Laws of Religion

Laws of Islam Concerning Women and Men

 

Procedures for Divorce

 

From Islamic Jurisprudence (fiqh/sharia^§):  The Distinguished Jurist’s Primer of Ibn Rushd, the Risala of al-Shafi‛i and Reliance of the Traveller

 

 

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Procedures for divorce (jurisprudence/fiqh/sharia). The scholars^** agree that if a marriage has been consummated, divorce becomes irrevocable when a free man makes three pronouncements of divorce.[1] However, if the marriage has not been consummated, the divorce is irrevocable immediately after a single pronouncement by the husband.[2] If a marriage has been consummated and divorce pronounced by the husband fewer than three times, the man can take the woman back without the woman’s consent as long as she is still in her waiting period (iddah).[3]

 

Malik and al-Shafiʽi say that if the husband is a slave, the number of divorce pronouncements leading to irrevocable divorce is reduced from three to two. Abu Hanifa says this reduction from three to two pronouncements occurs only when the wife is a slave.[4]

 

It is permitted for a wife who wants to be divorced to pay her husband to divorce her (khul).[5] If such payment is agreed to and made, the divorce is irrevocable without three pronouncements being necessary.[6] Malik and al-Shafiʽi agree that the amount paid by the wife to the husband for him to divorce her may not exceed the value of the bridal payment (mahr^*).[7]

 

The Shafiʽi school holds that a husband must be past puberty to issue a divorce.[8] Malik and Ahmad ibn Hanbal say that a pronouncement of divorce may be made by a husband who has not yet reached puberty, but it does not go into effect either until he reaches sexual maturity and is capable of ejaculation (Malik) or until he can keep the fast of Ramadan (Ahmad ibn Hanbal).

 

It is tradition (sunna) that a pronouncement of divorce be made during an interval between the wife’s menstrual periods in which no sexual intercourse occurred.[9] Making a pronouncement of divorce in an interval between menstruations in which sexual intercourse has occurred is considered to be an unlawful innovation, contrary to the teachings of the tradition (sunna).[10] Making a pronouncement of divorce while one’s wife is menstruating is also unlawful innovation contrary to sunna,[11] unless the wife has paid the husband to divorce her.[12]

 

According to Reliance of the Traveller (Shafiʽi school), making a pronouncement of divorce when it is unnecessary to do to or making the three pronouncements of divorce during a single interval between the wife’s menstruations is offensive.[13]

 

Malik, al-Shafiʽi and the Shafiʽi school hold that a single pronouncement of divorce counts for more than one pronouncement if the husband intends it to be so, even if he did not say so at the time; if he intended three then the divorce is irrevocable, even if he did not say three. Abu Hanifa says that a single pronouncement counts as only one, even if more than one is intended.[14]

 

Malik, Abu Hanifa and the Shafiʽi school agree that an intoxicated person is responsible for a pronouncement of divorce.[15] Reliance of the Traveller adds that a divorce is valid if issued by a man who is under the influence of a mind-altering drug that is not medically required.[16]

 

Reliance of the Traveller says that a pronouncement of divorce done by writing rather than speaking is valid if the husband intends it be so.[17] A husband may direct another person, including his wife, to pronounce the statement of divorce.[18]

 

The scholars agree that the man may reverse a divorce through words, with witnesses required as called for in the Qur’an (65:2, cited previously). Some, including Malik and Abu Hanifa, say that this can also be accomplished through sexual intercourse.[19]

 

 

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^*Mahr is a payment given by the groom to the bride upon their marriage.

 

^**Islamic scholars disagree on certain points of law based on different methodologies used in deriving the law from the Qur’an and the traditions (sunna) concerning the life of Muhammad and his closest companions, particularly as expressed in the compiled hadiths. There are four major schools of jurisprudence in Sunni Islam: the Maliki, the Hanafi, the Shafi‛i and the Hanbali. These names are derived from the individual scholars considered to have been the founders of each school: Malik, Abu Hanifa, al-Shafi‛i and Ahmad ibn Hanbal, respectively. The source texts we have used to prepare our summaries of Islamic jurisprudence contain the legal views of these different founders and schools, as described at Source Texts Used for Laws of Islam.

 

^§The specific derived laws of fiqh summarized here are often referred to by the more general term sharia law.

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Abbreviations used in footnotes:

DJP:  The Distinguished Jurist’s Primer, by Ibn Rushd, translated by Imran Ahsan Khan Nyazee, published by Garnet Publishing Ltd, Reading, UK. Volume 1, 1994. Volume 2, 1996. Full text online and download for Volume 1 are here and here and for Volume 2 are here and here.

RT:    Reliance of the Traveller: A Classic Manual of Islamic Sacred Law by Ahmad ibn Naqib al-Misri, translated by Nuh Ha Mim Keller, revised edition 1994, published by Amana Publications, Beltsville, Maryland, USA.  Reliance of the Traveller can be found here and here.

SR:    al-Shafi‛i’s Risala: Treatise on the Foundations of Islamic Jurisprudence, translated by Majid Khadduri, Second Edition, published by The Islamic Texts Society.

●  The sources cited are described on the page Source Texts Used for Laws of Islam.