University of Wyoming
Originally written October 2007.
I have been asked to comment on Islamic divorce. The comments are meant to pertain especially to a case in which a Muslim man and woman divorced by mutual consent, and separated.
Talaq or “repudiation” is the usual rubric for discussing divorce within Islamic religious law. The basic meaning of the term talaq is to “free from a tether,” said of a camel, or to repudiate and free from all marital rights and responsibilities. Thus, when a man says to one of his wives “anti talik” she is divorced. Within the topic of divorce, there are various technical terms for types of divorce, including mubara’a “dissolution of marriage by agreement with mutual waiving of any financial obligations.” (Schacht, An Introduction to Islamic Law, 164).
Apparently in pre-Islamic times Arab society did not recognize any limitation, and divorce or the threat of divorce could sometimes be used to intimidate wives, including intimidate them to forego their mahr “bridal gift,” or even to pay the husband to be freed.
There are other ways in which a marriage can terminate in Islamic practice. A woman can renounce her marriage gift and all ties to a man (khul’), althoughshe cannot effectuate the end of the marriage herself simply by doing so;ajudge can dissolve a marriage or declare it invalid; and so forth.
The Qur’an clearly allows for divorce. If, as usually is the case, it was initiated by a husband, the bride keeps the “bridal gift:”
“If you are desirous of changing one wife for another do not take back any of the bridal gift even if it was a treasure…how could you if one of you has gone in unto the other, and they have taken from you a solemn covenant (4:20-21)
In Chapter 2, a separation of four months is discussed; the Qur’an says that if divorce (talaq) is the real purpose of the separation, a three months waiting period is required. Some Islamic sources state that refusal by the husband to engage in intimate activity for the four-month period is itself tantamount to divorce:
For those who take an oath for abstention from their wives, a waiting for four months is ordained; if then they return, Allah is Oft-forgiving, Most Merciful. But if their intention is firm for divorce (al-talaq), Allah heareth and knoweth all things. (2:226-227).
The continuation of the passage establishes a mandatory waiting period after divorce, and that women have similar rights to those of men, but that men have a “degree of advantage” over them.
Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what Allah Hath created in their wombs, if they have faith 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 women shall have rights similar to the rights against them, according to what is equitable; but men have a degree (of advantage) over them. (2:228)
Talaq is the prerogative of the husband, but a woman is allowed to give something in order to obtain her freedom:
If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom. (2:229)
A woman who absolves her husband of any future requirement to support her is considered “giving something for her freedom.”
It is not relevant to this case, but note that it would not seem that the Qur’an envisions the “threefold talaq” that is, the repetition of the divorce formula executed three times without the waiting periods. The usual argument for this is that the above is followed by a verse which seems to limit separation to two three-month periods:
A divorce is only permissible twice: after that, the parties should either hold together on equitable terms, or separate with kindness. …(2:229)
When ye divorce women, and they fulfill the term of their ‘Idda, either take them back on equitable terms or set them free on equitable terms; but do not take them back to injure them…(2:231)
Today, however, there are discussions about whether the formula can be repeated three times at once, or requires a minimum separation of time and/or place. Nevertheless, most authorities would accept as valid a “three-fold divorce” without the three-month waiting periods observed between pronouncements.
The verse cited above, 2:231, also says “Do not treat Allah’s Signs as a jest;” despite the usual Islamic law structures requiring conscious intent, jurists tend to treat a pronouncement of divorce seriously even if spoken in jest.
Chapter 65, verses 1 through 7 repeat and expand upon some of the details already mentioned. Divorced women are to be supported by the husband in the same style they had as his wives (Schacht/Layish translate in the second edition of the Encyclopedia of Islam, 2nd edition: “Let them live where ye live” which is consistent with the practice in many tribal societies, especially where polygamy is practiced: ex-wives continue to live in the same compound where they lived when they were wives, well past the required waiting period, unless they marry someone else.
Talaq is mentioned a few other times in the Qur’an, including 33:28 and more explicitly 66:1-7, which referred to the possibility that Muhammad might have divorced all his wives.
