Women site, - Rulings on Divorce - I

Allaah The Almighty has made marriage a source of tranquility,
affection and mercy. However, disputes may arise between the spouses
which spoil a good relationship. The causes of dispute between spouses
might be trivial and thus, remediable or avoidable. The wife should
behave wisely and not be hasty to ask for divorce for the slightest
causes. The Messenger of Allaah, sallallaahu 'alayhi wa salam,
said:"Any woman who asks her husband to divorce her without a
compelling reason, will not find the smell of Paradise."]Ahmad, Abu
Daawood, At-Tirmithi and Ibn Maajah[
But, sometimes the causes of dispute might be too strong to solve by
any endeavor to make reconciliation between the spouses. At that
point, the only solution is to terminate the marital relationship,
where the couple leave each other:}But if they separate ]by divorce[,
Allaah will enrich each ]of them[ from His abundance.{]Quran 4:130[
divorce is the best way to terminate the marital relationship when it
becomes too difficult to continue. It entails detaching the sound
marital bond on the part of the husband with a specific expression.
Allaah The Almighty gave the husband the right of effectuating divorce
for reasons that include:
- Being keen on keeping the marital home from collapsing. Had the
right of effectuating divorce been in the hand of the wife, who is
known for being emotional, which sometimes makes her reckless, the
family safety would have more likely been vulnerable to risk, but the
man is wiser and less liable to becoming irritated.
- Divorce brings about such financial obligations on the husband like
the postponed dowry, maintenance during the term of 'Iddah )waiting
period(, and a gift of compensation: and these things force the man to
reconsider divorcing his wife, that is if the more significant reasons
do not prevent him. Furthermore, the woman is entitled to put a
condition that the right of effectuating divorce is in her hand. She
also has the right to terminate her marriage if her marital life with
her husband has become difficult, through other means such as Khul'
and separation by the court if the cause is reasonable.
The Islamic Sharee'ah )Islamic legislation( restricted the man's right
of divorce by limits, which include:
1- Divorce should not occur for a trivial cause inconsiderable under
the Sharee'ah. The man has to know that he is responsible before
Allaah The Almighty for his indulgence in using that right. This is
not an easy matter; and the Messenger of Allaah, sallallaahu 'alayhi
wa salam, said:"Of all the lawful acts the most detestable in the
sight of Allaah is divorce."]Abu Daawood[
2- Divorce should be during the woman's period of Tuhr )state of
purity from menses(, in which the man has not had sexual intercourse
with his wife. But, if he divorces his wife during the period of her
menstruation, or during the period of her Tuhr in which he has had
sexual intercourse with her, divorce would become effectuated and the
divorcing husband would carry a sin according to a group of scholars.
However, other scholars had a different opinion, seeing that divorce
in such a state would not become effectuated.
3- The three pronouncements of divorce should not be uttered
simultaneously in the sense that only one pronouncement of divorce
should be uttered. If one divorces thrice at one time, or in one
session, it would be regarded as three divorces according to many
scholars, and considered as only one divorce according to other
scholars.
Kinds of divorce:
There are two kind of divorce:
• Revocable divorce:
This is when the first or second divorce is pronounced by the husband
on his wife with whom he has consummated the marriage, on the
condition that it is not in return for compensation )as in the case of
Khul'(. This divorce entails no separation consequences so long as the
wife is in the period of 'Iddah, during which the husband has the
right to take her back and she becomes lawful for him. However, if the
period of 'Iddah is over without taking her back she then becomes
divorced from him and she is unlawful for him except with a new
contract and dowry.
• Irrevocable divorce:
Irrevocability is divided into: minor irrevocability and major irrevocability.
Minor irrevocability: This applies to the first and second divorce,
after the period of 'Iddah is over. It is called so because the
husband has the right to remarry his wife but with a new contract and
dowry; and he only has the right to the remaining number of divorces
upon her. If he has divorced her once, two divorces remain; and if he
has divorced her twice, only one final divorce remains.
