Surat Aţ-Ţalāq (The Divorce) -

س�ورة� ال�طلاق�

م ب��سم ال�له ال�رح�من� ال�رح�ي�65:1 to top

Sahih InternationalO Prophet, when you [Muslims] divorce women, divorce themfor [the commencement of] their waiting period and keep count of the waiting period, and fear Allah , your Lord. Do not turn them out of their [husbands'] houses, nor should they [themselves] leave [during that period] unless they are committing a clear immorality. And those are the limits [set by] Allah . And whoever transgresses the limits of Allah has certainly wronged himself. You

know not; perhaps Allah will bring about after that a [different] matter.65:2 to top

Sahih InternationalAnd when they have [nearly] fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah . That is instructed to whoever should believe in Allah and the Last day. And whoever fears Allah - He will make for him a way out65:3 to top

Sahih InternationalAnd will provide for him from where he does not expect. And whoever relies upon Allah - then He is sufficient forhim. Indeed, Allah will accomplish His purpose. Allah hasalready set for everything a [decreed] extent.65:4

to top

Sahih InternationalAnd those who no longer expect menstruation among your women - if you doubt, then their period is three months, and [also for] those who have not menstruated. And for those who are pregnant, their term is until they give birth. And whoever fears Allah - He will make for him of his matter ease.65:5 to top

Sahih InternationalThat is the command of Allah , which He has sent down to you; and whoever fears Allah - He will remove for him hismisdeeds and make great for him his reward.65:6 to top

Sahih InternationalLodge them [in a section] of where you dwell out of your means and do not harm them in order to oppress them. And if they should be pregnant, then spend on them until theygive birth. And if they breastfeed for you, then give them their payment and confer among yourselves in the acceptable way; but if you are in discord, then there maybreastfeed for the father another woman.65:7 to top

Sahih InternationalLet a man of wealth spend from his wealth, and he whose provision is restricted - let him spend from what Allah has given him. Allah does not charge a soul except [according to] what He has given it. Allah will bring about, after hardship, ease.65:8 to top

Sahih InternationalAnd how many a city was insolent toward the command of its Lord and His messengers, so We took it to severe account and punished it with a terrible punishment.65:9 to top

Sahih InternationalAnd it tasted the bad consequence of its affair, and the outcome of its affair was loss.65:10 to top

Sahih InternationalAllah has prepared for them a severe punishment; so fear Allah , O you of understanding who have believed. Allah has sent down to you the Qur'an.65:11 to top

Sahih International[He sent] a Messenger [Muhammad] reciting to you the distinct verses of Allah that He may bring out those who believe and do righteous deeds from darknesses into the light. And whoever believes in Allah and does righteousness - He will admit him into gardens beneath which rivers flow to abide therein forever. Allah will have perfected for him a provision.65:12 to top

Sahih InternationalIt is Allah who has created seven heavens and of the earth, the like of them. [His] command descends among them so you may know that Allah is over all things competent and that Allah has encompassed all things in knowledge.

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In the ṭalāq divorce, the husband pronounces the phrase "I divorceyou" (in Arabic, talaq) to his wife. A man may divorce his wife three times, taking her back after the first two (reconciling). After the third talaq they can't get back together until she marries someone else. Some do a "triple ṭalāq", in which the man says in one sitting "I divorce you" three times (or "I divorce you, three times", "you're triple divorced"). Many Islamic scholars believe there is a waiting period involved between the

three talaqs, pointing to Quran 65:1[Quran 65:1] and various hadiths. However the practice of "triple ṭalāq" at one sitting has been "legally recognized historically and has been particularly practiced in Saudi Arabia."[1]

Shia and Sunni Muslims have different rules for performing a ṭalāqdivorce. According to some Sunni schools of jurisprudence, each talaq utterance should be followed by a waiting period of three menstrual periods for women or three month (iddah), when the couple are supposed to try to reconcile with the help of mediators from each family, until the third and final ṭalāq. Some Sunnis who believe the practice of triple talaq in one is wrong; nonetheless accept it as final, especially the Hanafi schools of jurisprudence.

Shias don't have the concept of verbal "Triple Divorce" ie. just uttering the phrase "I divorce you" three times. Shi'a practice also has a iddah waiting period when the couple are supposed to try to reconcile with the help of mediators from each family, butrequires two witnesses for the declaration of ṭalāq.[2] If the couple breaks the waiting period, the divorce is voided. After the waiting period is over, the couple is divorced and the husband is no longer responsible for the wife's expenses, but remains responsible for the maintenance of the children until they are weaned.

It is also possible for a woman to petition a qadi (judge of Muslim jurisprudence) for a divorce under certain conditions. Thecircumstances which are regarded as acceptable vary amongst the four Sunni groups of Islamic schools of jurisprudence.

Divorce Issue 2507: * A man who divorces his wife must be adult and sane,but if a boy of ten years of age divorces his wife, precaution must be exercised. Similarly, a man should divorce of his own free will, therefore, if someone compels him to divorce his wife,that divorce will be void. It is also necessary that a man seriously intends to divorce; therefore, if he pronounces the formula of divorce jokingly, the divorce will not be valid.

Issue 2508: It is necessary that at the time of divorce, wife is Clean (tahir/pak) from Haidth and Nifas, and that the husband should not have had sexual intercourse with her during that period.

Issue 2509: * It is valid to divorce a woman even if she is in Haidh or Nifas in the following circumstances:

(i) If the husband has not had sexual intercourse with her after marriage.

(ii) If it is known that she is pregnant. And if this fact is notknown and the husband divorces her during Haidh, and he comes to know later that she was pregnant, that divorce will be valid, andas a recommended precaution he should divorce her again.

(iii) If due to the husband's absence or imprisonment, he is not able to ascertain whether or not she is Clean (tahir/pak) from Haidth or Nifas. But in this case, as an obligatory precaution, man must wait for at least one month after separation from his wife and then divorce.

Issue 2510: If a man thinks that his wife is Clean (tahir/pak) from Haidh and divorces her, but it transpires later that at the time of divorce she was in the state of Haidh, the divorce is void. And if he thinks that she is in the state of Haidh and

divorces her, and it is later known that she was Clean (tahir/pak), the divorce is in order.

Issue 2511: * If a person who knows that his wife is in Haidh or Nifas, is separated from her, like when he proceeds on a journey,and wishes to divorce her, he should wait till such time when he becomes sure that his wife must have become Clean (tahir/pak) from her Haidh or Nifas. Thereafter, having known that she is Clean (tahir/pak), he can divorce her. And if he is in doubt he will act according to rule no. 2509 for precaution.

Issue 2512: * If a man who is separated from his wife wishes to divorce her and can acquire information as to whether or not she is in the state of Haidh or Nifas, even if that information is based on her habit, or any other signs known in Shariah, if he divorces her and later finds out that his information was wrong, the divorce will be void.

Issue 2513: * If a man has sexual intercourse with his wife during her Clean (tahir/pak) period, and then wishes to divorce her, he should wait till she enters into Haidh again and becomes Clean (tahir/pak). But if the wife has not completed her ninth year, or if she is pregnant, she can be divorced after the sexualintercourse. The same rule applies to a wife in menopause. The meaning of menopause has been explained in rule no. 2457).

Issue 2514: * If a person has sexual intercourse with a woman during her Clean (tahir/pak) period and divorces her during the same period, and if it transpires later that she was pregnant at the time of divorce, the divorce will be void. As a recommended precaution, he should divorce her again.

Issue 2515: * If a person had sexual intercourse with his wife during her Clean (tahir/pak) period, and then separated from her,like, if he proceeded on journey and wishes to divorce her then, not knowing whether she is Clean (tahir/pak) or not, he should wait till such time when the wife enters into the state of Haidh and becomes Clean (tahir/pak) once again. And, as an obligatory precaution, this period should not be less than one month.

Issue 2516: * If a man wishes to divorce his wife who does see blood of Haidh at all by habit, or because of some disease, whileother women of her age habitually see Haidh, he should refrain from having sexual intercourse with her for three months from thetime he has had the intercourse, and then divorce her.

