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Divorce

[This entry includes three subentries:

Historical Practice

“Divorce” can be defined as the dissolution of the marital bond through a process other than death. This article describes divorce law in the Muslim world in the period between the consolidation of Islamic legal doctrine (tenth century) until the time when the various states started to codify family law. It distinguishes between the formal rules on the one hand and practice on the other. Formal Islamic norms in the field of divorce are important until this day, as most family law codifications are based on (or at least presented as being based on) the classical norms. [See DIVORCE: MODERN PRACTICE.] However, it is necessary to look at the practices too, as several studies show that often, legal practices differed from the Sharīʿah.

The Law.

Islamic law, or Sharīʿah, is a general term for the norms that were derived by legal scholars (fuqahāʾ) from the Qurʾān and ḥadīth during the first centuries of Islam (seventh to tenth centuries). As the Qurʾān and ḥadīth are often open to interpretation, different interpretations were possible and thus, within this large body of law called Sharīʿah, there are various schools of thought. This variety resulted in a situation in which the norms concerning divorce differed from one geographical area to another, depending on the dominant legal school in that particular region. A relatively large part of Islamic law, or Sharīʿah, pertains to marriage and divorce, and the norms with respect to divorce may vary widely from one school to another (Vikør, 2005).

The four major Sunnī law schools (Mālikī, Ḥanafī, Ḥanbalī, and Shāfiʿī), as well as the Jaʿfarī Shīʿī school of law, recognize four types of divorce: (1) divorce pronounced by the husband (ṭalāq), (2) divorce by mutual consent (khulʿ ), (3) judicial divorce (taṭlīq/tafrīq/faskh), and (4) the husband's oath. The specific norms pertaining to these divorce types differ significantly from one school to another.

Ṭalāq.

Ṭalāq, often translated as “repudiation” but literally meaning “divorce,” is the term that is used to denote the right of the husband to divorce his wife. In Islamic law, this right is discretionary, requiring neither a justification nor the consent of the wife or a qāḍī (Linant de Bellefonds, 1965, p. 315). The husband simply needs to declare “I divorce you,” a declaration typically pronounced out of court, meaning that no judicial interference is required. The presence of the wife is not necessary either, nor will she need to be informed of the divorce; the only obligation is that the husband has the intention to repudiate, and that he be a lucid adult. The Shīʿī norms differ somewhat, requiring the presence of witnesses when the husband pronounces the divorce, and also that the marriage has been consummated, that the ṭalāq is pronounced during an intermenstrual period, and that the spouses have not had sexual relations since the wife's last menstruation. A divorce that conforms to these conditions is the ṭalāq sunnī, as opposed to the ṭalāqbidʿī.

The discretionary right of the man to divorce stands in clear contrast with women's access to divorce, as a woman is dependent on her husband's consent (khulʿ), or on the qāḍī (taṭlīq/faskh). The explanation for this discrepancy may be explained by the norm that marriage in Islamic law imposes financial obligations only on the husband. Besides, gendered access to divorce has often been explained as coming from the opinion of the fuqahāʾ that: “The female nature is wanting in rationality and self-control”. As a result, Rapoport described ṭalāq as: “A symbol of patriarchal authority,” which the author puts on a par with other male privileges, such as polygamy, concubinage, and the right of physical chastisement (Rapoport, 2005, p. 69). It should be underlined, however, that even Islam itself considers ṭalāq reprehensible, even if it is a valid means of divorce.

The Islamic norms of ṭalāq are the result of reform of the norms existing in pre-Islamic times (the jāhilīyah): it has been argued that Islam tried to make divorce less accessible to men and less frequent (Esposito with DeLong-Bas, 2001, p. 27). In Arabia, before the advent of Islam, men kept their wife in a state of “limbo” (Peters, 2006, p. 7) by continuously repudiating them and taking them back at their will. The Qurʾān put an end to this: 2:230 delimits the number of repudiations that a man may pronounce against his wife to three, after which she becomes unlawful for him, meaning that he cannot take her back. This can be remedied only by an intermediate marriage. The Qurʾān also introduced the “waiting period” (‘idda), which commences as soon as the husband pronounces the divorce (2:228; 2:234; 33:49, and 65:4), and allows the husband to revoke the divorce if he has regrets; after this period has ended, the man cannot take the wife back unless they remarry.

Besides the “normal” ṭalāq, there are some specific forms of unilateral divorce. For example, the husband can delegate his right to ṭalāq to the wife, or he can appoint her as his agent. In these cases, she can pronounce the ṭalāq herself. Agency and delegation can be restricted to specific conditions. For example, the couple can include in the marriage contract that the husband delegates his right to divorce to his wife if he marries a second wife, meaning that the wife can repudiate herself if the condition is fulfilled. Another special form of ṭalāq is the triple one, meaning that the husband repudiates his wife three times at once, or three times during the same waiting period to ensure that he does not take her back during the waiting period; there is a difference of opinion between the legal scholars who developed Islamic law as to whether this is allowed.

Khulʿ.

Unlike the man, the woman can divorce only with the consent of her husband (khulʿ) or the approval of the qāḍī (taṭlīq/faskh). The khulʿ also takes place out of court, although the Shīʿīs require the presence of witnesses. In general, it is the wife who proposes the divorce, and the husband who either consents or refuses, but if he accepts the offer to divorce, he can demand financial compensation. This may consist of paying the husband money, or waiving outstanding financial rights, such as the remaining part of her dower (mahr muʾakhir) or maintenance during the waiting period (nafaqat al-‘idda). In this way, the husband benefits from a khulʿ divorce financially. Only the Ḥanafī and Mālikī schools do not require that the wife pay compensation. The khulʿ is an irrevocable divorce, meaning that the husband cannot take the wife back during the waiting period. Nevertheless, the waiting period does apply for other purposes, and the husband is obligated to continue to pay maintenance during this term unless this is waived by the wife as part of her compensation. Like ṭalāq, divorce by mutual consent predates the coming of Islam. As marriage was a sale contract between the groom and the bride's father, the groom paid the dower to the latter or the entire clan. In the event of khulʿ, it was the bride's clan who compensated the husband (Layish, 1988, p. 428). The Qurʾān affirmed the possibility of khulʿ (2:229), stipulating that, if the spouses fear breaking the limits set by God, the husband should release his wife in exchange for compensation. However, as in Islamic law, the mahr is paid to the wife herself, it is the wife who should compensate the husband.

Judicial divorce (ṭatlīq or tafrīq and faskh).

If the husband refuses to divorce, the wife can seek recourse in court. The qāḍī can pronounce the divorce, but only on specific grounds, which differ from one school to another.

In Ḥanafī and Shīʿī law, the wife can obtain a judicial divorce only if the husband is not able to have intercourse and if she was not aware of this when contracting the marriage and has not accepted it afterwards. These schools further provide that the woman can have the marriage nullified (faskh) by a judge if it was contracted during the woman's minority through force by a marriage guardian other than her father or grandfather. Also, the woman and her marriage guardian can have it nullified if there is moral or social incompatibility (lack of kafāʿa), or if the husband fails to pay the immediate part of the dower (mahr muʾakhir).

The Shāfiʿī and Ḥanbalī schools recognize wider access to judicial divorce. Besides impotence, other physical defects are accepted as grounds for judicial divorce, if they make sexual intercourse impossible, and this applies to both husband and wife. The physical grounds for divorce can be expanded by the future spouses with stipulations in the marriage contract, such as that the other spouse be free of specific physical defects (sharṭ al-salāma). The husband can also stipulate that his wife possess certain qualities, such as virginity; if the contract is breached, the husband can have the marriage nullified without having to turn to ṭalāq.

The Shāfiʿī and Ḥanbalī schools grant the wife more grounds for divorce. Both schools recognize the husband's failure to pay maintenance as acceptable grounds for divorce. The Ḥanbalīs allow this even if the wife knew that she married a poor man. The Ḥanbalī school is also the only school that allows the wife to stipulate in her marriage contract that her husband shall not marry another woman, and that she obtains a divorce if he breaches the contract. Also in Ḥanbalī law, a wife may obtain a divorce if her husband is absent for more than six months. By contrast, Ḥanafī law requires the husband's absence for 99 years in order to assure that he is deceased.

Mālikī law is the most generous in granting the wife the possibility to have her marriage annulled by the qāḍī. With regard to physical defects, nonpayment of maintenance, and abandonment, the Mālikīs share the same rules as the Ḥanbalī school, although the Mālikīs do not accept nonpayment of maintenance as grounds for divorce if the wife knew beforehand that her future husband was poor. In case of nonpayment of maintenance, the husband is granted a delay of three months and the husband can revoke the divorce by paying the due amount during the waiting period. The husband's absence justifies divorce after one year. But a ground that is very specific for the Mālikī school is divorce for “harm” (ḍarar), a notion that offers significant discretion to the qāḍī, who determines what acts are qualified as “harm.” Mālikī doctrine provides that severe and unjustified domestic violence is qualified as such, but if the wife cannot prove her complaint, two arbiters are appointed to reconcile the couple. If they fail, they establish who is to blame; if it is the husband, the judge can pronounce ṭalāq on his behalf. If the wife is responsible, the judge can either leave the marriage intact or pronounce divorce by obliging her to pay compensation.

