Divorce in Islam can take a variety of forms, some initiated by the husband and some initiated by the wife. The main traditional legal categories are ''talaq'' (
repudiation), ''khulʿ'' (mutual divorce or ransom divorce) Historically, the rules of divorce were governed by
sharia
Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the H ...
, as interpreted by
traditional Islamic jurisprudence, though they differed depending on the
legal school, and historical practices sometimes diverged from legal theory.
[
]
In modern times, as personal status (family) laws have been codified, they generally have remained "within the orbit of Islamic law", but control over the norms of divorce shifted from traditional jurists to the state.
[
]
Quranic principles
According to the Quran, marriage is intended to be unbounded in time, as indicated by its characterization as a "firm bond" and by the rules governing divorce.
The relationship between the spouses should ideally be based on love (''mawadda wa rahma'', 30:21) and important decisions concerning both spouses should be made by mutual consent.
[ When marital harmony cannot be attained, the Quran allows and even advises the spouses to bring the marriage to an end (2:231), although this decision is not to be taken lightly, and the community is called upon to intervene by appointing arbiters from the two families to attempt a reconciliation (4:35).][ The Quran establishes two further means to avoid hasty divorces.][ For a ]menstruating
The menstrual cycle is a series of natural changes in hormone production and the structures of the uterus and ovaries of the female reproductive system that make pregnancy possible. The ovarian cycle controls the production and release of eggs a ...
woman, Al-Baqarah
Al-Baqara, alternatively transliterated Al-Baqarah ( ar, الْبَقَرَة, ; "The Heifer" or "The Cow"), is the second and longest chapter (''surah'') of the Quran. It consists of 286 verses ('' āyāt'') which begin with the "mysteriou ...
2:228 prescribes the waiting (Iddah
In Islam, ''iddah'' or ''iddat'' ( ar, العدة, al-ʿidda; "period of waiting") is the period a woman must observe after the death of her husband or after a divorce, during which she may not marry another man. One of its main purposes is to r ...
) period before the divorce is finalized, as three monthly periods. Similarly for non-menstruating women, including post-menopause
Menopause, also known as the climacteric, is the time in women's lives when menstrual periods stop permanently, and they are no longer able to bear children. Menopause usually occurs between the age of 47 and 54. Medical professionals often d ...
women and pre-menarche
Menarche ( ; ) is the first menstrual cycle, or first menstrual bleeding, in female humans. From both social and medical perspectives, it is often considered the central event of female puberty, as it signals the possibility of fertility.
Gir ...
girls, At-Talaq
"Divorce" ( ar, الطلاق, ''aṭ-talāq'') is the 65th chapter of the Qur'an with 12 verses ('' ayat''). At-Talaq is not only the name of this Surah but also the title of its subject matter, as it contains commandments about Talaq (divo ...
65:4 prescribes the waiting periods. This is to give the husband time to reconsider his decision.[ Moreover, a man who takes an oath not to have sexual intercourse with his wife, which would lead to automatic divorce, is allowed a four-month period to break his oath (2:226).][
The Quran substantially reformed the gender inequity of divorce practices that existed in pre-Islamic Arabia, although some patriarchical elements survived and others flourished during later centuries.][
] Before Islam, divorce among the Arabs was governed by unwritten customary law, which varied according to region and tribe, and its observance depended on the authority of the individuals and groups involved. In this system, women were particularly vulnerable.[ The Quranic rules of marriage and divorce provided a fixed set of norms for all Muslims, backed by divine authority and enforced by the community.] The early Islamic reforms included giving the wife a possibility to initiate divorce, abrogation of the husband's claim to his wife's property, condemnation of divorce without compelling reason, criminalizing unfounded claims of infidelity made by the husband, and institution of financial responsibilities of the husband toward his divorced wife.[ In pre-Islamic times, men kept their wives in a state of "limbo" by continually repudiating them and taking them back at will. The Quran limited the number of repudiations to three, after which the man cannot take his wife back unless she first marries another man.][ Additionally, the pre-Islamic ]bridewealth
Bride price, bride-dowry ( Mahr in Islam), bride-wealth, or bride token, is money, property, or other form of wealth paid by a groom or his family to the woman or the family of the woman he will be married to or is just about to marry. Bride do ...