Issue 2517: * It is necessary that the formula of divorce is pronounced in correct Arabic using the word “Taliq”; and two just('Adil) persons should hear it. If the husband wishes to pronounce the formula of divorce himself and his wife's name is, for example, Fatima, he should say: Zawjati Fatima taliq (i.e. mywife Fatima is divorced) and if he appoints another person as hisWakil to pronounce the formula of divorce, the Wakil should say: Zawjatu muwakkili Fatima taliq (Fatima, the wife of my client is divorced). And if the woman is identified, it is not necessary tomention her name. And if the husband cannot pronounce divorce in Arabic, or cannot find a Wakil to do so, he can divorce in any language using the words of the same meaning as in Arabic formula.

Issue 2518: There is no question of of divorce in the case of a woman with whom temporary marriage is contracted, for example, for one month or one year. She becomes free when the period of her marriage expires or when the man forgoes the period of her marriage by saying: “I hereby exempt you from the remaining time of marriage”, and it is not necessary to have a witness nor that the woman should be Clean (tahir/pak) from her Haidh.

Iddah of Divorce (The Waiting Period after Divorce)Issue 2519: A wife who is under nine and who is in her menopause will not be required to observe any waiting period. It means that, even if the husband has had sexual intercourse with her, she can remarry immediately after being divorced.

Issue 2520: * If a wife who has completed nine years of her age and is not in menopause, is divorced by her husband after sexual intercourse, it is necessary for her to observe the waiting

period of divorce. The waiting period of a free woman is that after her husband divorces her during her Clean (tahir/pak) period, she should wait till she sees Haidh twice and becomes Clean (tahir/pak). Thereafter, as soon as she sees Haidh for the third time, her waiting period will be over and she can marry again. If, however, a husband divorces his wife before having sexual intercourse with her, there is no waiting period for her and she can marry another man immediately after being divorced, except if she finds traces of her husband's semen in her private part, then she should observe Iddah.

Issue 2521: If a woman does not see Haidh in spite of being the age of women who normally see Haidh, if her husband divorces her after sexual intercourse, she should observe Iddah for three months after divorce.

Issue 2522: * If a woman whose Iddah is of three months, is divorced on the first of a month, she should observe Iddah for three lunar months, that is, for three months from the time the moon is sighted. And if she is divorced during the month, she should observe Iddah for the remaining days in the month added totwo months thereafter, and again for the balance from the fourth month so as to complete three months. For example, if she is divorced on the 20th of the month at the time of sunset and that month is of 29 days, she should observe Iddah for nine days of that month and the two months following it, and for twenty days of the fourth month. In fact, the obligatory precaution is that in the fourth month, she should observe Iddah for twenty one daysso that the total number of the days of the first month and the fourth month comes to thirty.

Issue 2523: * If a pregnant woman is divorced, her Iddah lasts till the birth or miscarriage of the child. Hence, if, for example, she gives birth to a child one hour after being divorced, her Iddah is over. But this is in the case of a legitimate child of the husband who is divorcing. If the pregnancy is illegitimate, and her husband divorces her, the Iddah will not be over.

Issue 2524: * If a woman who has completed nine years of age, andis not in menopause, contracts a temporary marriage, for example,if she marries a man for a period of one month or a year and the period of her marriage comes to an end, or her husband exempts her from the remaining period, she should observe Iddah. If she sees Haidh, she should observe Iddah for two periods of Haidh, and cannot marry again during that period. But if she does not see Haidh, then she should refrain from marrying another man for forty five days. And if she is pregnant, she should observe Iddahtill the birth or miscarriage of the child, or for forty five days and as a recommended precaution, she should wait for whichever period is longer.

Issue 2525: The time of the Iddah of divorce commences when the formula of divorce is pronounced, irrespective of whether the wife knows about it or not. Hence, if she comes to know after theend of the Iddah that she had been divorced, it is not necessary for her to observe Iddah again.

Iddah (Waiting Period) of a WidowIssue 2526: If a woman is free and is not pregnant and her husband dies, she should observe Iddah (the waiting period) for four months and ten days, that is, she should not marry during that period even if she has entered into menopause or her husbandhad contracted temporary marriage with her, or he may not have had sexual intercourse with her. If, however, she is pregnant, she should observe the waiting period till the birth of the child. But if the child is born before the end of four months andten days from the death of her husband, she should wait till the expiry of that period. This period is called the waiting period after death (Iddatul Wafat).

Issue 2527: It is haraam for a woman who is observing the Iddah of death to wear brightly coloured dress, or to use surma and to do any such act which is considered to be an adornment.

Issue 2528: * If a woman becomes certain that her husband has died, and marries another man after the completion of Iddah of

death, and later on learns that her husband had died later, she should separate herself from her second husband. And as a precaution, if she is pregnant, she should observe Iddah of divorce for the second husband till she gives birth to a child, and should thereafter observe Iddah of death for the first husband. But if she is not pregnant, she should first observe Iddah of death for her first husband and thereafter she should observe Iddah of divorce for the second husband.

Issue 2529: * The Iddah of death begins, in the situation when the husband has disappeared or is absent, when the wife learns ofhis death, and not from the time when he actually died. But this rule does not apply to a wife who has not attained the age of Bulugh, or if she is insane.

Issue 2530: * If a woman says that her Iddah is over, her word can be accepted unless she is known to be unreliable, in which case, her word will not be accepted. For example, if she claims to have seen blood three times in the month, her claim will not be trusted, except when her women relatives confirm that it is her habit.

Irrevocable and Revocable DivorceIssue 2531: * Irrevocable divorce means that after the divorce, the husband is not entitled to take back his wife, that is, he isnot entitled to take her as his wife without Nikah. This divorce is of five kinds, namely:

(i) The divorce of a woman who has not completed nine years of age.

(ii) The divorce of a woman who is in menopause.

(iii) The divorce of a woman whose husband has not had sexual intercourse with her after their marriage.

(iv) The third divorce of a woman who has been divorced three times.

(v) The divorce called Khul'a and Mubarat.

(vi) The divorce by intervention of Mujtahid, in the case of a wife whose husband is neither prepared to maintain her nor to divorce her.

Rules pertaining to these kinds of divorces will be detailed later. Divorces other than these are revocable, in the sense thatas long as the wife is observing Iddah her husband can take her back.

Issue 2532: * When a person has given revocable divorce to his wife, it is haraam for him to expel her out of the house in whichshe was residing at the time of divorce. However, in certain cases, like, when she has committed fornication or adultery thereis no harm in expelling her. Also, it is haraam for the wife to go out of the house unnecessarily, without her husband's permission.

Orders Regarding Return (Ruju')Issue 2533: * In the case of a revocable divorce a man can take back his wife in two ways:

(i) By telling her words which would mean that he wants her againas his wife.

(ii) By acting in a manner which would convey his intention to take her back.

And taking her back will be established by sexual intercourse although the husband may not have intended it. But touching, kissing, with or without intention of taking her back is not sufficient.

Issue 2534: It is not necessary for taking her back that the husband should call any person to witness, or should inform his wife. On the other hand if he takes her back without any one elserealising this, the Ruju' is in order. However, if the husband

claims after the completion of Iddah that he took his wife back during Iddah, he must prove it.

Issue 2535: * If a person who has given revocable divorce to his wife takes some payment from her, making a compromise with her that he will not make Ruju' to her, though this compromise is valid and it is obligatory on him not to 'return', yet he does not forfeit the right to 'return'. And if he 'returns' to her, the divorce given by him does not become the cause of their separation.

Issue 2536: * If a man divorces a woman twice and takes her back,or divorces her twice and takes her back by Nikah, or takes her back after one divorce and returns her by Nikah after the second divorce, she becomes haraam for him after the third divorce. But if she marries another man after the third divorce, she becomes halal for the first husband on fulfilment of five conditions, that is, only then he can remarry her:

(i) The marriage with the second person should have been of permanent nature. If he contracts with her a temporary marriage for one month or a year, and then separates from her, the first husband cannot marry her.

(ii) The second husband should have had sexual intercourse with her, and the obligatory precaution is that the sexual intercourseshould have taken place in the normal way.

(iii) The second husband divorces her, or dies.

(iv) The waiting period (Iddah) of divorce or Iddah of death of the second husband should have come to an end.

(v) On the basis of obligatory precaution the second husband should have been Baligh at the time of intercourse.

Khula' Divorce or Talaqul Khula'Issue 2537: * The divorce of a wife who develops an aversion fromhusband and hates him, and surrenders to him her Mahr or some of

her property so that he may divorce her, is called Khula' Divorce. The hatred must have reached a proportion where she would not allow him conjugal rights.

