Jump to content
Guests can now reply in ALL forum topics (No registration required!) ×
Guests can now reply in ALL forum topics (No registration required!)
In the Name of God بسم الله

Divorce Laws In Islam

Rate this topic


Recommended Posts

  • Veteran Member

Divorce or Dissolution of Marriage

 

Marital life ought to begin with earnestness and should continue happily under the shadow of love, tolerance and self-sacrifice.  But practically speaking marriage contract and conjugal relations do not in all cases continue to exist till the end of life.  In certain cases it becomes impossible for two parties to live together in peace and harmony for various reasons such as their emergence of deep rooted differences.  In such circumstances, there must be a suitable way of dissolving a marriage legally, otherwise if the parties are forced to continue to live together, their life is likely to become unbearable.  In many cases, the consequences may be most regrettable and even tragic.  Anyway, it is evident that as marriage in itself is a social need, in certain circumstances its dissolution is also a social necessity.  The social compulsions have forced even the Christians to frame and enforce laws concerning divorce, though their present religious book forbids it except in the case of unchastely and though their Church has for long opposed it vehemently.  "But I say unto you, that whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery: and whosoever shall marry her that is divorced committeth adultery".  (Matthew, V:32).  The divorce act is even passed in Italy, which is the seat of the Pope.

 

 

Divorce in Islamic Law 

  
Divorce is the dissolution of permanent marriage resulting in the end of al responsibilities of the husband and the wife in regard to the rights and obligations connected with it.

 

From the Islamic point of view the disintegration of family bond is very undesirable on principle.  It is the worst and the most detestable act in the eyes of Allah.

The Holy Prophet (s.a.w.) has said:

- The most detestable thing before Allah is divorce. 
- Allah likes most, the house which is inhabited in the wake of  a  marriage and dislikes most the house which is abandoned in the wake of separation.

In fact divorce may be regarded as an unpleasant and bitter pill which has to be taken in the case of need.  Resort to it should not be made unnecessarily and for the sake of caprice.  Islamic traditions have described unnecessary divorce as a cause of remoteness from the blessings of Allah.

Islam has suggested certain precautionary measures to ward off divorce as far as possible.  For example:

-  Much stress has been laid on the careful selection of the wife. 
-  Repeated recommendations have been made to treat her well and connive at her minor mistakes which are common in life. 
-  Self-control against sudden outbursts of rage and hasty actions. 
-  Formation of an internal family court to resolve the differences arising between husband and wife.

It is possible that the relations between the husband and the wife might sometimes become strained consequent on differences and scolding remarks.  Islam suggests that in such cases a suitable way should be found at the earliest to resolve the differences and there should be no talk of separation so easily.  All cases of strained relations are not such that we should be disappointed of the restoration of love and affection.  In most cases it is possible to rectify the position.

Whenever it is not possible for the husband and wife to sort out their differences themselves, their case should be considered by a family court consisting of two arbiters, one selected from the family of the husband and the other from the wife.  The arbiters should be sympathetic and experienced so that they may listen to the point of view of both the parties, and try to reconcile them.

In this respect the Qur’an says:

"If  you fear a breach between the two (husband and wife), appoint an arbiter from his people and another from hers.  If they desire amendment, Allah will make them of one mind". (Surah al-Nisa, 4:35)

Obviously an arbiter should be a trust worthy person, a good conversationalist and fit for making a just arbitration.  The two arbiters are to be selected from among the members of the two families because as such they are expected to have a knowledge of the temperament of the husband and wife as well as of their domestic affairs; and also because they will normally be interested in settling their differences.

 

Effects of divorce

 

From the psychological, legal and social point of view, divorce produces varied effects, some of them being related to the husband and wife themselves and some of them to their families.  If there are children, separation between their parents will affect their position also in many ways.

In view of these results, special conditions have been visualized for divorce so that it may be warded off as far as possible, for if it is taken easy, the future of children will certainly be threatened.

What should be the condition of a woman to be divorced:

* Her periods must not be on. 
* After the last sexual intercourse, she must have had her periods at least once. 
* If the woman having been pregnant has been delivered of a child, her rest period after delivery (ceremonial purification from child birth) must have come to an end.

Of course if a woman is pregnant or does not menstruate, the above conditions do not apply to her.  In cases other than these two, the question of divorce should be postponed till these conditions materialize.

