Divorce According to Five Islamic Schools of Jurisprudence
A Divorcer should possess the following characteristics:
1. Adulthood: Divorce by a child is not valid, even if of a discerning age (mumayyiz), according to all the schools except the \anbalí, which observes: Divorce by a discerning child is valid even if his age is below ten years.
2. Sanity: Divorce by an insane person is not valid, irrespective of the insanity being permanent or recurring, when the divorce is pro nounced during the state of insanity. Divorce by an unconscious person and one in a state of delirium due to high fever is also not valid. The schools differ regarding the state of intoxication. The Imámís observe: Such a divorce is not valid under any circumstance. The other four schools1 remark: The divorce is valid if the Divorcer has voluntarily consumed an unlawful intoxicant. But if he drinks something permissible and is stupefied, or is coerced to drink, the divorce does not materialize.
Divorce by a person in a fit of anger is valid if the intention to divorce exists. But if he loses his senses completely, the rule which applies to an insane person will apply to him.
3. Free volition: All the schools except the Hanafi concur that divorce by a person under duress does not take place in view of the tradition:
My ummah have been exculpated of genuine mistakes, forgetfulness, and that which they are coerced to do.
The \anafís say: Divorce by a person under duress is valid.
The practice of the Egyptian courts has been not to recognize the divorce by a person under duress or intoxication.
4. Intention: According to the Imámís, divorce pronounced unintentionally or by mistake or in jest is not valid.
Abu Zuhrah says (page 283): The Hanafi school considers divorce by all persons except minors, lunatics and idiots as valid. Thus divorce pronounced by a person in jest, or under intoxication by an unlawful intoxicant, or under duress, is valid. On page 286 he writes: It is the accepted view of the Hanafi school that a divorce by mistake or in a state of forgetfulness is valid. On page 284 he observes: Maalik and al Sháfi`í concur with Abu Hanifah and his followers regarding a divorce pronounced in jest, while Ahmad differs and regards such a divorce as invalid. Ibn Rushd states (Bidayat al-mujtahid, vol. 2, p.74); Al-Sháfi`í and Abu Hanifah have said, "Intention (niyyah) is not required in divorce".
The Imámís have narrated from the Imáms of the Ahl al-Bayt:
No divorce (takes effect) except by one who intends divorce. Divorce does not take place except by intention.
The author of al-bawahir says: If one pronounces divorce and subsequently denies intention, his word shall be accepted as long as the divorcee is undergoing her 'iddah, because the fact of his intention can not be known except from him.
Divorce by the Guardian
The Imámi, the Hanafi and the Sháfi`í schools state: A father may not divorce on behalf of his minor son, because of the tradition:
The Málikís state: A father may divorce his minor sons' wife in the khul' form of divorce. Two opinions are ascribed to Ahmad.
The Imámís observe: When a child of an unsound mind matures, his father or paternal grandfather may pronounce divorce on his behalf if it is beneficial for him. If the father and the paternal grand father do not exist, the judge may pronounce the divorce on his behalf. As mentioned earlier, the Imámís allow the wife of a lunatic to annul the marriage.
The \anafís state: If a lunatic's wife suffers harm by living with him, she may raise the issue before a judge and demand separation. The judge is empowered to pronounce divorce to rescue her from the harm, and the husband's father has no say in this affair.
All the schools concur that divorce by a stupid husband (safeeh) and his agreeing to khul' are both valid.2
There is consensus that the divorcee is the wife. For the validity of the divorce of a wife with whom intercourse has occurred, the Imámi require that she should not have undergone menopause nor she should be pregnant, that she be free from menses at the time of divorce, and that intercourse should not have occurred during the period of purity. Thus, if she is divorced during her menses or nifaas, 3 or in a period of purity in which she has been copulated with, the divorce will be invalid. Al-Raazi, in his exegesis of the first verse of Surat al-Talaaq,
xxxxxxxxxx, has said "By 'iddah is meant the period of purity from menses, by consensus of all Muslims. A group of exegetes has observed that by divorce at the time of 'iddah is meant that the wife may be divorced only during the period of purity in which inter course has not occurred. In brief, it is compulsory that divorce occur during the period of purity, otherwise it will not be according to the Sunnah, and divorce according to the Sunnah is conceivable only in the case of an adult wife with whom marriage has been consummated, and one who is neither pregnant nor menopausal." For there is no sunnah concerning the divorce of a minor wife, a wife who has not been copulated with, or a wife in menopause or pregnancy. This is exactly what the Imámís hold.
