Divorce
In linguistic terms, divorce refers to the removal of a constraint. Legally, it is defined as the dissolution of a marriage contract, which can occur immediately through an irrevocable divorce or eventually via a revocable divorce expressed in specific terms. Scholars unanimously agree on the legitimacy of divorce, as evidenced by the Quranic verse: (O Prophet, when you divorce women, divorce them during their period of waiting). During the time of the Prophet Muhammad (PBUH), the Muslim community recognized the permissibility of divorce. However, there are differing opinions among scholars regarding its fundamental ruling. The majority consider divorce to be generally permissible, while a minority hold that it is fundamentally prohibited, with exceptions in certain circumstances.
Rulings on Divorce
Scholars concur that divorce is subject to five legal rulings: obligation, recommendation, permissibility, dislike, and prohibition, depending on the context in which it occurs. These rulings can be summarized as follows:
- Obligation: Divorce becomes obligatory for a husband who has abstained from intimacy with his wife for more than four months. If this period elapses without resuming relations, he is instructed to divorce her. Should he refuse, the judge may issue a divorce, whether one, two, or a final divorce.
- Recommendation: Divorce is recommended if the wife neglects her religious duties, such as prayer and chastity, or if there is discord between the couple. In such cases, it is advisable for the woman to seek khula (a process for initiating divorce) if her husband neglects a right of God.
- Permissibility: Divorce is permissible when necessary, such as if the wife exhibits bad character or if the couple has significant mutual incompatibility.
- Dislike: Divorce is considered disliked if there is no pressing need for it, as indicated by the saying of the Prophet Muhammad (PBUH): “The most hated of permissible things to Allah is divorce.”
- Prohibition: Divorce is prohibited if it occurs during the wife’s menstrual period or if the husband divorces her while she is in a state of purity after having had sexual relations with her; this is termed as “innovated divorce.”
Conditions of Divorce
Islamic scholars have laid down several conditions for the validity of divorce, which pertain to the three parties involved. These conditions are detailed as follows:
- Conditions Concerning the Divorcing Party: For the divorce to be valid, the following conditions must be met:
- Marital Status: The divorcing party must be legally married to the recipient of the divorce, meaning there must be a valid marriage contract.
- Adulthood: The majority of scholars assert that a divorce issued by a minor is invalid, regardless of whether the child is able to reason or not. Nonetheless, the Hanbali school holds that if a minor can understand the implications of divorce, it is considered valid.
- Sanity: Scholars agree that the divorce of an insane person or one who is mentally incapacitated is invalid, as sanity is a prerequisite for legal responsibility. This category also applies to those who are asleep or unconscious, based on statements attributed to Umar ibn Al-Khattab and Ali ibn Abi Talib, where it is mentioned: “The pen has been lifted from three: the insane person until he recovers, the sleeper until he wakes, and the minor until he reaches puberty.”
- Intention and Volition: The intention behind uttering divorce must be clear, free from coercion. Scholars agree that even a jesting declaration of divorce is valid, as it carries serious ramifications for the woman. There are differing views on the validity of divorce for those who are mistaken, coerced, angry, reckless, or ill:
- Mistaken Parties: If someone mistakenly utters the word of divorce intending another phrase, the majority of scholars hold that it does not take effect if the mistake can be proven through circumstantial evidence. If not, the divorce may occur legally but not religiously.
- Coerced Parties: If a husband is forced to divorce under threat of serious harm, most scholars agree that such a divorce is invalid. However, the Hanafi school maintains that a coerced divorce is valid regardless of the circumstances, while coercion justified under legitimate grounds will lead to a valid divorce.
- Angry Parties: Anger is seen as a state of emotional disturbance affecting rational decision-making. If one’s anger leads to sheer shock, the divorce does not take effect.
- Reckless Parties: Recklessness is characterized by poor judgment regarding financial decisions. Most scholars affirm that the divorce of a reckless person is valid, although the scholar Ata disagrees.
- Ill Parties: Scholars agree that a divorce issued by someone who is ill, whether terminally or otherwise, is valid as long as the illness does not impair mental faculties. If the illness does affect mental clarity, the same rules governing insanity apply.
- Conditions Concerning the Divorced Party: The following conditions must be met regarding the divorced woman:
- Existence of Marriage: The woman must be a wife or in a state of waiting period from a previous divorce.
- Identification of the Woman: Scholars have stipulated that the divorced woman must be specifically identified through methods such as pointing, description, or intention.
- Conditions Related to the Form of Divorce: The expression of divorce can be verbally conveyed, and in certain situations, writing or gesturing can substitute for verbal expression. Each method necessitates specific conditions to be valid:
- Verbal Conditions: The spoken words of divorce must be clear and intended. If the words used are ambiguous, the intention behind them must be evident. The Malikis assert that certain apparent vague phrases can lead to divorce, a view supported by the Hanbalis.
- Writing Conditions: According to the majority, written divorce must be clear and visible, such as inscribing on paper or other solid surfaces. Ambiguous writing does not result in divorce, although some Hanbali texts indicate that divorce can still be valid without clarity. The Hanafis assert that if the writing is clear and intended, divorce is valid, regardless of intention for more vague writing.
- Gestural Conditions: Most scholars argue that gestures from someone capable of speech do not constitute valid divorce. The Maliki school, however, states that clear gestures by someone, such as a mute, can validate the divorce as long as the intention is similarly evident.
Fundamentals of Divorce
There is a divergence among scholars regarding the essential components of divorce:
- Hanafi School: According to the Hanafis, divorce has a single essential component: the verbal statement that conveys the meaning of divorce or its equivalent.
- Maliki School: The Malikis assert that divorce consists of four elements: the divorcer or their representative (such as an agent or judge), the intention to pronounce the word of divorce, the occasion for the divorce, and the verbal expression of divorce, whether explicit or implied.
- Shafi’i School: The Shafi’i perspective holds that divorce comprises five essential components: the divorcer (the husband or his representative), the expression of divorce, the intention of the wording, the context of the divorce, and legal authorization.