 

Conditions of the effectiveness of divorce

 

Divorce is valid and operative only if the following conditions are fulfilled: 
* The husband who divorces must be of mature age and must be possessed of understanding.  Divorce pronounced by a minor, a lunatic or an idiot is invalid. 
* The husband must be exercising his own free will.  Divorce  under compulsion is not valid. 
* Presence of two witnesses.

According to the Shiah school of thought and as expressly mentioned in the Qur’an (second verse of Surah al-Talaq), divorce must be pronounced in the presence of at least two trustworthy and righteous witnesses.

This condition automatically implies that two righteous persons should become aware of the decision of the spouses to dissolve marriage.  In many cases their intervention and help may save the situation, and they may find a suitable way of reconciling the husband and wife.  Further, their knowledge and presence may be helpful in settling financial and other questions and finding a most appropriate arrangement for looking after the children.

 

Kinds of divorce

 

After the enforcement of divorce it is possible to resume conjugal relations in some cases without contracting marriage anew.  In some other cases a fresh marriage is required before the resumption of these relations.  Hence divorce is of two kinds; revocable and irrevocable.

In the case of revocable divorce if the man regrets and wants to resume conjugal relations, the tie is automatically restored and there is no need of contracting marriage again, provided he revokes his act within the period of probation (iddah) which is normally three months.

In the case of irrevocable divorce it is not possible to resume conjugal relations in this way.

 

Kinds of irrevocable divorce

 

There are several kinds of irrevocable divorce. 
(1)  If the husband agrees to dissolve the marriage at the request of the wife, it is called khul’a. 
(2) If the marriage is dissolved because both the husband and the wife have asked each other to terminate it, it is called mubarat, that is mutual release. 
(3) The divorce pronounced by the husband on his own is regarded as irrevocable in the following circumstances:

Úáíå ÇáÓáÇã If the dissolution of marriage has been brought about before its consummation. 
( B) If the divorcee is a girl whose periods have not commenced or an old woman who does not menstruate, because she has reached the age of menopause i.e. is no longer capable of bearing children. 
© If the divorce has been pronounced for the third time.

In all these cases if the two parties decide to resume conjugal partnership, they should remarry, for the first marriage is no longer effective.

 

NOTES:

 

 

(1) Remarriage with a woman, who has been divorced three times, by her former husband who divorced her is possible only on the condition that she is married to another man first and that such second marriage is terminated after consummation.  (This condition precedent to reunion has been laid down to deter and discourage the people from taking the question of divorce too easy.)  If divorces take place between the husband and wife again, and again (till nine times) they cannot remarry under any circumstances.  This restriction also ensures that as far as possible divorces on frivolous grounds may be avoided.

2) In the case of khul’a and mubarat reunion is possible only if the woman demands back what she had surrendered to the husband.  Such demand must be made before the period of probation expires.

In other cases, if they are inclined to resume conjugal partnership, they should remarry in accordance with the conditions they agree to.

 

Iddah of divorce

 

In the case of separation between the husband and the wife an important question is to find out whether she is pregnant by her former husband.  To ascertain this point, the Islamic law has laid down that during a period of probation the woman should not marry another person.  This period is called iddah.

 

Period of Iddah

 

The period of iddah for a woman who is not pregnant is the period covered by three menstrual courses, which is normally three months.  The iddah of a pregnant woman is till she is delivered.

 

Rules regarding the period of iddah

 

During the period of iddah the woman cannot take a new husband, and nobody should make an offer of marriage to her.  She is to be maintained by her former husband like a married woman. 
In the case of revocable divorce if the husband or the wife dies during the period of probation, the survivor will inherit the deceased.

 

Right of guardianship of children

 

One of the important questions that crop up on the dissolution of marriage is that of the guardianship of the children which is called the right of hizanah.

The Islamic law gives the custody and care of the children in the early years of their life to the mother, even if the father is competent enough and willing to look after them.  The limit for a boy is two years and for a girl, seven years.

In case the mother is not capable or fit to take care of the child, the responsibility of guardianship devolves on the father.  In both cases the father has to bear the expenses of the child,  As the right of guardianship is recognized solely for the benefit of the infant, it should be in the custody of the person who can look after it the best.  On this principle the Islamic law has given priority in the matter to the mother in the first years of the life of the child.  If both the parents are unable to look after it, some other suitable arrangements should be made to ensure the welfare of the child.  If the father and the mother agree, the infant may be given in the custody of a third person under whose guardianship it can, in their view, make proper physical and spiritual progress.