Issue 2538: If the husband himself wishes to pronounce the formula of Khula' divorce and his wife's name is, say, Fatima, heshould say after receiving the property: “Zawjati Fatimatu Khala'tuha 'ala ma bazalat” and should also say as a recommended precaution: “Hiya Taliq” i.e. “I have given Khula' divorce to my wife Fatima in lieu of what she has given me, and she is free'. And if the wife is identified, it is not necessary to mention hername in Talaqul Khula' and also in Mubarat Divorce.

Issue 2539: If a woman appoints a person as her representative tosurrender her Mahr to her husband, and the husband, too, appointsthe same person as his representative to divorce his wife, and if, for instance, the name of the husband is Muhammad and the name of the wife is Fatima, the representative will pronounce theformula of divorce thus: “An muwakkilati Fatimah bazalat mahraha li muwakkili Muhammad li Yakhla'aha 'alayh”. Then he says immediately: “Zawjatu muwakkili khala'tuha 'ala ma bazalat hiya Taliq”.

And if a woman appoints a person as her representative to give something other than Mahr to her husband, so that he may divorce her, the representative should utter the name of that thing instead of the word “Mahraha” (her Mahr). For example, if the woman gives $500 he should say: bazalat khamsa mi'ati Dollar”.

Mubarat DivorceIssue 2540: * If the husband and the wife develop mutual aversionand hatred and the woman gives some property to the man so that he may divorce her, this divorce is called 'Mubarat'.

Issue 2541: * If the husband wishes to pronounce the formula of Mubarat, and for example, his wife's name is Fatima he should say: “Bara'tu zawjati Fatimah 'ala ma bazalat”. And as an obligatory precaution, he must add: “Fahiya Taliq”, that is “my

wife Fatima and I separate from each other in consideration of what she has given me. Hence, she is free.” And if he appoints someone as his representative, the representative should say: “Anqibali muwakkili bara'tu zawjatahu Fatimata 'ala ma bazalat Fahiya Taliq”. And in either case, if he says: “bima bazalat” instead of the words “'ala ma bazalat” there is no harm in it.

Issue 2542: * It is necessary that the formula of Khula' or Mubarat divorce is pronounced in correct Arabic. And if that is not possible, then the rule explained in 2517 will apply. However, if for the sake of giving her property, the wife says inEnglish or any language that: “I give you such and such property in lieu of divorce” it will be sufficient.

Issue 2543: If during the waiting period of Khula or Mubarat divorce the wife changes her mind and does not give her property to the husband, he can take her back as a wife without Nikah.

Issue 2544: The property which the husband takes in Mubarat divorce should not exceed the Mahr of the wife. But in the case of Khula' divorce, there is no harm if it exceeds her Mahr.

Various Rules Regarding DivorceIssue 2545: If a man had sexual intercourse with a non-mehram woman under the impression that she was his wife, the woman should observe Iddah, irrespective of whether she knew that the man was not her husband or thought that perhaps he was her husband.

Issue 2546: * If a man commits fornication with a woman knowing that she is not his wife, it is not necessary for the woman to observe Iddah. But if she thought that the man was probably her husband, as an obligatory precaution, she should observe Iddah.

Issue 2547: * If a man seduces a woman so that her husband decides to divorce her and then she can marry him, the divorce and marriage are in order, but both of them have committed a major sin.

Issue 2548: * If a woman lays a condition at the time of Nikah that if her husband goes on a journey or, for example, does not give her maintenance for six months, she will have the right of divorce, the condition is void. However, if she lays a condition that if her husband goes on a journey or, for example, does not give her maintenance for six months, she will be his Wakil for her own divorce, the condition is in order.

Issue 2549: If the husband of a woman disappears and she wishes to marry another man, she should approach an 'Adil Mujtahid and act according to his directive.

Issue 2550: The father and the paternal grandfather of an insane man can divorce his wife.

Issue 2551: If the father or paternal grandfather of a child contracts a temporary marriage between him and a woman, and a part of the period fixed for the marriage covers some of the timewhen the child will have attained the age of bulugh, for example,if he contracts the marriage of a fourteen years old boy for a period of two years - he (the father or the paternal grandfather of the child) can exempt the woman from a part of the period of marriage if doing so, is in the interest of the child, but he cannot divorce the child's permanent wife.

Issue 2552: If a man considers two person to be just ('Adil) according to the standard prescribed in Shariah, and divorces hiswife in their presence, another person to whom their being 'Adil is not proved can, after the expiry of that woman's Iddah, marry her or give her in marriage to another person, although the recommended precaution is that he should not marry her nor shouldhe give her in marriage to someone else.

Issue 2553: If a person divorces his wife without informing her, and he continues to maintain her the way he did when she was his wife, and after a year tells her that he divorced her a year ago,and also proves it, he can take back from her the things which hesupplied her during that period if she has not used them up, but he cannot demand from her the things which she has already expended.

Iddah of Divorce (The Waiting Period after Divorce) Iddah (Waiting Period) of a Widow Irrevocable and Revocable Divorce Orders Regarding Return (Ruju') Khula' Divorce or Talaqul Khula' Mubarat Divorce Various Rules Regarding Divorce

Women’s Rights in Islam Regarding Marriage and DivorceApril 11, 2011 · by lawandpractice · Bookmark the permalink. ·

[A]

4 Wm. Mitchell J. L. & P. 3By: Imani Jaafar-Mohammad, Esq. and Charlie Lehmann[Y]

 

Introduction

There are many misconceptions surrounding women’s rights in Islam.  The purpose of this article is to shed some light on the basic rights of women in Islam in the context of marriage and divorce.  This article is only to be viewed as a basic outline ofwomen’s rights in Islam regarding marriage and divorce.  Muslim clients’ situations will vary greatly depending on what Islamic School of Thought (Hanafi, Hanbali, Maliki, and Shafi) they follow, whether they are Sunni or Shiite, their cultural traditions, and a variety of other factors.

It is also important to understand that the religion of Islam and people’s cultural traditions are two very different factors.  A major pitfall for practitioners is confusing cultural practices with

religious beliefs.  Many attorneys make the major mistake of assuming that all of a Muslim’s manners and practices are related to Islam.  Infact, many Muslims are heavily influenced by their individual culturalbackgrounds.  Islam is an extremely culturally diverse religion. American Muslims alone hail from countries all over Africa, the MiddleEast, Asia, Europe, and many are born in the United States with a variety of ethnic backgrounds. [1]

It is also important not to over generalize cultural practices.  A client’s conduct could simply be a family tradition or a commonpractice in a small region that is not representative of an entire country or people.  Islam is by no means a homogeneous religion.  The most effective advocates who routinely work with Muslims are practitioners who are open minded and take their clients as individuals.

The goal of this article is to give practitioners insight into the basic beliefs of Muslims regarding women’s rights in two specific areas: marriage and divorce.  Effective advocates learn to be culturally and religiously competent, which does not necessarily mean that attorneys agree with the client’s practices.  Not judging clients based on their cultural or religious practices, but merely understanding the client’s religious and cultural background is essential to representing Muslims or any other minority group.

Definitions of some basic vocabulary related to Islam and Muslims are needed to fully understand the content in this article.  Please take note of the following terms:

Islam- the actual religion; Arabic word that means peace through submission to God (Allah).

Muslim(s)- the followers of Islam; an Arabic word that means one who submits to God.

Allah- the Arabic word for God; Islam is a monotheistic religion that teaches that God has no partners, children, or associated entities.

Quran- the Holy Book of Muslims; Arabic word that literally meansthe recitation.  This is the primary source for the teachings of the Islamic faith.

Muhammad- the last and most important Prophet in Islam, he was the first leader of the Islamic state and the prime example of how a Muslim should live his or her life.

Hadith – statements of the Prophet Muhammad that have been written down and compiled.  Used as a supplement to the Quran as a secondary source.  There is a science used to authenticate and verify authentic hadiths.  Hadiths are referred to as “strong” or“weak” based on their chain of transmission and whether they can strongly be linked to the Prophet Muhammad.  This article will cite Hadith as support for the principles described.

Sunna – Actions of the Prophet Muhammad also used to supplement the Quran as a secondary source.