The oath.

The husband can end marriage through three types of oaths: the oath of continence (īlāʿ and izhar), the denial of paternity (liʿan), and the oath of divorce. The first two are a continuation of pre-Islamic practices, confirmed by the Qurʾān (‘īlā’: 2:226–227, izhar: 58:2–4), although it is made clear in this same source that izhar, if valid, is nevertheless reprehensible.

The doctrine of īlā’ (turning away) provides that if a man swears that he shall not approach his wife sexually for four months, and he does not break this oath by resuming intercourse with her, the wife can obtain divorce through the qāḍī, or, according to the Ḥanafī school, is ipso facto divorced after the four months have come to an end. Ẓihār is the oath sworn by the husband comparing the wife to a body part of a woman who is prohibited to him in marriage, thus indicating that his wife is no longer attractive to him (e.g.: “My wife is like my mother's back,” hence the term ẓihār). Mālikī law gives the wife the right to obtain a divorce through the qāḍī. If the husband swears that the child born to his wife is not his (liʿān), the wife is ipso facto divorced and the couple can never remarry.

Another oath of divorce is called the “conditional ṭalāq.” This takes place when the husband declares that if his wife performs a certain act, she shall be divorced, or that she will be divorced if he performs a certain act, such as marrying a second wife. In the first example, the conditional ṭalāq is a threat, whereas in the second case, it provides security to the wife. All schools accept the conditional divorce, except the Shīʿīs (Nasir, 1990, p. 117).

Consequences of divorce.

During the waiting period (‘idda), the wife cannot remarry, but she does (in principle) receive maintenance. After the end of the waiting period, the wife does not receive any maintenance for herself. However, if she has custody of her children, the latter might receive maintenance, depending on their own means. The wife receives the remaining part of the dower (mahr muʾakhir). As Islamic law does not recognize the concept of the community of goods, the goods acquired before and during marriage are not common property, and, so, there is no division of common goods upon divorce. Instead, there is an attribution of the goods that belong to either spouse, and possible disagreements over the property of certain goods (e.g., furniture) shall be taken care of by means of taking an oath.

In principle, the wife obtains custody of the children, while the father retains guardianship, that is, the authority to take important decisions involving them. This means that the children live with their mother until custody ends, or until someone else obtains custody for some reason. The father can visit the children. The age at which custody ends differs per school: for the Mālikīs, custody ends at puberty for boys and at marriage for girls; for Ḥanafīs, it ends at age seven for boys and at puberty for girls; the Shāfiʿīs determine that custody lasts until the children have reached the age of discretion (rushd); for the Ḥanbalīs, custody ends at seven, and for the Shīʿīs, custody ends at two years for boys and at seven years for girls. In all schools, the rule is that when custody has ended, meaning that the children have reached the aforementioned ages, the children shall live with their father. If the woman remarries before the children have reached the aforementioned ages, custody rights transfer to her mother, or another female relative, such as the father's mother. For Ḥanafīs, apostasy is also a reason to lose custody, whereas Shāfiʿīs and Shīʿīs deny custody to the mother who is not a kitābiyya (Muslim, Christian, or Jew), even if the father is Muslim.

Practice.

Law in practice did not always correspond, at least not completely, with the precepts of the dominant school in a certain geographical area: the “law in action” differed from “the law on the books.” Schacht writes that: “Even in the field of […] divorce […], actual practice has been strong enough to prevail over the spirit, and in certain cases over the letter, of religious law, either depressing the position of women or raising it” (Schacht, 1964, pp. 76–77). The following two case studies demonstrate how legal practice sometimes deviated from fiqh: the Mamluks (Egypt, fourteenth and fifteenth centuries) and the Ottomans in Syria, Palestine, Egypt, and the Balkans (sixteenth to nineteenth centuries). In both empires, the Ḥanafī doctrine was dominant, yet practice did not always coincide with what was stipulated within Ḥanafī doctrine.

Ṭalāq.

In Ottoman Syria and Palestine, neither the muftis nor the qāḍīs questioned the male prerogative of ṭalāq found in Ḥanafī doctrine (Tucker, 1998, p. 95). Nevertheless, women had means to render a ṭalāq invalid, namely by stating that the husband had shown signs of “diminished rationality” when pronouncing the divorce (Tucker, 1998, pp. 88, 89). If this was proven, the wife remained married and continued to have a right to maintenance.

There were also means for women to divorce by means of ṭalāq. Again in Ottoman Syria and Palestine, a woman could use her husband's declaration of ṭalāq, even if it was made without the intention to divorce, against him: if the husband had pronounced a ṭalāq without taking it back, the wife could address a mufti or a judge to have her divorce confirmed, if she could prove it. This practice provided “one way for a woman to choose divorce” (Tucker, 1998, p. 92).

In sixteenth century Ottoman Egypt, it was common to include conditions in the marriage contract, providing that, in case of violation of such conditions, the wife would automatically be divorced. As this would then be a conditional ṭalāq, the wife was not obliged to pay the compensation due in the case of a khulʿ divorce (Abdal Rahman, 1996, p. 103). Such conditions made divorce possible in cases of nonpayment of maintenance, but also in the event that the husband married a second wife, grounds that Ḥanafī law does not recognize for divorce. This was true even if Ḥanafī law does not allow such stipulations.

Among the Mamluks in the Middle Ages, ṭalāq was not the principal means of divorce. Since the unilateral divorce was generally considered a disaster for women, depriving them of financial support and protection and preventing them from remarriage because they would lose child custody, pronouncing the ṭalāq without a good reason was not considered “proper behavior.” Moreover, men were deterred by the financial consequences of ṭalāq, which in practice consisted not only of the deferred dower and maintenance during the waiting period, but also of an additional compensation (mutʿa) (Rapoport, 2005, pp. 70–71).

Khulʿ.

Among the Mamluks, khulʿ, rather than ṭalāq, was the principal means of divorce. The same was true in the Ottoman Balkans in the seventeenth and eighteenth centuries (Ivanova, 1996, p. 118). And, although, formally, women were dependent on their husbands’ consent to obtain a divorce through khulʿ, Mamluk women employed various strategies to force their husbands to agree. For example, a woman would forfeit her marital duties, such as housekeeping or maintaining sexual relations with her husband, thus making marital life impossible for the husband and pushing him to agree to a divorce. Another means would be to claim the remaining part of the dower, knowing that the husband was unable to pay; in such cases, the husband agreed to a divorce because otherwise, he would go to prison for violation of the contract (Rapoport, 2005, pp. 72–73).

Compensations offered by women to obtain a khulʿ divorce often consisted of more than what was initially required by Ḥanafī law: women would not only waive outstanding financial rights (the remainder of the dower and maintenance during the waiting period), but would also take the duty of child maintenance upon them. On the other hand, if no compensation was agreed upon, the khulʿ was nevertheless valid, as is prescribed in Ḥanafī doctrine.

Ottoman muftis in seventeenth and eighteenth century Palestine and Syria would ensure that women did not unjustifiably compensate the husband: if the wife contracted khulʿ, the mufti would call witnesses to establish if the divorce had not actually been a ṭalāq, in the sense that the husband had proposed to divorce his wife if she compensated him. In such cases, muftis would tell the woman that she was not obliged to pay anything, and that she could even claim her deferred dower (Tucker, 1998, pp. 96–97). Women could also take advantage of this by asking a mufti to force the husband to pay the financial duties of a ṭalāq, arguing that the khulʿ agreement had actually been a ṭalāq. In such cases, witnesses would be called as well (Tucker, 1998, p. 99).

Ṭatliq and faskh.

In the Mamluk period, it was hardly possible for women to obtain divorce other than through khulʿ, except if they had included conditions in their marriage contract (Rapoport, 2005, p. 69). The same was true in Ottoman Egypt (Sonbol, 1996, p. 281), but there were nevertheless a number of ways in which this rigidity was softened, by opening up the way of judicial divorce.

In Ḥanafī law, judicial divorce is allowed only in the case in which the husband cannot have intercourse. The Ḥanafī muftis in Ottoman Palestine and Syria, however, would allow women to have their marriage nullified for other defects as well, recognizing that serious contagious diseases and mental illnesses could make sexual life impossible, too (Tucker, 1998, 81).

One main problem for women under Ḥanafī law, however, was abandonment: as Ḥanafī law does not recognize this as grounds for divorce, women who were abandoned by their husbands could not divorce, and thus they could not remarry either. Abandonment was quite a recurrent phenomenon: in the Ottoman Balkans, many men preferred to abandon their wives instead of divorce them (Ivanova, 1996, p. 122). A solution for this problem could be offered by the husbands themselves: among the Mamluks, it was common that, if the husband was going to travel, he gave his wife a letter allowing her to pronounce the ṭalāq in his name after a specific period of time (Rapoport, 2005, pp. 76–77). But in case the husband did not offer his wife this possibility, qāḍīs and muftis could help out: in Ottoman Syria and Palestine, Ḥanafī qāḍīs invited a Shāfiʿī or Ḥanbalīi colleague to pronounce the divorce, as in these schools, abandonment is a ground for divorce (Tucker, 1998, 83–85). The Ottoman courts of Jaffa and Haifa went even further, including “unacceptable distance” within the grounds for (a Ḥanafī) divorce (Agmon, 1996, p. 137). Another possibility was for the women themselves to address a Ḥanbalī or Mālikī qāḍī instead of a Ḥanafī one—a type of “forum shopping” that was allowed in seventeenth century Cairo (Hanna, 1996, p. 146).

