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Muslim Sexual Ethics:

Divorce

Though it has religious dimensions, Muslim marriage is a contract. While it can persist until the death of one of the parties, it can also be dissolved before that time. When there is disharmony between spouses, divorce should not be the first solution. The Qur’an promotes reconciliation, through negotiated settlements between the spouses themselves or the use of arbitrators from their families. However, when “mutual good treatment” is not possible, there should be an amicable parting. Thus, the Qur’an treats divorce as something permitted but not laudable. Reflecting this sentiment, it is reported that the Prophet Muhammad said that of all things permitted, divorce is the most hated by God.

Moving from scripture to the realm of jurisprudence, the term divorce encompasses several means of ending a marriage. The most common is talaq, which literally means “release.” Talaq is a unilateral repudiation of the wife by the husband, and does not require the wife’s consent. She must observe a waiting period of approximately three months to be sure that she is not pregnant; then she is free to remarry. During this period, however, a husband who has repudiated her by talaq has the right to take her back unless it is the third such repudiation, which is final and irrevocable. (Read more.) A repudiated wife retains the dower she received at marriage or, if it was divided into a prompt and deferred portion, the deferred portion becomes immediately due at divorce. (In some cases, women set a large deferred dower as a disincentive for their husbands to divorce them impulsively.)

In khul‘, divorce for compensation, a wife returns her dower or pays some other sum to her husband in order to obtain a divorce. Traditional jurisprudence considers his consent essential, though it is not mentioned in the Qur’an or in many of the prophetic traditions that refer to it. Khul‘ is by definition irrevocable and the husband has no right to take her back, though they may remarry subsequently by mutual consent. Again, she must observe a waiting period.

In addition to unilateral repudiation and divorce for compensation, both of which are mentioned in the Qur’an, jurisprudence allows for judicial divorce when the wife has cause. Acceptable grounds for divorce vary widely among the legal schools. In the Hanafi school, for example, a woman has almost no grounds for obtaining a divorce provided her husband has consummated the marriage. She cannot be divorced from him even if he fails to support her, abuses her, or is imprisoned for life. If he is declared missing, she may indeed have the marriage dissolved (on grounds of presumed widowhood) at the time when he would have turned 90. Maliki law, by contrast, allows her to seek divorce for non-support, abandonment, and the broad charge of “injury” (darar), which can be physical or otherwise.

Under traditional jurisprudence, there are other strategies women can use to obtain access to divorce. These include conditional or delegated divorce, where the wife includes a condition in her marriage contract that allows her the right to divorce on her own initiative under certain specific circumstances, or states that she will be automatically divorced if a particular event occurs (such as the husband taking another wife). There are possible benefits to these types of stipulations. However, they are sometimes discussed as a panacea for inequalities in traditional divorce law. Further, some difficulties with this approach are often overlooked. The extent to which such clauses in the marriage contract are enforceable in accordance with traditional jurisprudence or in contemporary legal systems varies widely. Further, even clauses that were originally valid can be easily rendered ineffective through the wife’s unwitting actions. More troubling still is that, though these conditions can increase a woman’s access to divorce, they do not restrict in any way the husband’s right to repudiate her unilaterally at will.

Attempts to reform divorce laws in the contemporary Muslim world have been plentiful. Most of these have attempted to either restrict men’s unfettered exercise of their rights to repudiation or to increase women’s access to divorce. In the first case, some nations have accomplished this by requiring some type of intervention or registration from a judge, or by declaring that three repudiations pronounced at once will count as only one divorce. (This has always been the predominant Shi’i view, but only a few individual Sunni jurists have held it.) Some nations have imposed financial penalties on a husband who divorces his wife without cause. However, despite these attempts to curb men’s impulsive and extra-judicial use of talaq, the courts still consider men’s unilateral repudiations legally effective since they are recognized by traditional jurisprudence.

When it comes to increasing women’s access to divorce, the adoption by certain Hanafi jurisdictions of the relatively more liberal Maliki grounds for divorce represents a significant improvement. However, the interpretation of these provisions varies significantly, and judges wield quite a bit of discretion in their application. In Egypt and elsewhere, for example, courts have ruled that while physical abuse may constitute “harm” for upper-class women, women from lower social strata can expect some violence from their husbands, and thus it does not constitute grounds for them to seek divorce. In these cases, though reforms have altered some of the specifics of divorce laws, they have not challenged the basic idea that divorce is a man’s prerogative, while women may only obtain divorce for cause.

A more recent Egyptian law, approved by the chief jurist of Al-Azhar, the most respected institution of traditional jurisprudence in Egypt and perhaps the entire Sunni Muslim world, provides an alternate approach. As noted above, most classical jurists, and the majority of contemporary national laws, consider the husband’s agreement essential to khul‘, divorce for compensation. Beginning in March 2000, Egypt granted the wife the right to obtain a khul‘ divorce without the husband’s consent if she returns the dower she received at marriage. By the middle of that month, 3,000 petitions seeking divorce under these provisions had been filed in Cairo alone.

One important reason the issue of fair divorce laws is so difficult to address is that the structure of the Islamic marriage contract presumes the husband’s unilateral control over the right to divorce. (Read more.) Piecemeal reforms of divorce laws that do not address this basic norm will be limited in the amount of change they can ultimately effect. Thus, long-lasting and far-reaching reform of Islamic divorce laws requires, more fundamentally, a reform in the laws governing Muslim marriage itself.