 

MARRIAGE

Marriage in Islam is viewed as an important and sacred union between a man and woman that fulfills half of one’s religious obligations. [2]

A well-known passage in the Quran discusses marriage as follows:“Among His signs is that He created for you spouses from yourselves so that you might find repose with them.  And He has placed between you affection and mercy. In that there are certainly signs for people who reflect.”[3]

Marriage in Islam is often referred to in a poetic manner describing the love and mutual rights that exist between men and women.[4] Islam puts a strong emphasis on mutual love and respect between a husband and wife.[5] Men are also specifically commandedto treat their wives with kindness and respect.  The Prophet Muhammad is reported to have said: “The most perfect in faith amongst believers is he who is best in manners and kindest to hiswife.”[6]

Marriage is also viewed as an act of worship to God (Allah).[7] Islam views emotional and sexual expression between a husband andwife as a form of worship.[8] Sexual relations are not solely for procreation but are viewed as a way for a couple to connect, strengthen their relationship, and help relieve everyday stresses.[9] As a result, celibacy is forbidden for men or women even if either happens to be an Islamic scholar or religious leader (shaykh, imam, etc.).[10] Fidelity is also highly stressed in Islam.[11] Spouses are expected to be loyal and faithful to oneanother and seek emotional and sexual pleasure within the bonds of marriage.[12]

 

Marriage requirements

There are basic requirements for marriage in Islam.  First, a couple must mutually consent to the marriage.[13] This requires both a clear proposal and acceptance.[14] A woman also must have awali or legal guardian present during the process.[15] If a wali is not present a woman must be past puberty and competent to makethe decision to marry.[16] There are no requirements regarding whocan propose marriage.[17] One historical event in the Prophet Muhammad’s life reflecting this principle is the proposal of Khadija bint Khuwaylid, the first wife of the Prophet Muhammad.[18] Khadija was the Prophet Muhammad’s employer, and through working with him she grew to respect his honesty and integrity and proposed marriage to him.[19] Khadija was 25 years older than the Prophet Muhammad and in a much better financial position at the time of the proposal.[20] He accepted her proposal and their marriage is known for the love and compassion they had for one another.[21]

This proposal illustrates the ability of Muslim men and women to marry whomever they choose, and highlights the fact that marriages arranged without the consent or involvement of Muslim women is completely contrary to the Islamic tradition.  There is a documented decision by the Prophet Muhammad where a girl approached him stating her father forced her into marriage.[22] The Prophet Muhammad gave her the choice to either accept the

marriage or invalidate it immediately due to the duress involved.[23] Although Islam provides many rights to women regarding marital issues, cultural traditions can greatly influence the proposal and acceptance process beyond the Islam requirements and, in some cases, directly contradict Islamic practices.

Once a couple decides they want to marry and an official proposalis accepted in writing or orally, the next required step is to agree on the terms of a marriage contract.[24] The marriage contract in its most basic form reflects the couple’s consent to the union without duress and is signed in the presence of competent witnesses.[25] The couple is free to make their marriageagreement as detailed as they like.  The contract allows couples to discuss major aspects of their marriage before they become husband and wife and make binding agreements.  For example, contracts can include an agreed upon place to live or decisions regarding careers and children.[26] Islamic marriage contracts arevery practical tools that allow couples to engage in negotiationsto ensure their major goals and philosophies are in line.

Brides are also entitled to a dowry that is typically negotiated at the same time as the marriage contract.[27] The dowry is specifically a gift showing love and devotion to the bride.[28] There are two types of dowries a bride is entitled to: the mahr and the muakhr.[29] Each dowry will be discussed individually.

First, the mahr is the dowry given to the bride at the time of marriage before consummation takes place.[30] She is not required to share this dowry and is free to do what she wishes with the gift.[31] Cultural traditions often shape the dowry gift because there are essentially no requirements other than the actual giving of the dowry.[32] For example, some cultures encourage cashpayments while others traditionally give one of the groom’s family heirlooms to the bride.[33] The families involved will typically discuss the dowry and their individual expectations.  The bride is often asked her opinion to make sure she receives a gift she enjoys.  However, the actual mahr will take many different forms and practitioners who review Muslim marriage contracts will see a variety of items being given as the mahr.[34]

Muakhr is the second type of dowry that is given upon the death of the husband or the couple’s divorce.[35] This is also referred to as the “deferred” dowry.[36] Muakhr is meant for both financialsupport and as a large consequence that the couple should consider when contemplating divorce.[37] In situations of death, this amount is paid out before the estate is divided.[38] If the estate cannot cover the entire amount, the wife is entitled to collect the amount from the husband’s surviving family members who are also heirs to the estate.[39] She can also waive the obligation for any reason, including hardship on her husband’s family.[40]

After the negotiations are concluded, a marriage ceremony takes place.  There is no requirement that a religious authority conduct marriage ceremonies, but it is a common Islamic practice to adopt the laws of the land a Muslim lives in as long as the laws do not conflict with required Islamic practices.[41] Many mainstream American Muslim scholars have come to the opinion thatthe person conducting a marriage ceremony must be licensed by thestate in which the marriage is occurring.[42] It is also imperative for the couple to register their marriage properly with the state in addition to executing an Islam marriage contract.[43] The actual marriage ceremony and reception will varygreatly depending on the cultural traditions.  It was the exampleof the Prophet Muhammad for the reception to include providing a meal for members of one’s community.[44]

It is important to remember the Islamic framework for the marriage process described above is greatly influenced by an individual’s cultural and family traditions. Distinguishing between culture and religion is essential for practitioners who work with Muslim clients, especially in such delicate matters as drafting marriage contracts.

Polygamy

Polygamy is often a misunderstood concept in Islam.  The Quran allows polygamy in the following verse:

If ye fear that ye shall not be able to deal justly with the orphans, Marry women of your choice, Two or three or four; but ifye fear that ye shall not be able to deal justly (with them), then only one, or (a captive) that your right hands possess, thatwill be more suitable, to prevent you from doing injustice.[45]

Historically, the practice of polygamy existed before Islam without restrictions.[46] Islam limited the number of wives to four and established clear rules and regulations for the practiceto ensure fair treatment of each wife.[47] Aisha Bint Abu Bakr, a wife of the Prophet Muhammad, was reported as saying:

 

Allah’s Prophet (peace and blessings of Allah be upon him) distributed everything justly amongst his wives; yet after all, he used to say: O Allah! This is the fair way of dividing what I possess amongst my wives. O Allah! Blame me not for what You alone possess while I do not, i.e., the heart, feelings and emotions of a man.[48]

 

The passages above reflect a strict requirement that a man who has multiple wives must treat each wife equally.  This equality is expected in regards to finances, emotions, and even sexual relationships.[49] The Quran unequivocally states that if a man isunable to do this and treat his wives justly he should not marry more than one wife.[50]

Polygamy is an option and not a requirement in Islam.[51] As was mentioned earlier, Muslims must follow the laws of the land that they live in as long as it does not contradict the requirements of the faith.[52] In America, polygamy is illegal.[53] As a result, it is Islamically unacceptable for Muslims in America to practicepolygamy.  Muslims living in countries where polygamy is legal and practiced may choose to include in their marriage contract that the husband not take any other wives.  If a husband violatesan agreement not to engage in polygamous marriage, that constitutes grounds for divorce and the financial penalties that

are typically included in the marriage contract are fully enforceable.[54]

Polyandry, or marrying more than one husband, is not permitted tomaintain the children’s lineage for purposes of inheritance and protect children’s rights as heirs.[55] Monogamy is the normal practice in the majority of Muslim communities due to the financial and emotional burden it carries.[56] It is far more common for American lawyers to see issues involving monogamous marriage and divorce rather than disputes involving polygamy.[57]

 

DIVORCE

Divorce existed before Islam, but the advent of Islam made the divorce process much more favorable to women.  Women’s property is not divided during a divorce.[58] Whatever a woman earns or is given before and during the course of the marriage remains her property if the marriage ends.[59] This prevents men from taking advantage of women’s property or wealth through marriage.  On theother hand, the man’s property is divided if a divorce occurs according to the couple’s marriage contract.[60] A woman is entitled to support and maintenance from her former husband if she requires.[61] There are also special instructions if divorce occurs before the marriage is consummated and before or after thedowry is set.[62]

Islam also instituted a three-month waiting period for women called Iddah.[63] During this three-month period women are not permitted to re-marry.[64] The basic reason for this rule is to determine whether the woman was pregnant before she remarried so the proper father could be ascertained.[65] This practice also ensures the child’s identity and lineage can be accurately determined.[66] A husband and wife are also allowed to attempt reconciliation during the waiting period.[67] However, men are specifically instructed not to take back their wives to “injure or take undue advantage” of them.[68]

Determining the proper procedure for divorce is highly dependent upon the timing of the divorce, the reasons for divorce, the client’s Islamic School of Thought (Hanafi, Hanbali, Maliki, and Shafi), whether he or she is Sunni or Shiite, and the circumstances surrounding the divorce.[69] The scope of this article cannot cover all the conceivable scenarios or grounds fordivorce but will seek to address the basic requirements for divorce. [70] It is important to keep in mind different schools ofthought can cause some variances in the basic structure describedbelow.

