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Divorce
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. However, it is necessary to look at the practices too, as several studies show that often, legal practices differed from the Sharīʿa.
The Law
Islamic law, or Sharīʿa, 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 Sharīʿa, 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 Sharīʿa, 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 inter-menstrual 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.
“Triple Talaq” allows a Muslim husband to divorce his wife by repeating the word “Talaq” (divorce) three times in any form, including email or text message. In India, that will no longer be allowed. Although the Indian Supreme Court declared triple-talaq divorces unconstitutional in 2017, that ruling apparently required legislation in the Indian Parliament to ensure that it would be obeyed. The lower house of parliament passed such a law that same year, but India’s upper house of parliament has only now approved, by a vote of 99 to 84, a bill that makes the Muslim practice of “instant divorce” a criminal offense. Men found in breach of the new law can be jailed for up to three years.
Supporters say the new measure protects Muslim women. Opponents say the punishment is harsh and will harm women.
India’s governing Bharatiya Janata Party (BJP) supported the bill, while the main opposition Congress party opposed it as did, of course, the much smaller Muslim parties.
“Triple talaq: India criminalises Muslim ‘instant divorce,’” BBC, July 30, 2019:
It is curious that Owaisi — and other Muslims who are furious at the ban on triple-talaq divorces — should describe the law as an “attack on Muslim identity,” because the ban on triple-talaq divorces is already in force in twenty lands, almost all of them Muslim, including Pakistan, Bangladesh, the United Arab Emirates, and Egypt. Clearly in those countries the ban was not seen as “an attack on Muslim identity.”
Furthermore, there are no passages in the Qur’an that clearly and explicitly discuss triple-talaq divorces, though there are passages (Qur’an 2:229-230) about a man’s right to divorce unilaterally. The husband should express that desire for divorce twice, but then there should be a waiting period before the third, and final, demand, for divorce. This is intended to be a period of reflection, that many Muslim clerics think should last three months. It’s not only the Qur’an that is largely silent on the triple-talaq. There is no discussion, either, of triple-talaq divorce in Shari’a law.
Asaduddin Owaisi not only described the ban as an “attack on Muslim identity” but also saw it as “a law [that] is against Muslim women and marginalizes them even more. The law forces a woman to stay in a marriage with an imprisoned man who’d verbally and emotionally abused her. It puts the burden of proof on Muslim women and forces her into impoverishment.”
Let’s try to understand the tortured logic here. From now on, a Muslim husband in India cannot simply divorce his wife by uttering or emailing or texting three words: Talaq, Talaq, Talaq. He must sue for divorce, in court. The Muslim wife now has rights, to contest the divorce if she wishes, or to sue for support for herself and her children, while before she was merely akin to a human Kleenex, to be discarded whenever the Muslim husband felt like it. The new law does not, as Owaisi says, “force a woman to stay in a marriage with an imprisoned man who’d verbally and emotionally abused her.” Why does making it harder for the husband to get a divorce “force a woman” to remain in a marriage? She has no need to stay with an abusive husband. She has given up none of her rights to sue for divorce. And when it is the husband who wants the divorce, the wife’s bargaining position has improved as a result of this new law banning triple-talaq divorce. She cannot be so easily gotten rid of; she now has claims, to children and to property, that must be heard.
Owaisi describes the new law as making a husband into an “imprisoned man” — as if being deprived of the triple-talaq option means he has no other way of getting a divorce, and must remain forever stuck with a wife he no longer wants. Owaisi’s claim is ludicrous. The husband can still sue for divorce, just the way Christian and Hindu husbands now do in India, or as Muslim husbands do in Egypt, the U.A.E., Pakistan, and Bangladesh, and more than a dozen other Muslim lands.
Muslims thus cannot claim that the banning of triple-talaq divorces is anti-Muslim. Nearly twenty Muslim states enforce that ban. No clear Qur’anic verse has been violated, nor any part of Shari’a, by that ban. The beneficiaries of this law are Muslims. Without having to fear the unilateral finality of the triple-talaq, Muslim women will now be able to contest a divorce in court or if they agree to a divorce, can negotiate or sue for support. Muslim men will benefit, too, for they will now be forced by the flaw to behave less precipitously in such an important matter; triple-talaq divorces, that can be the result of a husband’s temporary burst of anger against a wife, will no longer be permitted. More Muslim marriages may be preserved as a result. Muslims should be, but won’t be, pleased. If Narendra Modi is for the ban, it must be bad. One more terrible thing done to Muslims by Hindus. What did Muslims ever do to the Hindus to deserve this? Will the persecution ever stop?
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 >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.
Modern Practices
“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. 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
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 forward 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 in Iran, Syria, Senegal, Indonesia, and Sudan. These debates re-intensified in some countries after the “Arab Spring.”
Codifications
Reforms have been effected in terms of both the mechanisms of divorce an 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 d 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 gharāmao), 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 upper-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
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 (Osanlooi, 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).
Divorce
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Last Update: 03/2021