(Taken from Philosophy of Islam by Dr. Behishti and Dr. Bahonar)

http://www.al-shia.org/html/eng/books/fiqh&usool/divorce-or-dissolution-of-marriage/divorce-or-dissolution-of-marriage.htm

Edited by Chaotic Muslem
Link to post
Share on other sites
  • Moderators

Nice factual article. This is not to be taken lightly.

I take issue with the father claiming custody of a boy after 2 years age. That age boy is better in the care of his mother in most cases that I've seen. Even above the age of 7, I think individual circumstances need to be considered. No child should be ripped from his or her home and family and forced to live with a near stranger.

Link to post
Share on other sites
  • Veteran Member

Nice factual article. This is not to be taken lightly.

I take issue with the father claiming custody of a boy after 2 years age. That age boy is better in the care of his mother in most cases that I've seen. Even above the age of 7, I think individual circumstances need to be considered. No child should be ripped from his or her home and family and forced to live with a near stranger.

I always thought that 7 is the age for both girls and boys. Also i think i've heard or read that when divorce occurs while children are teens, they can choose which parent to live with?

I couldn't find many articles on this issue in English.

Link to post
Share on other sites
  • Advanced Member
 

Thank you for sharing this knowledge, it is very interesting and beneficial. But how about talaq al wilai? That hasn't been mentioned above..

Link to post
Share on other sites
  • Veteran Member

Thank you for sharing this knowledge, it is very interesting and beneficial. But how about talaq al wilai? That hasn't been mentioned above..

I think you mean Judicial divorce?

http://www.al-islam.org/rights-women-islam-ayatullah-murtadha-mutahhari/part-ten-right-divorce#judicial-divorce

Link to post
Share on other sites
  • Advanced Member

 

Exactly that. Thanks for that too. Very interesting. :)

 

I wish the conditions for Judicial divorce were more clear though and what the exact process is would also be good to know..

Edited by 786repenting
Link to post
Share on other sites
  • Moderators

I always thought that 7 is the age for both girls and boys. Also i think i've heard or read that when divorce occurs while children are teens, they can choose which parent to live with?

I couldn't find many articles on this issue in English.

I have read that too, but don't remember where.

Link to post
Share on other sites
  • Veteran Member

Exactly that. Thanks for that too. Very interesting. :)

 

I wish the conditions for Judicial divorce were more clear though and what the exact process is would also be good to know..

 

The divorce of Khul’, its characteristics and conditions

 

The divorce of a wife who develops an aversion from her husband and hates him, and surrenders to him her Mahr or some of her property so that he may divorce her, is called Khul' Divorce[1].

 

To put it more clearly, this divorce refers to when for whatever reason, a wife no longer wants to continue living with her husband, while he doesn’t want to break up with her, and she gives him money or property in order to convince him to divorce her (because in Islam, it is the man who has the right to divorce his wife, and the wife has no say in it, therefore, the only way for the wife to be able to get separated from her husband is to somehow convince him to do so).

 

This type of divorce has its own conditions and rulings in which we will point to some of:

 

1- As long as the woman hasn’t asked her former husband to return her money or property, the man can't return to her and take her back as his wife (while in normal divorces, after the divorce, the man has the right to take back the woman as his wife without any need to recontract a marriage with her [of course up to three consecutive times; after that there are other conditions]).[2]

 

2- The husband has no right to force his wife into asking for this type of divorce (some men who don’t want to live with their wives anymore and at the same can't divorce them because if they do, they have to submit the Mahr to them, put them under pressure and bother them in order for them to be the ones asking for a Khul’ divorce in return for them not taking their Mahr anymore, and this is something that Islam has prohibited).

 

3- The divorce formula must be recited, for instance the husband must say: خالعتک... instead of the normal طلقتک... which is used for normal divorces.

 

4- The wife has to immediately accept the divorce by for instance saying قبلتُ after the husband (unlike normal divorces in which the woman has nothing to do with accepting the divorce or not).

 

5- One condition for a divorce to be considered Khul’, is for the wife to be the only one who has discontent regarding the marriage, not both sides, because in this case, the divorce is called “Mubarat”.

 

6- Two baligh and pious (adel) men have to hear the formula being recited.[3]

 

[1] Tawdihul-Masa’el of the Maraji’, vol. 2, pg. 533; Fiqhul-Ridha, pg. 244; Al-Marasimul-Alawiyyah wal-Ahkamul-Nabawiyyah, pg. 162; Ibn Hamza Tusi, Al-Wasilah ila Naylil-Fadilah, pg. 331.