 

Requirements for divorce

As stated earlier, Muslims in America seeking a divorce still have to comply with the laws of the United States.[71] However, most Muslims will seek to follow the laws regarding divorce in America but will also want documents reflecting their religious beliefs and their marriage contract.[72] Either a man or woman caninitiate a divorce.[73] Before a Muslim starts official legal action he or she must meet the following requirements:[74]

 

He or she must have reached puberty and be capable of making a decision;[75]

He or she must be sane, conscious, alert, and free from intoxication or anger;[76]

He or she must be free from external pressure;[77]

His or her intention must be clear;[78]

Divorce must take place after the wife’s menstrual period and no sexual relations have occurred since her period ended.

 

If all the above factors are present, either the husband or wife can pursue a divorce or they can pursue a divorce jointly and amicably.  This will involve going through the normal divorce proceedings according to American law but will also involve reviewing the terms in the marriage contact and drafting languagethat incorporates prior agreements and ends the contract.

There are also several levels of revocability of divorce in Islam.[79] If a client approaches a practitioner claiming the divorce is revocable the best course of action is to consult an Islamic scholar.  This can be a complicated question that will likely require an Islamic scholar to listen to both sides and make a determination.  Islam has a strong tradition of alternative dispute resolution that will help resolve complex matters surrounding divorce.[80]

It is also important to keep in mind that although divorce is permitted in Islam, it is not encouraged.  The Prophet Muhammad stated of all the permitted acts divorce is most displeasing to God (Allah).[81] The Quran further states: “Live with them (your wives) on a footing of kindness and equity. If you dislike them it may be that you dislike something in which Allah has placed a great deal of good.”[82] Muslims truly view divorce as a last result and many Muslims seek counseling and extensive assistance to avoid divorce.  If a client is coming to a practitioner to carry out a divorce it has likely been a very long and difficult religious and personal decision.

 

Case Study

 

This section includes a fictional case study designed to provide practice tips based on the information in this article.  The client in this scenario, Mrs. X, is a composite of common issues that could arise in the Islamic divorce context. Discussion of this scenario below will be used to provide best practices and practice tips for attorneys working with Muslims.  As

practitioners’ communities grow and diversify, it becomes necessary for attorneys to broaden knowledge on legal issues stemming from religious and cultural traditions.

 

Scenario: Client Mrs. X comes to your office for her first meeting.  Mrs. X is 32 years old, does not have children, and is seeking a divorce from her husband, Mr. X.  Mrs. and Mr. X are naturalized U.S. citizens who have lived in America for several years.  They immigrated with their respective parents before age 10, but several family members remained in their home country of Y and they maintained strong cultural ties to Y.  Mrs. and Mr. X met at a young age and pursued marriage after forming a deeper connection while attending University together.  When they decided to marry, they felt it would be meaningful to travel backto country Y to perform the ceremony.  Mrs. and Mr. X had an Islamic marriage ceremony and signed a marriage contract that hadIslamic requirements and some cultural norms from country Y.  Themarriage contract itself was the result of a lengthy negotiation process. The contract is also in the native language of Y.  Mrs. X also has a marriage certificate from Y that appears to have a seal and signature.

Mrs. X claims that, as stated in her marriage contract, she is entitled to $20,000 as part of the second dowry, which is paid upon divorce.  She also informs you that Mr. X believes the marriage contract is no longer valid because they are not living in Y, and wants the assets divided according to Minnesota law.  Mrs. X claims they agreed to the dowry amounts and the contract should be enforced.

Discussion

To an attorney unfamiliar with the cultural and legal aspects involved in this scenario, a foreign, religious antenuptial contract can be intimidating.  Surprisingly, Minnesota courts have yet to directly answer whether religious agreements can constitute antenuptials.[83] However, Minnesota has upheld

religiously inspired contracts before.[84] Other state courts havespecifically upheld religious antenuptials.[85]

The validity of the marriage contract in the above scenario is a common issue that can arise in an Islamic divorce context.  An attorney who is faced with this scenario should first turn to Minn. Stat. § 519.11, the Minnesota statute governing antenuptials.  According to the statute, an antenuptial contract – an agreement prior to the solemnization of marriage – is valid if: (a) there is a full and fair disclosure of the earnings and property of each party, and (b) the parties have had an opportunity to consult with legal counsel of their own choice.[86]

After determining whether there has been a fair and full disclosure of the earnings of each party, the attorney must also determine whether the parties had an opportunity to consult with legal counsel prior to signing the agreement.[87] Many couples maychoose not to consult legal counsel and instead turn to trusted family figures, but it is important to evaluate the choices that were made during the negotiation process and how these choices impacted the outcome.

Depending on the individual culture, many Islamic marriage contracts are signed the day of the ceremony.  This can sometimesbring into question whether both parties had the opportunity to consult with the legal counsel of their choice.  However, despitethe cultural traditions, many Islamic marriage contracts are the result of a lengthy, well thought out negotiation process during which both parties have the opportunity to consult legal counsel and family members.[88] Therefore, the signing of the marriage contract on the day of the ceremony is considered a formality.  Since Mrs. X’s marriage contract is the product of such negotiations, under Minn. Stat. § 519.11, the contract is most likely valid as an antenuptial agreement under Minnesota law.

However, a court’s enforcement of any religiously inspired document immediately invokes First Amendment questions.  On the other hand, if the contracts are set forth in terms that allow a court to enforce them using neutral principals, there should be no constitutional quandary.  First Amendment scholar Eugene Volokh argues that “[i]f two parties enter into an agreement

promising to perform a secular act (e.g., pay money) in the eventof some secularly ascertainable event (e.g., a divorce),” then there is no constitutional barrier to enforcing the agreement.[89]

This is exactly the case in Mrs. X’s situation.  Mrs. and Mr. X entered into a legally binding contract promising to perform a secular act – pay Mrs. X $20,000 – in the event of a secularly ascertainable event – their divorce.  The analysis of the contract’s enforceability is not affected by the fact that their agreement had a religious motivation.  Therefore, a court should not be precluded from enforcing Mrs. and Mr. X’s religious antenuptial agreement on constitutional grounds.

Practitioners should not be distracted by marriage contracts thatare drafted in a foreign language.  The first step in approachinga contract of this nature is to find a reliable translator who can provide an accurate translation of the document. Translators may also be able to help explain what a specific seal or stamp ison a contract.  If finding a translator is difficult, consider contacting the courts.  Many courts have a bank of court-certified interpreters who may also be available to interpret documents for these types of cases.

Second, attorneys should not be concerned by unusual dowry items or unfamiliar customs included in the marriage contract.[90] Attorneys should focus on the value of the dowry items and finding reasonable solutions to compensating the wife.  Many attorneys allow unusual dowry items to steal their attention whenthe true issues lie in the actual enforceability questions raisedearlier in this discussion.

 

Conclusion

Working with Muslim clients poses challenges of both a religious and cultural nature.  The information provided above is a basic framework regarding marriage and divorce in Islam.  However, thisframework can be dramatically changed by a client’s cultural or family traditions.  The best advice for practitioners is be open to learning about clients and do not be afraid to ask questions

that will help distinguish between culture and religion.  The information provided in this article should be used as a tool to educate practitioners about Islamic practices and give attorneys knowledge of important Islamic concepts regarding marriage and divorce.

[A] This article originally appeared in the Family Law Forum, Summer 2010, Volume 18, No. 3, a publication of the Minnesota State Bar Association Family Law Section. The article has been expanded since the original publication.

