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In the Name of God بسم الله

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Salam!

 

As is obvious, I have a question and maybe someone here can help me out.

 

I've come across a show where the husband divorced his wife thrice and later, they wanted to re-marry but the woman had to do a halala nikkah before that, e.g. marrying another man (and consumating?) and getting divorced by him before she could marry her original husband, again. Now, I was wondering if this rule exists in Shia fiqh? Do marjas differentiate in the ruling? I've seen different answers to this question and it got me wondering... Also, can you enter a marriage with the determination to get a divorce?  :wacko:

 

Thanks for replies in advance!

 

Wa salam.

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Salamalaikum

Muhammad ibn al-Hassan ibn Ahmad ibn al-Walid - may God be pleased with him - narrated that Muhammad ibn al-Hassan al-Saffar quoted Ahmad ibn Muhammad ibn Isa, on the authority of Muhammad ibn Khalid al-Barqy, on the authority of Al-Qasim ibn Muhammad al-Juwhary, on the authority of Ali ibn Abi Hamzih, on the authority of Abi Basir, “I asked Aba Abdullah as-Sadiq (as) about one who divorces (his wife), then returns to her and divorces her again. The Imam (as) said, ‘She will no longer be permissible for remarrying him until after she marries someone else.And a woman whose husband divorces for the third time, and she marries another man and gets divorced from him and re-marries her first husband; and gets divorced by him thrice and marries another man; gets divorced again and re-marries her first husband again and gets divorced thrice and gets married again, can never again re-marry with her first husband. And one can never marry with a women who has taken the oath of condemnation after she has taken it.”

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Salam!

 

As is obvious, I have a question and maybe someone here can help me out.

 

I've come across a show where the husband divorced his wife thrice and later, they wanted to re-marry but the woman had to do a halala nikkah before that, e.g. marrying another man (and consumating?) and getting divorced by him before she could marry her original husband, again. Now, I was wondering if this rule exists in Shia fiqh? Do marjas differentiate in the ruling? I've seen different answers to this question and it got me wondering... Also, can you enter a marriage with the determination to get a divorce?  :wacko:

 

Thanks for replies in advance!

 

Wa salam.

 

If it helps... many people in the sunni world are of the assumption that repeating 'I divorce you' three times at one occasion means they have divorced their wives 3 times where in fact they have only divorced once. Halala Nikah is not applicable in this instance at least according to shias and I am pretty sure I've heard sunni scholars agree to this point of view although there may be varying opinions.

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(bismillah)

 

(salam)

 

Our rulings on divorce are radically different to the Sunni view on the issue. First off, among the Sunnis, the three divorces can be done simultaneously; all the man has to do is say talaq three times and it's done. As you'll see from the explanation below, that's just impossible with how the matter is treated in Shi'i fiqh.

 

When you want to divorce, first off, saying talaq literally means nothing. I could say talaq, talaq, talaq to my wife a zillion times and we'd still be married. In Shi'i fiqh, divorce is a whole process whereby the elders and the religious leaders are supposed to intervene - in the sense of the 'intervention', not in the sense of obstruction - and try to convince the couple to resolve their differences. They are also recommended to spend some time apart before actually performing the divorce. If, however, all these measures fail - which would take some time by themselves - and the couple are adamant on divorce, for you to be officially divorced, you have to recite a formula, much like you need to for becoming married in the first place, with witnesses present. A simple utterance of a single word has no value. Even then, you aren't really divorced because the woman has to undergo the iddah and if the couple decide to reconcile during the 3 month period, their marriage can simply resume as before, with this not counting as a divorce proper (so, it wouldn't could as one of the three 'divorces'). Only if the couple remain apart and decide to continue until after the iddah, only then is the divorce official. Now, if this whole process happens three times, then, and only then, does the woman become permanently haram for the man. So, even if the couple divorced three times, married on the same day as the iddah was over and divorced on the same day, if you count just the iddah, you're looking at a year of these shenanigans and we haven't even counted the whole intervention process and so on. If this is the case, then it makes absolute sense that the man and woman should just stay apart from one another because they clearly aren't getting along if they divorced three times and, despite the astounding number of opportunities for reconciliation, chose to still go ahead with the divorces.

 

In this case, yes, a man and woman cannot marry each other permanently and, as such, if they really want to get together again, the woman must marry another man. As for whether or not the marriage must be consummated, I'm not sure. I guess someone else will enlighten you on that part.