In al-Mughni (vol. 7, p.98, 3rd. ed.) the author states: "The meaning of a sunnah divorce (Talaaq al-sunnah) is a divorce in consonance with the command of God and His Prophet (S); it is divorce given during a period of purity in which intercourse with her has not occurred." He continues (p.99): "A divorce contrary to the sunnah (talaaq al-bid 'ah) is a divorce given during menses or during a period of purity in which she has been copulated with. But if a person pronounces such a divorce, he sins, though the divorce is valid according to the view generally held by the scholars. Ibn al-Mundhir and Ibn 'Abd al-Birr have said: None oppose the validity of this form of divorce except the heretics (ahl al-bida' wa al-daldlah)! If to follow the command of Allah and the Sunnah of His prophet (S) is heresy and misguidance, then it is of course proper that following Satan be called 'sunnah ' and 'guidance'.
Whatever the case, the Sunnis and the Shi'ah concur that Islam has prohibited the divorcing of an adult, non-pregnant wife with whom marriage has been consummated, who is either undergoing periods or has been copulated during her period of purity. But the Sunni schools add that the Shari'ah's prohibition makes the divorce haraam (unlawful) but not invalid, and one who pronounces divorce in the absence of these conditions sins and is liable to punishment, but the divorce will be valid. The Shi'ah state: The Shari'ah's prohibition is for invalidating such a divorce, not for making it haraam, for the mere pronouncing of divorce is not haraam and the sole purpose is to nullify the divorce as if it had not taken place at all, exactly like the prohibition of sale of liquor and swine, where the mere recital of the contract of sale is not haraam, only the transfer of ownership fails to take effect. The Imámís permit the divorce of the following five classes of wives, regardless of their state of menstruation or purity:
1. A minor wife under the age of nine.
2. A wife whose marriage has not been consummated, regardless of whether she was a virgin or not, and irrespective of his having enjoyed privacy with her.
3. A menopausal wife; menopause is taken to set in at fifty for ordinary women and at sixty for Qurayshi women.
4. A wife who is pregnant.
5. A wife whose husband has been away from her for a whole month and the divorce is given during his absence from her, since it is not possible for him to determine her condition (whether she is in her menses or not). A prisoner husband is similar to a husband who has been away.
The Imámís state: The divorce of a wife who has reached the age of menstruation but does not have menses due to some defect or disease or childbirth, is not valid unless the husband abstains from inter course with her for three months. Such a woman is called al-mustarabah (a term derived from rayb, doubt).
The Pronouncement of Divorce
The Imámís observe: Divorce requires the pronouncement of a specific formula without which it does not take place. This formula is (you are divorced), or xxxx . ('so and so' is divorced), or (she is divorced). Thus if the husband uses the words, xxxxxxxxxx etc., it will have no effect even if he intends a divorce because the form xxxx.is absent despite the presence of its root (Talaaq). It is necessary that the formula be properly recited without any error in pronunciation and that it be unconditional. Even a condition of certain occurrence such as, 'at sunrise', etc. is not adequate.
If the husband gives the wife the option of divorcing herself and she does so, divorce will not take place according to Imámi scholars.
Similarly, divorce will not take place if husband is questioned, "Have you divorced your wife ", and he answers affirmatively with the intention of effecting a divorce. If the husband says, "You are divorced, three times", or repeats the words, "You are divorced", thrice, only a single divorce takes place if the other conditions are fulfilled. Divorce does not take place through writing or by gesticulation, unless the Divorcer is dumb, incapable of speech. It is necessary that the divorce be recited in Arabic when possible. It is better for a non-Arab and a dumb person to appoint an attorney, if possible , to recite the divorce on his behalf. Similarly, according to the Imámís, divorce will not take place by an oath, a vow, a pledge or any other thing except by the word xxxx, on fulfilment of all the limitations and conditions.