[2] Fiqhul-Ridha, pg. 244.

[3] Muhammmad bin Husein Ameli Baha’i, Jame’e Abbasi va Takmile An, vol. 2, pg. 317-318; Al-Wasilah ila Naylil-Fadilah, pg. 331.

 

http://islamquest.net/en/newquestion/question/fa6449

Edited by Chaotic Muslem
Link to post
Share on other sites
  • Advanced Member

(salam)

Jazakallah for the informative posts.

I have a question. What can a woman do if her husband does not agree to any type of divorce but at the same time he does not want to stay with her?

will she be stuck in a limbo?

Edited by wayfarer.
Link to post
Share on other sites
  • Moderators

(salam)

Jazakallah for the informative posts.

I have a question. What can a woman do if her husband does not agree to any type of divorce but at the same time he does not want to stay with her?

will she be stuck in a limbo?

If the husband refuses khula divorce, the woman's only recourse is to appeal to an aalim to order her husband to divorce her, or to divorce her on her husband's behalf. This option is particularly unappealing because it requires publicly airing the couple's private issues, in particular, whatever injustice the man has done which causes his wife to be unable to stand remaining married to him, but it will get the job done.

If it makes any difference, it is haram for a man to refuse divorce if his wife is mentally stable and requests it. Most men who abandon their wives and then refuse divorce don't care about sin.

Link to post
Share on other sites
  • Veteran Member

OK, so we have covered in brief :

Normal Talaq when a man get bored with his wife

Normal reunite after the normal talaq when the husband rethinks his decision and decides to keep his wife (mostly during this time, the man is switching on his radar looking for another one)

He has up to three trials then he cannot reunite with his wife UNLESS she marries another man then the other man divorce her (3 times as well) then she can marry her first husband.

 

Woman divorcing her husband in the case of her HATING HIM to the limit she cannot stand him and ready to stab him. She can pay him back the dowry or anything she has, if he got convinced that the woman is really hating him and it is not one of her moody episodes, then he accepts the money then the divorce will be carried out by husband and wife

 

 

Third kind of divorce is the one that neither husband nor wife can conduct it. It should be done by a just (JUST) judge. Basically when a man loses the credits to be guardian over a woman. Legally she is still under correct contract between her and her husband, and legally, the orders of her husband should be listened to. The only person who can revoke a correct valid marriage and strip the husband his guardianship over the woman is a just judge but this happens under conditions like:

1-Husband turned mad. he no longer can be guardian over himself let alone over a wife and children.

2- Missed husband for long time that it is highly probable that he died.

 

The judge will be the woman's guardian instead of her husband and ail grant her divorce (not khul', woman dose not pay anything ).

 

 

I couldn't find much about this sort of divorce in English. I may try in Arabic but I don't promise translating .

 

 

I found this on the pages of Shiachat 2007:

Question: When is it permissible for a wife to ask for divorce through the religious judge? Is it permissible for a wife — whose husband constantly treats her badly or a wife whose is sexually not satisfied by her husband to an extent that she fears committing that which is haram — to ask for divorce and be divorced?

Answer: It is permissible for her to ask for divorce through the religious judge, if her husband refuses to fulfill her marital rights and also refuses to divorce her after the religious judge has ordered him to do one of the two. In such a case, the judge would pronounce the divorced the wife. The circumstances in which this could happen are the following: a: When the husband refuses to provide for the wife and also refuses to divorce her. This would include the case of a husband who is unable to provide for his wife and also refuses to divorce her. B: When the husband harasses the wife, treats her unjustly, and does not behave with her kindly as Almighty Allah has ordained. c: When the husband abandons her completely and she becomes like a suspended woman, i.e. neither married nor free to marry. As for the case where he does not fully satisfy her sexual needs to an extent that she fears committing the haram, then, based on compulsory precaution, the husband must fulfill her needs or consent to her demand for divorce. However, if he does not do that, then the wife has to bear the situation patiently and wait [for a better future].

http://www.shiachat.com/forum/topic/234935110-divorcetalaq/?p=1515166

Link to post
Share on other sites
  • Advanced Member

OK, so we have covered in brief :

Normal Talaq when a man get bored with his wife

Normal reunite after the normal talaq when the husband rethinks his decision and decides to keep his wife (mostly during this time, the man is switching on his radar looking for another one)

He has up to three trials then he cannot reunite with his wife UNLESS she marries another man then the other man divorce her (3 times as well) then she can marry her first husband.