[Y] Imani Jaafar-Mohammad is a partner at the law firm of Mohammad & Jaafar-Mohammed, LLC. She practices in the areas of estate planning, business law, and criminal defense. Imani received her J.D. from William Mitchell College of Law and her B.A. in English Literature magna cum laude from the University ofMinnesota – Twin Cities. She is a former law clerk for the Honorable Judge Lloyd Zimmerman and a former staff attorney for the Legal Aid Society of Minneapolis. Imani is a board member of the William Mitchell Alumni Association Committee, a board memberof the Minnesota Justice Foundation, and a board member of the Landmark Center in St. Paul. She was named Up and Coming Attorneyby Minnesota Lawyer in 2009. She is also a senior speaker for theIslamic Resource Group. Imani was featured on National Public Radio, Minnesota Public Radio, and WCCO Radio. She was also featured in Minnesota Law and Politics magazine. Imani has taughtseveral Continuing Legal Education courses on Islamic issues throughout the Twin Cities and served as an adjunct professor at William Mitchell College of Law in the legal writing and academicachievement departments.

Charlie Lehmann is a third year law student at William Mitchell College of Law. Charlie has externed for the Honorable Judge Gregg Johnson and clerked for the Anoka County Public Defender’s Office. Charlie is a member of William Mitchell’s National Security & Law Society, the William Mitchell Journal of Law and Practice, and plays for the Fighting Eelpouts, the William Mitchell Hockey team.

[1] See Mapping the Global Muslim Population, Pew Forum on Religion & Public Life, Oct. 7, 2009, available at http://pewforum.org/docs/?DocID=450.   It is estimated in Pew’s study of more than 200 countries there are 1.57 billion Muslims of all ages living in the world today, representing 23% of an estimated 2009 world population of 6.8 billion.  See id. While Muslims are found on all five inhabited continents, more than 60% of the global Muslim population is in Asia and about 20% is in the Middle East and North Africa.  Id.

[2] Sahih ul-Jaami Hadith: Anas bin Malik, a companion of the Prophet Muhammad, reported that the Prophet Mohammad said,” Any man whom Allah provides with a virtuous wife has been helped to half his Deen (religion), so he should fear Allah regarding the other half.”

[3] Quran 30:21.

[4] See Quran 4:1; Quran 7:189.  The second cited passage refers specifically to mates dwelling with each other in love.

[5] See id.

[6] Hadith reported by Abu Dawoud, a companion of the Prophet Muhammad.

[7] See Hammudah Abd al Ati, Family Structure in Islam 54-56 (American Trust Publications 1977).

[8] Id. at 54-56.

[9] Id. at 54-56.

[10] Id. at 56.

[11] See Quran 25:68; Quran 4:23-24.  Take note that Quran 4:23-24 details which people in society can marry each other and imposes limits on family members marrying one another that did not exist pre-Islam.

[12] Abd al Ati, supra note 7, at 54-56.

[13] Id. at 59.

[14] Id. at 60.

[15] Id. at 60-61, 70-76.

[16] Id. at 61.

[17] Id. at 61.

[18] See Bihar ul-Anwar, Vol. 16, 56-73.

[19] Id. 56-73.

[20] Id. 56-73.

[21] Id. 56-73.

[22] See Jamal Badawi, The Status of Women in Islam, Al-lttihad, Vol. 8,No. 2 (1971), citing Ibn Hanbal No. 2469; Ibn Maja, No. 1873.

[23] Id.

[24] See Abd al Ati, supra note 7, at 60.  The importance of reducing all agreements to writing can be seen in the Quran (2:282).  There is a strong tradition in Islam to make sure agreements are written down and signed to avoid future disputes.

[25] Id. at 60-61.

[26] See generally id. at 60-62.

[27] See Quran (4:4); Abd al Ati, supra note 7, at 165-166.

[28] See Jamal Badawi, The Status of Women in Islam, Al-ittihad, Sept. 1971, available at http://www.islamfortoday.com/womensrightsbadawi.htm.

[29] See generally id.

[30] Id.

[31] Abd al Ati, supra note 7, at 64.

[32] Id. at 62-70.

[33] Id.

[34] I have personally seen the following items used as dowry: cash, a down payment for the couple’s new home, jewelry, jewelry boxes made of mother of pearl, large sets of clothing, coins minted during the Ottoman Empire, the fact that a husband has memorized the entire Quran that he brings to the marriage (he is a Hafiz), and family Qurans that are considered precious heirlooms.

[35] See Abd al Ati, supra note 7, at 165-166.

[36] Id.

[37] Id.

[38] It is basic principle in Islamic estate work that all debts be taken out of the estate before it is divided.  Unpaid dowry isconsidered a debt on the husband’s estate.  See generally Abd al Ati, supra note 7, at 62-70.

[39] See generally Abd al Ati, supra note 7.  This is a generally accepted practice and the muakhr is considered a divine debt thatmust be paid before an estate is divided.

[40] Id.

[41] See Abd al Ati, supra note 7, at 59.

[42] It is a common practice that those who conduct marriages in mainstream masjids are licensed by the state they live in and require couples seeking marriage to possess a state issued marriage license.  The Islamic Jurisprudence Council of Minnesotais a prominent group of religious scholars and a prime example ofthis practice in action.

[43] This information is supported by the oral opinions of known scholars in Minnesota and many other states throughout the UnitedStates.

[44] Hadith reported by Ahmad and Abu Dawoud.

[45] Quran 4:3

[46] See Abd al Ati, supra note 7, at 98.

[47] Abu Dawoud, a companion of the Prophet, reported the following: Omair al-Asdee was reported as saying: ‘When I accepted Islam, I was married to eight wives. I discussed this with the Prophet Muhammad who said: “Keep four only, and divorce the other four.”

[48] This Hadith was reported by Abu Dawood, al-Nasaiee, Al-Tirmithee and Ibn Majah.

[49] The Prophet Muhammad’s wives each had an assigned night and were entitled to his sexual and emotional companionship unless each wife decided to waive that obligation.  For example, some ofhis older widowed wives chose to use their nights with the Prophet Muhammad to learn from him instead of engaging in sexual activity and they had more platonic relationships with him.

[50] See Quran 4:3.

[51] Abd al Ati, supra note 7, at 98.

[52] Imam Suhaib Webb has an excellent discussion of this conceptin this article Muslim Americans Must Obey US Laws, available at http://www.suhaibwebb.com/society/international/muslim-americans-must-obey-u-s-laws-nidal-hasan-disobeyed-islamic-doctrine-at-loonwatch-com/.   As stated in his article: “The Islamic religion commands believers to obey the laws of the land they live in, even if it be one ruled by nonbelievers.  Muslim jurists considercitizenship  . . .to be a covenant (aqd) held between the citizen  . . . and the state, one which guarantees safe passage/security (amaan) in exchange for certain obligations

(such as obeying the laws of the land); covenants are considered sacredly binding in Islam.  The Quran commands: And fulfill everycovenant.  Verily, you will be held accountable with regard to the covenants. (Qur’an, 17:34).  The Quran condemns those who break covenants as not being true believers:

It is not the case that every time they make a covenant, some party among themthrows it aside. Nay! The truth is most of them believe not. (Qur’an, 2:100)  The Islamic prophet Muhammad described the religious hypocrite as follows: When he enters into a covenant, he proves treacherous. (Sahih al-Bukhari)”

[53] See generally Loughran v. Loughran, 292 U.S. 216 (1934).

[54] See Abd al Ati, supra note 7, at 98.  Discussion of the rights of a woman to request a divorce in the event a husband takes a co-wife without her consent.

[55] Children’s rights are highly protected in Islam.  Children’sinheritance is determined through lineage and Islamic lineage is connected through a child’s father.  In order to determine without doubt the child’s paternity, Islam outlawed polyandry.  This was not meant to oppress women but to protect children.  Abdal Ati, supra note 7, at 100.

[56] See Jamal Badawi, Polygamy in Islam, http://www.al-islamforall.org/litre/englitre/Polygainis.htm. This is a good resource for the historical scope of polygamy and its place in modern Islam.

[57] In my legal experience I have only seen polygamy practiced among recent immigrants who come to America already engaged in polygamy.  This is a very small portion of the Muslim population and it is rare that American lawyers will encounter polygamous marriages in their practices.

[58] See Quran 2:229; Quran 4:20.

[59] Id.

[60] See generally Quran 2:231; Quran 2:241.

[61] See Quran 2:231; Quran 2:241.

[62] See Quran 2:236-7.

[63] See Quran 2:228; Quran 2:231.

[64] Id.

