Home Lectures DIVORCE AS THE LAST OPTION IN ISLAMIC MARRIAGE

DIVORCE AS THE LAST OPTION IN ISLAMIC MARRIAGE

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Although divorce being allowed in Islam is a significant sign of the leniency and practical nature of the Islamic legal system, keeping the unity of the household and family are considered thoughtful priorities for the sake of the children and their future.

As one of the Vogue and common issues in Nigerian community, wholly, Divorce which brings about broken homes can be said to be relics which shows negatively in the lives of some today’s youths. For this reason, divorce is always a last choice, after exhausting all possible means of reconciliation. For example, Allah addresses men asking them to try hard to keep the marriage, even if they dislike their wives:

 live with them on a footing of kindness and equity. If ye take a dislike to them it may be that ye dislike a thing, and God brings about through it a great deal of good. (Quran 4 ayah19)

Allah (SWA) did not limit his address to only men, Almighty Allah also address the Nis’a (women) asking them the same thing:

If a wife fears cruelty or desertion on her husband’s part, there is no blame on them if they arrange an amicable settlement between themselves; …(Quran 4 Ayah128)

Again, the following verse is addressed to the familyor the society for the same purpose of rescuing this bond, which God did not make easy to break:

If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, God will cause their reconciliation: For God hath full knowledge, and is acquainted with all things. (Quran 4 ayah 35)

After the exhaustion and abotive results of all methods of reconciliation and the hatred between the husband and wife is still greater than tolerance, then divorce becomes inevitable. Here comes the genius of the Islamic law, which holds practical, rather than unrealistic approaches, towards real situations. The ultimate aims of marriage, as well as any other aspect of human life, are to achieve happiness, virtue cum tranquillity; So, when people are denied their right to end an ill-marriage, the aims of oneness have been drastically violated. This is, as the couple will live in suffering, which may lead them to marital infidelity. Thus divorce in this case – if weighed up to the disaster of family disintegration – will be less disastrous.
Anon, if divorce is inevitable after the needful has been done, then what are the METHODS OF DIVORCE

Men have the justifiable right to divorce. If a man loathes keeping his marriage for any reason, he divorces his wife and compensates her financially by paying her what is termed mut’a payment. This is in addition to the regular financial sustenance for her living, in case she has the custody of their children.
Divorce becomes in effect once the husband utters (verbally) or writes off any of the legal formulae of divorce such as: ‘I divorce you’ or ‘you are divorced’…which can be done through either by himself or through a messenger.

In case it is the woman’s desire to end the marriage?
Narrated Thawban: The Prophet (peace be upon him) said: If any woman asks her husband for divorce without some strong reason, the odour of Paradise will be forbidden to her.Sunan of Abu-Dawood – Book 12 Hadith 2193

Why because Her reasons might be that she has received ill treatment, the husband is unable to sustain her financially or he is sexually impotent. The situation becomes different. She can prove these defects in front of the judge, then the judge grants her divorce with a full access to all her financial rights. Also, if the husband was good to her but she does not want to keep on for an emotional reason, then she asks for what is termed khul’.
Khul is to be granted divorce but without any access for financial rights, plus paying back the husband the dowry that he already paid on marrying her.

 

ISLAMICALLY, DIVORCE HAS THREE (3) CATEGORIES OF :

  • Raj’i (returnable, that is it can be recalled)
  • Baynounah soghra (minor separation)
  • Baynouna kobra (major separation).

In case divorce happens through the husband, he can take his wife back within three months. This is without any legal procedures, if they decide it – like they regret their rushing in divorce. In this case, the divorce is termed as Raj’i or returnable divorce.

But in case of khul‘, which is the second category, the husband can’t remarry his divorcée till all the legal procedures are done, all over again, and the husband pays new dowry for her.

Divorce can happen three times in the couple’s lifetime. The third divorce falls in the third category, because they cannot go back to one another, till after the wife get to marry someone else, then happens(The woman’s new marriage and divorce should come naturally without planning, as many people might do to legalize her return to the first husband) to get divorced by him.

And according to ‘Aisha: A man divorced his wife thrice (by expressing his decision to divorce her thrice), then she married another man who also divorced her. The Prophet (peace be upon him) was asked if she could legally marry the first husband (or not). The Prophet (peace be upon him) replied, “No, she cannot marry the first husband unless the second husband consummates his marriage with her, just as the first husband had done.” (Sahih Al-Bukhari – Book 63 Hadith 187)

In this case, she can go back to her first husband. Such a tough rule was made as a punishment and a way of bewildering people from misusing this tolerant ruling of permitting divorce.

DO YOU REALLY KNOW THAT IN ISLAM DIVORCE BECOMES INVALID?

In some cases, uttering the words of divorce becomes invalid, when:

-A drunkard as an husband when drunk can speak on the influence of alcohol which is controlling his system at that very time of uttering the such a divorce statement

-Divorce can also be invalid when being forced to utter divorce statement by someone else.

-In a complete loss of temper to the extent that h( the husband) is unaware of what he is saying that is under the influence of anger.

-In an abnormal state of mind, such as temporary madness, epilepsy or in a coma.

Of the cases posited above, if occur or the divorce pronunment is made through any of the listed,according to Islamic scholars, the pronuncement is null and void

AFTER DIVORCE, WHAT NEXT?

After divorce, it is CRUCIAL cum cardinal for the woman not to get married to another man, except after three complete mentruation cycles( as according to ‘Abdullah bin ‘Umar: that he had divorced his wife while she was menstruating during the lifetime of Allah’s Apostle . ‘Umar bin Al-Khattab asked Allah’s Apostle about that. Allah’s Apostle said, “Order him (your son) to take her back and keep her till she is clean and then to wait till she gets her next period and becomes clean again, whereupon, if he wishes to keep her, he can do so, and if he wishes to divorce her he can divorce her before having sexual intercourse with her; and that is the prescribed period which Allah has fixed for the women meant to be divorced.) if and only if she is not pregnant. And if on contrary, then she has to wait till she gives birth, so that the paternity of the child is not miscontued or confused. This period of time is termed as ‘iddah.

However, even if the woman no longer has menstruations (e.g. after menopause), she should still wait for three months. So there is more to the ‘iddah than just the issue of paternity.

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