MUAMALAT - IRE FORM 2 Notes

• Divorce
  • Machinery for Talaq
  • Reasons for Divorce
  • Types of Divorce
  • Effects of Divorce
• Iddah and Its Importance
  • Importance of Iddah
  • Observance of Iddah

Divorce

• In Form one, we learnt about marriage and the emphasis the religion lays on it.
• We learnt that marriage is a legal bond that unites a man and a woman to live together as a husband and wife.
• This relationship should be based on mutual love, tolerance, respect, moderation appreciation and understating of one another and the performance of the acts of Ibadah.
• However, after solemnization of marriage some problems could arise that would call for divorce.
• Islam has given room for either of the partners with valid reasons to seek for the dissolution of the marriage.
• This separation is referred to as Talaq.
• Talaq is an Arabic word, which literally means to set an animal free.
• In the Islamic Shariah, it means the legal method whereby a marriage is brought to an end.
• Some Muslims and people of other religions have a misconception of this act (Talaq) that result to the dissolution of marriage.
• It is important to note that Talaq is not something that a married Muslim can use to dissolve his marriage at any time or occasion of his own desire or free will.
• Even though Talaq is legal, Islam strongly condemns it.
• This is supported by the prophet’s hadith narrated by Ibn Umar (RA) that the Prophet (PBUH) said, “There is no lawful matter which is more detested by Allah (SWT) than divorce.” (Abu aawoud and Ibn Maja’)
• The above hadith teaches Muslims that issues related with divorce should be treated with caution.
• The decision should neither be hastily made nor should it be based on hearsay.
• According to Islamic law regarding marriage, there are certain conditions that should be met before Talaq is pronounced.
• Conditions of talaq are:
  • The mechanism for conflict resolution should have been exhausted.
  • The marriage should have been conducted under the Islamic laws.
  • The Talaq must be pronounced either orally or by writing.
  • The woman should be free from her menses.
  • A person should pronounce it by his own free will and not under compulsion.
  • The person pronouncing it should be mature and sane.
  • It should not be pronounced under intoxication or in the influence of drugs.
  • Implementation of Talaq will begin in normal period after the menstrual cycle.
• After the iddat period, woman is free to marry another person or re-marry her ex-husband.
• Nevertheless, marriage with her ex-husband should fulfill all conditions of nikah.

Machinery for Talaq

Read [Q 4:34-35]

• From the verses you have read, you will learn that Muslim men and women have been taught the procedure for resolving a conflict in a marriage.
• Divorce should not be the starting point of the resolution but Allah (SWT) guides the married spouses be committed to each other and live according to the Islamic teachings.
• It should therefore be the last resort.
• Married life should be filled with mercy, love, compassion and tranquility since it is a great blessing.
• Each of the spouses in the marriage has certain rights and duties over the other, which should be fulfilled for a harmonious relationship.
• However, when the marriage is in danger, and any of the spouses is subjected to situations that cause psychological torture, distress, pain or suffering divorce could provide a better solution to make each of them separate peacefully and in a morally acceptable way.
• However, it is encouraged that the spouses pursue all possible solutions to rebuild their relationship.
• In the event that the problem persists and there is no remedy, then the Shariah stipulates the following steps:
  • Kind admonition using polite words. There should be dialogue and soul searching.
  • Severing of conjugal relations. The husband should abstain from sharing their matrimonial bed for a known period of time.
  • If the above two do not work, then the husband is allowed to give her a light beating. This should however not inflict pain especially on the face or leave any marks on her body.
  • Ila’ (the vow of continuation). The husband then should vow to continue with severing the conjugal rights for a period of four months. Allah (SWT) says, “Those who take an oath not to have sexual relation with their wives must wait for four months, then if they return (change their idea in this period), verily, Allah (SWT) is Oft Forgiving, Most Merciful.”[Q 2:226]
  • During this stage, arbitrators from both sides are chosen to bring reconciliation. Allah (SWT) says, “If you fear a breach between them twain (the man and the wife), appoint (two) arbitrators, one from his family and the other from hers; if they both wish for peace, Allah (SWT) will cause their reconciliation. Indeed Allah (SWT) is All Knower, Well-Acquainted with all things” [Q 4:35] in this verse, Allah (SWT) is teaching Muslims that marriages involve more than two people.
  • Before a divorce, it is important to involve the other family members who have a personal stake and know the spouses personally, their strengths and weaknesses.
  • If this is impossible then the process of divorce shall start.
  • The procedure for divorce depends on who has initiated the move between the spouses; (wife or husband)
  • In the event that the woman obeys and mends her ways, then the husband should reconsider his decision of divorcing his wife and take her back on equitable terms.
  • If they do not reach an agreement, then they can ask for divorce but as a last resort.
    Allah (SWT) say, “But if they disagree and must part, Allah (SWT) will provide abundance for all from His all reaching bounty: for Allah (SWT) is He who cares for all and is wise.”