Another problem for women was nonsupport, as Ḥanafī law did not recognize this as a cause for divorce. But here, again, muftis and qāḍīs could offer a helping hand, inviting representatives from other schools to pronounce the divorce (Tucker, 1998, 83).

In the Ottoman Balkans, women could even file for divorce with the qāḍī on the grounds that the husband was not a good Muslim: cursing and blasphemy were accepted as valid grounds for divorce initiated by the wife (Ivanova, 1996, p. 119).

The oath.

The studies of Mamluk and Ottoman practices do not make mention of the oaths of abstinence or of li‘ān, suggesting that these were not widely practiced. Nevertheless, the oath of divorce seems to have played an important role in these empires, in the sense that men pledged a conditional oath of divorce, swearing that if this did or did not happen, the wife would be divorced.

Both among the Mamluks, and in Ottoman Syria and Palestine, the conditional ṭalāq could be pronounced to threaten the wife. By swearing that, “If you do/do not do this, you shall be divorced,” men controlled their wife's behavior, as “society expected men to supervise the womenfolk of their household, and neglect of this duty could affect their social standing” (Rapoport, 2005, pp. 69–72). In this way, ṭalāq became a “weapon of domination” (Tucker, 1998, pp. 101–102).

But the conditional ṭalāq could also be a means to make a promise to the wife; for example, the husband would swear that if he did not pay maintenance, his wife would be divorced. This practice, observed in seventeenth and eighteenth century Ottoman Syria and Palestine, offered the woman a weapon in case of nonpayment of maintenance, for which Ḥanafī law, not recognizing nonpayment of maintenance as grounds for divorce, does not provide.

The consequences of divorce.

With regard to child custody, Tucker observed that practice was in accordance with Ḥanafī fiqh: if a woman was divorced, she could keep her children unless she remarried and her ex-husband claimed custody, in which case the children were kept by her female family members (Tucker, 1998, p. 125). Otherwise, the children stayed with her until they reached a certain age: for boys, this was the moment that they could get dressed by themselves, and for girls when they reached puberty, at which point they went to stay with their father (Tucker, 1998, pp. 117–118). In sixteenth century Ottoman Egypt, however, it was common for children to stay with their mothers beyond this age (Abdal Rahman, 1996, p. 108). Among the Mamluks, women could waive the right to child maintenance in order to obtain child custody (Rapoport, 2005).

Bibliography

  • Abdal Rahman Abdal-Rehim, Abdal Rehim. “The Family and Gender Laws in Egypt during the Ottoman Period.” In Women, the Family, and Divorce Laws in Islamic History, edited by Amira Sonbol, pp. 96–111. New York: Syracuse University Press, 1996.
  • Agmon, Iris. “Muslim Women in Court According to the Sijill of Late Ottoman Jaffa and Haifa.” In Women, the Family, and Divorce Laws in Islamic History, edited by Amira Sonbol, pp. 126–142. New York: Syracuse University Press, 1996.
  • Ahmed, Leila. Women and Gender in Islam. Historical Roots of a Modern Debate. New Haven, Conn.: Yale University Press, 1992.
  • Ali, Kecia. Marriage and Slavery in Early Islam. Cambridge, Mass.: Harvard University Press, 2010.
  • Bousquet, G. H. “Islamic Law and Customary Law in French North Africa.” Journal of Comparative Legislation and International Law (1950): 57–65.
  • Bousquet, G. H., and L. Bercher. Le statut personnel en droit musulman Hanéfite: Texte et traduction annotés du Mukhtasar d’al-Quduri. Tunis: Institut des Hautes Etudes de Tunis, s.d.
  • Coulson, Nigel J. A History of Islamic Law. Edinburgh: Edinburgh University Press, 1964.
  • Esposito, John L. with Natana J. DeLong-Bas. Women in Muslim Family Law. 2d ed. Syracuse, N.Y.: Syracuse University Press, 2001.
  • Gerber, Haim. “Social and Economic Position of Women in an Ottoman City, Bursa 1600–1700.” IJMES no. 12 (1980): 231–244.
  • Hallaq, Wael Ibn. “Was the gate of ijtihad closed?” International Journal of Middle East Studies 16.I (1984): 3–41.
  • Hanna, Nelly. “Marriage among Merchant Families in Seventeenth Century Cairo.” In Women, the Family, and Divorce Laws in Islamic History, edited by Amira Sonbol, pp. 143–154. Syracuse, N.Y.: Syracuse University Press, 1996.
  • Ivanova, Svetlana. “The Divorce between Zubaida Hatun and Esseid Osman Aga: Women in the 18th Century Sharia Court in Rumelia. In Women, the Family, and Divorce Laws in Islamic History, edited by Amira Sonbol, pp. 112–125. Syracuse, N.Y.: Syracuse University Press, 1996.
  • Jennings, Ronald. “Women in Early Seventeenth Century Ottoman Judicial Records—the Sharia Court of Anatolian Kayseri.” Journal of the Economic and Social History of the Orient no. 18 (1975): 53–114.
  • Layish, Aharon. Women and Islamic Law in a Non-Muslim State: A Study Based on the Decisions of the Sharia Courts in Israel. New York and Jerusalem: John Wiley & Sons, 1975.
  • Layish, Aharon. “Customary khul’ as Reflected in the Sijill of the Libyan Sharia Courts.” Bulletin of the School of Oriental and African Studies 51.3 (1988): 428–439.
  • Layish, Aharon. Divorce in the Libyan Family: A Study Based on the Sijills of the Sharia Courts of Ajdabiyya and Kufra. New York: New York University Press, 1991.
  • Linant de Bellefonds, Y. Traité de droit musulman comparé. Paris: Mouton, 1965.
  • Masud, Muhammad Khalil, David S. Powers, and Ruud Peters, eds. Dispensing Justice in Islam: Qadis and Their Judgments. Leiden, The Netherlands: E.J. Brill, 2006.
  • Nasir, Jamal J. The Islamic Law of Personal Status. 2d ed. London: Graham and Trotman, 1990.
  • Rapoport, Yossef. Marriage, Money and Divorce in Medieval Islamic Society. Cambridge, U.K.: Cambridge University Press, 2005.
  • Schacht, Joseph. An Introduction to Islamic Law. Oxford: Clarendon Press, 1964.
  • Sonbol, Amira el-Azhari. “Law and Gender Violence in Ottoman and Modern Egypt. In Women, the Family, and Divorce Laws in Islamic History, edited by Amira Sonbol, pp. 277–289. Syracuse, N.Y.: Syracuse University Press, 1996.
  • Spectorsky, Susan A. Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rahwayh. Austin, Tex.: University of Texas Press, 1993.
  • Stern Gertrude. Marriage in Early Islam. London: Royal Asiatic Society, 1939.
  • Tucker, Judith E. Women in Nineteenth Century Egypt. Cambridge, U.K.: Cambridge University Press, 1985.
  • Tucker, Judith E. “Marriage and Family in Nablus, 1720-1856: Towards a History of Arab Muslim Marriage.” Journal of Family History no. 13 (1988): 165–179.
  • Tucker, Judith E. In the House of the Law. Gender and Islamic Law in Ottoman Syria and Palestine. Berkeley: University of California Press, 1998.
  • Tucker, Judith E. Women, Family, and Gender in Islamic Law. Themes in Islamic Law 3, Cambridge, U.K.: Cambridge University Press, 2008.
  • Vikør, Knut. Between God and the Sultan: A History of Islamic Law. New York: Oxford University Press, 2005.

Maaike Voorhoeve

Modern Practice

“Divorce,” or the dissolution of the marital bond through processes other than death, is organized by norms that change along with time and space, depending on formal rules and practice. Traditionally, divorce in the Muslim world was organized by fiqh. [See DIVORCE, HISTORICAL PRACTICE.] In the twentieth century, an important change took place, as personal status law was codified. As a consequence, the decision of what norms organized divorce shifted from the fuqahāʾ to the state. These codes generally remained “within the orbit of Islamic law” (Peters, 2005, pp. 107–134) because of the “divine character” of personal status law. As it is generally considered that the prescriptions on family law are more detailed in the Qurʾān and ḥadīth than in other domains (penal and civil law), Anderson, Coulson and others have argued that it is complicated for believers to deviate from these rules (Anderson, 1976, p. 17 and Coulson, 1996, p. 161). Nevertheless, states grasped this opportunity to reform divorce law, in order to enhance women's rights, but also to increase state control over family matters and reduce divorce rates. Reforms were effectuated by selecting those rules from fiqh that answered to the state's wishes (takhayyur, selection) and by imposing procedures, for example the registration of ṭalāq.