 

Woman divorcing her husband in the case of her HATING HIM to the limit she cannot stand him and ready to stab him. She can pay him back the dowry or anything she has, if he got convinced that the woman is really hating him and it is not one of her moody episodes, then he accepts the money then the divorce will be carried out by husband and wife

 

 

Third kind of divorce is the one that neither husband nor wife can conduct it. It should be done by a just (JUST) judge. Basically when a man loses the credits to be guardian over a woman. Legally she is still under correct contract between her and her husband, and legally, the orders of her husband should be listened to. The only person who can revoke a correct valid marriage and strip the husband his guardianship over the woman is a just judge but this happens under conditions like:

1-Husband turned mad. he no longer can be guardian over himself let alone over a wife and children.

2- Missed husband for long time that it is highly probable that he died.

 

The judge will be the woman's guardian instead of her husband and ail grant her divorce (not khul', woman dose not pay anything ).

 

 

I couldn't find much about this sort of divorce in English. I may try in Arabic but I don't promise translating .

 

 

I found this on the pages of Shiachat 2007:

Question: When is it permissible for a wife to ask for divorce through the religious judge? Is it permissible for a wife — whose husband constantly treats her badly or a wife whose is sexually not satisfied by her husband to an extent that she fears committing that which is haram — to ask for divorce and be divorced?

Answer: It is permissible for her to ask for divorce through the religious judge, if her husband refuses to fulfill her marital rights and also refuses to divorce her after the religious judge has ordered him to do one of the two. In such a case, the judge would pronounce the divorced the wife. The circumstances in which this could happen are the following: a: When the husband refuses to provide for the wife and also refuses to divorce her. This would include the case of a husband who is unable to provide for his wife and also refuses to divorce her. B: When the husband harasses the wife, treats her unjustly, and does not behave with her kindly as Almighty Allah has ordained. c: When the husband abandons her completely and she becomes like a suspended woman, i.e. neither married nor free to marry. As for the case where he does not fully satisfy her sexual needs to an extent that she fears committing the haram, then, based on compulsory precaution, the husband must fulfill her needs or consent to her demand for divorce. However, if he does not do that, then the wife has to bear the situation patiently and wait [for a better future].

http://www.shiachat.com/forum/topic/234935110-divorcetalaq/?p=1515166

 

Chaotic Muslem, you are an absolute star!! thank youu for that. may Allah bless you for sharing that knowledge! 

 

:D

Link to post
Share on other sites
  • 3 months later...
  • Veteran Member

salam Chaotic muslem,

I have a question. Would it be normal for a divorced woman to intensely hate her husband during the iddah period? if so, is it a psychological thing?

salam Chaotic muslem,

I have a question. Would it be normal for a divorced woman to intensely hate her husband during the iddah period? if so, is it a psychological thing?

Ws, sorry sis, I'm not an expert in psychology of ex married people . But I think anything that reaches the limit of obsession is pathological.

Link to post
Share on other sites
  • 2 months later...
  • Advanced Member

Divorce or Dissolution of Marriage

 

Marital life ought to begin with earnestness and should continue happily under the shadow of love, tolerance and self-sacrifice.  But practically speaking marriage contract and conjugal relations do not in all cases continue to exist till the end of life.  In certain cases it becomes impossible for two parties to live together in peace and harmony for various reasons such as their emergence of deep rooted differences.  In such circumstances, there must be a suitable way of dissolving a marriage legally, otherwise if the parties are forced to continue to live together, their life is likely to become unbearable.  In many cases, the consequences may be most regrettable and even tragic.  Anyway, it is evident that as marriage in itself is a social need, in certain circumstances its dissolution is also a social necessity.  The social compulsions have forced even the Christians to frame and enforce laws concerning divorce, though their present religious book forbids it except in the case of unchastely and though their Church has for long opposed it vehemently.  "But I say unto you, that whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery: and whosoever shall marry her that is divorced committeth adultery".  (Matthew, V:32).  The divorce act is even passed in Italy, which is the seat of the Pope.

 

 

Divorce in Islamic Law 

  

Divorce is the dissolution of permanent marriage resulting in the end of al responsibilities of the husband and the wife in regard to the rights and obligations connected with it.

 

From the Islamic point of view the disintegration of family bond is very undesirable on principle.  It is the worst and the most detestable act in the eyes of Allah.