 

As for marrying with the purpose of divorce, it depends on why you want to do that. If either spouse wants to somehow cheat the other through marriage and divorce them after they've gotten what they wanted, then, while the act of marriage itself is, this marriage would certainly be sinful as the purpose was deception. If you just want to have a temporary relationship with someone so that you may get to know one another and so on, then it would be much more prudent to perform mutah, temporary marriage, a type of marriage that is more flexible than the traditional marriage, whereby the two parties can stipulate a host of conditions based on what kind of relationship they want, such as the duration of the marriage, the responsibilities of each spouse toward the other, whether sex is allowed or not and so on.

 

NOTE: It seems, according to the post above me, that Sunnis actually don't believe that the three divorce can occur simultaneously as saying talaq, talaq, talaq still counts as just one divorce.

Edited by Khadim uz Zahra

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Bismillah

 

Yes we have the same ruling in our fiqh, except that the divorce formula can not be said three times in one setting and requires there to be two just witnesses. 

 

It is enough to say 'You are a divorcee' for the divorce to take place (given the other conditions also exist). 

 

What brother Kadhim mentioned in his post is mostly ways to deal with divorce within communities, but they are not necessary in the process. As soon as the husband says the formula in front of two just witnesses, the waiting period (`idda) of the wife begins.  

 

The do not know the ruling about entering a marriage with the intention to divorce, but having look at the classical jurisprudential works, it doesn't seem like it would be problematic to the correctness of the marriage contract. It's up to the husband if he decided to divorce anyway, so it's not so black and white. 

 

Here is an example from Shaykh Mufid ®:

 فإذا طهرت من دمها طلقها بلفظ الطلاق مرة واحدة، فقال لها: " أنت طالق " أو " هي طالق " -

وأومى إليها بعينها - " وفلانة بنت فلان طالق "، ويشهد على نفسه بذلك رجلين مسلمين عدلين، فإذا فعل ذلك فقد بانت منه بواحدة.

 

فإن طلقها - على ما وصفناه - في طهر، لا جماع فيه، بمحضر من رجلين مسلمين عدلين، ثم راجعها قبل أن تخرج من عدتها، ثم طلقها بعد ذلك تطليقة أخرى على طهر، من غير جماع، بشاهدين عدلين، ثم طلقها بعد ذلك تطليقة أخرى على طهر، من غير جماع، بشاهدين عدلين، ثم راجعها قبل أن تخرج من عدتها، ثم طلقها ثالثة في طهر، من غير جماع، بمحضر من شاهدين مسلمين فقد بانت منه بالثلاث، وعليها أن تستقبل العدة بعد التطليقة الثالثة، ولا تحل له حتى تنكح زوجا غيره. وهذا الطلاق يسمى طلاق العدة.

 

المقنعة - الشيخ المفيد - الصفحة -٥٢٥

 

 

http://shiaonlinelibrary.com/%D8%A7%D9%84%D9%83%D8%AA%D8%A8/11_%D8%A7%D9%84%D9%85%D9%82%D9%86%D8%B9%D8%A9-%D8%A7%D9%84%D8%B4%D9%8A%D8%AE-%D8%A7%D9%84%D9%85%D9%81%D9%8A%D8%AF/%D8%A7%D9%84%D8%B5%D9%81%D8%AD%D8%A9_522#top

 

Al-Muqn`iah, P.525-526

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What brother Kadhim mentioned in his post is mostly ways to deal with divorce within communities, but they are not necessary in the process. As soon as the husband says the formula in front of two just witnesses, the waiting period (`idda) of the wife begins.  

 

True, most of it is to deal with how it works within the structure of the community and not necessary from a purely legal perspective but that is how it works in practice. The one part of my post that is particularly point, fiqh wise, is that the marriage can still be resumed within the iddah without it counting as one of the three 'strikes', which makes the whole point of banning marriage after three divorces - and thus the necessity of the Halala - much more logical and clearer; that was what I wanted to emphasise on.

Edited by Khadim uz Zahra

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(salam)

 

I'm sorry for my late reply - am not that actice on SC, at the moment.

 

Anyway, thank you for answering my questions! I knew about the different rulings regarding divorce (not that I mind the clarification in this regard, anyway^^), it was the halala nikkah within Shia fiqh specifically which I wanted to know about- so thanks for your help :)

 

(wasalam)

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