Divorce

Surah 2 (Al-Baqarah/The Cow): 229

A divorce is only permitted two times: After that the parties should either stay together on just terms, or separate with kindness.

It is not lawful for you (men) to take back any of your gifts (from your wives) except when both parties fear that they would be unable to keep the limits set forth by Allah.

If you (judges) do fear that they would be unable to keep the limits set forth by Allah, then there is no blame on either of them if she gives something for her freedom.

These are the limits set by Allah, so do not break them.

If any (person) does step beyond the limits set forth by Allah, such persons wrong (themselves as well as others).

[‘English Translation of the Message of the Qur’an’,  Syed Vickar Ahamed, 1999 (Al Azhar, a simplified translation aimed at younger readers)]

 

Zihar

{58.1-4} and {33.4} each refer to a practice that they call ‘zihar‘ (literally meaning a ‘back’, as in the part of the body). The traditional explanation for the use of this term in these verses is that it had been an Arab custom for a man to say to his wife: ‘You are like my mother’s back to me’. The effect of saying these words, appears to have been that, whilst the wife to whom the words were spoken might remain within the man’s household, their conjugal relationship was terminated, and so the phrase operated as a form of divorce.

{58.1} God has indeed heard the words of she who disputes with thee concerning her husband and complains to God.

And God hears your conversation. Truly God is Hearing, Seeing.

{58.2} Those among you who commit zihar against their wives, those are not their mothers. None are their mothers save those who gave birth to them.

Truly they speak indecent words and calumny.

And truly God is Pardoning, Forgiving.

{58.3} As for those who commit zihar against their wives and then go back upon what they have said, let them free a slave before they touch one another; to that are you counselled.

And God is aware of whatsoever you do.

{58.4} And whosoever has not (the means) let him fast two consecutive months before they touch one another. And whosoever is unable, let him feed sixty indigent people.

That is so that you may believe in God and His Messenger.

These are the limits set by God. And the disbelievers shall have a painful punishment.

 

A believing woman is said to have complained to Muhammad that her husband had purported to perform the ‘zihar’ divorce upon her, in response to which {58.1-4} was announced to declare that such a divorce should not be deemed to be legally effective. Moreover, uttering these words is a sin, since they amount to both making a misrepresentation concerning a biological relationship (see also 〈62.〉 below) and presenting as haram (forbidden) something that has not been made unlawful in the Qur’an. Consequently the man who utters such words is told that they should make the penance prescribed in verses 3 and 4. Ironically, {58.3} rules that the husband’s act of falsely asserting that his wife is haram to him, becomes temporarily self-fulfilling as the man is then forbidden from touching his wife until after he has completed the performance of his penance. The consequence for the two parties to the marriage should the husband not ‘go back upon what they have said’ is not made clear.

Talaq

The Quranically approved approach to marital discord is that, prior to a divorce there should be a process of dispute resolution, whereby the cause of the argument is to be arbitrated upon by two individuals, one from ‘his people’, the other from ‘her people’, {4.35}, see also {4.127-130}. {2.226}’s ‘Those who foreswear their wives shall wait four months’ is read as imposing a maximum period of four months during which a man may refuse to have sex with his wife, before a divorce is required.

 

If matters should proceed to a divorce, several divorce rules are contained in Surah 2: {2.226-232, 236-237 & 241}. Of special note:

• {2.228} prescribes that whilst a man has the right to declare his wife divorced, the divorce is not final and may still be revoked by him at any time until the woman has undergone, since the declaration of divorce, three menstrual cycles.

This ‘iddah period‘ is qualified in three ways:

{33.49} disapplies {2.228} for cases where no physical intimacy has occurred,

{65.4} substitutes a fixed period for women and girls who do not menstruate (see 〈57.〉), and

 

{2.229} introduces a limitation on declaring and then revoking divorces under the preceding verse. Pursuant to {2.229}, where a man has declared his wife to be divorced for a third time – the so-called ’triple talaq’ – then he loses the right to revoke the divorce. This limitation was reportedly (per Ibn Kathir, author of the most frequently cited Qur’an commentary) introduced in order to stop one particular Muslim man who was repeatedly divorcing his wife and thereafter revoking the divorce, thereby preventing her from ever remarrying. {2.230} specifies that once a divorce has become final, it is not lawful for the two to remarry until after the wife has married and divorced somebody else; a rule that can result in short ‘marriages of convenience’ (‘nikāḥ halāla’) to enable a reconciliation with the original husband to take place.

 

• {65.1} establishes that during this period the revocably-divorced wife may remain in the family home, unless she commits ‘a flagrant indecency’.

 

• {2.34-37} sets a longer ‘iddah period, four months and ten days within which a widow may not remarry. Possibly the additional period of forty days is imposed as a mark of honouring the deceased husband.

 

Khul’

There is a consensus within Islam that Qur’an should not be read as containing any equivalent right for a wife to declare her husband divorced. However, a wife may negotiate the terms of an agreed divorce (‘kuhl’’) with her husband, based upon:

{2.228}: ‘… If you fear that (the parties to an unhappy marriage) would be unable to keep the limits set forth by Allah, then there is no blame on either of them if she gives (her husband) something for her freedom …’,

and

{4.128}: ‘…If a wife fears animosity or desertion from her husband, there is no blame upon them, should they come to an accord, for an accord is better…’

The Qur’an anticipates that a khul’ divorce may involve the wife paying her husband money in return for him releasing her from the marriage. It is also generally held that that should her husband fail to agree reasonable divorce terms, a wife may petition a Sharia court/tribunal that has power to impose its own terms – although this is not based upon any Quranic authority and to obtain a judicially-prescribed divorce requires that the applicant show a serious fault or failing on the part of her husband, such as ‘animosity or desertion’ ({4.128}). Accepted categories are a husband’s culpable failure to meet his obligation to maintain his wife, his impotence or his carrying out beatings in excess of that which is permitted 〈59.〉

 

 

Child custody

 

{2.133} provides that in the event that a man divorces his wife whilst she has a young child by him, the mother shall ‘nurse their children two full years, for such as desire to complete the suckling’ during which period ‘it falls on the father to provide for them and clothe them honourably.’ A two-year weaning period is also cited in {31.14} : ‘And We have enjoined man concerning his parents – his mother bore him, weakness upon weakness, and his weaning was two years’, although in {46.15} a shorter period is given: ‘And we have enjoined man to be virtuous unto his parents. His mother carried him in travail and bore him in travail, and his gestation and weaning is thirty months’.

 

Sharia jurists all agree that whilst a young child should be cared for by their mother, or in her absence another suitable female relative, custody over an older child may be later claimed by their father, although the schools of jurisprudence differ as to when this age of sufficiency is reached.