The Holy Prophet (s.a.w.) has said:

- The most detestable thing before Allah is divorce. 

- Allah likes most, the house which is inhabited in the wake of  a  marriage and dislikes most the house which is abandoned in the wake of separation.

In fact divorce may be regarded as an unpleasant and bitter pill which has to be taken in the case of need.  Resort to it should not be made unnecessarily and for the sake of caprice.  Islamic traditions have described unnecessary divorce as a cause of remoteness from the blessings of Allah.

Islam has suggested certain precautionary measures to ward off divorce as far as possible.  For example:

-  Much stress has been laid on the careful selection of the wife. 

-  Repeated recommendations have been made to treat her well and connive at her minor mistakes which are common in life. 

-  Self-control against sudden outbursts of rage and hasty actions. 

-  Formation of an internal family court to resolve the differences arising between husband and wife.

It is possible that the relations between the husband and the wife might sometimes become strained consequent on differences and scolding remarks.  Islam suggests that in such cases a suitable way should be found at the earliest to resolve the differences and there should be no talk of separation so easily.  All cases of strained relations are not such that we should be disappointed of the restoration of love and affection.  In most cases it is possible to rectify the position.

Whenever it is not possible for the husband and wife to sort out their differences themselves, their case should be considered by a family court consisting of two arbiters, one selected from the family of the husband and the other from the wife.  The arbiters should be sympathetic and experienced so that they may listen to the point of view of both the parties, and try to reconcile them.

In this respect the Qur’an says:

"If  you fear a breach between the two (husband and wife), appoint an arbiter from his people and another from hers.  If they desire amendment, Allah will make them of one mind". (Surah al-Nisa, 4:35)

Obviously an arbiter should be a trust worthy person, a good conversationalist and fit for making a just arbitration.  The two arbiters are to be selected from among the members of the two families because as such they are expected to have a knowledge of the temperament of the husband and wife as well as of their domestic affairs; and also because they will normally be interested in settling their differences.

 

Effects of divorce

 

From the psychological, legal and social point of view, divorce produces varied effects, some of them being related to the husband and wife themselves and some of them to their families.  If there are children, separation between their parents will affect their position also in many ways.

In view of these results, special conditions have been visualized for divorce so that it may be warded off as far as possible, for if it is taken easy, the future of children will certainly be threatened.

What should be the condition of a woman to be divorced:

* Her periods must not be on. 

* After the last sexual intercourse, she must have had her periods at least once. 

* If the woman having been pregnant has been delivered of a child, her rest period after delivery (ceremonial purification from child birth) must have come to an end.

Of course if a woman is pregnant or does not menstruate, the above conditions do not apply to her.  In cases other than these two, the question of divorce should be postponed till these conditions materialize.

 

Conditions of the effectiveness of divorce

 

Divorce is valid and operative only if the following conditions are fulfilled: 

* The husband who divorces must be of mature age and must be possessed of understanding.  Divorce pronounced by a minor, a lunatic or an idiot is invalid. 

* The husband must be exercising his own free will.  Divorce  under compulsion is not valid. 

* Presence of two witnesses.

According to the Shiah school of thought and as expressly mentioned in the Qur’an (second verse of Surah al-Talaq), divorce must be pronounced in the presence of at least two trustworthy and righteous witnesses.

This condition automatically implies that two righteous persons should become aware of the decision of the spouses to dissolve marriage.  In many cases their intervention and help may save the situation, and they may find a suitable way of reconciling the husband and wife.  Further, their knowledge and presence may be helpful in settling financial and other questions and finding a most appropriate arrangement for looking after the children.

 

Kinds of divorce

 

After the enforcement of divorce it is possible to resume conjugal relations in some cases without contracting marriage anew.  In some other cases a fresh marriage is required before the resumption of these relations.  Hence divorce is of two kinds; revocable and irrevocable.

In the case of revocable divorce if the man regrets and wants to resume conjugal relations, the tie is automatically restored and there is no need of contracting marriage again, provided he revokes his act within the period of probation (iddah) which is normally three months.

In the case of irrevocable divorce it is not possible to resume conjugal relations in this way.

 

Kinds of irrevocable divorce

 

There are several kinds of irrevocable divorce. 

(1)  If the husband agrees to dissolve the marriage at the request of the wife, it is called khul’a. 

(2) If the marriage is dissolved because both the husband and the wife have asked each other to terminate it, it is called mubarat, that is mutual release. 