Traditional Islamic law does not clearly require wither witnesses or official rulings of divorce. Certainly, the Qur’an does not explicitly require witnesses, nor is there any reference to making the pronouncement before judges. The reference to witnesses in 65:2 seems to be after the talaq formula has been pronounced.
Thus when they fulfill their term appointed, either take them back on equitable terms or part with them on equitable terms; and take for witness two persons from among you, endued with justice, and establish the evidence (as) before Allah. (65:2)
Shi’i law generally understands 65:2 to mean that talaq must be pronounced before witnesses; Sunni law does not.
Tradition (hadith) and legal discussion (fiqh)
The legal scholars generally talked of limiting the husband’s ability to freely divorce a wife, insisting on the status of the man (his sobriety, majority, and sanity, and intentionality while uttering the formula); it could not be uttered during the wife’s menstrual period or if they had had sexual relations during the woman’s period of purity. Many authorities require various attempts at reconciliation before divorce is allowed.
Nevertheless, most authorities would consider that the utterance of talaq formulas, even when prohibited or not recommended, was nevertheless valid and effective. Of course, if the parties are adults, of sound mind and not intoxicated, and intended the divorce, the divorce is valid.
(Given the significance of debate about three-fold divorce it should be noted that there is significant discussion about this issue and whether it would be considered only a “single” divorce or, under certain circumstances, permanent divorce. In theory, the main difference would be that the “permanently divorced” woman is prohibited from remarrying the husband who divorced her unless she first marries another man, who then dies or divorces her. In theory, the waiting period and financial considerations and most other details for the “single divorce” and the “three-fold divorce” should be the same. None of this is relevant in this case).
The issue of testimony may be relevant. In general, admissible testimony in Islamic course requires two male witnesses or one male and two females. In general, however, a woman’s testimony is accepted if she says “I was divorced.” This is a complicated aspect of Islamic law, in that some jurists went to considerable lengths to provide judges with complex guidance about burden of proof: usually, only one side needed to present witnesses. In general, the apparent situation (zahir) is given priority and the burden of proof is on someone claiming the opposite. So if someone appears to own property, someone who believes that he is not the lawful owner needs to bring proof for this assertion. However, if he claims that he acquired the property from someone specific who then denies that this is the case, some jurists would require the one holding the property to prove he had acquired it lawfully. The same would be true for divorce: a woman claiming to have the status of a “divorced woman” would be presumed to be divorced.
Were a woman to say, “I was Zayd’s wife, and he divorced me,” this requires either Zayd’s acknowledgement (iqrar) or proof (of her claim) by testimony (bayyina) against his (denial). If she were to say, however, “I was a man’s wife, and he divorced me,” her statement is accepted. (Taqi al-Din al-Subki, Ph.D. Dissertation, Ward, 1984).
Nevertheless, it appears that the traditional Sunni approach was not to require witnesses or judicial registration for the divorce. In other words, Islamic testimony would only be required in certain cases when one of the parties makes a claim about the divorce which is contested by the other party.
In modern times, most places with traditional Islamic populations have enacted legislation to further regulate divorce. In Turkey, the whole system was abolished in favor of secular divorce. In India, a controversial non-Islamic divorce was legislated for all Indians, which exists alongside the traditional divorce regulations for Muslims recognized in since British times (“Anglo-Mohammedan Law”).
In Tunisia, Jordan, former South Yemen, Iran, Iraq, Morocco, and other places a judicial decree or registration is required. In Libya and Israel, mutual consent is required for Islamic divorce, and the religious court only comes into play if there is no mutual consent. As far as I can tell, the traditional Islamic system is in force in Saudi Arabia, Kuwait and other Gulf states.
Thus, Islamic law accepts divorce as effective when both parties agree that it has occurred. Traditional Islamic law and practice may encourage reconciliation but ultimately does not intervene if the divorce is by mutual consent but accepts it as binding. Even today, in places as disparate as Libya, Israel, Saudi Arabia and Kuwayt, an uncontested divorce does not require judicial action to be binding.
University of Wyoming