(''mahr''), which was paid by the groom to the bride's family, was transformed into a dower
Dower is a provision accorded traditionally by a husband or his family, to a wife for her support should she become widowed. It was settled on the bride (being gifted into trust) by agreement at the time of the wedding, or as provided by law.
...
, which became property of the wife, though some scholars believe that the practice of giving at least a part of the ''mahr'' to the bride began shortly before the advent of Islam.[
The subject of divorce is addressed in four different surahs of the Quran, including the general principle articulated in 2:231:][
]
Classical sharia
Legal context
Classical Islamic law
Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the ...
is derived from the scriptural sources of Islam (Quran
The Quran (, ; Standard Arabic: , Classical Arabic, Quranic Arabic: , , 'the recitation'), also romanized Qur'an or Koran, is the central religious text of Islam, believed by Muslims to be a revelation in Islam, revelation from God in Islam, ...
and hadith
Ḥadīth ( or ; ar, حديث, , , , , , , literally "talk" or "discourse") or Athar ( ar, أثر, , literally "remnant"/"effect") refers to what the majority of Muslims believe to be a record of the words, actions, and the silent approval ...
) using various methodologies
In its most common sense, methodology is the study of research methods. However, the term can also refer to the methods themselves or to the philosophical discussion of associated background assumptions. A method is a structured procedure for bri ...
developed by different legal schools.[
] It was historically interpreted by jurists (''mufti
A Mufti (; ar, مفتي) is an Islamic jurist qualified to issue a nonbinding opinion ('' fatwa'') on a point of Islamic law (''sharia''). The act of issuing fatwas is called ''iftāʾ''. Muftis and their ''fatwas'' played an important rol ...
s'') who were expected to give a legal opinion (''fatwa
A fatwā ( ; ar, فتوى; plural ''fatāwā'' ) is a legal ruling on a point of Islamic law (''sharia'') given by a qualified '' Faqih'' (Islamic jurist) in response to a question posed by a private individual, judge or government. A jurist i ...
'') free of charge in response to any query. Family disputes are handled in a religious courts presided over by a judge (''qadi
A qāḍī ( ar, قاضي, Qāḍī; otherwise transliterated as qazi, cadi, kadi, or kazi) is the magistrate or judge of a '' sharīʿa'' court, who also exercises extrajudicial functions such as mediation, guardianship over orphans and mino ...
'') who had enough legal education to decide some legal questions and queried a mufti if faced with a difficult legal issue.[ The judges were active members of the local community and were also involved in informal arbitration, which was the preferred method of resolving disputes.][ In court proceedings, they mediated between the letter of the law and exigences of the local social and moral concerns, with the overarching aim of ensuring social harmony.][
] Actual legal practice sometimes deviated from the precepts of the legal school that was dominant in the area, at times to women's benefit and at times to their disadvantage.[ Members of all social classes and their witnesses argued their cases in court without professional legal representation, though members of the upper class generally did so through a representative. Women were commonly involved in litigation, usually as plaintiffs, were assertive in arguing their cases, and they were often treated sympathetically by the judge.][ According to legal doctrine, a woman's testimony in some areas of law carried half the weight of that of a man, though available evidence suggests that practical effects of this rule were limited and the legal standing of women in pre-modern Islam was comparable to or higher than that of their European contemporaries.
]
Talaq (repudiation)
Jurisprudence
The term ''talaq'' is commonly translated as "repudiation" or simply "divorce".[ In classical Islamic law it refers to the husband's right to dissolve the marriage by simply announcing to his wife that he repudiates her.][ Classical jurists variously classified pronouncement of ''talaq'' as forbidden or reprehensible unless it was motivated by a compelling cause such as impossibility of cohabitation due to irreconcilable conflict,] though they did not require the husband to obtain court approval or provide a justification.[ The jurists imposed certain restrictions on valid repudiation.][ For example, the declaration must be made in clear terms; the husband must be of sound mind and not coerced. Upon talaq, the wife is entitled to the full payment of ''mahr'' if it had not already been paid. The husband is obligated to financially support her until the end of the waiting period or the delivery of her child, if she is pregnant. In addition, she has a right to child support and any past due maintenance, which Islamic law requires to be paid regularly in the course of marriage.][
Giving the husband a prerogative of repudiation was based on the assumption that men would have no interest in initiating a divorce without good cause, given the financial obligations it would incur.][ Additionally, classical jurists were of the opinion that "the female nature is wanting in rationality and self-control".][ Requiring a justification was seen as being potentially detrimental to the reputation of both spouses, since it may expose family secrets to public scrutiny.][
Talaq is considered in Islam to be a reprehensible means of divorce.][ The initial declaration of talaq is a revocable repudiation (ṭalāq rajʿah) which does not terminate the marriage. The husband can revoke the repudiation at any time during the waiting period (''‘]iddah
In Islam, ''iddah'' or ''iddat'' ( ar, العدة, al-ʿidda; "period of waiting") is the period a woman must observe after the death of her husband or after a divorce, during which she may not marry another man. One of its main purposes is to r ...
