‘The most hated of permissible things to Allah is divorce.’[Sunan Ibn Majah; Vol. 3, Book 10, Hadith 2018; Graded Sahih by Darussalam]
Marriage is a major turning point in the course of one’s life. What comes after maybe good, bad, unbearable, or it may feel like heaven at times. Compromises and sacrifices are a part and parcel of every relationship, and it’s the same with marriage. It is essential that both, husband and wife, work together to make this blessed Halal relationship a success, because it’s a contract that both mutually got into. Allah ﷻ says,
‘O you who have believed, fulfill [all] contracts…’ [Al-Qur’an 5: 1]
Nonetheless, if there is still harm for the couple by staying in the marriage, or if the purpose of marriage is not fulfilled, then it is permissible for the husband and wife to dissolve the marriage or seek a divorce.
‘Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment…’ [Al-Qur’an 2:229]
Divorce is valid when a sane and awake man pronounces, as a joke or intentionally, words like, ‘I divorce you’, or ‘you have become a divorcee’, or if the man appoints a person to pronounce the divorce for him.
However, if it is an indirect pronouncement like ‘go back to your mother’s house’ or ‘you are free’, the divorce is not valid unless the man intended to divorce his wife or under three conditions that depict his intention of divorce:
- If the words were uttered when there was a controversy between the two.
- If the words were uttered in response to his wife asking him to divorce her.
- If the words were uttered when he was angry.
According to the Sunnah, a man can pronounce his wife divorced only in the interval between her two menstruation periods when he hasn’t had sexual intercourse with her, and it is prohibited for him to divorce her when she is menstruating.
‘O Prophet, when you divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period, and fear Allah, your Lord. Do not turn them out of their [husbands’] houses, nor should they leave [during that period] unless they are committing a clear immorality…’ [Al-Qur’an 65:1]
If the marriage has not been consummated: the wife has no waiting period (Iddah), the divorce is complete and her now ex-husband cannot take her back without a new marriage contract.
‘O you who believe! When you marry believing women, and then divorce them before you have sexual intercourse with them, no Iddah have you to count in respect of them.’ [Al-Qur’an 33:49]
If the marriage has been consummated, then the husband leaves his wife in her waiting period of three menstrual cycles. Divorce is not complete until the waiting period has passed, and the husband has a chance of taking his wife back without a new marriage contract during this period. If the Iddah has passed, the man must marry his ex-wife all over again, fulfilling all the obligations of a marriage contract. Taking back or re-marrying his ex-wife is allowed only if it is the first or the second divorce pronounced by the man.[Note: A divorce pronounced thrice in one sitting is prohibited in Islam. It is, however, considered a single divorce by majority of the scholars.]
On the other hand, if the divorce is pronounced for the third time, it is irrevocable. The divorced wife is not entitled to any maintenance by her ex-husband, and it is prohibited for the man to take his wife back or to marry her unless she marries another man willingly, consummates the marriage, and is either widowed or divorced by him.
‘Halala Nikah’ is a common Bid’ah practice arranged by couples who want to get back together after their third divorce. This is a Nikah between a thrice-divorced woman and a second man, done with the purpose of making the woman halal for her ex-husband. If the ex-husband gets back with his wife through this route, their marriage is not valid and they will remain adulterers.
It was narrated that Ibn ‘Abbas (RA) said, ‘the Messenger of Allah ﷺ cursed the Muhallil and the Muhallallahu.’ [Sunan Ibn Majah; Vol. 3, Book 9, Hadith 1934; Graded Saheeh by Darussalam]
While Allah ﷻ does give a man two chances to rectify, the condition of his ex-wife to marry her and consummate the marriage with a second man (after the third divorce) is to make the man realise the seriousness of divorce and to prevent him from abusing the authority given to him by Allah ﷻ. This authority lies in his hands because he maintains his women and is more far-sighted and reasonable than them.
‘Men are the protectors and maintainers of women, because Allah has made one of them to excel the other.’ [Al-Qur’an 4:34]
Likewise, Allah ﷻ doesn’t deprive a woman of her right to opt out of a difficult marriage. A woman can seek ‘khula’ or dissolution of her marriage from her husband by making a payment to him. The judge weighs the situation and makes the man divorce his wife accordingly. Unlike divorce, Khula conditions a woman to a waiting period of only one menstrual cycle.
Khula can be carried out in two ways:
- The husband divorces his wife with the intention of a divorce. In this case, the dissolution of marriage will be counted in the number of divorces carried out by the husband. If the husband had previously divorced his wife once, this khula will be counted as the second divorce.
- The husband releases his wife from the marriage contract in return for a payment, without intending to divorce her. In this case, the marriage contract is annulled. This dissolution will not be considered in the divorce count. If the husband had previously divorced his wife twice, then this will not be counted as the third divorce- meaning, the man and woman can legally marry again without the wife having to marry a different man.
Although women have been granted with this opportunity, it is important that they are reasonable when seeking a khula- it is permissible only when the marriage risks her Faith and well-being.
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. [Sunan Abi Dawud, 2226, Book 13, Hadith 52; Graded Saheeh by Al-Albani]
Every Islamic law is a blessing in disguise. Marriage is stressed upon in Islam and divorce is detested by Allah ﷻ, yet He ﷻ blesses His slaves with a chance to opt for a divorce. Such is the religion of Allah ﷻ and such is His love for His creation! So which of the favours of your Lord would you deny?
Written by: ZSA
Edited by: The Editorial Team
© The Islamic Reflections Blog
Book: Al-Fawzan.S, A summary of Islamic jurisprudence, volume 2.