(3) The divorce pronounced by the husband on his own is regarded as irrevocable in the following circumstances:

Úáíå ÇáÓáÇã If the dissolution of marriage has been brought about before its consummation. 

( B) If the divorcee is a girl whose periods have not commenced or an old woman who does not menstruate, because she has reached the age of menopause i.e. is no longer capable of bearing children. 

© If the divorce has been pronounced for the third time.

In all these cases if the two parties decide to resume conjugal partnership, they should remarry, for the first marriage is no longer effective.

 

NOTES:

 

 

(1) Remarriage with a woman, who has been divorced three times, by her former husband who divorced her is possible only on the condition that she is married to another man first and that such second marriage is terminated after consummation.  (This condition precedent to reunion has been laid down to deter and discourage the people from taking the question of divorce too easy.)  If divorces take place between the husband and wife again, and again (till nine times) they cannot remarry under any circumstances.  This restriction also ensures that as far as possible divorces on frivolous grounds may be avoided.

2) In the case of khul’a and mubarat reunion is possible only if the woman demands back what she had surrendered to the husband.  Such demand must be made before the period of probation expires.

In other cases, if they are inclined to resume conjugal partnership, they should remarry in accordance with the conditions they agree to.

 

Iddah of divorce

 

In the case of separation between the husband and the wife an important question is to find out whether she is pregnant by her former husband.  To ascertain this point, the Islamic law has laid down that during a period of probation the woman should not marry another person.  This period is called iddah.

 

Period of Iddah

 

The period of iddah for a woman who is not pregnant is the period covered by three menstrual courses, which is normally three months.  The iddah of a pregnant woman is till she is delivered.

 

Rules regarding the period of iddah

 

During the period of iddah the woman cannot take a new husband, and nobody should make an offer of marriage to her.  She is to be maintained by her former husband like a married woman. 

In the case of revocable divorce if the husband or the wife dies during the period of probation, the survivor will inherit the deceased.

 

Right of guardianship of children

 

One of the important questions that crop up on the dissolution of marriage is that of the guardianship of the children which is called the right of hizanah.

The Islamic law gives the custody and care of the children in the early years of their life to the mother, even if the father is competent enough and willing to look after them.  The limit for a boy is two years and for a girl, seven years.

In case the mother is not capable or fit to take care of the child, the responsibility of guardianship devolves on the father.  In both cases the father has to bear the expenses of the child,  As the right of guardianship is recognized solely for the benefit of the infant, it should be in the custody of the person who can look after it the best.  On this principle the Islamic law has given priority in the matter to the mother in the first years of the life of the child.  If both the parents are unable to look after it, some other suitable arrangements should be made to ensure the welfare of the child.  If the father and the mother agree, the infant may be given in the custody of a third person under whose guardianship it can, in their view, make proper physical and spiritual progress.

(Taken from Philosophy of Islam by Dr. Behishti and Dr. Bahonar)

http://www.al-shia.org/html/eng/books/fiqh&usool/divorce-or-dissolution-of-marriage/divorce-or-dissolution-of-marriage.htm

 

Are you sure this has not been mixed with sunni thought ?

 

There are a few things there that I do not trust to be true.

 

I will get some research done and get back to this....

Link to post
Share on other sites
  • 2 months later...
  • Forum Administrators

In the chapter called Child Custody, according to this scholar, the child (male or female) would remain with the mother during the first seven years of life, unless she marries and upon her marriage she would lose custody and the child would go to live with the father. 

 

Child Custody in Islamic Jurisprudence. http://www.al-islam.org/child-custody-islamic-jurisprudence-saeid-nazari-tavakkoli

Link to post
Share on other sites
  • 3 weeks later...
  • 5 weeks later...
  • Veteran Member

I always thought that 7 is the age for both girls and boys. Also i think i've heard or read that when divorce occurs while children are teens, they can choose which parent to live with?

I couldn't find many articles on this issue in English.

I doubt anything special would happen when the children are in their teens specifically, but perhaps it is the case that when the children are baligh, they can then choose where they live. Although that seems more likely in the case of a boy than a girl. Does anyone know if a girl is allowed to leave the house without her father's permission?

Link to post
Share on other sites
  • 1 month later...
  • Basic Members

My husband and i have been married almost 5 years now. We have two sons and i am pregnant with our third child. We have a pleasant household and happy within our married except the fact that he has been speaking of denouncing Islam and his religion. If he decides that he no longer believes in Islam and no longer follows the religion, do we have to divorce?? I've read a few things saying our marriage would be void and null, however those were sunni sources. He mentioned that Allah accepts all marriages. Is that true? We are both islamically and legally married. I am desperate for answers!! Also, can someone please refer me to a Shia sheikh we can apeak to about this situation to get answers to some questions he has?