Minor irrevocable divorce applies in the following cases: Divorce
before consummation of marriage, divorce in return for compensation
)i.e. Khul'( according to the scholars who consider Khul' as divorce,
and divorce because of a defect in case of being the first or second
time.
Major irrevocability: This applies to the divorce for the third time,
after which it is impermissible for the man to remarry his wife unless
she marries another and he consummates the marriage with her and then
divorces her, and she fulfills the term of 'Iddah. In this case, if
the first husband wants to re-marry her, a new contract and dowry are
necessary.

Women site, - Rulings on Divorce - II

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Doubt as to whether divorce is effectuated: If a man has doubt as to whether or not the divorce is effectuated, his doubt is ]regarded as[ inconsiderable, for certainty could not be removed by doubt according to the consensus of Islamic jurists. The woman has to rest assured of that.
The woman being authorized to divorce herself: The man has the right to authorize his wife to divorce herself. Among the words that denote this authorization we may mention, "Choose for yourself", "Your affairs are in your hand", or "Divorce yourself if you wish". If the woman chooses to divorce herself in this context, her divorce becomes irrevocable according to the soundest opinion. However, if she chooses to remain his wife, it would not be regarded as divorce. ‘Aa‘ishah, may Allaah be pleased with her, said, "The Messenger of Allaah, sallallaahu ‘alayhi wa sallam, gave us the freedom of choice )to leave him or remain with him as his wives(, and we chose )to remain with( him. He did not regard it as a divorce." ]Narrated by Al-Jamaa’ah[ It is also possible for the man to authorize anyone else to divorce )his wife on his behalf(.
Taking witnesses to divorce
Divorce becomes effective without taking witnesses to it according to the opinion of the majority of Islamic jurists. That is because it is the husband's right, which Allaah The Almighty has put in his hand, and not in the hand of anyone else. In confirmation of that, Allaah The Almighty Says )what means(:}And when you divorce women and they have ]nearly[ fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms.{]Quran 2:231[ According to Ibn Al-Qayyim, may Allaah have mercy upon him, "Divorce then is the right of he who marries, for it is he alone who has the right to retain, which is revocation."
However, it is narrated on the authority of some Companions, may Allaah be pleased with them, Taabi‘is )Followers(, may Allaah have mercy upon him and the chiefs of the Prophet's family that taking witnesses to divorce is obligatory, confirming their argument with the Aayah in which Allaah The Almighty Says )what means(:}And when they have ]nearly[ fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you.{]Quran 65:2[ It is narrated on the authority of ‘Imraan ibn Husayn, may Allaah be pleased with him, that he was asked about a man who divorced his wife, and then had sexual intercourse with her, and he took no witnesses to divorcing her nor to taking her back, thereupon, ‘Imraan said, “You have divorced )your wife( without following the Sunnah )Prophetic tradition(, and have taken her back without following the Sunnah: take witnesses to your divorcing her, as well as to your taking her back, and do not return to do so once again.” ]Abu Daawood[
The apparent meaning of these texts implies the obligation to take witnesses to divorce and taking back )one's wife(; and this is, indeed, preferable, particularly nowadays, when certainty has become weak, memory has been impaired, and the people have become hasty in effectuating divorce. Taking witnesses )to divorce( then is more cautious for man's religion and more supportive in adhering to what is right and preserving rights )for their people(.
Question of the restoration of a divorced wife
If a woman is separated from her husband by minor irrevocable divorce and then gets married to another man and is then divorced and returns to her former husband after fulfilling the term of her ‘Iddah, a new contract is necessary. It is the preponderant opinion that after the new contract, the husband has the right to three divorces on his wife, return to him, since the other husband cancels out any divorce of the previous husband, whether they are three or less.