'') which lasts three full menstrual cycles. The waiting period is intended to give the couple an opportunity for reconciliation, and also a means to ensure that the wife is not pregnant. Resumption of sexual relations automatically retracts the repudiation. The wife retains all her rights during the waiting period. The divorce becomes final when the waiting period expires. This is called a "minor" divorce (''al-baynuna al-sughra'') and the couple can remarry. If the husband repudiates his wife for the third time, it triggers a "major" divorce (''al-baynuna al-kubra''), after which the couple cannot remarry without an intervening consummated marriage to another man.[ This is known as ''tahlil'' or '']nikah halala
''Nikah halala'' ( ur, نکاح حلالہ), also known as ''tahleel'' marriage, is a practice in which a woman, after being divorced by triple talaq, marries another man, consummates the marriage, and gets divorced again in order to be able to ...
''. Making the third pronouncement irrevocable prevents the husband from using repeated declarations and revocations of divorce as a means of pressuring his wife into making financial concessions in order to "purchase her freedom". It also acts as a deterrent to rash repudiations.[
]
Practice
Women often entered marriage with substantial capital in the form of ''mahr'' and the trousseau provided by their family, which they were not obliged to spend on family expenses, and they frequently loaned money to their husbands. Because of this, and the financial obligations incurred, talaq could be a very costly and in many cases financially ruinous enterprise for the husband. Many repudiated women used the divorce payment to buy their ex-husband's share in the family house. In the historical record talaq appears to have been less common than khul'.[Hallaq (2009), pp. 66–67.]
Available evidence from Mamluk Egypt indicates that talaq was not the principal means of divorce.[ Talaq was considered to be disastrous for the woman because it deprived her of long-term protection and financial support, preventing her from remarrying, since this would cause her to lose child custody. This led to repudiation without good reason being considered socially improper.][ Studies of the Ottoman Levant showed that women could invalidate a declaration of talaq by stating that the husband had shown signs of "diminished rationality" when he made it, while others used a husband's unrevoked declaration of talaq to obtain divorce at a later date if they could prove that he made it.][
]
''Talaq al-bid'ah'' and triple talaq
Talaq types can be classified into ''talaq al-sunnah'', which is thought to be in accordance with Muhammad's teachings, and ''talaq al-bid'ah'', which are viewed as a bid'ah
In Islam, bid'ah ( ar, بدعة; en, innovation) refers to innovation in religious matters. Linguistically, the term means "innovation, novelty, heretical doctrine, heresy".
In classical Arabic literature ('' adab''), it has been used as a fo ...
(innovation) deviations from it. ''Talaq al-sunnah'' is further subdivided into ''talaq al-ahsan'', which is the least disapproved form of talaq, and ''talaq al-hasan''. The ''ahsan'' talaq involves a single revocable pronouncement of divorce and sexual abstinence during the waiting period. The ''hasan'' divorce involves three pronouncements made during the wife's state of ritual purity with menstrual periods intervening between them, and no intercourse having taken place during that time.[
In contrast to ''talaq al-sunnah'', ''talaq al-bid'ah'' does not observe the waiting period and irrevocably terminates the marriage.][ It may involve a "triple talaq", i.e., the declaration of talaq repeated three times, or a different formula such as "you are ''haram'' for me".] Some legal schools held that a triple talaq performed in a single meeting constituted a "major" divorce, while others classified it as a "minor" divorce.[ ''Talaq al-bid'ah'' reflects pre-Islamic divorce customs rather than Quranic principles, and it is considered to be a particularly disapproved, though legally valid form of divorce in traditional Sunni jurisprudence.][ According to Islamic tradition, Muhammad denounced the practice of triple talaq, and the second caliph ]Umar
ʿUmar ibn al-Khaṭṭāb ( ar, عمر بن الخطاب, also spelled Omar, ) was the second Rashidun caliph, ruling from August 634 until his assassination in 644. He succeeded Abu Bakr () as the second caliph of the Rashidun Caliphate o ...
punished husbands who made use of it.[
Shiite jurisprudence does not recognize ''talaq al-bid'ah''.