Link to post
Share on other sites
  • Veteran Member

My husband and i have been married almost 5 years now. We have two sons and i am pregnant with our third child. We have a pleasant household and happy within our married except the fact that he has been speaking of denouncing Islam and his religion. If he decides that he no longer believes in Islam and no longer follows the religion, do we have to divorce?? I've read a few things saying our marriage would be void and null, however those were sunni sources. He mentioned that Allah accepts all marriages. Is that true? We are both islamically and legally married. I am desperate for answers!! Also, can someone please refer me to a Shia sheikh we can apeak to about this situation to get answers to some questions he has?

If he announces that he has left Islam, then your marriage would be null and void according to Shia Islam as well. The best thing would be to tell your husband to keep his doubts to himself.

2456. A Muslim who renounces Islam and adopts a non-Muslim faith, is an apostate, and they are of two types: Fitri and Milli. Fitri apostate is one whose parents or one of them were Muslims when he was born, and he himself was also a Muslim, till after having reached the discerning age, and thereafter he converted to become a non-Muslim. A Milli is exactly the opposite.

2457. If a woman becomes an apostate after marriage, her marriage becomes void, and if her husband has not had sexual intercourse with her, she is not required to observe any Iddah. And the position will be the same if she apostatises after sexual relation, but she had reached menopause (Ya'isa), or if she was a minor. And if she had not reached menopause, she should observe Iddah as will be explained in the rules of 'divorce'. And it is commonly held that if she becomes a Muslim during her Iddah, her marriage remains intact. However, it is improbable that this should be valid, and therefore, precaution should not be abandoned. A Ya'isa is a woman who has reached 50 years of age, and because of that advanced age, stops seeing Haidh and does not expect to see it again in her life.

2458. If a man becomes a Fitri apostate after Nikah, his wife becomes haraam for him and she should observe Iddah of death in the manner which will be explained in the rules relating to 'divorce'.

2459. If a man becomes a Milli apostate after Nikah, his marriage becomes void. And if he has not had sexual intercourse with his wife, or if she has reached menopause, or if she is a minor, she need not observe Iddah. But if he apostatises after having sexual intercourse with his wife, who happens to be of the age of women who normally have menstrual discharge, she should observe Iddah of 'divorce' which will be mentioned under the rules relating to 'divorce'. And it is commonly held that if her husband becomes a Muslim before the completion of her Iddah, their marriage remains intact. However, it is improbable that this be correct, but, precaution should not be abandoned.

http://www.sistani.org/english/book/48/2352/

Can you tell us what some of his questions about Islam are? Maybe some of us could help.

Link to post
Share on other sites
  • Veteran Member

This bit confuses me:

 

Divorce is valid and operative only if the following conditions are fulfilled: 

* The husband who divorces must be of mature age and must be possessed of understanding.  Divorce pronounced by a minor, a lunatic or an idiot is invalid

 

How can marriage be accepted by a minor if divorce isnt?

Link to post
Share on other sites
  • Veteran Member
On 7/16/2015 at 3:03 PM, Ruq said:

If marriage can be accepted through a guardian why not divorce?

The ruling simply says that a minor can't pronounce the divorce, not that the guardian can't pronounce the divorce on behalf of the minor. In fact, in another ruling, Sayyid Sistani mentions a case where the guardian could pronounce the divorce:

2390. In the following situations, if a wife refuses to continue with the matrimony and wishes to dissolve the marriage, then as a matter of precaution, the husband or his guardian will solemnise the divorce:

If she comes to know after the Nikah, that the husband was insane at the time of Nikah; or if he becomes insane after the Nikah, before or after consummation of the marriage. If she finds out that at the time of Nikah, the husband had been castrated. If she learns that he suffered at the time of Nikah from leprosy or leucoderma.

Note: And if the husband is incapable of sexual intercourse, and she wishes to annul the marriage, it will be necessary for her to approach the Mujtahid or his representative, who may allow the husband a period of one year, and if it is found that he was not able to have sexual intercourse with her or with any other woman, the wife can annul the marriage.

http://www.sistani.org/english/book/48/2347/

Link to post
Share on other sites

Join the conversation

You are posting as a guest. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

×
×
  • Create New...