The author of al-Jawahir, citing a statement from al-Kafi says: "There can be no divorce except (in the form) as narrated by Bukayr Ibn A'yan, and it is this: The husband says to his wife (while she is free from menses and has not been copulated with during that period of purity): xxxxx (You are divorced), and (his pronouncement) is witnessed by two just cadil) witnesses. Every other form except this one is void". Then the author of al-Jawahir quotes al-'Intisar to the effect that there exists consensus on this issue among the Imámís. Consequently, the Imámís have restricted the scope of divorce to its extreme limits and impose severe conditions regarding the Divorcer, the divorcee, the formula of divorce, and the witnesses to divorce. All this is because marriage is a bond of love and mercy, a covenant with God. The Qur'an says:
How can you take it back after one of you hath gone in into the other, and they (the wives) have taken a strong pledge from you? (4:21)
And one of His signs is that He created mates for you from yourselves that you may find tranquillity in them, and He ordained between you love and compassion.(30:21)
...And hold not to the ties of marriage of unbelieving women....(60:10)
Therefore, it is not permissible in any manner that one break this bond of love and compassion, this pledge and covenant, except with a knowledge that leaves no doubt that the Shari'ah has surely dissolved the marriage and has broken the tie which it had earlier established and confirmed. But the other schools allow divorce in any manner in which there is an indication of it, either by oral word or in writing, explicitly o] implicitly (such as when the husband says: "You are haraam for me", or "You are separated" or "Go, get married", or "You are free to go wherever you want," or "Join your family," and so on). Similarly, these schools allow an unconditional as well as a conditional divorce (such as when the husband says: "If you leave the house, you are divorced," or, "If you speak to your father you are divorced," or "If I do this, you are divorced," or "Any woman I marry, she is divorced;" in the last case the divorce takes place as soon as the contract of marriage is concluded!). There are various other pronouncements through which divorce is effected, but our discussion does not warrant such detail. These schools also permit a divorce in which the wife or some one else has been authorized to initiate it. They also allow a triple divorce by the use of a single pronouncement. The legists of these schools have filled many a long page with no result except undermining the foundation of the family and letting it hang in the air.4
The Egyptian government has done well in following the Imámi in most aspects of divorce. Apart from this, the four schools do not consider the presence of witnesses a condition for the validity a divorce, whereas the Imámís consider it an essential condition. We hand over the discussion to al-Sheikh Abu Zuhrah regarding this issue.
Witnessing the Divorce
In al-'Ahwal al-shakhsiyyah (p.365), al-Sheikh Abu Zuhrah has observed: "The Twelve-Imámi Shi'i legists and the Isma'iliyyah state A divorce does not materialize if not witnessed by two just (xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Then when they (the wives) have reached their 'iddah, retain them honor ably, or part from them honorably. And have two just men from among
yourselves bear witness and give testimony for Allah's sa~e. By this then is
admonished he who believes in Allah and the Last Day. And whoever is care
full of (his duty to) Allah. He would provide for him an outlet, and give him sustenance from whence he never reckoned....(65:2~3)
This command about the witnesses in the Qur'an follows the mention of divorce and the validity of revoking it. Therefore, it is appropriate that the calling in of witnesses should be related to divorce. Moreover, the reason given for calling in the witnesses, that God seeks thereby to admonish those who believe in God and the Last Day, confirms this interpretation, because the presence of just witnesses is not without the good advice which they would offer to the couple; and this could bring about for them an escape from divorce, which is the most hated of law ful things in the eyes of God. If it were for us to choose the law to be acted upon in Egypt, we would choose this opinion, which requires the presence of two just witnesses for effecting a divorce".
Together with the restrictions that the Imámís have laid down for the Divorcer, the divorcee, and the pronouncement of divorce, they have also laid down an additional limitation regarding the witnesses by demanding that if all conditions are fulfilled except that the two just witnesses do not hear the pronouncement of the divorce, the divorce will not take place. Therefore, a single witness will not suffice even if he is a good substitute, not even if he is an infallible (ma'sum) person.5
Further, the witnessing of the pronouncement by one of them by listening and of the other by testifying to their admission (of having concluded the divorce) is not sufficient. The testimony of a group of people will also not suffice, even if it is big enough to make the divorce a known public fact. The testimony of women, with or without the testimony of men, is not sufficient.
Similarly, if the husband pronounces the divorce and then brings in the witnesses, it will have no effect.