]
Tafwid (delegated talaq)
The husband can delegate the right of repudiation to his wife.[ This delegation can be made at the time of drawing up the marriage contract (]nikah
In Islam, nikah is a contract between two people. Both the groom and the bride are to consent to the marriage of their own free wills. A formal, binding contract – verbal or on paper – is considered integral to a religiously valid Islami ...
) or during the marriage, with or without conditions.[
] Many women included such terms in their marriage contracts. Commonly, the contract gave the wife the right to "repudiate herself" if the husband married a second wife.[ Delegated repudiation is called ''ṭalāq al-tafawud'' or ''tafwid''.][
]
Khulʿ (mutual divorce)
Jurisprudence
Khulʿ is a contractual type of divorce that is initiated by the wife. It is justified on the authority of verse 2:228:[
It is further based on a hadith in which Muhammad instructs a man to agree to his wife's wish of divorce if she gives back a garden received from him as part of her ''mahr''. A khul' is concluded when the couple agrees to a divorce in exchange for a monetary compensation paid by the wife, which cannot exceed the value of the ''mahr'' she had received, and is generally a smaller sum or involves forfeiting the still unpaid portion.][ ]Hanafi
The Hanafi school ( ar, حَنَفِية, translit=Ḥanafiyah; also called Hanafite in English), Hanafism, or the Hanafi fiqh, is the oldest and one of the four traditional major Sunni schools ( maddhab) of Islamic Law (Fiqh). It is named aft ...
s and Maliki
The ( ar, مَالِكِي) school is one of the four major schools of Islamic jurisprudence within Sunni Islam. It was founded by Malik ibn Anas in the 8th century. The Maliki school of jurisprudence relies on the Quran and hadiths as primary ...
s do not require a compensation paid by the wife.[ The divorce is final and irrevocable, effective when the contract is concluded.][ The couple cannot reconcile during the waiting period, defined as in the case of talaq, but the husband is required to pay maintenance during its term, unless the requirement is waived by the contract.][ As in the case of ''talaq'', remarriage is possible until a khul' is concluded for a third time. If the husband pressures his wife to agree to khul' instead of pronouncing talaq, which would let him avoid attendant financial responsibilities, the divorce is considered to be invalid.][ Like talaq, khulʿ takes place out of court.][
]
Practice
Relative frequency of khul' has been noted in studies of Istanbul, Anatolia, Syria, Muslim Cyprus, Egypt and Palestine.[
In studies of Mamluk Egypt and the Balkans under Ottoman rule, khul' was shown to have been the principal means of divorce. Women employed a number of strategies to force a settlement from their husbands. Some neglected their marital and household duties, making family life impossible for the husband. Others demanded immediate payment of the deferred mahr, knowing that the husband had no means to comply and would be jailed if he failed to do so.][
In some cases the khul' contract involved no compensation from the wife, while in other cases women would waive all of their husband's financial obligations.][ According to studies of the Ottoman Levant, various court procedures were put in place to ensure that a khul' was not actually a talaq.][
]
Nikah halala
Jurisprudence
Nikah halala (also known as tahleel marriage) is a practice in which a woman, after being divorced by triple talaq, marries another man, consummates the marriage, and gets divorced again in order to be able to remarry her former husband. However such marriages are forbidden in Islam
Islam (; ar, ۘالِإسلَام, , ) is an Abrahamic religions, Abrahamic Monotheism#Islam, monotheistic religion centred primarily around the Quran, a religious text considered by Muslims to be the direct word of God in Islam, God (or ...
, according to a Sahih
Hadith terminology ( ar, مصطلح الحديث, muṣṭalaḥu l-ḥadīth) is the body of terminology in Islam which specifies the acceptability of the sayings (''hadith'') attributed to the Islamic prophet Muhammad by other early Islamic fig ...
graded Hadith
Ḥadīth ( or ; ar, حديث, , , , , , , literally "talk" or "discourse") or Athar ( ar, أثر, , literally "remnant"/"effect") refers to what the majority of Muslims believe to be a record of the words, actions, and the silent approval ...
which states that Muhammed
Muhammad ( ar, مُحَمَّد; 570 – 8 June 632 CE) was an Arab religious, social, and political leader and the founder of Islam. According to Islamic doctrine, he was a prophet divinely inspired to preach and confirm the monot ...
cursed those who did such marriages.
