Fatwa

On the dissolution of marriage

In Allah’s name, His mercy is infinite and eternal! Hoping on the Single God, the Posessor of true knowledge and wisdom, I pray to Him for strength and skills to express a humble judgement that corresponds to the truth of God’s Word, and not to the temporal knowledge of this age.  

 The Lord, He is the Most High, enjoined upon husband and wife love and agreement[1], fortitude of family ties and education of good children and established a particular character of the family alliance based on love to God and rejection of Satan’s instigations.

   And yet not every alliance can stand a trial by time and difficulties. In spite of the fact that the conservation of the family is one of the primary aims of the Islamic marriage law, divorce is allowed. “The most hateful action among the permitted in Allah’s insight is divorce”[2],- said Prophet Muhammad (may the Lord greet and bless him). Family unity should by all means be restored in case if it has been weakened either because of the wasting away of feelings or because of personal or overt problems and difficulties. “Allah would lighten your burdens, for man was created weak” (the Holy Qur’an, 4:29). If all measures have been tried in order to preserve family ties, but there is no hope for improvement and settlement of the crisis, the marriage can be annulled only if certain rules imposed by the Holy Qur’an and the Sunna of the Prophet are observed. Yet even in such cases Islamic law based on Divine Revelation shows flexibility and humanism and allows the spouses to restore their marriage before it becomes absolutely annulled. It is the integral right of every man to use the flexibilty of Shariat laws. This is exactly the manifestation of the great wisdom of the Lord, for it was He who created marriage between man and woman as a part of the world order.

   The announcement of a husband of his intention to divorce his wife (“I divorce you”, “you are divorced”) serves as the beginning of the process of divorce.

   According to the Islamic law, seeking to preserve family unity, divorce proceedings imply three stages: (1) the first revocable divorce, (2) the second revocable divorce and (3) the third irrevocable divorce. The reason for such a longish process lies in the fact that during the first two stages of the divorce proceedings the spouses are given time and possibility to assess their decision and restore their marriage in case if they admit to have made a hasty and wrong decision.

Divorce is considered to be canonically lawful if the following criteria are met:

-  the reason for divorce should be sound and convincing (for example, if the wife shows no respect for her husband or his relatives, or if she behaves immorally or takes liberties with strange men)[3];

-  divorce should come through during “the period of purity”, when the spouses do not have any intimate relations;

-  the right to every divorce out of three possibilities should be enforced separately, i. e. it is allowed to pronounce the words of the divorce only once in one time.

Let us dwell on each of these three points in depth.

1. The majority of scholars insist on the existence of compelling reasons for the annulment of a marriage.[4] In case if a husband applies for a divorce groundlessly he commits a sin, although even in such situation the divorce is regarded as lawful; and man is not liable for a fine in this case. The husband commits himself to giving the rest part of the wedding gift (mahr) to his wife (or to giving her the part of the mahr that was delayed by agreement with his wife), to supporting his wife financially during the waiting period (three months) and to transmitting her property to her (clothes, jewelry, etc.).

2. Many scholars are unanimous in affirming that if the husband files for a divorce (a) during menstruation of his wife, (b) during the post pregnancy period or (c) during the period which began after the latest menstruation and during which the husband has already engaged in sexual intercourse with his wife, such divorce is considered to be canonically prohibited (haram)[5]. Such a divorce is an innovation (bid’a).

   As an argument supporting this statement the scholars adduce the following examples.

   ‘Umar’s son divorced his wife when she had her menses. ‘Umar told about it Prophet Muhhamad (may the Lord greet and bless him). And the Prophet exclaimed:”Order him to get her back! May he divorce her during “the purity period”. Another hadith contains the following words of the Prophet:”He must get her back! And he must live with her until the menstruation and the following menstruation end. After this he, if he wants to divorce her, may do it without having an intercourse with her” (this hadith was transmitted by ‘Umar’s son and is adduced in all the ahadith collections, except for that of al-Bukhari).[6] We can conclude from the present hadith that a divorce can be applied for only during “the purity period”, after the beginning of which the spouses may not have sexual intercourse.

   In case if the spouses have not indulged in intercourse or if the wife is pregnant or if she has no menstruation at the moment, a divorce is not canonically prohibited.

   Will a divorce be considered as one of the three possible divorces (the first and the second revocable divorces and the third irrevocable divorce) to which a man is entitled during his marriage if he applies for it (a divorce) during his wife ‘s periods?

   The theologians of the four schools of thought state that even if a divorce comes through in a canonically prohibited period, it is still lawful. The husband in this case must get his wife back, according to the Prophet’s Sunna, but hence he can enforce the right to apply for a divorce only twice.