Reasons for Divorce

• If the husband is cruel to his wife, either physically or emotionally.
• Muslim man or woman may seek divorce if the partner is unchaste or proven for having committed Zina.
• If the husband is physically and mentally able to earn a living but is not a good provider for his wife (and any children they have).
• A woman can also leave her husband if she finds him not sufficiently religious, failing to follow the traditional rules and protocols of Islam.
• Desertion by either of the spouse provided a sufficient period has elapsed between the abandonment and the request for divorce.
• Failing to meet conjugal needs, if physically able by either of the spouses.
• Physical or mental defect or deformity if not present or known about at the start of the marriage can also instigate a divorce.

Types of Divorce

Talaq by husband

• This is the divorce pronounced by the husband once or utmost twice.
• After pronouncement of divorce, the wife begins her eddah.
• Before the period of eddah expires, the husband may, if he desires take back his wife.
• This is called Raja’ (return).
• In the event that the wife completes her eddat without the husband showing any intention of taking her back after her third divorce, then the Talaq is considered as Bain (irrevocable)
• There are conditions governing a situation when the husband would like to take the back his wife after the third divorce:
  • The Talaq should have been pronounced at three different periods.
  • The wife must have completed her waiting period.
  • The wife must have been married to another different man, divorced and completed her waiting period (Iddat)

Khulu'

• This is a divorce by redemption.
• It is requested by the wife and is granted by the husband upon the wife's paying him back his dowry.
• In Islam, a wife may seek Khulu’ when she is not comfortable in the marriage due to a variety reasons.
• These reasons may include the following:
  • Insanity or madness of the husband.
  • In the event that the man is impotent.
  • If the husband is suffering from terminal or infectious diseases like leprosy, HIV/AIDS.
  • In the event that the husband permanently changes his residence and the he refuses the wife to follow him.
  • Cruelty or mistreatment of the husband.
  • Prolonged disappearance of the husband and his whereabouts is unknown.
  • Intentional negligence of the husband to provide for the needs of the wife and the children.

Mubarat

• This is divorce by mutual agreement and is pronounced by both the husband and wife.
• In a situation whereby the spouse have explored all the possible means to keep the marriage intact but have failed to resolve their differences, they may both opt to seek divorce as an amicable solution.
• However this type of divorce must meet the following conditions -
  • Either of husband or wife can make the offer for the divorce.
  • The other one must accept it.
  • As soon as it is accepted, it becomes irrevocable.

Dhihar (Injurious comparison) Read [Q 58:1-4]

• The verses you have read were revealed in response to the event that took place between Khawla bint Thalaba and her husband Aws ibn al Samit to show the rule of Dhihar.
• This divorce is occurs immediately after the husband utterances show injurious comparison of his wife to his mother, sister or any other female relative who are his mahram (they are prohibited to marry), Shariah stipulates immediate cancellation of the marriage.
• The comparison should be intentional and with disrespect.
• If the husband makes a comparison to show respect to his wife, for example telling her that she prepares a good meal just like his mother, then expiation is not necessary.
• However, due to the consideration of the importance of marriage and the weakness of the human soul, Allah (SWT) has put three conditions to be fulfilled by the husband before taking his back.
• It should be noted that, dhihar by itself does not terminate the marriage nor does it cause the wife to lose her right to maintenance even in case of default of penance.
• It causes the following;
  • Sexual intercourse becomes unlawful.
  • The husband is liable for expiation.
  • The wife can claim judicial separation if the husband persists in wrongdoing.