Judicial divorce
Jurisprudence
A marriage can also be dissolved by means of judicial divorce. Either spouse can petition a qadi
A qāḍī ( ar, قاضي, Qāḍī; otherwise transliterated as qazi, cadi, kadi, or kazi) is the magistrate or judge of a '' sharīʿa'' court, who also exercises extrajudicial functions such as mediation, guardianship over orphans and mino ...
court to obtain judicial divorce, but they must have compelling grounds for dissolving the marriage. The court starts the process by appointing an arbitrator from each of their families in order to seek a mediated reconciliation. If this effort fails, the court adjudicates the dispute by apportioning fault for the breakdown of the marriage with the associated financial consequences.[ Examples of fault are cruelty; husband's failure to provide maintenance or pay the immediate installment of ''mahr''; infidelity; desertion; moral or social incompatibility; certain ailments; and imprisonment harmful to the marriage.][ Judicial divorce can also be sought over violations of terms stipulated in the marriage contract. Different legal schools recognized different subsets of these grounds for divorce.][ The Maliki school, which recognized the widest range of grounds for divorce, also recognises wife's hatred for husband as a valid ground for divorce and stipulates a category of "harm" (ḍarar), which gave the judge significant discretion of interpretation.][
]
Practice
In some areas under Ottoman rule it was hardly possible for women to obtain divorce except through khul' due to the restriction imposed by the prevailing Hanafi school, though some exceptions have been found. The most serious problem was abandonment, which was not recognized as grounds for judicial divorce. To address this, in some cases a man setting out for travel would leave his wife a letter authorizing talaq if he did not return within a specified period of time. In other cases, Hanafi judges invited a Maliki or Hanbali colleague to pronounce divorce, or the woman herself took the initiative to seek out a judge from one of these schools. The same approach was used to effect a divorce in cases of failure to provide maintenance. In the Ottoman Balkans a woman could file for divorce on the grounds that her husband was "not a good Muslim".[
Since marriages between non-Muslim men and Muslim women are forbidden under Islamic law, when a married woman converted to Islam but her husband did not, the marriage would be considered void by Muslim authorities and the woman obtained custody of the children. Seventeenth-century sources indicate that non-Muslim women throughout the Ottoman Empire used this method to obtain a divorce.
]
Oaths
Jurisprudence
The husband can end marriage through three types of oaths: the oath of continence (''īlāʿ'' and ''iẓhar''), the denial of paternity (''liʿan''), and conditional ṭalāq.[ The first two types were pre-Islamic practices confirmed by the Quran (2:226–227 for ''ila'', and 58:2–4 for ''izhar''), which also makes clear that ''izhar'' is reprehensible despite being legally valid.][
''Ila'' is an oath whereby the husband vows to refrain from sexual relations with his wife for at least four months. If he fulfils his oath, the marriage is dissolved; if he breaks it, the marriage continues. In the ''izhar'' (or ''ẓihār'') oath a man declares that his wife is as sexually prohibited to him as his mother. The husband is able to break the oath and resume the marriage. Breaking either oath requires expiation by means of feeding the poor or fasting.][
In the ''li'an'' oath, the husband denies paternity of his wife's child. The wife is given an opportunity to take an oath denying infidelity, and if she does so and the husband persists in his accusation, the marriage is dissolved by a judge and the couple can never remarry.][
In the oath of conditional ṭalāq, the husband declares that he will divorce his wife if he or she performs a certain act. This oath can serve as a protection for the wife or as a threat by the husband, depending on the specified act.][
]
Practice
Studies of practices under Mamluk and Ottoman rule found no instances of the oaths of li'an or abstinence being used, while conditional talaq seems to have played a prominent role. It was used to issue various threats to the wife as well as to make promises. In Ottoman Egypt marriage contracts commonly included stipulations of conditional talaq which were not otherwise recognized by the prevailing Hanafi school as grounds for judicial divorce, such as non-payment of maintenance or marrying a second wife.[
]
Other consequences of divorce
Islamic law does not recognize the concept of communal property, and division of property is based on its attribution to either spouse. The wife obtains custody of the children until their majority (whose definition varies according to legal school), while the father retains guardianship.[
Child custody practices under Ottoman rule appear to have followed the rules of Hanafi jurisprudence, although in Ottoman Egypt children generally stayed with their divorced mother beyond the prescribed age. A divorced woman could keep custody of the children unless she remarried and her husband claimed custody, in which case it generally passed to one of her female relatives. Under the Mamluks, women could waive the right to child support in order to obtain extended custody.][
]
Dower (''mahr'') in divorce
''Mahr
In Islam, a mahr (in ar, مهر; fa, مهريه; tr, mehir; sw, mahari; also transliterated ''mehr'', ''meher'', ''mehrieh'', or ''mahriyeh'') is the obligation, in the form of money or possessions paid by the groom, to the bride at the time ...