Muhallil and Muhallal
If a man divorces his wife for the third time, she is separated from him by major irrevocable divorce, and becomes unlawful for him )to remarry( until she marries another man with a valid marriage under the Sharee‘ah and he consummates the marriage with her. Of course, if he likes to live with her, he could live with her, and if he dislikes to live with her, he could divorce her; and in this case, she becomes lawful for the first husband to remarry. Allaah The Almighty Says about the husband who divorces his wife thrice )what means(:}And if he has divorced her ]for the third time[, then she is not lawful to him afterward until ]after[ she marries a husband other than him. And if the latter husband divorces her ]or dies[, there is no blame upon the woman and her former husband for returning to each other if they think that they can keep ]within[ the limits of Allaah .{]Quran 2:230[
The Messenger of Allaah, sallallaahu ‘alayhi wa sallam, was asked about a man who divorced his wife )thrice(, and then another man married her and consummated the marriage with her, and divorced her before he had sexual intercourse with her: would she be lawful for the former husband )to remarry(?" He, sallallaahu ‘alayhi wa sallam, said:"No, until the other )i.e. the second husband( takes pleasure in her, and she takes pleasure in him )i.e. have sexual intercourse(."]An-Nasaa‘i[
But, if the man who divorces his wife thrice hires another man to marry his wife with a formal contract but without seeing her, and then to divorce her immediately in return for a certain sum of money, this would not make the woman lawful to her )first( husband, and his life with her in this state is unlawful. Allaah The Almighty cursed the Muhallil, i.e., the man hired )to make the irrevocably divorced woman lawful for her first husband to remarry by his marriage to her( and the Muhallal lahu, i.e. the irrevocably divorcing man )who hires him in order to make his irrevocably divorced woman lawful for him to remarry(. The Messenger of Allaah, sallallaahu ‘alayhi wa sallam, said:“Shall I not inform you of the male-goat that is borrowed )from among men(?”They said, “Yes, O Messenger of Allaah.” He said:“It is the Muhallil: May Allaah curse the Muhallil and the Muhallal lahu.”]Ibn Maajah[
Revocation
The man who divorces his wife has the right to take her back so long as she is still in the term of her ‘Iddah, if he divorces her for the first or the second time. In confirmation of that, Allaah The Almighty Says )what means(:}And their husbands have more right to take them back in this ]period[ if they want reconciliation.{]Quran 2:228[ The way he takes her back is debatable among religious jurists. Some say that if he has sexual intercourse with her, he then has taken her back, provided that he has the intention of taking her back. Others say that if he touches her with sexual desire, he has taken her back. In order for one to take back his wife, the intention to do so is sufficient about which he should tell his wife, whose consent is not requisite, for taking her back )one's wife( as it is the right of the husband.

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Women site, - Rulings on Divorce - III

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Separation by court
It is a permissible matter in order to enable the woman to terminate her marital relationship that she could not terminate by herself, because she does not have the right of divorce.
Separation by the court is of two kinds:
1- Separation which is considered as divorce and it is considered an irrevocable divorce. There are many reasons for which the woman has the right to ask for separation, leading to divorce, including:
• The husband does not financially support her
• The husband has some disabilities, whether they are physical disabilities like leprosy, to the extent that it makes it difficult upon her to stay with him without harm, or sexual dysfunctions that prevent him from having sexual intercourse with her or begetting children
• Bad companionship
• The husband's long absence from his wife
• His long imprisonment which causes harm to the wife, even if he leaves her sufficient maintenance.
Among the forms of separation which are regarded as an irrevocable divorce, we may mention Eelaa‘ if its conditions are met, and Khul‘ for those who are of the opinion that it is divorce.
2- Separation which is considered as an annulment of the marriage contract and it does not reduce the number of divorces.
Cancellation is caused by something that happens with which the marriage contract is prevented from continuing, like the choice of either of the spouses, upon reaching puberty, to annul the marriage )which was concluded by hisher guardian before reaching puberty( , discovering that the spouses are suckling siblings, or the conversion of any of the spouses to Islam. The annulment of the marriage contract terminates the marital relationship at once, like an irrevocable divorce.
When any one of the spouses embraces Islam before the other
If either of the spouses embraces Islam before the other, their marriage is in a hanging state: if the other embraces Islam before the wife's term of ‘Iddah )waiting period( is over, their marriage is still in effect; and if her term of ‘Iddah is over, she could marry anyone else if she so desires, or wait if she so desires. If the other spouse, who had not yet embraced Islam, embraces Islam, and the wife had not yet been married to anyone else, they would return to their matrimony with no need to renew the contract.