Effects of Divorce

• Divorce has adverse effects to the married partners involved, children and community at large.

To the community

• It leads to stigmatization by the other members of the community who will frequently ask questions.
• It creates disunity since the other family members will detach themselves from the divorced person.
• It may lead to social evils like prostitution, stealing among others.
• It creates misunderstanding among the family members of the two families.

To the Children

• They lose love and affection from one or both parents.
• They may lack necessities like food, clothing and shelter, which were being provided by the parents.
• They may lack role models or someone to correct them when they go wrong.
• The children feel unwanted and may involve themselves in antisocial behavior.
• It may lead to children living in the streets.
• The health of the children may deteriorate
• The children will end up without proper education.
• In extreme cases, they may attempt to or even commit suicide.

Financially

• Added responsibility to the other family members
• One of the spouse may have acute financial problems if he or she depended solely on the other.
• The wife may be required to work overtime in order to make ends meet.
• Financial constrain will affect the children life i.e. their education and needs.
• You will have to bear more responsibilities as a single parent.

Iddah and Its Importance

• Iddah is Arabic word which means counting.
• In the Islamic Shariah it refers to the prescribed period of waiting by a Muslim woman who has either been divorced or widowed.
• The Qur’an has clearly outlined the waiting periods for both the divorcee and the widow.
• We shall start by discussing the Iddah for a widow. It is divided as following:
  • Iddah for a menstruating woman is three months or three menstrual cycle.[Q 2:228]
  • Iddah for a non menstruating woman referring to an old woman or a girl who has not started her periods, she has to wait for three months [Q 65:4]
  • The woman with irregular monthly cycles shall wait for a period of three months.
  • The woman who is divorced before any sexual contact with her husband does not have any waiting period. [Q 3:49]
    
    Iddah for a widow
    
    
  • She shall wait for four months and ten days.
  • In case she is expecting a child, she shall wait till she gives birth.[Q 65:4]
  • For a widow who has ceased menstruation, if the reason is unknown, then she will wait for one year. The nine month shall be for the Iddah for pregnancy and the three months for menstrual cycle. If it is due to suckling or illness, she will wait till she experiences her menstrual cycle then start her Iddah of four months and ten days.
    
    Iddah for a missing husband
    
    
  • The wife shall wait for a period of four years, if the husband does not show up, then he will observe the Iddah for a widow of four months and ten days.

Importance of Iddah

• It gives the woman time to mourn for her deceased husband. The Prophet (PBUH) says in the hadith narrated by Ummu Atiya says, “It is not lawful for a woman who believes in Allah (SWT) and the hereafter to mourn for a dead person for more than three days except for her husband…” (Bukhari and Muslim)
• To give the widow time to prepare for her new life socially, psychologically and economically.
• To ascertain that the woman is free of pregnancy so that the inheritance can be done easily.
• Iddah is a consolation for the widow and therefore it should not be taken as a punishment.
• For the divorcee, it allows room for reconciliation.
• If the wife’s husband is missing, then it protects the rights of the marriage.

Observance of Iddah

• The widow should stay in the home of the deceased husband where possible. In the event of a divorcee and the husband may be cruel, then she can find a safer place like her parents home.
• She should refrain from going out except when and where it is necessary.
• During Iddah period, the woman cannot marry another person or accept a marriage proposal until she completes her waiting period.
• A divorcee should be maintained by her husband
• She should refrain from adornment such as wearing jewelry, perfume or heena.