'' is a nuptial gift made by groom to the bride at the time of marriage. Upon receipt, it becomes her sole property with complete freedom of use and disposal. The marriage contract is not valid without the mahr. The amount of the mahr generally depended on the socio-economic status of the bride. The payment of a portion of the mahr was commonly deferred and served as a deterrent to the exercise of the right of unilateral divorce by the husband, although classical jurists disagreed about the permissibility and manner of deferring payment of the mahr.
Islamic jurisprudence has clear guidance on handling of mahr in the case of divorce, depending on who asks for the divorce and whether or not the intercourse occurred. If the husband asks for a divorce and intercourse has occurred or he had been alone with her, he pays full ''mahr''; if the husband asks for a divorce and the intercourse has not occurred, the husband pays half the dower; if the wife asks for a divorce and intercourse has occurred, the husband pays half the ''mahr''; and if the wife asks for a divorce and intercourse has not occurred, then no ''mahr'' is required to be paid by the husband.
Modern era
Legal transformation
In the modern era, sharia-based laws were widely replaced by statutes based on European models, and its classical rules were largely retained only in personal status
Legal status is the status or position held by an entity as determined by the law. It includes or entails a set of privileges, obligations, powers or restrictions that a person or thing has as encompassed in or declared by legislation.
Jack Balki ...
(family) laws.[ Different explanations have been proposed for this phenomenon. Several scholars have argued that because these laws are more extensively specified in the Quran and hadith than others, it has been difficult for believers to accept deviating from these rules.][ In contrast, ]Wael Hallaq
Wael B. Hallaq is the Avalon Foundation Professor in the Humanities at Columbia University, where he has been teaching ethics, law, and political thought since 2009. He is considered a leading scholar in the field of Islamic legal studies, and has ...
sees it as a legacy of colonialism: changing family laws would have provided no benefit in colonial administration, and colonial powers promoted the theory that these laws were sacred to the population, advertising their preservation as a mark of respect, which in turn led to them being taken up as a point of reference in modern Muslim identity politics.
Important changes in family laws took place in the modern era. The laws underwent codification by legislative bodies and were also displaced from their original context into modern legal systems, which generally followed Western practices in court procedure and legal education.[ This severed them both from the classical interpretative tradition and from the institutional foundations of the pre-modern legal system into which they were embedded. In particular, control over the norms of divorce shifted from traditional jurists to the state, though they generally remained "within the orbit of Islamic law".][
In her article 'An unequal partnership', Sulema Jahangir insists that, Convention on the Elimination of all Forms of Discrimination Against Women and other international standards expect that non-financial contributions of women to a marriage ought to be recognized to enable an equal standing between spouses.] Many Muslim countries are finding ways and means to account for non-financial contributions of women to a marriage and improve divorce compensations. Some Muslim nations such as Jordan, Morocco, Algeria, Egypt, Syria, Libya and Tunisia, are effecting rules legislationes to pay additional compensation called 'mata’a' as part of Islamic kindness to departing spouses in addition to dower and maintenance. Many Muslim countries are adding conditions called 'haq meher' (right of financial maintenance and capital awards) in marriage contracts called ''nikahnama''.
