Understanding Divorce Before Cohabitation and the Possibility of Reconciliation
Divorce that occurs before the consummation of marriage and the proper legal seclusion is classified as a minor irrevocable divorce. This situation arises when a man is contracted to a woman, but they separate through divorce prior to achieving the legal seclusion that accompanies consummation. In such cases, if the man divorces her, she is not required to observe a waiting period (iddah), as the essential condition of marital consummation has not taken place.
This is supported by the Quranic verse: “O you who have believed, when you marry believing women and then divorce them before you have touched them, there is not for you any duty upon them concerning their waiting period. So give them a provision and set them free in a gracious manner.” Consequently, the right of reconciliation is only established through a new marriage contract and a new dowry.
Legal Rulings on Divorce Before Consummation
The concept of divorce before consummation refers to the separation of a man and woman who have a valid marriage contract, which takes place before the consummation and legal seclusion. Legal seclusion is defined as the couple being alone together in a context away from the gaze of others, which affirms the full dowry and all rulings that are associated with divorce.
Among the legal considerations pertaining to this type of divorce are the dowry, waiting period, maintenance, inheritance, and the return of gifts. Below is an explanation of each of these rulings:
Dowry
Scholars unanimously agree that if a husband divorces his wife before consummation and she has a specified dowry, she is entitled to half of that dowry. Detailed opinions exist concerning the circumstances under which she is entitled to this half. The following outlines the positions of the four major Islamic schools of thought:
- Hanafi School: They assert that the wife is entitled to half the dowry in the event of divorce before consummation, provided the dowry has not yet been received.
- Maliki School: They state that if the husband requests a divorce before consummating the marriage, he is obligated to pay her half of the stipulated dowry. However, if the wife desires a divorce for a reason stemming from a defect on her part, she is not entitled to any dowry. Similarly, if the husband divorces her due to a defect before consummation, she also forfeits her dowry.
- Shafi’i School: They state that if divorce or khula occurs before consummation, the wife is entitled to half the dowry as long as the reason for the divorce does not originate with her. For instance, if the matter is delegated to her, and she decides to divorce herself, or if the husband has apostatized, she retains the right to half the dowry. Conversely, if the divorce is instigated by her, she loses her entitlement to the entire dowry.
- Hanbali School: They hold that the wife is entitled to half the dowry if the divorce is initiated by the husband.
Waiting Period (Iddah)
As mentioned earlier, there is no waiting period for a woman who is divorced before consummation. This is further supported by the Quranic verse: “O you who have believed, when you marry believing women and then divorce them before you have touched them, there is not for you any duty upon them concerning their waiting period.” This ruling is applicable to all women, regardless of whether the wife is Muslim or from the People of the Book, according to the consensus of scholars. The term ‘believers’ used in the verse serves merely as a general reference.
Maintenance
Despite the fact that divorce occurring before consummation is classified as irrevocable, it does not necessitate maintenance for the wife due to the absence of a waiting period. Maintenance is only required during the waiting period, and since this type of divorce does not entail a waiting period or maintenance, the obligation is not established. Regarding the provision mentioned in the Quran: “And for divorced women is a provision in a fair manner,” it refers to compensation in lieu of the dowry.
Inheritance
There are several opinions regarding the inheritance rights of a woman divorced before consummation during her husband’s illness. They are as follows:
- First Opinion: The majority of scholars maintain that a woman divorced three times before consummation during the husband’s illness does not inherit from him, nor is she entitled to a waiting period or maintenance. She is entitled to half the dowry. This opinion is upheld by the Hanafi, Shafi’i, and a view among the Hanbali scholars, as well as by Jaber ibn Zayd and Ibrahim Al-Nakha’i.
- Second Opinion: She is entitled to the full inheritance, must observe a waiting period, and inherits from her husband. This is the view of Al-Hasan Al-Basri, Abu Ubaid, and Ata.
- Third Opinion: She does not observe a waiting period but retains the right to inherit from her husband, as well as receiving the full dowry. This is noted as a narration from Ata.
- Fourth Opinion: According to Abu Ubaid’s narration of Malik, she is entitled to half the dowry, must observe a waiting period, and holds the right to inherit.
Return of Gifts
Gifts exchanged during the engagement and marriage are considered acts of donation within Islamic jurisprudence and are termed ‘hibah.’ The man is not permitted to reclaim these gifts, as they are deemed complete upon acceptance and become the property of the wife or fiancée. Should these gifts be classified as part of the dowry, she retains them until the marriage contract is finalized, at which point they formally become hers by virtue of the marriage contract. In cases of withdrawn engagement or divorce, the husband may reclaim these gifts if they were part of the contract, provided she has accepted at least half the dowry.
If she has not accepted it, they are considered part of the dowry if she desires. In terms of engagement, there are no repercussions for either party if the withdrawal occurs from either side, as engagement is non-binding compared to marriage. Both parties are free to withdraw, although it should be done in good faith unless there is a valid reason for termination. Additionally, if the gifts consist of consumable items such as food or clothing, the fiancée cannot return those items.