3. Most theologians are also unanimous in stating that man may enforce his right to three divorces separately. Every divorce can come through only during one “purity period”, with the husband having no intimate relations with his wife in this time. It is strongly prohibited to enforce the right to three divorces in a lump or within one “purity period”. The following example served as an evidence for the irrefutability of this rule. When the Prophet got to know that a certain man had divorced his wife having given her three divorces in a lump he stood up full of anger and exclaimed:”One of you plays with [neglects] God’s Commandment and this takes place when I am still with you?!” (the holy ahadith from an-Nassai). His reaction was so angry and sharp that neither those present nor the investigators had any doubt of the fact that such actions were (and are) strongly prohibited and inadmissible.[7]

   But what if a husband gave three divorces (the first and the second incomplete divorces and the third complete divorce) in a lump or if he did not observe the necessary time period between them, are they still lawful?

   Opinions were divided:[8]

1. The vast majority of theologians including the representatives of the four schools of thought as well as a great part of the companions of Prophet Muhammad (may the Lord greet and bless him) and the Moslems of the first generation after the Prophet affirm that all three divorces are lawful in this case. This results in a complete divorce and makes it impossible for the divorced spouses to enter into a new marriage with each other, unless the wife after marrying another man gets an intention to divorce him and restore her marriage with the first husband.

2. The shi’its of the imamit school regard such divorce as unlawful.

3. Theologians Ibn Ishak, Ibn Taymiya, Ibn Kayim and some other scholars believe that in this case three divorces pronounced in succession are  equal to one divorce. The same approach is adopted today in the legislature of Syria and Egypt. An authoritative mudjtahid of our time imam al-Qardawi holds the same opinion.

   A prominent modern theologian Wahba az-Zuhayli writes on the subject:”I believe that the opinion of most theologians is more appropriate and rightful. Yet if a local judge considers another decision as the best it is his right. The third approach (the opinion of Ibn Taymiya and Ibn Kayim) is also admissible and is widely adopted both in the Islamic world and abroad. Nowadays this is a burning issue, for today we often face a low level of religious education among people and their carelessness to their speech. One should always bear in mind that the main postulates of the Creator’s religion are aimed at preserving the unity of the family and protecting children’s rights”[9].

   As far as Russia and the former USSR countries are concerned, it is the third approach that, in our opinion, is the most appropriate from many canonical and practical aspects. At the same time every specific case requires a special attention and canonical analysis.

The dissolution and the forms of restoring the marriage are divided into three categories:

1. The first group comprises the cases when the divorce proceedings are at the stage of the first revocable or the second revocable divorce and the divorce period (three months after giving the first divorce) has not yet ended. If in this case the spouses decide to restore their marriage they can do it without taking any additional measures. They must not forget, however, that the right to three divorces has already been partially enforced. That is why in future if the husband decides to apply for a divorce, he should think thoroughly before acting.

2. The second category comprises the cases when the divorce proceedings are at the stage of the first revocable or the second revocable divorce but the divorce period (three months after giving the first divorce) has already ended. In this situation the spouses can restore only after a new marriage (nikyah) and after the husband pays mahr to his wife.

3. Whereas if the divorce proceedings have already passed all three stages (the first and the second revocable divorces and the third irrevocable divorce), i.e. if the marriage was annulled at due intervals or if the right to divorce was enforced three times during the whole marriage, the spouses cannot restore their marriage. In this situation the restoration of the marriage is possible only in the order described in the Holy Qur’an:”If a man divorce his wife, he cannot remarry her until she has wedded another man and been divorced by him; in which case it shall be no offence for either of them to return to the other, if they think that they can keep within the limits set by Allah” (the Holy Qur’an, 2:230).

   A woman can return to her husband only in case of her second husband’s death, provided she had married him on her free will and lead a fully fledged family life with him, or after a divorce with her second husband. Then a mourning period (4 months and 10 days) or a waiting period follows. Returning to the first husband is possible only through a new marriage and the payment of a new mahr.[10]

The points dealing with all the three categories of divorce:

-   the husband bears the whole of the expenses of his wife on housing, nutrition and clothes during the divorce proceedings;

-   in case if the woman is pregnant, her child will be (considered as) the legitimate child of her divorced husband;

-   if a woman divorced by her second husband returns to her first husband, the latter will again acquire the right to apply for divorce three times.

The propositions concerning the first category of divorce:

-   the number of divorces, to which the husband is entitled, reduces;  

-  as soon as the waiting period (three months) expires all family relations are broken up and the husband must pay the second part of the mahr;

-  in case of the first revocable or the second revocable stages of the divorce the husband can return his wife without a new marriage and mahr before a three month period expires;

-  before a three month period expires the spouses reserve their inheritance rights;

-  it is prohibited both  to have any intimate relations and show any signs of affection during divorce proceedings.

Question: With whom of the parents do the children stay after the annulment of the marriage?

Answer: As an answer we shall adduce several ahadith.

A divorced woman came to God’s Apostle Muhammad (may the Lord greet and bless him) and complained:”I have born and brought into the world my child in much pain. And the child’s father wants to take him from me”. The Prophet said:”Until you marry another man, you have more rights to the upbringing of your child” (the holy ahadith from Ahmad, Abu Daud, al-Bayhaqy and al-Hakim).[11] This hadith obviously points to the fact that the mother enjoys a superior right to the upbringing of her child. She reserves this right until she marries another man.