The Case of a Sunni Husband and a Shici Wife
If a Sunni husband divorces his Shi'i wife, either through a conditional divorce contingent upon something, or in a period of purity during which sexual intercourse has occurred, or during menses or nifaas, or without two just witnesses being present or by an oath of divorce, or by saying, xxxxxxx" to wherever you want," or in any other form which is valid in accordance with Sunni law and invalid according to Shi'i law, is such a divorce considered valid by the Shi'ah, so that the woman may remarry after completing her 'iddah?
The answer is that there is consensus among the Imámi jurists that every sect is bound by its own precepts6, and that the transactions of its followers, as well as their affairs pertaining to inheritance, marriage and divorce, are valid if performed according to rules of their Shari'ah. A tradition has been narrated from the Imáms of the Ahl al-Bayt (A):
Bind them with the laws with which they have bound themselves.
In another tradition, al-'Imám al-Saadiq (A) was questioned regarding a woman who had been divorced by a Sunni husband against the principles of the Sunnah, whose compliance is necessary for the validity of a divorce according to the Shi'ah. The Imám (A) replied:
She will marry, and a woman shall not be left without a husband.
In a third tradition it is stated:
For the followers of every religion, that which they consider lawful is permissible for them.
A fourth tradition says:
One who follows the religion of a particular sect, is bound by its rules. (al Jawahir, vol.5, the discussion regarding seeghat al-talaaq).
Consequently, if a Shi'i husband divorces his Sunni wife according to the principles of her school and not his, the divorce is invalid, and if a Sunni divorces his Shi'i wife according to the principles of his own school, the divorce is valid.
Revocable and Irrevocable Divorce
A divorce is either revocable or irrevocable. The schools concur that a revocable divorce is one in which the husband is empowered to revoke the divorce during the 'iddah, irrespective of the divorcee's consent. One of the conditions of a revocable divorce is that the marriage should have been consummated, because a wife divorced before consummation does not have to observe the 'iddah in accordance with verse 49 of Surat al- 'Ahzaab:
O believers! When you marry the believing women and then divorce them before you touch them, you are not entitled to reckon for them an 'iddah....
Among the other conditions of a revocable divorce are that the divorce should not have been given on the payment of a consideration and that it should not be one which completes three divorces.
The divorcee in a revocable divorce enjoys the rights of a wife, and the Divorcer has all the rights of a husband. Therefore, both will inherit from each other in the event of death of one of them during the 'iddah. The deferred Dowry payable on the occurrence of any of the two events, death or divorce, will become payable only after the expiry of the 'iddah if the husband does not revoke the divorce during that period. On the whole, a revocable divorce does not give rise to a new situation except its being accountable for ascertaining whether the number of divorces has reached three.
In an irrevocable divorce, the Divorcer may not return to the divorced wife, who belongs to one of the following categories:
1. A wife divorced before consummation, by consensus of all the schools.
2. A wife who has been divorced thrice. There is consensus here as well.
3. A divorcee through khul'. Some legists consider this form of divorce void and say that it is not a divorce at all.
4. A menopausal divorcee, in the Imám; school, which observes: She has no 'iddah and the rules applicable to a divorcee before consummation apply to her as well. According to it, in verse 4 of Surat al-Talaaq:
If you are in doubt concerning those of your wives who have ceased menstruating, 12 now that their waiting period is three months, and (the same is the waiting period of) those who have not yet menstruated....
the phrase xxxxxx, does not imply those women who are known to have reached menopause but those whose menses have stopped and it is not known whether the reason is disease or age; consequently, their 'iddah is three months. There is no question of doubt regarding those whose menopause is certain. The doubt arises in cases of uncertainty, as indicated by the words xxx (if you are in doubt) of the verse, because it is not the Lawgiver's wont when explaining a law to say: "If you are in doubt regarding the law regarding something, the law is that...." This confirms that the doubt mentioned in the verse relates to the fact of menopause, in which case she is to observe an 'iddah of three months. As to the phrase xxx ?, it refers to women who despite attaining the age of menses do not have them due to some congenital or contingent factor. Many traditions have been narrated from the Imáms of the Ahl al-Bayt (A) with this interpretation of this verse.
5. The \anafís say: Valid seclusion (khalwah) with the wife, even without consummation, requires the observance of 'iddah. But the Divorcer is not entitled to return to her during the 'iddah, because here the divorce is irrevocable.