The first reform in the field of divorce law originated in the Ottoman Empire in 1915. Muslims from all parts of the Islamic world visited Istanbul, married local women, and lived with them for the duration of their stay, only to leave them behind without divorcing them. As Ḥanafī law has limited possibilities for women to file for divorce, women called for reform (Anderson, 1976, p. 39). The Sultan issued two decrees providing that, in cases of divorce, qāḍīs should apply the Mālikī and Ḥanbalī rules that allow judicial divorce in case of abandonment. In other personal status matters, the qāḍīs continued to apply Ḥanafī fiqh, until a more comprehensive code followed two years later: the Ottoman Law of Family Rights (OLFR). This code remained in force in the Ottoman Empire until 1919, and after the fall of the Ottoman Empire, the newly established state of Turkey introduced the Swiss Civil Code. Nevertheless, the importance of the OLFR can hardly be overestimated: not only did it remain in force in some of the mandate states for the decades to follow (Syria, Jordan, Lebanon, and Israel), but it also paved the way for reforms in almost the entire Muslim world (Anderson, 1976, p. 40). In 1920 and 1939, respectively, the next steps were taken in Egypt and the Indian subcontinent, where laws extended the grounds on which women could apply for judicial divorce.

It is not a coincidence that the first reforms took place in areas where the Ḥanafī doctrine was dominant, as this maḍhhab is the most restrictive in granting women the right to divorce. But, in the 1950s, some Mālikī countries followed, issuing relatively elaborate family codes. These codes were comprehensive codifications of personal status law as a whole, instead of piecemeal laws. While the Moroccan mudawwanah (1957) remained close to the Mālikī fiqh, Tunisia issued a Personal Status Code that until today, is considered the most “progressive” in the Arab Muslim world, introducing equal divorce rights for men and women by providing that both spouses can file for divorce with mutual consent, for harm, and without grounds (Article 31 of the Tunisian Personal Status Code). In the decades that followed, other Muslim majority countries issued personal status codes. Most codifications extended the grounds for women to obtain judicial divorce and curtailed the husband's access to ṭalāq, albeit in a restrictive way. But the codes were not finalized achievements. In a situation in which “conservatives” and “progressives” continuously struggle over the degree to which codification should or should not remain within the orbit of Islamic law, most codes have been amended or replaced. Some changes resulted in the enhancement of women's rights in the field of divorce, for example, in Morocco in 2004 and Egypt in 2000. But sometimes the changes resulted in their deterioration, for example, in Libya, where the law of 1984 restricted women's access to divorce through khulʿ, as the provision that the judge replaces the husband's consent was abolished. Also, many amendments were stalled by heated public debates, particularly in Iran, Syria, Senegal, Indonesia, and Sudan. These debates reintensified in some countries after the “Arab Spring.”

Codifications.

Reforms have been effected in terms of both the mechanisms of divorce and its implications in many countries.

Ṭalāq.

Hardly any code curtails the husband's right to divorce his wife: men retained their discretionary right to divorce, regardless of the agreement of the wife or a third party (the judge). The Iranian family Code of 1975 was revolutionary in the respect, allowing both spouses to obtain divorce, but only if they proved the existence of one of the prescribed grounds. This law was revoked after the Islamic Revolution of 1979.

Provisions may, however, make ṭalāq more complicated by adding procedures or imposing additional financial duties. For example, many codes require that a ṭalāq pronounced out of court be registered with the authorities, that it be pronounced in front of a judge, or even that a reconciliation procedure is undertaken by the court. The consequences of violation of such a rule range from incompetence of the court in claims concerning the ṭalāq to a penal sanction or straightforward invalidity of the divorce. The obligation to pay compensation (mut‘a or gharāma), introduced in some codes, may constitute a financial impediment to pronouncing the ṭalāq, as it is added to the remaining part of the dower and maintenance during the waiting period that the husband is obligated to pay.

Taṭlīq.

Reforms of judicial divorce consist of the extension of the grounds for women to obtain such a divorce to making this divorce type available to men, too. This demonstrates that reforms are directed not only at the enhancement of women's rights.

The extension of the grounds of taṭlīq may consist of copying the Mālikī grounds of nonpayment of maintenance, absence, and harm in countries where the Mālikī doctrine is not dominant (Hosseini, 2007). Also, other grounds may be added, such as the husband's polygamous marriage, AIDS, and infertility. Some countries introduced marital discord (nizā‘ wa shiqāq) as grounds for divorce. However, even if the grounds for judicial divorce are extended, women do need a reason for divorce, except in case of delegation of the right of ṭalāq (tamlīk). This is different only in Tunisia, where the wife can obtain divorce without any grounds whatsoever.

Making judicial divorce available to men seems contradictory in a situation in which men have absolute access to divorce through repudiation. But according to Mayer, its justification is found in the consideration that, if the wife is responsible for the marital breakdown, the husband should not carry the financial burden of a ṭalāq (Mayer, 1978, p. 36). Thus, some countries made judicial divorce available to men in cases such as harm (Tunisia) and marital discord (Morocco, Syria).

Khulʿ.

Reforms of khulʿ range from judicial intervention to measures to prevent abuse by the husband or even to the abolition of the requirement of the husband's consent.

As in the case of ṭalāq, some codes make the validity of khulʿ dependent on its being registered with the authorities, or require that such a divorce take place in court, or that a reconciliation procedure is undertaken. These are procedural obstacles to contract khulʿ, which have a possible deterring function; in this way, they serve to bring about a decrease in divorce rates, but court interference may also deter women who wish to keep their marital problems private (Welchman, 2007, p. 121). An example of provisions that protect the wife against specific agreements is the Kuwaiti interdiction to give up child custody by means of compensation. Some countries abolished the duty to pay compensation, making khulʿ more accessible to women. For example, Article 114 of the Moroccan mudawwanah of 2004, allows khulʿ with and without compensation.

In Pakistan, Egypt, and Algeria, courts can enforce a khulʿ upon a husband who is unwilling to agree to a divorce. This means that a woman can obtain a divorce regardless of her husband's consent.

The consequences of divorce.

Some codes provide that children stay longer in their mother's custody after divorce than in fiqh, even in the case of the mother's remarriage. Also, codes may require the husband to pay damages (mut‘ a or gharāma) after ṭalāq. In India, Muslim women have a right to maintenance until they remarry or can take care of themselves. Some codes, such as Articles 56 and 56 bis of the Tunisian Personal Status Code, provide that the woman may get to stay in the former marital home if she has custody.

Practice.

Law in practice does not always correspond with the law on the books. As legal-anthropological literature shows, litigants’ strategies and judicial practices can significantly influence access to and consequences of divorce. The following examples from Syria, Egypt, Morocco, Iran, Yemen, the West Bank, Gaza, and Tunisia illustrate where, sometimes, practice deviates from legislation.

Ṭalāq.

In many countries, couples stipulate in their marriage contracts that a small part of the dower is paid upon marriage, while payment of the outstanding dower is postponed until, for example, ṭalāq. These deferred dowers can be significant, and in this way, they not only function as financial security for the wife in the absence of maintenance after divorce, but the deferred dower also is a deterrent for the husband to pronounce the ṭalāq.

Taṭlīq.

Judicial interpretation is crucial when it concerns taṭlīq on the grounds of “harm,” “hardship,” or “antipathy,” or judicial divorce for irretrievable breakdown (shiqāq), as these terms are very vague. In Iran, some judges interpreted “hardship” in such a restrictive manner that they refused any divorce on these grounds if the husband opposed it (Hosseini, 2007, p. 199), a situation that may have changed since the legislature intervened in 2002 by defining “hardship” more clearly in 2002. In Yemen, whether or not a certain act is qualified as “antipathy” depends on the social class of the woman, since lower-class women are supposed to endure more from their husbands than uppe;r-class women in case of divorce on the grounds of “antipathy” (Würth, 2000). In Tunisia, the wife's petition for divorce for nonpayment of maintenance is rejected if she abandoned the marital home without a valid reason, as she is then considered to have lost her right to maintenance (Voorhoeve, 2013). Also, judges may apply strict evidence requirements with regard to the grounds for taṭlīq; for example, in Morocco and Tunisia, judges require a penal conviction as evidence of domestic violence in order to obtain divorce for harm (ḍarar).

These judicial practices influence litigants’ practices. For example, women in Morocco and Syria turn to divorce for discord (nizā‘ wa shiqāq) instead of taṭlīq, even in cases of domestic violence. This is true despite the fact that they would receive money in case of taṭlīq, while, in a shiqāq procedure, they risk carrying a large financial burden, namely if the arbiters in the shiqāq procedure decide that she is responsible for the marital breakdown (Carlisle, 2007). The cause of this practice is that in these countries, shiqāq is generally granted, whereas taṭlīq is not (Carlisle, 2007). This situation is opposite to the one in Iran (Hosseini, 2007). Welchman has further observed in the Palestinian West Bank that the wife should prove discord, while the husband's petition of divorce for discord and strife is accepted if he insists (Welchman, 2000, p. 290).

Women may also seek a khulʿ divorce, in which case they carry the financial burden, but they may also simply abandon the marital home instead of filing for divorce, as was observed in Tunisia (Voorhoeve, 2013). These choices are caused not only by restrictive access to taṭlīq: with regard to the West Bank, Welchman connects the lack of judicial divorces to the shame attached to disclosing the intimacies of a failing marriage in court (Welchman, 2000, p. 248).