According to Imaam Ibn Al-Qayyim, may Allaah have mercy upon him, "We do not know that a marriage was ever renewed because )either of the spouses embraced( Islam )after the other(. One of two things used to be done in this respect: either they separate and she marries another; or she remained a wife of him until he/she embraced Islam even after a long time." It is narrated on the authority of Ibn ‘Abbaas, may Allaah be pleased with him, that he said, "The Messenger of Allaah, sallallaahu ‘alayhi wa salam, returned his daughter Zaynab, may Allaah be pleased with her, to Abu Al-‘As Ibn Ar-Rabee‘ )after he had embraced Islam( on the basis of their previous marriage, and he did not do anything afresh." ]Ahmad, Abu Daawood and Ibn Maajah[
Li‘aan
If a man accuses his wife of committing adultery, whatever the form his charge against her might take -- even if it is to deny before the judge that her pregnancy is from him -- the ruling is the same as described by Allaah The Almighty in the Aayah )verse( that says )what means(:}And those who accuse their wives ]of adultery[ and have no witnesses except themselves - then the witness of one of them ]shall be[ four testimonies ]swearing[ by Allaah that indeed, he is of the truthful. And the fifth ]oath will be[ that the curse of Allaah be upon him if he should be among the liars. But it will prevent punishment from her if she gives four testimonies ]swearing[ by Allaah that indeed, he is of the liars. And the fifth ]oath will be[ that the wrath of Allaah be upon her if he was of the truthful.{]Quran 24:6-9[
The presence of the judge is necessary for the process of Li‘aan to be carried out. He has to remind the woman )of Allaah The Almighty(, and admonish her. According to the Sunnah )tradition(, in Li‘aan the man should be brought forward to give his testimony first before the woman. If the husband abstains from Li‘aan, the corporal punishment prescribed for the crime of the false accusation should be implemented on him. If the woman abstains from Li‘aan, the corporal punishment prescribed for adultery should be implemented on her. After carrying out the measures of Li‘aan, the spouses should be parted, as they would become unlawful for each other, and they should never marry again according to the opinion of the majority of Islamic jurists. However, some are of the opinion that it is possible for him to remarry her if he belies himself, or if either of them is incompetent for being a witness.
If a man is involved in Li‘aan with his wife in which he denies his child from her, the child's ascription to the father, as well as the child’s financial maintenance lapse; and this cancels any mutual inheritance between them. In this case, the child is attributed to his mother, and they inherit each other, since the child is traced to the owner of the bed )i.e., the legitimate husband(, which becomes cancelled by Li’aan. It is narrated on the authority of Abu Hurayrah, may Allaah be pleased with him, that he said: The Messenger of Allaah, sallallaahu ‘alayhi wa sallam, said:"A child is traced to the owner of the bed, and for the adulterer are stones )i.e. stoning to death(."]Al-Jamaa’ah except Abu Daawood[
Eelaa‘
It is that the husband takes an oath not to have sexual intercourse with his wife for a duration that exceeds four months. Whoever does so is considered in a state of Eelaa' from his wife. However, according to the Maaliki scholars, whoever abstains from having sexual intercourse with his wife for the same period without making an oath, just for the purpose of harming her, is considered in a state of Eelaa' from her, and is subject to the ruling of Eelaa‘.