   There is another hadith on the subject:”A divorced couple came with their child to Prophet Muhammad (may the Lord greet and bless him). Each of the parents wanted to keep the child and bring him up on his\her own. God’s Apostle after examining the situation asked the father to sit down on one side, and the mother – on the other side. Then he came up to the child and asked him:”Take the hand of the one with whom you want to stay!” The child came up to his mother and took her hand. After this the mother was granted the rights to the upbringing of the child and they withdrew together ”.[12]

   Proceeding from these ahadith Islamic theologians have come to a conclusion that the mother should bring up her child until he\she reaches the age when he\she comes to think independantly, to distinguish between evil and good, to perform deliberate actions. Some scholars think that this rule concerns five-year old children, whereas other scholars believe that it applies to seven-year old children. If the child’s mother enters into a marriage the issue of the upbringing and tutorship over the child becomes is brought to court. If the parents who are divorcing each other at the moment have five- or seven-year old children it is the judge who settles the case. Sometimes the judge grants the child the right to choose. Yet imams Abu Hanifa and Malik believe that a child should not be given such right. According to the great imams after reaching a certain age the daughters should be brought up by their mothers, whereas boys – by their fathers.[13]

   If necessary the judge can settle the case by throwing casts[14], which is mentioned in a hadith (the holy ahadith from Abu Daud and an-Nassai). Sometimes it facilitates the settlement of the issue.

   As far as those cases are concerned when the mother does not believe in God, whereas the father does, most theologians affirm that the child should by all means stay with the father.

   When discussing this matter most theologians underline the fact that before trowing casts or granting a child the right to choose between his parents one should first assess the situation from the point of view of good for the child. If this approach is adopted to the problem and it is decided that it would be better for the child to stay with his\her mother, she [the mother] becomes the upbringer of her child without any additional procedures, whereas if it is established that it would be more useful for the child to stay with the father, he becomes the upbringer of his child. A prominent scholar Ibn Taymiya transmits the following story:”Once divorced parents came to a judge and asked him to settle their case on the upbringing of the child. The judge granted the child the right to choose and the latter chose his father. The boy’s mother addressed the judge:”Ask the child why he has chosen his father”. The judge asked this question, and the boy answered:”My mother makes me go to my teachers, who sometimes punish me when I do not do my homework. While my father lets me go outside and I play with my mates”. After listening to the child the judge delivered his judgement in favour of the mother and granted her parental rights”.[15]

 

Question: Can a marriage be considered to have ended automatically if the husband is absent for a long time?

Answer: There is no precept on this issue in Shariat. It may occur that a wife applies to the court for a divorce from her husband complaining about his long absence.[16] There are two opinions of scholars on the subject:

-   the theologians of the hanafit and shafi’it schools of thought believe that the wife has no right to divorce in this case;

-   the theologians of the malikit and hanbalit schools of thought admit that such situation may arise, for one of the canonical rules proclaims the necessity to protect man against the harm that is inflicted on him. Once caliph ‘Umar (may Allah be pleased with him) sent letters to those who had been absent from their homes and families for a long time. In these letters caliph ‘Umar ordered them to choose between two options: provide their families with financial support or divorce their wives.  According to fakihs-malikits “if the location of the husband is not known, the judge can release the woman from marriage bonds; but if the husband’s location is known he is obliged either to return home, or to divorce his wife or to maintain his family financially”. As far as the period at the end of which a woman may appeal to the judge and file for a divorce is concerned, the theologians of the malikit school set one year (sometimes three years), and the hanbalits name six months and more.[17]

 As far as the practical enacture of laws is concerned, judges give the judgement only after investigating thoroughly every specific situation, taking into consideration all possible circumstances and referring to the opinion of the authoritative theologians both of past and present.[18]

 

Question: Is a marriage considered as automatically annulled in case if one of the spouses committed fornication?

Answer: The vast majority of theologians affirm that the marriage in this case is preserved and does not fall apart.[19] Among many other arguments the words of Ibn ‘Umar, adduced in the ahadith collection by Ibn Madj, and the ‘Aisha’s saying, mentioned in the ahadith collection of al-Bayhyqy, are referred to:”That which is prohibited [haram] does not make the permitted [halyal] prohibited either”.

   As far as the qur’anic ayah is concerned, according to which the adulterer may marry only an adulteress, the great majority of theologians interpret it as a strong censure of the sin of adultery.[20]

   All the issues concerning the annulment of the marriage (beginning from the application for divorce up to the division of property and the future upbringing of the children) should be settled by the spouses with the participation of a Muslim judge (or an official person standing for him) with all the norms and laws of Shariat being observed.

I beg God, He is the Compassionate and the Merciful, to accept this work which has been produced only with the hope for His kindness and forgive me my probable mistakes and sins, for the only intention I had was to bring good to people who follow His path, He is worshipped by everyone and everything that is in heaven and on earth.

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