Not only women, but men also employ strategies with regard to judicial divorce. In countries where this divorce type is also available to men, some men prefer judicial divorce, as it relieves them from the financial burden of ṭalāq. Judges may encourage this practice by interpreting terms such as “harm” extensively when the husband files for taṭlīq. For example, in Tunisia, judges qualify as “harm” the wife's abandonment of the marital home without a valid reason, and the wife's flirting by texting or chatting on the internet. They may even qualify the fact that the wife has a job outside of the home as “rebellion” (nushūz), justifying divorce (Voorhoeve, 2013).

Khulʿ.

Women may employ strategies to force the husband into a divorce. For example, in Iran, women pressure their husbands by claiming their deferred dower. As future spouses agree on high amounts of mahr that the wife may claim at any given moment, women who claim their mahr can cause their husband's imprisonment. What follows is a negotiation in which the wife proposes to drop (part of) her claim in exchange for a divorce (Osanloo, 2006). In Morocco, the wife's abandonment of the marital home is the impetus for divorce negotiations between the wife's family and the husband (Maher, 1974).

Practical access to khulʿ also depends on the (financial) consequences for the wife. In Tunisia, judges protect women, as they prohibit waiving child support (Voorhoeve, 2013). In Egypt, on the other hand, Sonneveld observed that judges oblige women to pay large amounts of money, in this way restricting women's access to divorce (Sonneveld, 2012).

Although khulʿ is generally presented as divorce on the woman's demand, some men employ strategies to force their wife into khulʿ, as this is more financially beneficial for them than ṭalāq (Welchman, 2000, p. 280).

Consequences of divorce.

With regard to the damages that the husband should pay upon divorce, it has been observed that in practice, men do not comply as they are not forced to do so. For this reason, the Moroccan legislature provided that the divorce can be pronounced only when the husband has deposited the money he is due to pay at the court (Article 86 Moroccan mudawwanah of 2004). The same is true with regard to the marital home: in countries where the woman is allowed to stay in the home after divorce, there are no measures to force the husband to move out, leading to a situation in which, finally, the woman moves back in with her family (Voorhoeve, 2013).

With regard to custody, it has been observed that in Gaza, regardless of statute law providing that children stay with their mother until they have reached ten and twelve years respectively, practice depends largely on the relationship between the mother and the father's family, and on the mother's financial means; if the mother's financial situation or her relation with her former family-in-law is bad, the father's family might claim the children before they reach this age (Shehada, 2004, p. 106).

These examples show that, besides statute law, other elements in society may influence divorce in practice, such as the financial consequences (Welchman, 2000, p. 251). Also, it has been argued repeatedly that social stigma imposes an extralegal restriction on divorce for women (Welchman, 2000, pp. 250–251). The lack of the use of tamlīk because of its social unacceptability is one telling example of this (An-Na’im, 2002, p. 100). But, although social stigma may indeed influence women's (and men's) access to divorce, it should be pointed out that, for example, in the Libyan desert in the 1970s, women remarried twice or even three times, which challenges the idea that divorced women are taboo (Layish, 1991).

Bibliography

  • El Alami, Daoud Sudqi, and Doreen Hinchcliffe. Islamic Marriage and Divorce Laws of the Arab World. London: Kluwer Law International, 1996.
  • An-Na’im, Abdullah A., ed. Islamic Family Law in a Changing World. A Global Resource Book. London: Zed Books, 2002.
  • Anderson, J. N. D. “Reforms in the Law of Divorce in the Muslim World. Studia Islamica 31 (1970): 41–52.
  • Anderson, J. N. D. Law Reform in the Muslim World. London: Athlone Press, 1976.
  • Coulson, Nigel J. A History of Islamic Law. Edinburgh: Edinburgh University Press, 1964.
  • Esposito, John L., and Natana DeLong-Bas. Women and Muslim Family Law. 2d ed. Syracuse, N.Y.: Syracuse Press, 2001.
  • Hosseini, Ziba Mir. “When a Woman's Hurt Becomes an Injury: “Hardship” as Grounds for Divorce in Iran.” Hawwa 5.I (2007): 111–126.
  • Moors, Annelies. “ ‘Public Debates on Family Law Reform: Participants, Positions, and Styles of Argumentation in the 1990s.” Islamic Law & Society 10, i (2003): 1–11.
  • Welchman, Lynn. Beyond the Code: Muslim Family Law and the Shari’a Judiciary in the Palestinian West Bank, p. 290. The Hague, The Netherlands: Kluwer Law International, 2000.
  • Welchman, Lynn. Women and Muslim Family Laws in Arab States. A Comparative Overview of Textual Development and Advocacy. Amsterdam: Amsterdam University Press, 2007.
  • Wurth, Anna. Ash-shari’a fi bab al-yaman. Berlin: Duncker & Humblot, 2000.

Egypt

  • Bernard-Maugiron, Nathalie. “Divorce and Remarriage of Orthodox Copts in Egypt: The 2008 State Council Ruling and the Amendment of the 1938 Personal Status Regulations.” Islamic Law & Society 18 (2011): 356–386.
  • Bernard-Maugiron, Nathalie, and Baudouin Dupret. “Breaking Up the Family: Divorce in Egyptian Law and Practice.” Hawwa 6.i (2006): 52–74.
  • Al-Sharmani, Mulki. “Egyptian Family Courts: A Pathway of Women's empowerment?” Hawwa 7 (2009): 89–110.
  • Al-Sharmani, Mulki. Khul‘ Divorce in Egypt. Public Debates, Judicial Practices, and Everyday Life, Cairo: The American University in Cairo Press, 2012.
  • Sonneveld, Nadia. “Khulʿ Divorce in Egypt: How Family Courts Are Providing a “Dialogue” between Husband and Wife. Anthropology of the Middle East 5.ii (2010): 100–120.
  • Al-Sharmani, Mulki. Khulʿ Divorce in Egypt. Cairo: AUC Press, 2011.

Southeast Asia

  • Angeles, Vivienne S. M. “Philippine Muslim Women: Tradition and Change.” In Islam, Gender and Social Change, edited by Yvonne Yazbeck Haddad and John L. Esposito, pp. 209–234. New York and Oxford: Oxford University Press, 1998.
  • Bedner, Adriaan, and Stijn van Huis. “Plurality of Marriage Law and Marriage Registration for Muslims in Indonesia: A Plea for Pragmatism.” Utrecht Law Review 6.ii (2010): 175–191.
  • Bowen, John R. Islam, Law and Equality in Indonesia. An Anthropology of Public Reasoning. Cambridge, U.K.: Cambridge University Press, 2003.
  • Cammack, M. et al., “Islamic Divorce Law and Practice in Indonesia.” In Islamic Law in Contemporary Indonesia: Ideas and Institutions, edited by M. Cammack and R. Feener, pp. 99–127. Cambridge Mass.: Harvard University Press, 2007.
  • Utriza, Ayang. « La transformation du droit musulman en droit positif de l’État indonésien.” In La charia dans le monde d’aujourd’hui, edited by B. Dupret, pp. 199–208. Paris: La Découverte, 2011.

Iran

  • Haeri, Shahla. “Divorce in Contemporary Iran: A Male Prerogative in Self-Will. In Islamic Family Law, edited by C. Mallat and J. Connors, pp. 55–70. London: Graham and Trotman, 1993.
  • Mir-Hosseini, Ziba. Marriage on Trial: A Study of Islamic Family Law, Iran and Morocco Compared. London: I.B. Tauris, 1993.
  • Mir-Hosseini, Ziba. “When a Woman's Hurt Becomes an Injury: ‘Hardship’ as Grounds for Divorce in Iran.” Hawwa 5.i (2007): 111–126.
  • Osanloo, Arzoo. “Islamico-civil ‘Rightstalk’: Women, Subjectivity, and Law in Iranian Family Court.” American Ethnologist 33.ii (2006): 190–209.
  • Osanloo, Arzoo. “What a Focus on ‘Family’ Means in the Islamic Republic of Iran.” In Family Law in Islam: Divorce, Marriage and Women in the Muslim World, edited by M. Voorhoeve, pp. 51–76. London/New York: IB Tauris, 2012.

Iraq

  • Anderson, Norman. “A Law of Personal Status for Iraq.” International and comparative Law Quarterly (1960): 542–564.
  • Anderson, Norman. “Changes in the Law of Personal Status in Iraq.” International and Comparative Law Quarterly (1963): 1026–1031.
  • Anderson, Norman. Law Reform in the Muslim World. London: Athlone Press, 1976.
  • Efrati, Noga. “Negotiating Rights in Iraq: Women and the Personal Status Law.” The Middle East Journal 59.iv (2005): 577–595.
  • Linant de Bellefonds, Y. “Le Code du Statut Personnel Irakien du 30 décembre 1959.” Studia Islamica xiii (1960): 79–135.
  • Mallat, Chibli. “Shi’ism and Sunnism in Iraq: Revisiting the Codes.” In Islamic Family Law, edited by Chibli Mallat and Jane Connors, pp. 71–92. London: Graham and Trotman, 1993.

