Key Provisions Regarding the First Divorce
The first divorce encompasses various rules and issues, and here we outline some of its significant aspects:
- Should the husband wish to take back his wife during the waiting period (‘iddah), he can do so in two ways:
- The first method is verbal; the husband may say phrases such as “I have taken her back” or “I have reinstated my wife,” thus affirming the reintegration.
- The second method involves the husband engaging in intimate relations with his wife, with the intention of reconciling, which also establishes the reintegration.
- If a husband desires to reinstate his divorced wife during the waiting period of the first divorce, neither the wife’s consent nor that of a guardian is required, as indicated in the Quran: “And their husbands have more right to take them back in that [waiting] period if they intend reconciliation.”
- When a husband divorces his wife for the first time, she must observe a waiting period of three menstrual cycles (‘iddah), during which the divorce is revocable. He has the right to take her back at any time during this period. If the waiting period concludes without reinstatement, the divorce becomes irrevocable (minor irrevocable divorce), and restoration is only possible through a new marriage contract, a new dowry, the wife’s consent, and the presence of her guardian and two just witnesses.
- If the husband issues the first divorce prior to consummation of the marriage or if the marriage contract is annulled, the wife is not required to observe a waiting period and may remarry immediately if she chooses. This view is supported by the consensus of scholars, as stated in the Quran: “O you who have believed, when you marry believing women and then divorce them before you touch them, there is not for you any waiting period you should count against them…” This ruling also applies to non-Muslim wives, as the mention of “believing women” is a matter of emphasis.
- Should a husband divorce his wife for the first time and not take her back during the waiting period, he may only see her face and hands, as she then becomes akin to a stranger to him.
- If the divorced woman reconciles after the first divorce during the revocable waiting period or after it ends and it becomes a minor irrevocable divorce, she retains her prior count of divorces. If the husband then issues a third divorce, she becomes permanently prohibited to him unless she marries another man, consummates that marriage, and is subsequently divorced. The Quran states: “Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment.”
- In the case of a woman being divorced for the first time and still within her waiting period, there is no obligation for her to observe mourning according to the consensus of scholars. Instead, she is encouraged to adorn herself and present herself to her husband in hopes that God may mend their relationship. Imam Shafi’i held the view that mourning is permissible for a divorced woman who does not wish to reconcile.
- During the waiting period of the first divorce, her husband is prohibited from cohabiting with her without the intention of reconciliation, as she is considered forbidden to him. This is the opinion of the majority of scholars from the Shafi’i, Maliki, and Hanbali schools. In contrast, the Hanafi school allows enjoyment and intimacy without the intention to reconcile, albeit with disapproval. However, if the husband intends to reconcile, it is permissible with no disapproval, as she remains in the waiting period of revocable divorce and is effectively treated as a wife, allowing him to take her back at any time.
What is Meant by the First Divorce?
Divorce is categorized into two types: revocable divorce and irrevocable divorce. Revocable divorce occurs during the waiting periods of the first and second divorces, allowing the husband to reinstigate his wife without the need for a new marriage contract or dowry. Should he delay in reinstating her until the waiting period expires, it transitions into a minor irrevocable divorce, which has distinct rules and conditions.
The first divorce qualifies as a revocable divorce and takes place during the waiting period. Linguistically, the term “revocable” indicates the return; legally, it refers to the husband’s reinstatement of his wife after the first or second divorce within the waiting period. A husband can restore his wife following the first or second divorce without requiring a new dowry or contract as long as it is within the waiting period. The revocable divorce concludes upon the completion of the wife’s waiting period.
Consequences of the First Divorce
The marriage contract remains valid after the first divorce as long as the wife is within her waiting period. Should the husband reinstate her during this time, several implications arise:
- The husband is allowed to enjoy conjugal relations with his wife and may engage in privacy with her.
- The wife is obligated to remain in her marital home, adorn herself for her husband, and they inherit from each other should one of them pass away during the waiting period.
- The husband is required to provide financial support and housing for his wife.
- Scholars have stated that the wife’s consent is not necessary if the husband wishes to reinstate her during the waiting period. If the waiting period expires without reinstatement, the divorce becomes a minor irrevocable divorce, leading to differing implications from revocable divorce, including that the husband cannot take her back except through a new marriage contract and dowry. After the waiting period, the divorced woman has the choice to remarry her previous husband, should he desire her again, or to marry another individual.