Marriage as prescribed by God, 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.
God provides general guidelines for the process of divorce with emphasis throughout on both parties upholding the values of justice and kindness in formalizing the end to their marriage (see Surah 2: 224-237 for general guidelines regarding divorce).
God 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 men and women are guaranteed their right to divorce as established in the Qur’an, but the question lies in what is the procedure for each. When a divorce is initiated by the man, it is known as talaq.
The pronouncement by the husband may be verbal or written, but once done, a waiting period of three months (‘iddat) must take place in which there are no sexual relations, even though the two are living under the same roof. The waiting period helps prevent hasty decisions made in anger and enables both parties to reconsider as well as determine 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 relationship, thereby stopping the divorce process. At this time, the husband remains financially responsible for the support of his wife.
The divorce initiated by the wife is known as khu” (if the husband is not at fault) and entails the wife giving her dowry to end the marriage because she is the “contract” breaker. In the instance of talaq where the husband is the “contract” breaker, he must pay the dowry in full in cases where all or part of it was deferred.
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 responsibilities. The judge would make that determination based on the facts of the case and the law of the land. If the woman had specified certain conditions in her marriage contract, which were not met by the husband, she could obtain a conditional divorce.
The controversy with divorce lies in the idea that men seem to have absolute power in divorce. The way the scholars in the past have interpreted this is that if the man initiates the divorce, then the reconciliation step for appointing an arbiter from both sides is omitted. This diverges from the Qur’anic injunction. The differences in powers of the husband and wife with regard to divorce can be extracted from the following verse:…but, in accordance with justice, the rights of the wives (with regard to their husbands) are equal to the (husbands;) rights with regard to them, although men have precedence over them (in this respect). And God is almighty wise. (2:228)
It is in the next verse, according to existing interpretations, the reason for the small difference:
Men shall take full care of women with the bounties which God has bestowed more abundantly on the former than on the latter, and with what they may spend out of their possessions. And the righteous women are the truly devout ones, who guard the intimacy which God has (ordained to be) guarded. (4:34)
It is clear that the Qur’an states there is a “degree” of difference with regards to the rights of men and women in divorce, but it is not clear “how much” and “what” privileges a man is entitled to. This is what has been interpreted by the jurists. It should also be noted if the difference is due in part to the man being the financial supporter, then it must follow that if the woman shares or is the main financial contributor to the family that this privilege should apply to her as well.
Many of the laws regarding divorce are the scholars’ interpretations of the relatively few Qur’anic references. As with all human laws, they must adapt to dynamic circumstances. Issues like custody have become controversial. For example, the Qur’an advises the husband and wife to consult each other in a fair manner regarding their children’s future after divorce (2:232-3)
Various laws regarding custody of the children have been legislated by a few of the jurists. Some jurists have stipulated that custody of the child is awarded to the mother if the child is under a certain age and to the father if the child is older. There is no Qur’anic text to substantiate the arbitrary choosing of age as a determinant for custody.
Similarly with regard to the issue of alimony, the Qur’an addresses the ex-husband’s financial obligation to his ex-wife but it does not provide a specific formula for the amount of support (2:241, 65:4-7). This is open for negotiation between parties and should be in proportion with the husband’s financial income.
There has been much distortion and propagation of mistruth about a woman’s rights in the matters of marriage and divorce. It is only with self-education and awareness of the Qur’anic text that both men and women can come to know the truth of what God has prescribed and to evaluate the scholarly interpretations closely to ensure that the spirit of justice is carried out:
When you divorce women and they fulfill the term of their (Iddat), either take them back on equitable terms or set them free on equitable terms; but do not take them back to injure them, (or) to take undue advantage; if anyone does that, he wrongs his own soul. Do not treat God’s Signs as a jest, but solemnly rehearse God’s favors on you, and the fact that He sent down to you the Book and Wisdom, for your instruction. And fear God, and know that God is well-acquainted with all things. (2:231)