Israel, West Bank, Gaza, Lebanon

  • Abou Ramadan, Moussa. “Divorce Reform in the Sharia Court of Appeals in Israel (1992–2003).” Islamic Law & Society 13.ii (2006): 242–274.
  • Di Ricco, Massimo. “Reclaiming Changes within the Community Public Sphere: Druze Women's Activism, Personal Status Law and the Quest for Lebanese Multiple Citizenship.” In Family Law in Islam: Divorce, Marriage and Women in the Muslim World, edited by M. Voorhoeve, pp. 31–50. London and New York: I.B. Tauris, 2012.
  • Jacobsen, Heather. “The Marriage Dower: Essential Guarantor of Women's Rights in the West Bank and Gaza Strip.” Michigan Journal of Gender and Law 10 (2003): 143–167.
  • Moors, Annelies. Women, Property and Islam. Palestinian Experiences 1920–1990 Cambridge, U.K.: Cambridge University Press, 1995.
  • Reiter, Yithzak. “Qadis and the Implementation of Islamic Law in Present Day Israel.” In Islamic Law. Theory and Practice, edited by Robert Gleave and Eugenia Kermeli, pp. 205–231. London: I.B. Tauris, 1997.
  • Shehada, Nahda. “Uncodified Justice: Women Negotiating Family Law and Customary Practice in Palestine.” Development Journal 47.i (2004): 103–108.
  • Shehada, Nahda. “Women's Experience in the Shari’a Court of Gaza City: The Multiple Meanings of Maintenance.” Review of Women's Studies 2 (2004): 57–71.
  • Shehada, Nahda. “House of Obedience: Social Norms, Individual Agency and Historical Contingency.” Journal of Middle Eastern Women's Studies 5.x (2009): 24–49.
  • Welchman, Lynn. Beyond the Code: Muslim Family Law and the Shar’i Judiciary in the Palestinian West Bank. The Hague, The Netherlands: Kluwer Law International, 2000.
  • Welchman, Lynn. “In the Interim: Civil Society, the Shar’i Judiciary and Palestinian Personal Status Law in the Transitional Period.” Islamic Law & Society 10.i (2003): 34–69.

The Maghreb and Libya

  • Ben Jemia, Monia. “Le juge tunisien et la légitimation de l’ordre juridique positif par la charia.” In La charia aujourd’hui, edited by B. Dupret pp. 153–170. Paris: La Découverte, 2012.
  • Buskens, Léon P. H. M. Islamitisch recht en familiebetrekkingen in Marokko. Amsterdam: Bulaaq, 1999.
  • Buskens, Léon P. H. M. “Recent Debates on Family Law Reform in Morocco: Islamic Law as Politics in an Emerging Public Sphere.” Islamic Law and Society 10.i (2003): 70–131.
  • Carlisle, Jessica. “Moroccan Divorce Law, Family Court Judges and Spouses’ Claims: Who Pays the Cost When a Marriage Is Over?” In Legal Reform and Feminist Activism: Comparative Perspectives, edited by Mulki Shamani (forthcoming).
  • Jansen, Willy. Women Without Men: Gender and Marginality in an Algerian Town. Leiden, The Netherlands: E.J. Brill, 1987.
  • Khalidi, M.S. “Divorce in Libya: A Critical Commentary.” Journal of Comparative Family Studies 20.i (1989): 118–126.
  • Layish, Aharon. Divorce in the Libyan Family: A Study Based on the Sijills of the Sharia Courts of Ajdabiya and Kufra. New York: New York University Press, 1991.
  • Maher, Vanessa. “Divorce and Property in the Middle Atlas of Morocco. Man 9.i (1974): 103–122.
  • Mayer, Ann Elizabeth. “Developments in the Law of Marriage and Divorce in Libya since the 1969 Revolution.” Journal of African Law 22.i (1978): 30–49.
  • Mitchell, Ruth. “Family Law in Algeria before and after the 1404/1984 Family Code.” In Islamic Law. Theory and Practice, edited by Robert Gleave and Eugenia Kermeli, pp. 194–204. London: I.B. Tauris, 1997.
  • Vincent-Grosso, Sarah. “Maktoub: An Ethnography of Evidence in a Tunisian Divorce Court.” In Family Law in Islam: Divorce, Marriage and Women in the Muslim World, edited by M. Voorhoeve, pp. 171–198. London and New York: IB Tauris, 2012.
  • Voorhoeve, M. “The interaction between codified law and divine law: The Case of Divorce for Disobedience in Tunisia.” Revue IBLA 204 (2009): 267–286.
  • Voorhoeve, M. Gender and Divorce in North Africa: Sharia, Custom and Personal Status Law in Tunisia. London and New York: IB Tauris (2013).

Pakistan, India, Bangladesh

  • Carroll, Lucy “Qurʾān’ 2:229: ‘A charter granted to the wife?’ Judicial khulʿ in Pakistan.” Islamic Law & Society 3.i (1996): 91–126.
  • Gilani, Riazul Hasan. “A Note on Islamic Family Law and Islamisation in Pakistan.” In Islamic Family Law, edited by Chibli Mallat and Jane Connors, pp. 339–348. London: Graham and Trotman, 1993.
  • Imtiaz, Ahmad, ed. Divorce and Remarriage among Muslims in India. New Delhi: Manohar, 2003.
  • Mahmood, Tahir. “Islamic Family Law: Latest Developments in India.” In Islamic Family Law, edited by Chibli Mallat and Jane Connors, pp. 295–320. London: Graham and Trotman, 1993.
  • Masud, Muhammad Khalid. “Définir la normativité de la charia au Pakistan.” In La charia aujourd’hui, edited by B. Dupret, pp. 185–198. Paris: La Découverte, 2012.
  • Menski, Werner F. “The Reform of Islamic Family Law and a Uniform Civil Code for India.” In Islamic Family Law, edited by Chibli Mallat and Jane Connors, pp. 254–294. London: Graham and Trotman, 1993.
  • Pearl, David “Three Decades of Executive, Legislative and Judicial Amendments to Islamic Family Law in Pakistan. In Islamic Family Law, edited by Chibli Mallat and Jane Connors, pp. 321–338. London: Graham and Trotman, 1993.

Sub-Saharan Africa

  • Jeppie, Shamil, Ebrahim Moosa, and Richard Roberts, eds. Muslim Family Law in Sub-Saharan Africa: Colonial Legacies and Post-Colonial Challenges. Amsterdam: Amsterdam University Press, 2010.
  • N’Diaye, Marième. “Ambiguïtés de la laïcité sénégalaise: La référence au droit islamique.” In La charia aujourd’hui, edited by B. Dupret, pp. 209–226. Paris: La Découverte, 2012.
  • Peters, Ruud. “The Enforcement of God's Law, The Shari’ah in the Present World of Islam.” In Comparative Perspectives on Sharīʿah in Nigeria, edited by Ph. Ostien, Jamila M. Nasir, and F. Kogelmann, pp. 107–134. Ibadan, Nigeria: Spectrum Books, 2005.
  • Schulz, Dorothea E. “Political Factions, Ideological Fictions: The Controversy over Family Law Reform in Democratic Mali.” Islamic Law & Society 10.i (2003): 132–164.
  • Stiles, Erin E. An Islamic Court in Context: An Ethnographic Study of Judicial Reasoning Basingstoke, U.K.: Palgrave Macmillan, 2009.
  • Tønessen, Liv. “Gendered Citizenship in Sudan: Competing Debates on Family Laws among Northern and Southern Elites in Khartoum.” The Journal of North African Studies 13.iv (2008): 455–469.

Syria

  • Carlisle, Jessica. “ ‘Asbab l’il-darb ktir basita’: The legality of claims of violence during judicial divorce cases in Damascus.” Hawwa 5.ii (2007): 239–261.
  • Carlisle, Jessica. “Telling Tales: Arbitration of Judicial Divorce Claims in Damascus.” In La Syrie au présent: Reflets d’une société, edited by Baudouin Dupret, pp. 661–670. Paris: Sindbad, 2007.
  • Carlisle, Jessica. “Mother Love: A Forced Divorce in Damascus.” Anthropology of the Middle East 2.i (2007): 89–102.
  • Eijk, Esther van. “Divorce Practices in Muslim and Christian Courts in Syria.” In Family Law in Islam: Marriage, Divorce and Women in the Muslim World, edited by M. Voorhoeve, pp. 147–170. London and New York: IB Tauris, 2012.

Turkey

  • Örücü, Esin. “Judicial Navigation as Official Law Meets Culture in Turkey.” International Journal of Law in Context 4 (2008): 35–61.
  • Starr, June. “The Role of Turkish Secular Law in Changing the Lives of Rural Muslim Women.” Law and Society Review 23.iii (1989): 497–523.

Yemen

  • Dahlgren, Susanne. “Women's adah versus ‘Women's Law’: The Contesting Issue of mahr in Aden, Yemen.” Egypte Monde Arabe 3.1 (2005): 125–144.
  • Dahlgren, Susanne. “ ‘She Brings Up Healthy Children for the Homeland’ ”: Morality Discourses in Yemini Legal debates.” In Family Law in Islam: Marriage, Divorce and Women in the Muslim World, edited by M. Voorhoeve, pp. 13–30. London and New York: IB Tauris, 2012.
  • Würth, Anna. “A Sana’a Court: The Family and the Ability to Negotiate.” Islamic Law & Society 2.iii (1995): 320–340.
  • Würth, Anna. Ash-shari’a fi bab al-yaman: Recht, Richter und Rechtspraxis an der familienrechtlicher Kammer des Gerichts Süd-Sanaa, Republik Jemen (1983–1995). Berlin: Duncker & Humblot, 2000.
  • Würth, Anna. “Stalled Reform: Family Law in Post-unification Yemen.” Islamic Law & Society 10.i (2003): 12–33.
  • Würth, Anna. “Mobilizing Islam and Custom against Statutory Reform: bayt al-ta’a in Yemen.” Egypte/Monde Arabe 3.i (2005): 277–298.