[65] See Abd al Ati, supra note 7, at 245-6.

[66] Id.

[67] See Quran 2:228.

[68] Quran 2:231.

[69] See generally Abd al Ati, supra note 7, at 218-222. Research intoeach school of thought and sect of Islam will reveal the differences between them in matters of divorce.  The scope of this article is limited to general Islamic divorce issues.

[70] See Abd al Ati, supra note 7, at 226.  Some grounds for divorce can include a wife who accepts Islam when her husband chooses to remain non-Muslim, apostasy from either party, established invalidity of a marriage contract, and violation of aclause in the marriage contract regarding polygamy.

[71] See Imam Suhaib Webb, supra note 52.

[72] See id.

[73] See Abd al Ati, supra note 7, at 243.

[74] See id. at 226-27.  The final requirement is to ensure that the wife is not experiencing pain from her period, is not pregnant, and has a clear, uncompromised mind to make decisions regarding divorce.

[75] Id.

[76] Id.

[77] Id.

[78] Id.

[79] See Abd al Ati, supra note 7, at 237.  In sum, the levels of revocability are as follows: revocable Sunna divorce, revocable contra-Sunna divorce, irrevocable Sunna divorce, and irrevocable contra-Sunna divorce..  Again, this can be a complicated determination that will likely need to be made by an Islamic scholar if it arises in a legal matter.  Id. at 237.

[80] This can be seen in the traditional practice of Imams or Sheiks being trained as mediators for the purpose of resolving disputes within the Muslim community.  This can be seen in Minnesota through the Islamic Jurisprudence Council that helps parties resolve their differences in an amicable way in accordance with Islamic teachings of peace and brotherhood.

[81] Hadith reported by Abu Dawoud, a companion of the Prophet Muhammad.  Hadith also reported by Ibn Umar.

[82] Quran 4:19. Prophet Muhammad further stated: “A believing man must not hate a believing woman. If he dislikes one of her traits he will be pleased with another.”  Hadith reported by Muslim.

[83] See Charles Goldstein, The Enforceability of Religious Agreements as Antenuptials in Minnesota, The  Hennepin Lawyer, June 23, 2005, availableat http://hennepin.timberlakepublishing.com/article.asp?article=931&paper=1&cat=147.

[84] See Abd Alla v. Mourssi, 680 N.W.2d 569 (Minn. Ct. App. 2004)(upholding a contract where parties agreed on arbitration based on Sharia law).

[85] See Rahman v. Hossain, A.2d, 2010 WL 4075316 (N.J. Super. A.D.) (upholding the validity of a “mahr” payment found in the parties’ marriage contract, which was based on Islamic law).

[86] Minn. Stat. § 519.11, subdiv. 1.

[87] See id.

[88] See generally Abd al Ati, supra note 7, at 50-98.  There are several issues surrounding Islamic marriage contracts that require discussion and negotiations between the bride, groom, andtheir families.  These discussions generally take some time to complete due to the complexity of the issues and differences of cultures and expectations involved.

[89] The Volokh Conspiracy, Islamic Agreements in Civil Courts, <http://volokh.com/posts/1216332053.shtml (last visited Oct. 13, 2010).

[90] I have received questions on the validity of dowry items such as gold bars, which are common in the Middle East, or goats,which seem to appear in cultures with more rural roots.  Focus onwhat the value of the dowry is and what specifically the wife canreasonably be expecting in an American context as opposed to the actual item stated in the contract.

Summary:

The solemnization of marriage in any form or in any religion is nothing more than a legalization of a sexual relationship betweena man and woman and the legitimization of the children produced by them. Common-law couples and their children are similarly recognized after 20 years of co-habitation. Both are treated as married husband and wife and their children have the same legal rights and inheritance rights as provided to other legitimate children's in the eyes of law.

Nikah (marriage) in pre Islamic Arabia meant a different form of relationship between man and women. Women where not given any right of inheritance and were absolutely dependent. Woman were treated as chattels. But on the arrival of Prophet Mohammad, Muslim marriage become a civil contract in which a woman does notlose her individuality. Her personality is not merged into that

of her husband. In this way woman remains absolute owner of her property in any way she pleases without any extraneous control ofher husband.

The Prophet of Islam is reported to have said ''marriage is my Sunna and those who do not follow this way of life are not my followers." He also said that ''there is no place of mockery in Islam.''

In Hedya, marriage is defined as a

"... legal process by which the sexual intercourse and procreation of children are legitimized between man or woman and is perfectly lawful and valid."

The purposes of Muslim marriage:

The purposes are:

1. To restrain sexual passion.2. The ordering of domestic life.3. The care and responsibility towards children.4. The expansion of the family.

Essential pre-conditions for Muslim marriage:

Muslim marriages are social contracts between a woman and man on the following terms:

1. There shall be a proposal and its acceptance. The proposal of marriage are tied to agreements on a dowry (a gift by the family of the groom to the family of the bride) and a mahr (a marriage gift by the groom to the bride), etc.

2. Competence of parties. Any Muslim who is sound mind and who has attained age of puberty may enter into contract of marriage.

3. No legal disability. There can be no restriction on any valid Islamic grounds that would preventing the couple to marry.

4. There shall be free consent of both parties to the marriage.

5. There shall be two male witnesses (or one male and two female witnesses). These witnesses shall be sane, adult and Muslim.

Divorce in Islam:

Many people of other religions believe that a married Muslim man can dissolve his marriage at any time by saying to his wife: "Talaq, talaq, talaq" at one occasion of his own free will and desire. ("Talaq" means "I divorce you.") This motivated me to study the the actual existence of this method of dissolution of amarriage in Islam.

After solemnization of marriage between parties, if some problemsarise, the husband may divorce his wife. The question is how he divorces his wife, and whether pronouncement of divorce three times at one occasion is valid.

Zeenat Shaukat Ali, Professor of Islamic Studies St. Xavier's College, Mumbai published an article in the Indian Express with title: "Divorce, Divorce, Divorce." He attempted to clear up misconceptions by Muslims and others about the triple pronouncement of Talaq. The main points in his article were:

1. Talaq and divorce are strongly condemned within Islam.2. In case of difficulties within a marriage that the husband and

wife cannot solve by themselves, each shall appoint an arbitratoror conciliator to resolve the matter.

( 4:35): "If the fear Shiqaq (breach) between the Twain, appoint (two) arbiters, one from his family and other from hers, if they wish for peace, ALLAH will cause their reconciliation."

3. TALAQ-UL-BIDDAT or triple TALAQ: It is important to understand that the word "biddat" itself means disapproval or something the prophet never did or recommended.

4. Caliph Umer legitimized this form of divorce as an emergency measure.

Most Muslims believe that there shall be a interval of of one month between each "taliq" pronouncement. If the during these pronouncements, the wife disobeys the lawful order of her husband, he may divorce her. During this time of breach they should take measures to reconcile by themselves or with the help of their relatives etc. All efforts as provided in the Qur'an andSunna should be made to avoid a breach of the marriage.

The triple pronouncement of TALAQ has been "...banned by law in many nations, including Turkey, Tunisia, Algeria, Iraq, Iran, Indonesia, and Bangladesh. India still permits it." 1 In all such countries arbitration councils and judicial interventions have been introduced to promote reconciliation.

Offices staffed by female police are being established in Punjab state, India to redress grievances, particularly by married women. These facilities promote arbitration to help reconcile thecouple. When all efforts fail, the matter is referred for investigation and later to the court for a trial.

I hope that people of the Islamic faith will learn from the abovediscussion on divorce and become aware of the controversial practice within Muslim marriages of the triple pronouncement of Talaq at one occasion which I believe is Un-Islamic and Un-Qur'anic. Avoiding that practice will create proper respect, honor and adoption of the Holy Qur'an  and Sunna (Observing the path) of Prophet Mohammad.

May peace be upon Him and on us of Almighty ALLAH ! Ameen.

Reference used:

1. "Triple talaq: Legal status," Wikipedia, at: http://en.wikipedia.org/

"The Qur'anic Concept of Divorce"

 

Author: Shehzad Saleem based on Javed Ahmad Ghamidi'sinterpretation

 

When a man and a woman marry each other, it is their utmost wish to remain in this relation of wedlock forever. They are desirous of the fact that the change in times not change theircommitment to each other and only death separate them in this world. But then, sometimes there does arise a situation when part they must. Differences become so pronounced that it becomes necessary to sever this relationship. If such circumstances do befall that a husband and wife must separate permanently, Islam lays down a specific procedure for this separation. In Islamic terminology this dissolution of marriage is called Talaq (divorce). It says that both a man and a woman have an equal right to it. The only difference is that a man divorces a woman while a woman demands a divorce from her husband. In the following paragraphs, we shall attempt to explain the Qur'anic concept of divorce.