Ruling of Eelaa‘: According to the Sharee‘ah )Islamic legislation( the husband who has sworn not to have sexual intercourse with his wife has as long as a four-month respite to retract his decision and have sexual intercourse with his wife. If he does not, he would be in a state of Eelaa’, and expiation for his oath would become due upon him. Allaah The Almighty Says )what means(:}For those who swear not to have sexual relations with their wives is a waiting time of four months, but if they return ]to normal relations[ - then indeed, Allaah is Forgiving and Merciful.{]Quran 2:226[
However, if the four months elapse and the husband does not retract from his oath by having sexual intercourse with his wife, by doing so he will have then decided to divorce his wife. Allaah The Almighty Says )what means(:}And if they decide on divorce - then indeed, Allaah is Hearing and Merciful.{]Quran 2:227[ Hence, the majority of scholars are of the opinion that the wife has the right to ask him either to have sexual intercourse with her or to divorce her. If he still abstains from having sexual intercourse with her, the judge should pressure him to divorce her. If he refuses, then, the judge should divorce her on his behalf, and it becomes a revocable divorce according to the soundest opinion. The term of ‘Iddah is due upon the woman who is divorced upon the basis of Eelaa‘, like other divorced women.
In other cases, a man might make his wife unlawful for himself. If prohibition is intended for the woman herself, it does not become a divorce. It is narrated on the authority of Ibn ‘Abbaas, may Allaah be pleased with him, "If a man declares his wife unlawful for himself, it is an oath for which he should make expiation." Then he recited:}There has certainly been for you in the Messenger of Allaah an excellent pattern.{]Quran 33:21[ ]Muslim[ ‘Aa‘ishah, may Allaah be pleased with her, said, "The Messenger of Allaah, sallallaahu ‘alayhi wa sallam, took an oath not to have sexual intercourse with his wives. Afterwards, he made lawful what he had made unlawful )for himself(, and made expiation for his oath." ]Al-Bukhaari and Muslim[

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Thihaar
It is that a man says to his wife, "You are )unlawful( for me as is my mother." According to many scholars, the same is valid if the mention of the mother is replaced with the mention of anyone of his Mahrams )non-marriageable women( like his sister or daughter. Islam prohibits Thihaar. It makes a man’s wife unlawful for him, if it is effectuated, until he makes expiation for it. Thihaar is not considered divorce as it was during the pre-Islamic days, nor is it considered among the number of divorces. Rather, it is an oath by which a man’s wife becomes unlawful for him. Allaah The Almighty Says )what means(:}Those who pronounce Thihaar among you ]to separate[ from their wives - they are not ]consequently[ their mothers. Their mothers are none but those who gave birth to them. And indeed, they are saying an objectionable statement and a falsehood. But indeed, Allaah is Pardoning and Forgiving. And those who pronounce Thihaar from their wives and then ]wish to[ go back on what they said - then ]there must be[ the freeing of a slave before they touch one another. That is what you are admonished thereby; and Allaah is Acquainted with what you do. And he who does not find ]a slave[ - then a fast for two months consecutively before they touch one another; and he who is unable - then the feeding of sixty poor persons.
That is for you to believe ]completely[ in Allaah and His Messenger; and those are the limits ]set by[ Allaah. And for the disbelievers is a painful punishment.{]Quran 58:2-4[
Khul‘
It is a right given to the wife who is unable to observe the right of Allaah The Almighty concerning her husband, due to dissention and disagreement between them. She should give back to her husband all that she has taken from him, unless he accepts from her less than what is due. Allaah The Almighty Says )what means(:}But if you fear that they will not keep ]within[ the limits of Allaah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allaah, so do not transgress them. And whoever transgresses the limits of Allaah - it is those who are the wrongdoers.{]Quran 2:229[
It is narrated on the authority of Ibn ‘Abbaas, may Allaah be pleased with them, that the wife of Thaabit ibn Qays ibn Shammaas, may Allaah be pleased with him, came to the Messenger of Allaah, sallallaahu ‘alayhi wa sallam, and said, "O Messenger of Allaah! I could not find any fault with his morals or religion. But I hate )the morals of( disbelief in Islam )i.e., she dislikes him and detests to live with him out of aversion she has towards him.(” The Messenger of Allaah, sallallaahu ‘alayhi wa sallam, said to her:"Then, will you give him back his garden?"She answered in the affirmative, thereupon, the Messenger of Allaah, sallallaahu ‘alayhi wa sallam, said )to Thaabit, may Allaah be pleased with him(:"Accept the garden and divorce her once."]Al-Bukhaari and An-Nasaa‘i[
‘Iddah )Post-marriage waiting period(
It is a limited period of time which varies according to the different conditions of the woman, during which it is unlawful for her to marry. It begins from the very moment her husband leaves her, either by divorce, death, or the like. The women's different post-marriage waiting periods are:
1- The ‘Iddah of death: The woman whose husband dies and leaves her even without consummating the marriage with her should fulfill a post-marriage waiting period of four months and ten days, i.e. nearly 130 days, in compliance with the statement of Allaah The Almighty )what means(:}And those who are taken in death among you and leave wives behind - they, ]the wives, shall[ wait four months and ten ]days[.{]Quran 2:234[
The same applies to her, whose husband dies after consummating the marriage with her provided that she is not pregnant.