Maaike Voorhoeve

Legal Foundations

Unlike in Catholicism and Hinduism, Islam permits the dissolution or termination of a marriage, albeit with reluctance. The Prophet Muḥammad is believed to have said that the throne of the Divine shakes when a marriage is dissolved. He is also reported to have said that God's most hated lawful conduct is the dissolution of a marriage. Not surprisingly, the majority of jurists held that a divorce without a compelling reason was reprehensible (makrūh), to be exercised sparingly and avoided if possible.

Indeed, the fundamental public policy objectives (maqāṣid) of Sharīʿah are to protect and preserve life, religion, property, intellect, and lineage. Just as marriage in Islam serves as a means to promote and preserve the maqāṣid maxims, the law of divorce seeks that both spouses and children exit a marriage with due regard for the preservation of the maxims, as well. Reserved to both husband and wife are certain protections—albeit not perfect—to prevent destitution; to ensure the fair devolution of wealth; to ensure the ability remarry and thus fulfill a religious rite; and to ensure the protection of children, materially and physically. All of these practical considerations touch upon one of the five maxims in one way, shape, or form.

As it did with marriage, in divorce, the Qurʾān substantially revamped and to a large extent abrogated the systemic discrimination and gender inequity toward women in pre-Islamic Arabia, although some remnants of patriarchy survived and others thrived after the death of the Prophet Muḥammad. Among the many positive examples of the Qurʾānic egalitarian overhaul of gender relations in divorce are that the both husband and wife have the right to initiate divorce, the husband's claim to his wife's property was abrogated; inheritance to males was changed to require females to inherit pending a divorce; unlimited utterances of divorce were now limited to three and divorce without compelling reason was reprehensible; financial responsibilities of a husband toward his wife during marriage and post marriage were instituted; allegations of a wife's infidelity (li’an) without absolute proofs subjected the husband to criminal prosecution; and custody and support of children of divorce was legally formalized.

The dissolution or termination of a marriage in Islam is very different from divorce in the Western sense. A marriage is dissolved, annulled, or terminated according to several methods. A husband's unilateral and exclusive right to dissolve the marriage is called ṭalāq. The Arabic word ṭalāq is routinely translated into English as divorce. Such translation is misleading and inaccurate. Ṭalāq is more appropriately translated as repudiation (hereinafter repudiation or divorce or ṭalāq). The other methods of terminating or dissolving a marriage are tafriq (judicial divorce based on various grounds), khulʿ (mutual divorce), and faskh (annulment).

The foundation for the law on dissolution of marriage in Islam resides in the Qurʾān. The subject is addressed in no less than four chapters in the Qurʾān, specifically chapters 2, 4, 33, and 65. The Qurʾānic framework for divorce can be simply summarized in God's directive: “If you divorce women, and they reach their appointed term, hold them back in amity or let them go in amity. Do not hold them back out of malice, to be vindictive. Whoso does this does himself injustice” (2:231).

Types of Divorce.

Ṭalāq is the husband's exclusive unilateral right to dissolve the marriage by simply announcing to his wife that he repudiates her. The formal validity of the divorce, according to the jurists, depended on the form of the language (sigha) utilized, the sound state of mind of the exercising husband, and whether the wife is in a state of purity, that is, not menstruating at the time of the repudiation. The majority of the jurists required that the husband's choice of words must be unambiguous and clear. This meant that using the verbal form of ṭalāq was sufficient: “I repudiate you”; “You are repudiated.” Linguistic clarity is required because of the serious consequences—economic, social, and moral—of the dissolution of a marriage. There should be no room for interpretation or the need to probe the intent of the utterer; hence ambiguous language has no legal effect.

Furthermore, at the moment of uttering the words of divorce, the husband must be of the age of majority, must be of sound mind and doing the same voluntarily, without duress or undue pressure or mistake. A husband's repudiation is invalid if he was insane, a minor, coerced or intoxicated (some schools including the Ḥanafī and Mālikī schools held intoxicated repudiation as valid).

The jurists also required that the repudiation take place when the wife is in a state of purity, that is, not menstruating and where no sexual intercourse took place since the menstrual cycle ended. The valid and proper repudiation, therefore, is when a husband uses the words—“I divorce you” while in possession of his sound mental free will when his wife is not menstruating and they did not have sexual relations since the end of her menstrual cycle. This is called ṭalāq al sunnah or sound sunnah divorce.

The majority of jurists consider a husband's repudiation during his wife's menstrual cycle or after having sexual relations as effective but discouraged. This is called ṭalāq al bidʿah, innovation divorce. Such repudiation is ineffective according to the Ḥanbalī school.

As a unilateral exclusive right of the husband, the husband can assign or transfer such right to repudiate the marriage to his wife. Many Muslim women included such a contractual term to repudiate the marriage in their marriage contracts. This is called ṭalāq al-tafawud, a contractual right to dissolve the marriage, thereby leveling the gender repudiation rights. This right for the wife to repudiate the marriage could be available even if not included in the marriage contract. This is called tamlik, in which a husband informs his wife during their marriage that he assigns to her the right to repudiate if she so desires.

The initial repudiation of a marriage does not have the immediate legal effect of dissolving or terminating the marriage. That is why it is described as a revocable repudiation—ṭalāq rajʿah. The husband has the right to revoke or retract his repudiation any time before the wife completes three menstrual cycles. If the repudiation took place during the wife's menstrual cycle, the three-menstrual-cycle period commences after another menstrual cycle concludes. If the repudiation took place after the parties had sexual intercourse and before the wife's menstrual cycle started, the three-menstrual-cycle period commences after the completion of a menstrual cycle following the sexual relations.

The three-menstrual-cycle period is called the ‘iddah, or waiting period, which the Qurʾān defines specifically as three successive menstrual cycles (2:228). Scholars agree that the ‘iddah is intended as a cooling off period during which the husband may retract his repudiation, thus reconciling with his wife. The reconciliation could be mutual or one sought unilaterally by the husband. A resumption of sexual relations automatically retracts the husband's repudiation. A reconciliation in all of its forms can be exercised only during the ‘iddah because, after the ‘iddah expires, the repudiation becomes final and irrevocable. If the husband repudiates the marriage before consummation, the ‘iddah waiting period does not apply, that is, the repudiation is effective, immediately terminating the marriage.

The ‘iddah also has the more practical effect of assuring that the wife is not pregnant. This is a concern because of the obligations that the husband would have to the wife and to the child. Neither party may remarry during the ‘iddah. All rights remain intact during the ‘iddah, including the wife's right to inherit from the husband.

Under the majority of classical Sunnī schools of law, a husband's repudiation is valid if uttered orally and without any witnesses. As noted earlier, the method of dissolution is the exclusive right of the husband without any control or interference from the wife. Responding to the social and moral problems surrounding women being divorced without their knowledge, the trend in modern Sunnī jurisprudence today requires witnesses in order for a divorce to be valid. Relying on the Qurʾān, specifically, 65:2, the Jaʿfarī school requires two witnesses to the pronouncement.

Because a husband is limited to three repudiations, a final irrevocable divorce is either (1) bayn baynuna sughra, a minor final irrevocable divorce; or (2) bayn baynuna kubra, a major final irrevocable divorce. In a minor final divorce, a husband repudiates his marriage and the ‘iddah period has expired; thus the marriage was effectively dissolved. If this was the first dissolution initiated by the husband, the husband and the wife are free to remarry under a new marriage contract. If the husband repudiates his wife for a second time and the ‘iddah period has expired, they are permitted to remarry again under a new marriage contract. If the husband now repudiates his wife for a third time, the marriage is irrevocably dissolved with no right to remarry or reconcile available until the wife marries a third party, consummates said marriage, and then divorces her husband. Only then can she remarry her original husband. This irrevocable final divorce is called bayn baynuna kubra or major final divorce. This is also the case if the husband repudiates the first time but retracts/reconciles before the waiting period has expired, and then a second time but retracts/reconciles before the waiting period has expired; the third time he repudiates is irrevocable major divorce—bayn baynuna kubra.

There are two positions regarding whether a major divorce—bayn baynuna kubra—occurs if a husband at the same time repudiates his wife by uttering the words “You are divorced” thrice, known as a triple ṭalāq. Some schools held that such clear intent to divorce three times in a single meeting is tantamount to a major divorce. Others held that such thrice announcement has the effect of one repudiation and constitutes a minor divorce in which retraction is not available. In other words, the husband would have to remarry under a new contract without the marriage to a third person.

Judicial Divorce.

