids.6)
Conclusion
The laws of Islam are haphazard, not well thought out, and they give all of the power to the man in the relationship. They make the marriage volatile and easily broken simply by a few words said in anger. They do not facilitate a happy marriage. They cause a lot of heartache and sadness in a relationship due to divorce being given in anger, followed by regret. The rule of marrying and having intercourse with another man to remarry may restrain men from divorcing their wives in anger, or it may mean they may never get their wife back, ever. Ask yourself, what is more likely? That the supreme creator of the universe came up with these rules, or a man from the seventh century?
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