Islamic Divorce Council

Marriage, as prescribed by Allaah, is the lawful union of a man and woman based on mutual consent. Ideally, the purpose of marriage is to foster a state of tranquillity, love and compassion in Islam, but this is not always the case. Islam discourages divorce but, unlike some religions, does make provisions for divorce by either party.

Allaah provides general guidelines for the process of divorce with emphasis on both parties upholding the values of justice and kindness in formalising the end to their marriage (see [Quran 2:224-237] for general guidelines regarding divorce).

Allaah encourages the husband and wife to appoint arbitrators as the first step to aid in reconciliation in the process of divorce. If the reconciliation step fails, both the man and woman are guaranteed the right to divorce as established in the Quran, but the difference lies in the procedure for each one. When a divorce is initiated by the man, it is known as Talaaq.

The pronouncement by the husband may be verbal or written, but once made, there is to be a waiting period of three months ('Iddah) during which there can be no sexual relations, even though the two are living under the same roof.

The waiting period helps to prevent hasty terminations due to anger and allows both parties time to reconsider as well as to see if the wife is pregnant. If the wife is pregnant, the waiting period is lengthened until she delivers. At any point during this time, the husband and wife are free to resume their conjugal relationship, thereby ending the divorce process. During this waiting period, the husband remains financially responsible for the support of his wife.

The divorce initiated by the wife is known as Khul' (if the husband is not at fault) and requires that the wife return her dowry to end the marriage because she is the 'contract-breaker'. In the instance of Talaaq, where the husband is the 'contract-breaker', he must pay the dowry in full in cases where all or part of it was deferred, or allow the wife to keep all of it if she has already been given it in full.

In the case that the husband is at fault and the woman is interested in divorce, she can petition a judge for divorce, with cause. She would be required to offer proof that her husband had not fulfilled his marital responsibilities. If the woman had specified certain conditions that are Islamically accepted in her marriage contract, which were not met by the husband, she could obtain a conditional divorce.

The controversy regarding the seeming inequity in divorce lies in the idea that men seem to have absolute power in obtaining a divorce. The interpretation of scholars in the past has been that if the man initiates the divorce, then the reconciliation step for appointing an arbiter from both sides is omitted. This understanding diverges from the Quranic injunction. Any difference in powers between the husband and his wife with regard to divorce can be extracted from the following verse (which means): {...And due to them [i.e., the wives] is similar to what is expected of them, according to what is reasonable. But the men have a degree over them [in responsibility and authority]. And Allaah is Exalted in Might and Wise.} [Quran: 2:228]

ASJA Islamic Divorce Council