However, if she is pregnant, her ‘Iddah remains in effect until she gives birth. If separation is caused by both divorce and death, then, if the divorce is revocable, after which the husband dies, the woman should move )from the ‘Iddah of the divorced( to the ‘Iddah of such as whose husband dies, according to her condition whether or not she is pregnant.
2- The ‘Iddah of divorce and the annulment of marriage: If she is divorced before consummating the marriage, no ‘Iddah is due upon her. If she is divorced after consummating the marriage with her and she menstruates, her ‘Iddah is three menstruations, in compliance with the Aayah in which Allaah The Almighty Says )what means(:}Divorced women remain in waiting for three periods.{]Quran 2:228[ However, if she does not menstruate, like a young girl, or the woman in the age of menopause, her ‘Iddah is three months in compliance with the Aayah )verse( in which Allaah The Almighty Says )what means(:}And those who no longer expect menstruation among your women - if you doubt, then their period is three months, and ]also for[ those who have not menstruated.{]Quran 65:4[ If she is pregnant, the term of her ‘Iddah is until she gives birth, no matter how long or short the period might be as confirmed by Allaah The Almighty where He Says )what means(:}And for those who are pregnant, their term is until they give birth.{]Quran 65:4[ If a woman who menstruates is divorced and then her menses cease for an unknown reason, her ‘Iddah is a whole year.
The child’s custody
The Messenger of Allaah, sallallaahu ‘alayhi wa sallam, gave the right of the child’s custody, whether it is a male or female, to the mother so long as she does not get married. Ash-Shaafi’i, may Allaah have mercy upon him, estimated the period of custody of the male child until seven years. However, according to other scholars, there should be no particular age at which the custody terminates. But, what should be taken into consideration is the child's ability to become independent in terms of managing his affairs, and once he is able to do so, he should be in the care of his father. Others prolong the period of custody to the age of puberty. As for the female, she should wait with the mother until she reaches the age of puberty, after which she should be put under the care of her father. But, according to the Hanbali school of Fiqh )Islamic jurisprudence(, she should be put under the care of her father at the age of seven, in order for her to have more protection.
As for the ruling in case the child is in the age of discernment, it is debatable among the scholars of Fiqh. The Shaafi‘i scholars give the child the freedom to choose between his parents. But the Hanbali and Maaliki scholars were of a different opinion. According to those of the Hanbali school of Fiqh, in order for the freedom of choice to be valid, both parents should be legally competent for custody, the child should not be mentally ill, otherwise, he should be left with the mother or either of them who is qualified for custody. If the mother is religiously or physically incompetent for custody, it should be considered which among the child's relatives is more entitled to take custody of the child after her, according to the degree of kinship that preserves for the child his right of upbringing.
Charge for custody: As long as the woman who has custody receives financial maintenance during the term of ‘Iddah, she could not combine both maintenance and the charge for custody. However, when the term of the divorced woman's ‘Iddah is over and she receives no maintenance from the child's father, she then deserves charge for custody, for she performs a task in behalf of the child's father or guardian. This is in relation to the mother. But if the person who has custody is another woman, she should take charge for the services she performs. But, if she volunteers to do those services as a gift, her gift is valid, and her right of charge for custody lapses.
Conditions of custody: The woman entitled to the right of custody should have reached puberty, be of a sound mind, able to rear children, honest, well-mannered, and Muslim.

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