The \anbalís state: Seclusion is similar to consummation in all respects so far as the necessity of 'iddah and the right of revocation is concerned. As mentioned earlier, seclusion has no effect according to the Imámi and the Sháfi`í schools.
6. The \anafís observe: If a husband says to his wife: "You are divorced irrevocably" or "divorced firmly,' "(with a divorce as firm) as a mountain," and such similar strong words, the divorce will be irrevocable and the Divorcer will not be entitled to return during the 'iddah. Similarly, a divorce pronounced by using words which cannot break a relationship (such as. "She is separated,'' "cut off," "disassociated").
The Third Divorce
The schools concur that a husband who divorces his wife thrice cannot remarry her unless she marries another person through a valid xxxxx this se xxxxxxxxxxxxxxxxxxxxxxxx
.so if he divorces her, she shall not be lawful to him until she marries another husband.
The Imámi and the Maliki schools consider it necessary that the person who marries her (muhallil) be an adult. The Hanafi, the Sháfi`í and the \anbalí schools consider his capacity for intercourse as sufficient, even if he is not an adult. The Imámi and the \anbalí schools state: If in a marriage contract tahleel (causing the woman to become permissible for her former husband to remarry) is included as a condition (such as when the second husband says, "I am marrying you to make you halal for your Divorcer), the condition is void and the contract valid. But the \anafís add: If the woman fears that the muhallil may not divorce her after the tahleel, it is permissible for her to say; "I marry you on the condition that the power to divorce be in my hands," and for the muhallil in saying: "I accept this condition." Then the contract will be valid and she will be entitled to divorce herself whenever she desires. But if the muhallil says to her: "I marry you on the condition that your affair (of divorce) be in your own hands," the contract is valid and the condition void.
The Maliki, the Sháfi`í and the \anbalí schools state: The contract is void condition of tahleel is included as a condition. The Maliki and \anbalí schools further add: Even if tahleel is intended and not expressed the contract is void.
The Málikís and some Imámi legists consider it necessary that the second husband (muhallil) have intercourse with her in a lawful manner (such as when she is not menstruating or having nifaas, and while both are not fasting a Ramadan fast). But most Imámi legists give no credence to this condition and regard mere intercourse, even if unlawful, to be sufficient for tahleel.
Whatever be the case, when a divorcee marries another husband and is separated from him, either due to his death or by divorce, and completes the 'iddah, it becomes permissible for the first husband to contract a new marriage with her. Then, if he again divorces her thrice, she will become haraam for him until she marries another. This is how she will become haraam for him after every third divorce, and will again become halaal by marrying a muhallil, even if she is divorced a hundred times.
But the Imámís state: If a wife is divorced nine times in the talaaq al-'iddah form, and is married twice (i.e. following tahleel after every third divorce), she will become permanently haraam. The meaning of talaaq al-'iddah, according to the Imámís, is a divorce in which the husband after divorcing returns to her during the 'iddah and has inter course with her, and then divorces her again in another period of purity, then returns to her and has intercourse, then divorces her for a third time and remarries her, after a muhallil does the tahleel, by concluding a fresh contract, and divorces her thrice in the same manner, with a muhallil doing the second tahleel, and remarries her again. Now if he divorces her thrice again, the ninth talaaq al-'iddah completed, she will become haraam for him permanently. But if the divorce is not a talaaq al 'iddah (such as when he divorces her, then returns to her and then divorces her again before having intercourse), she will not become haraam perpetually, and will become halal through a muhallil, even if the number of divorces is countless.
Doubting the Number of Divorces
The schools (except the Maaliki) concur that he who has doubt regarding the number of divorces (whether a single divorce has taken place or more) will base his count on the lower number. The Maalikees observe: The aspect of divorce shall preponderate and the count will be based on the higher number.
Divorcee's Claim of Ta<líl
The Imámi, the Sháfi`í and the Hanafi schools state: If the husband divorces his wife thrice, and he or she knows nothing about the other for some time and thereafter she claims having married a second husband and separated from him and having completed the 'iddah, her word will be accepted without an oath if this period is sufficient for her under going all this, and her first husband is entitled to marry her if he is satisfied regarding her veracity, and it is not necessary for him to inquire further. (alJawahir, Ibn 'Abidin, and Maqsad al-nabih)