I have been repeatedly asked about the fiq of Divorce (Tallaq) so according to the Sherria of Islam here is my response and contribution to the request.
Talaaq is the separation of a married couple through the lawful process of divorce. If one, due to extreme circumstances has to pronounce divorce to his wife, the following conditions must be satisfied for the divorce to be valid.
- He Should be sane (Aqil)
- He should not be a minor (Baliqh)
- He should have his own discretion (Mukhtar)
According to Imam Malik, Imam Shaf’i, Imam Ahmad bin Hanbal, Abdullah Ibn Abbas (rh) and other Ulamaa excluding Imam Abu Hanifah, the pronouncement must be accompanied by intention and choice, and not under duress. (For example the father pressuring his daughter to divorce her husband, or the parent or parent in law is pressuring the husband to divorce his wife.) If this should happen in any case it would make the divorce invalid.
Legally there are only two types of divorce in Islam.
Talaq al-Raji. Is the first two pronouncement of Talaaq followed by a period of retreat from consummation between the husband and the wife, but the wife still has her rights to be maintained, and if they wish to reconcile the husband only have to say, “I take you back” and they can carry on with normal husband and wife relationship.
Talaq al- Bain. Is when the third divorce is pronounced and if this done the divorce becomes irrevocable, and both parties are haram for each other except the wife marry someone else, consummate that marriage, and then divorced from that husband without she being aided and abetted by her former husband, in that case it is lawful for the first husband to re-marry her.
PART TWO
Arbitration
One or the most important steps in the process of divorce is arbitration, and it has been sanctioned in Islam to stop wrongdoings, disputes, prevent disorder, suppress oppression, and argumentation, to enjoin and order the good, and to eradicate evil. So arbitration between spouses is permissible when the use of other means failed, and this recommendation is sanctioned and praised by Allah in the Quran.
وَإِنۡ خِفۡتُمۡ شِقَاقَ بَيۡنِہِمَا فَٱبۡعَثُواْ حَكَمً۬ا مِّنۡ أَهۡلِهِۦ وَحَكَمً۬ا مِّنۡ أَهۡلِهَآ إِن يُرِيدَآ إِصۡلَـٰحً۬ا يُوَفِّقِ ٱللَّهُ بَيۡنَہُمَآۗ إِنَّ ٱللَّهَ كَانَ عَلِيمًا خَبِيرً۬ا And if ye fear a breach between them twain (the man and wife), appoint an arbiter from his folk and an arbiter from her folk. If they desire amendment Allah will make them of one mind. Lo! Allah is ever Knower, Aware. ( HQ, v4 35)
The Arbiters should find out who among the couple has committed or is committing Nashooz, and according to the ulamaa the role of the Arbitrators are as Judges, so they can bring about reconciliation (Islaah) that will bring about Love and harmony to a disunited family or they can order divorce.
The role of the Arbitrators is one of praiseworthiness which is loved by Allah, and He has promised to reward those people who play this role in the following verse of the Quran.
لَّا خَيۡرَ فِى ڪَثِيرٍ۬ مِّن نَّجۡوَٮٰهُمۡ إِلَّا مَنۡ أَمَرَ بِصَدَقَةٍ أَوۡ مَعۡرُوفٍ أَوۡ إِصۡلَـٰحِۭ بَيۡنَ ٱلنَّاسِۚ وَمَن يَفۡعَلۡ ذَٲلِكَ ٱبۡتِغَآءَ مَرۡضَاتِ ٱللَّهِ فَسَوۡفَ نُؤۡتِيهِ أَجۡرًا عَظِيمً۬ا
There is no good in much of their secret conferences save (in) him who enjoined almsgiving and kindness and peace-making among the people. Whoso doeth that, seeking the good pleasure of Allah, We shall bestow on him a vast reward. (4 V114)
Although divorce is the right of the husband, the wife can also seek divorce though the process of Kula. (To be discussed in part two)
A very important point to be considered regarding divorce is related in a Hadith by Ibn Omar (rh) in which he stated the he heard the Messenger of Allah (sws) said. The Lawful thing which Allah hates most is divorce. (Bulugh Al Maram 915)
So as a matter of sincere advice to all the married couples out there, if there are some disputes between the husbands and the wives, think hard and wisely, knowing through the experiences of others the hatred, hardship, and disadvantages that divorce has on children if any, and the family generally, and the community, before making that final decision to divorce each other, before exploring all the possible solutions to rectify what problem that may have brought about the disunity between both of you, and may Allah preserve, and protect, the our brothers and sisters from the breaking of our families through divorce. Ameen.
Sheikh Kamaludin