Methods of reform
Changing social conditions have led to increasing dissatisfaction with traditional Islamic law of divorce since the early 20th century. Various reforms have been undertaken in an attempt to restrict the husband's right of unilateral repudiation and give women greater ability to initiate divorce. These reforms have utilized a number of methods, of which the most important are:[
* Selection among classical juristic opinions without restriction to a single legal school (''takhayyur'') during state law codification
* Extending discretionary powers of the court
* Administrative measures justified with reference to the classical doctrine of ''siyasa shar'iyya'', which authorizes the ruler to enact policies in consideration of equity and expedience
* Imposition of penal sanctions
* Modernistic interpretation of Quranic scriptures (sometimes called ''neo-]ijtihad
''Ijtihad'' ( ; ar, اجتهاد ', ; lit. physical or mental ''effort'') is an Islamic legal term referring to independent reasoning by an expert in Islamic law, or the thorough exertion of a jurist's mental faculty in finding a solution to a le ...
'' and feminist tafsir
Hermeneutics of feminism in Islam is a system of interpreting the sacred texts of that religion, the Quran and Sunnah. Hermeneutics is the theory and methodology of interpretation, especially of sacred texts, and Islamic feminism has a long his ...
)
* Appeal to the doctrine of public interest (''maslaha
Maslaha or maslahah ( ar, مصلحة, lit=public interest) is a concept in shari'ah ( Islamic divine law) regarded as a basis of law.I. Doi, Abdul Rahman. (1995). "Mașlahah". In John L. Esposito. ''The Oxford Encyclopedia of the Modern Islamic Wo ...
'')
According to Sulema Jahangir in Turkey, the revised Civil Code expects equal division of property and assets acquired during the marriage as the default property regime. In Indonesia and Singapore, the courts have the discretionary powers; in Indonesia courts can split the matrimonial property upon divorce to recognise women's non-financial contributions to the marriage where as in Singapore wife's contribution to family is taken into account, and even in absence of financial contribution 35% assets have to be shared with wife as contributing in caring for home and children, where as in Malaysia depending on length of marriage and each spouse's contribution a divorcing spouse can get up to one third share in assets.
The All India Muslim Personal Law Board
The All India Muslim Personal Law Board (AIMPLB) is a non-government organisation constituted in 1973 by that time Prime Minister Mrs. Indira Gandhi to adopt suitable strategies for the protection and continued applicability of Muslim Personal ...
issued a code of conduct in April 2017 regarding talaq in response to the controversy over the practice of triple talaq in India
''Triple talaq'' (instant divorce) and ''talaq-e-mughallazah'' (irrevocable divorce) are now banned means of Islamic divorce previously available to Muslims in India, especially adherents of Hanafi Sunni Islamic schools of jurisprudence. A Musl ...
. It also warned that those who resort to triple talaq, or divorce recklessly, without justification or for reasons not prescribed under Shariat will be socially boycotted.
In India, The Muslim Women (Protection of Rights on Marriage) Act, 2019
The Muslim Women (Protection of Rights on Marriage) Act, 2019 is an Act of the Parliament of India criminalising triple talaq. In August 2017, the Supreme Court of India declared triple talaq, which enables Muslim men to instantly divorce thei ...
was passed in July, 2019 which made instant triple talaq (talaq-e-biddah) in any form — spoken, written, or by electronic means illegal, void, and punishable by up to three years imprisonment. Under the new law, an aggrieved woman is entitled to demand maintenance for her dependent children. India is among 23 countries that have banned triple talaq.
Prevalence
According to Yossef Rapoport, in the 15th century, the rate of divorce was higher than it is today in the modern Middle East
The Middle East ( ar, الشرق الأوسط, ISO 233: ) is a geopolitical region commonly encompassing Arabian Peninsula, Arabia (including the Arabian Peninsula and Bahrain), Anatolia, Asia Minor (Asian part of Turkey except Hatay Pro ...
, which has generally low rates of divorce. In 15th century Egypt
Egypt ( ar, مصر , ), officially the Arab Republic of Egypt, is a transcontinental country spanning the northeast corner of Africa and southwest corner of Asia via a land bridge formed by the Sinai Peninsula. It is bordered by the Mediter ...
, Al-Sakhawi
Shams al-Dīn Muḥammad ibn ‘Abd al-Raḥmān al-Sakhāwī ( ar, شمس الدين محمد بن عبدالرحمن السخاوي, 1428/831 AH – 1497/902 AH) was a reputable Shafi‘i Muslim hadith scholar and historian who was born in Cair ...
recorded the marital history of 500 women
A woman is an adult female human. Prior to adulthood, a female human is referred to as a girl (a female child or Adolescence, adolescent). The plural ''women'' is sometimes used in certain phrases such as "women's rights" to denote female hum ...