Another method to terminate or dissolve a marriage according to Islamic law is through a judicial divorce called tafriq. While either spouse can seek such divorce, they must have fault or grounds sufficiently compelling to the court to dissolve the marriage. The first step in the process of a judicial divorce is the appointment of an arbiter from each family to mediate the spousal disagreements with the objective of saving their marriage (4:35). If the mediation and/or reconciliation fail, the court is required to adjudicate the matter by rendering a decision in connection with assigning or apportioning fault for the breakdown of the marriage with the associated financial consequences. Examples of fault are cruelty; lack of maintenance by failing to provide food, clothing, or shelter, desertion; disease or other ailment; or imprisonment harmful to the marriage. Furthermore, women have the right to seek divorce based on violation of contractual terms included in their marriage contracts, such as if the husband married a second wife, triggering her right to a divorce. The schools of law accepted some of these grounds but not others. For example, the husband has only one ground for judicial divorce in the Ḥanafī school, that is, his wife's infidelity; but the Ḥanafī school permits the wife to seek a judicial divorce for infidelity alleged by the husband, the husband's impotence, or his misrepresentation at the time of entering into the marriage. The Mālikī school is the most liberal because it accepts a wide variety of grounds to permit a judicial divorce.

When a husband accuses his wife of committing adultery, this is called li’an. In the li’an context, the wife is then offered the option of taking an oath denying it. If she denies and the husband insists, the court will judicially dissolve their marriage. Some schools of law do not consider this a traditional divorce, but rather fasikh or an annulment. When li’an concludes, the couple is prohibited from ever remarrying.

‘Ila’ is another ground to dissolve the marriage, in which a husband takes an oath that he shall refrain from having sexual relations with his wife for more than four months. When four months pass without sexual intercourse, the marriage is dissolved. If the husband resumes sexual intercourse before the expiration of four months, the oath is retracted and the marriage subsists. The husband is required to make expiation for his oath by, for example, feeding the poor or fasting for an extended period of time. Another similar type of grounds for dissolution of marriage is where a husband takes an oath stating that his wife is prohibited sexually to him as his mother is prohibited. This is called dhihar. In this case, the husband is able to resume sexual relations and retract his oath by expiation such as by fasting or feeding the poor.

Khulʿ/Mutual Divorce.

Another method to terminate or dissolve a marriage according to Islamic law is through the wife's exclusive right for khulʿ. Khulʿ literally means to remove something or pull it off or break it off, that is, remove or pull yourself out of your marriage. Khulʿ is a contractual type of dissolution, exclusively reserved for women. The authority for khulʿ is found in verse 2:228: “It is not licit for you to take back anything you have given them unless the two of them fear that they cannot conform to the bounds of God, no blame attaches to them both. If the woman gives back that with which she sets herself free. These are the bounds set by God; do not transgress them.”

The aḥādīth relate the following:

"The wife of Thabit bin Qais came to the Prophet and said, “O God's Apostle! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-Islamic manner (if I remain with him).” On that God's Apostle said (to her), “Will you give back the garden which your husband has given you (as Mahr)?” She said, “Yes.” Then the Prophet said to Thabit, “O Thabit! Accept your garden, and divorce her once.”"

A khulʿ dissolution is concluded when a wife offers to divorce her husband in exchange for paying him monetary compensation—generally waiver of part or all of the deferred mahr. The Qurʾān makes it clear that the financial compensation cannot exceed the mahr amount. If the husband accepts the offer, a valid contract irrevocably dissolving their marriage is concluded.

The divorce becomes effective immediately at the moment the contract is concluded, regardless of whether the wife is menstruating. The divorce is final and irrevocable. There is no retraction or revocation period. Such divorce is considered a minor divorce, bayn baynuna sughra. Remarriage must be mutual under a new contract. A khulʿ dissolution is considered one divorce out of the three available before the dissolution would constitute a final major irrevocable divorce, bayn baynuna kubra.

Like in a regular divorce, the wife must seek the khulʿ divorce voluntarily without coercion or threat. A husband who refuses to divorce his wife and creates a hostile, vindictive environment with the objective of pressuring his wife to seek a khulʿ in order to extract financial gain from her or avoid his financial responsibilities renders the khulʿ invalid. Such behavior would be directly at odds with numerous Qurʾānic directives, including: “Do not hold them back out of malice, to be vindictive” (2:231). The majority of the schools of Islamic jurisprudence recognize the khulʿ except for the Jaʿfarī school.

Annulment/Fasikh.

Another method to dissolve the marital relationship is fasikh, which is an annulment of a marriage contract necessitated due to defects in the contract. For example, a marriage without the proper witnesses, a marriage to a person among the forbidden affinity degrees (such as marrying one's aunt or niece), a marriage in which a party renounces Islam, a female Muslim marrying a non-Muslim, and other defects.

Fasikh does not reduce the three available repudiations before the dissolution becomes a major irrevocable divorce. In other words, if after the annulment occurred because of a defect, the parties cured the defect, they would be free to marry with the availability of the three repudiations.

Material Rights in Divorce and after Divorce.

The Qurʾān stresses that a divorce may not leave the wife without any financial means. Broadly, 2:241 states, “For divorced women, maintenance is decreed, fair, and affable. This is an obligation upon the pious.”

The financial rights of the parties in a divorce depend on the type of dissolution.

In a ṭalāq initiated by a husband, the majority of the schools agree that the wife cannot be expelled from the marital residence during the divorce: “Allow them to reside where you reside, according to your means, and do not pester them in order to constrict their lives. If pregnant, you are to pay their expenses until they deliver” (65:6).

Upon ṭalāq, the wife is entitled to the full payment of her mahr if it has not already been paid. The Qurʾān even provides for the wife to keep one half of her mahr if she is divorced before the marriage is consummated (2:237). The husband's obligation for financial support continues until conclusion of the waiting period or the delivery of her child, if the wife is pregnant. In addition, the wife has a claim for past due maintenance and child support.

In the case where a wife secured the dissolution of her marriage through khulʿ, she is forfeiting or returning all or part of her mahr to the husband for his consent to the divorce. In the case of faskh before consummation, the wife would not be entitled to any mahr. In the case of consummation, she is entitled to the entire mahr. In the case of judicial divorce, the financial rights of the parties would depend on the allocation of fault causing the dissolution.

Although premodern Islamic law does not support a marital assets regime, there is sufficient basis to establish a marital asset regime consistent with Islamic law in light of the political-social-economic transformations in modern nation-states.

In the premodern period, at the time of divorce, the parties divided any property jointly titled in their names, but each kept any property titled in their individual names.

Conclusion.

The Islamic law of divorce is complex and multifaceted, anchored in the social and economic circumstances of the premodern period. The classical law of divorce is still relevant today. The modern manifestations of Sharīʿah are either a source of legislation or actual nation-state law in many Muslim countries, comprising more than forty countries with an estimated 1.2 billion adherents. Islamic law is a primary source of the family law codes in the majority of Muslim countries and, in some instances, the supreme law of the land. The premodern Sharīʿah governing divorce, therefore, continues to be relevant in the evolving laws governing divorce in Muslim majority countries.

Bibliography

  • Averroes, Ibn Rushd, and Imran Ahsan Khan Nyazee. The Distinguished Jurist's Primer: A Translation of Bidayat al-Mujtahid. Ithaca, N.Y.: Cornell University Press, 1995.
  • Bakhtiar, Laleh, and Kevin Reinhart. Encyclopedia of Islamic Law: A Compendium of the Major Schools. Chicago: Kazi Publications, 1996.
  • Browning, Don S., M. Christian Green, and John Witte, Jr., eds. Sex, Marriage, and Family in World Religions. New York: Columbia University Press, 2006. The Islamic section is co-edited by Azizah al-Hibri.
  • Esposito, John L., and Natana J. DeLong-Bas, Women in Muslim Family Law. Syracuse, N.Y.: Syracuse University Press, 2002.
  • Hallaq, Wael B. Sharīʿah: Theory, Practice, Transformations. Cambridge, U.K.: Cambridge University Press, 2009.
  • Hibri, Azizah Y. al-. “Muslim Women's Rights in the Global Village: Opportunities and Challenges.” The Journal of Law and Religion 15 (Fall 2001): 29–81.
  • Hibri, Azizah Y. al-. “The Nature of the Islamic Marriage: Sacramental, Covenantal, or Contractual.” In Covenant Marriage in Comparative Perspective, edited by John Witte, Jr. and Eliza Ellison. Grand Rapids, Mich.: Wm. B. Eerdmans, 2005.
  • Kamali, Muhammad Hashim. Principles of Islamic Jurisprudence. Cambridge, U.K.: Islamic Texts Society, 2006.
  • Khalidi, Tarif. The Qurʾan, A New Translation. New York: Viking, 2008.
  • Nasir, Jamal J. The Islamic Law of Personal Status. New York: Springer, 2009.
  • Rapoport, Yossef. Marriage, Monday and Divorce in Medieval Islamic Society. Cambridge, U.K.: Cambridge University Press, 2005.
  • Sonbol, Amira El-Azhary, ed. Women, the Family, and Divorce Laws in Islamic History. Syracuse, N.Y.: Syracuse University Press, 1996.
  • Wadud, Amina. Quran and Woman: Rereading the Sacred Text from a Woman's Perspective. New York: Oxford University Press, 1999.
  • Welchman, Lynn. Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy Amsterdam: Amsterdam University Press, 2007.
  • Zaidan, Abdul Hakim. Al-Mufassal fi Ahkam al-Marʿah wa al-Bait al-Muslim (Detailed Account of Rules Relating to Women and the Muslim Household). 2d ed., 10 vols. Beirut, 1994.

Abed Awad and Hany Mawla

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