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Divorce

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The Islamic World: Past and Present What is This? Accessible coverage of Islam from the seventh century to the twenty-first century

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    Divorce

    Islam permits divorce under certain circumstances. Traditionally, Islamic law has facilitated the divorce process for men while imposing significant barriers for women who want to end their marriages. Nevertheless, the Qur'an and sunnah emphasize the seriousness of divorce and view it as a last resort. The Prophet Muhammad reportedly said: “Of all the permitted things, divorce is the most abominable [detestable] with God.” An Islamic legal manual characterizes divorce as “a dangerous and disapproved procedure.” Because the family is the foundation of Muslim society, the Qur'an encourages husbands and wives to do all they can to resolve their differences and stay together.

    Arab Culture and Islamic Law.

    Before the rise of Islam in the early 600s, Arabs lived in a traditional patriarchal, or male-dominated, society. Men, as the head of the family, exerted complete control over their wives and children. According to custom, a man had the right to divorce his wife at any time and for any reason. A woman, by contrast, was considered the property of her husband and had only those rights that her husband allowed.

    The Qur'an improved the status of women, noting that “women have rights similar to those [men] over them; while men are a step above them.” The Qur'an further explained that rights are proportional to responsibilities and that men have greater responsibilities than women. As the ulama (Islamic religious scholars) developed laws to govern marriage, divorce, and inheritance, they incorporated Qur'anic principles. Although Islamic law extended some rights to women and limited the privileges of men, it did not change the preeminent position of the husband.

    According to the Qur'an and Islamic law, a husband can repudiate, or disown, his wife without cause by a declaration known as the talaq. The power to exercise talaq requires neither judicial involvement nor the consent of the wife. The husband merely repeats the words “I divorce you” three times, once a month for three consecutive months. The three-month duration of the process imposes a waiting period during which the husband must continue to provide food, clothing, and shelter for his wife. The waiting period also gives the couple an opportunity to reconcile. If the two people have not resolved their differences by the end of the three months, the marriage formally ends. The husband remains free of any financial responsibility to the wife except for the mahr (money or property that the man had to pledge to legally validate the marriage). Some men agree to pay the mahr in two parts, half before the marriage and the other half in the event of divorce or death. In practice, many men bypassed the required waiting period by repeating the words “I divorce you” three times in rapid succession. Although it is considered sinful, this form of divorce is legal.

    Islamic law denies women the right to end a marriage by repudiation but does permit them to initiate two types of divorce. Khul divorce, also known as divorce through ransom, allows a woman to buy herself out of a marriage by paying her husband an agreed-upon sum of money or by returning the mahr. Tafriq divorce allows a wife to petition a court for divorce on very limited grounds, such as the husband's impotence or desertion. In some countries, family law has expanded the grounds for tafriq divorce to include mistreatment, conflict, a physical defect on the part of the husband, failure of the husband to provide financial support, or the absence or imprisonment of the husband.

    Aside from the obstacles that women encounter in trying to obtain a divorce, they have few rights regarding custody of their children after a divorce. Islamic law grants custody to the mother, but only if the children are very young. When the children reach a certain age, custody passes to the father, because he is considered better qualified to supervise their education. The age at which the father gains custody varies by country, but it is anywhere between two and ten for boys and seven to the onset of puberty or the time of marriage for girls. A mother may lose custody of the children in her care if she remarries.

    Modern Reforms.

    With the exception of Turkey, which abandoned Islamic legal codes in 1926 and adopted a civil code, the most far-reaching reforms in family law in the Middle East have been implemented in Tunisia. The Tunisian Code of Personal Status, enacted in 1956 , required men to register a talaq divorce in a government court and granted women equal rights to this type of divorce. Additional reforms in 1992 guaranteed child-support payments for divorced women and gave them the right to be considered legal guardians of their minor children along with the father.

    In general, however, modern legislation regarding marriage and divorce has done little to correct the inequalities in Islamic family law between men and women. Some Muslims resent government intervention in what they regard as private family matters, and as a result, they ignore legal reforms. Furthermore, modern legislation tends to codify Islamic law rather than to modify it. For example, in most Islamic countries today, the law requires that talaq divorces be registered in court. Nevertheless, husbands still retain their absolute right of repudiation on any grounds, as permitted by traditional Islamic legal codes. Because a woman does not have to be present when her husband repudiates her, some women do not even know that they have been divorced until they receive notification by regular mail, e-mail, or fax.

    Islamist political movements have also limited reforms in family law. They often label advocates of change as secular and anti-Islamic. Fundamentalist groups have even reversed previous reforms. In 1975 Iran's Family Protection Act gave equal rights to divorce to men and women and granted the courts the power to make custody decisions in accordance with the best interests of the child. One of the first acts of the Ayatollah Khomeini's Islamic government in Iran was to reinstate a man's right to divorce at will and to give fathers and their relatives sole child custody rights. In December 2002 Iran's Guardian Council, which evaluate proposed legislation, approved a bill giving women greater rights to divorce their husbands. A woman may now file for divorce if she has her husband's approval or if she can prove that he is unable to provide for his family. See also Family; Law; Marriage.

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