, the largest sample
Sample or samples may refer to:
Base meaning
* Sample (statistics), a subset of a population – complete data set
* Sample (signal), a digital discrete sample of a continuous analog signal
* Sample (material), a specimen or small quantity of s ...
on marriage in the Middle Ages
In the history of Europe, the Middle Ages or medieval period lasted approximately from the late 5th to the late 15th centuries, similar to the post-classical period of global history. It began with the fall of the Western Roman Empire a ...
, and found that at least a third of all women in the Mamluk Sultanate
The Mamluk Sultanate ( ar, سلطنة المماليك, translit=Salṭanat al-Mamālīk), also known as Mamluk Egypt or the Mamluk Empire, was a state that ruled Egypt, the Levant and the Hejaz (western Arabia) from the mid-13th to early 16th ...
of Egypt and Syria
Syria ( ar, سُورِيَا or سُورِيَة, translit=Sūriyā), officially the Syrian Arab Republic ( ar, الجمهورية العربية السورية, al-Jumhūrīyah al-ʻArabīyah as-Sūrīyah), is a Western Asian country loc ...
married more than once, with many marrying three or more times. According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo
Cairo ( ; ar, القاهرة, al-Qāhirah, ) is the capital of Egypt and its largest city, home to 10 million people. It is also part of the largest urban agglomeration in Africa, the Arab world and the Middle East: The Greater Cairo metro ...
ended in divorce.[Rapoport (2005) pp. 5–6.]
In the early 20th century, some villages in western Java
Java (; id, Jawa, ; jv, ꦗꦮ; su, ) is one of the Greater Sunda Islands in Indonesia. It is bordered by the Indian Ocean to the south and the Java Sea to the north. With a population of 151.6 million people, Java is the world's List ...
and the Malay peninsula
The Malay Peninsula (Malay: ''Semenanjung Tanah Melayu'') is a peninsula in Mainland Southeast Asia. The landmass runs approximately north–south, and at its terminus, it is the southernmost point of the Asian continental mainland. The area ...
had divorce rates as high as 70%.
See also
* Annulment
Annulment is a legal procedure within Law, secular and Religious law, religious legal systems for declaring a marriage Void (law), null and void. Unlike divorce, it is usually ex post facto law, retroactive, meaning that an annulled marriage is c ...
* Annulment (Catholic Church)
In the Catholic Church, a declaration of nullity, commonly called an annulment and less commonly a decree of nullity, and by its detractors, a "Catholic divorce", is an ecclesiastical tribunal determination and judgment that a marriage was invali ...
* At-Talaq
"Divorce" ( ar, الطلاق, ''aṭ-talāq'') is the 65th chapter of the Qur'an with 12 verses ('' ayat''). At-Talaq is not only the name of this Surah but also the title of its subject matter, as it contains commandments about Talaq (divo ...
– divorce
* Divorce in Pakistan Divorce in Pakistan is mainly regulated under the Dissolution of Muslim Marriage Act 1939 amended in 1961 and the Family Courts Act 1964. Similar to global trends divorce rate is increasing gradually in Pakistan too. In Punjab (Pakistan), in 2014 kh ...
* Get (divorce document)
A or ''gett'' (; , plural ) is a document in Jewish religious law which effectuates a divorce between a Jewish couple. The requirements for a ''get'' include that the document be presented by a husband to his wife. The essential part of the ...
* Holy Rights
''Holy Rights'' is a 2020 Urdu documentary film directed by Farha Khatun on Bharatiya Muslim Mahila Andolan's work on Muslim women's divorce issues relating to triple talaq in India. It was presented at the 26th Kolkata International Film Fest ...
* Marriage in Islam
In Islam, nikah is a contract between two people. Both the groom and the bride are to consent to the marriage of their own free wills. A formal, binding contract – verbal or on paper – is considered integral to a religiously valid Islamic ...
* Rights and obligations of spouses in Islam
In Islam, nikah is a contract between two people. Both the groom and the bride are to consent to the marriage of their own free wills. A formal, binding contract – verbal or on paper – is considered integral to a religiously valid Islami ...
References
External links
* Syed, Ibrahim B. (1988)
"Triple Talaq"
Islamic Research Foundation International, Inc.
* Ul Akhir, Jamadi (October 1997)
''Islamic Voice''. Vol 11-10 No: 129
* Kakakhel, Mian Muhibullah (23 September 2008)
{{Islam topics, state=collapsed