If a husband has decided to divorce his wife, he should first wait until she has completed her menstrual cycle and then desisting from any further carnal relationship, he should utter the divorce sentence just once. The wife, after she has been divorced in this way, must stay in her husband's house for a period of three menstrual cycles. This period is called Iddat. If a woman does not have menstrual cycles owing to age,disease or any other reason, and still there is a chance of pregnancy, then she must wait for three months. For a pregnantwoman this period is up to the birth of the child, while for anewly married couple who have had no contact, divorce does notentail any period of Iddat for the wife. According to the Qur'an, there are two basic reasons for this waiting period:  i) to ascertain whether a wife is pregnant or not so that the lineage of the child does not remain a matter of doubt, and

ii) to give the husband and other family members a chance to rectify the situation, for matters in which emotions and feelings run high, sometimes only time is needed for recovery.

During this Iddat period:(a) The husband cannot turn his wife out from the house except if she is guilty of adultery, nor should she leave the house herself.

(b) The wife, if she is pregnant, must not hide her pregnancy.

(c)    The husband should continue to provide for her.

(d) A husband, if he changes his mind, can revoke his decision. The only thing required, according to the Qur'an, is that he should call in two persons totestify to his decision1.

If after this period of Iddat, a man is still firm in his stance, his wife shall be considered as separated permanently.She is now a free woman and if she wishes to marry some other person, she has all the right to do so and must not be inhibited in any way. If circumstances change, she can even remarry her former husband. Furthermore, the Qur'an stresses that on this occasion of parting it is not at all lawful for ahusband to take back any property or asset gifted to her(2). This, it must be kept in consideration, does not pertain to mehr (dower) only, but to every type of gift given to the wife. Not only should a husband not take back these gifts, he should, in fact, give her something on this occasion of separation. Even if her mehr has not been fixed, it is better for him to give her something. If the mehr has been fixed but the divorce occurs before the husband and wife have had contact, he must return half the money, unless the wife even forgoes this. In this case also, though it is better that he should give her the whole money.

However, in case the husband revokes his decision during the

Iddat period, there is no need for re-marriage. The two shall be considered as husband and wife once again. If after annulment of this divorce, due to some reason, the untoward situation arises a second time that the husband intends to divorce his wife, the Qur'an says that the husband can exercise his right of divorce for the second time as well. He should pronounce just one talaaq sentence to repudiate his wife. Again, the post-divorce period shall be observed in the manner just described. Once again, if the husband wishes, he has the chance to revise his decision during this period, in which case the divorce shall be considered null and void and the two shall once again become husband and wife. If, unfortunately, for the third time, the situation arises that divorce becomes inevitable, the Qur'an says that a husband canexercise his right for the third time as well and pronounce the divorce sentence. However, this time the wife she shall bepermanently separated from him. After divorcing his wife for the third time, he cannot re-marry her now, unless and until, the wife marries some other person and owing to some reason gets divorced from him -- not under a planned strategy, but onaccount of naturally arisen circumstances. This last measure, actually, is meant to prevent this affair from becoming mere childplay.

In the words of the Qur'an:This divorce [in which the husband can revoke his decision in the Iddat period] is permitted twice only. (2:229)

It is evident from these details that the Qur'an only prescribes one divorce sentence and stresses that a husband has the right to divorce her wife three times in his life. It does not at all approve the utterance of three divorce sentences in one go. Consequently, it is clear from these details that the two prevailing procedures of talaq ie (1) pronouncing three consecutive talaq sentences in one instance,and (2) pronouncing each of the three sentences in three months are not at all prescribed by the Qur'an. When the Prophet (sws) came to know that a certain person had divorced

his wife by pronouncing three divorce sentences one after the other, he stood up in anger and said:

In my presence, such playful attitude has been adopted with the Book of Allah. (Nisai, Kitab-ut-Talaq)

A woman, as mentioned earlier, has an equal right to divorce. The only difference is that in such a situation she will demand a divorce from her husband. If the husband refuses, shehas all the right to take the matter to the court. The matter will then be decided by the ruling of the court. A common misconception in this regard is that she must give some wealthto her husband on this occasion of separation. This, we are afraid, has no basis in the Qur'an; on the contrary, the Qur'an says that it is not at all permissible for the husband to demand anything from his wife on this occasion. However, ifa husband has gifted a lot of wealth and property to her wife and is afraid that in divorcing her he would lose all his riches, the Qur'an says that she can forgo some or all of her share and return it to her husband to end the whole affair. Itis clear that this is only an exception and not a general principle as is generally held and practiced. It is allowed when only wealth is the husband's reason for not divorcing hiswife.

 This is the shariah as far as the concept of divorce is concerned. However, as does happen with prescribed laws and procedures, situations arise in which a person is guilty of breaching the law and deviating from the right course. Human nature is prone to extreme emotional conditions in which it deviates from the path set forth by the Almighty. These deviations, it is extremely evident, are not part of the shariah; they fall into breach of law category and it is up tothe legislature of a country to enact laws about such departures. At times, such cases are even left to the discretion of the judge and at other times the judge himself is bound by the legislation done in this regard by the parliament.

In case of divorce, keeping in view various precedents, this

deviation is generally of two types:

i) A husband divorces his wife during her menstrual period, ordivorces her after he has had contact with her in her period of purity.

ii) A husband divorces his wife by pronouncing the divorce sentence thrice.

As far as the first deviation is concerned, an Islamic government can ask the husband to revoke his decision and carry it out in the proper manner at the proper time. The Prophet (sws) in his own times dealt with the case of Abdullahbin Umar (rta) in a similar manner.

In case of the second deviation, a deliberation on the injunctions of divorce, particularly on their linguistic aspects, reveals that there are three possible solutions:

(a) The husband can be called to court and asked to testify tothe nature of these pronouncements: if he testifies that he had pronounced the three sentences in anger to only strongly assert his decision or that he had thought that pronouncing three sentences was the correct procedure of divorce, the court, if satisfied by his statement, can re-unite the husbandand wife. In this case, it shall be clearly spelt out to the husband that he now has exercised one of his three chances to repudiate his wife. If on the other hand, a person testifies that he had consciously uttered the three sentences knowing that he was exercising his three rights in one time, the wife,of course, shall be divorced from him. The case of Rukaana BinAbdi Yazeed (rta) was decided in a similar manner by the Prophet (sws).

(b) A second possible solution in this regard is that a state,while observing that people have adopted a carefree attitude in following this procedure, legislates that three divorce sentences shall be considered as three whether pronounced in anger or in a normal emotional state. A precedent of this

solution can be found in the times of the Caliph 'Umar (rta). He himself, in the capacity of a ruler in consultation with the members of the shura, upon seeing that people had adopted a very careless attitude in this regard, as a punishment, promulgated three divorce sentences as final.

(c) A third possible solution in this regard is that the statewhile observing the fact that people are mostly ignorant of the correct procedure and in their ignorance think that the correct way of divorce is to pronounce the sentence three times, legislates that the three pronouncements shall be considered as one.

Any of these three ways can be adopted keeping in view the welfare of the Muslims. However, in adopting the second or third solutions, it is necessary that a legislation has been done in their favour, but as far as adopting the first solution is concerned, no prior legislation is needed and the matter can be left to the discretion of the judge.

After explaining the Qur'anic concept of divorce and various aspects of legislation in case of any deviation from it, an important issue which must be elaborated upon before we end this article is the fate of the children after divorce. In this regard, it should remain clear that this is basically a matter which has been left to the discretion of the court. Thebasic consideration in this matter is the welfare of the children. The court can decide in favour of the father or mother, depending upon who among them is more beneficial to the children.

1. This testimony, as is evident from the Qur'an, is not a legal requirement. It is only a sound piece of advice for the welfare of the spouses.

2. The only exception to this rule is when the wife is guilty of committing adultery, in which case a husband can take back all the wealth and property gifted to her.

Author: Shehzad Saleem based on Javed Ahmad Ghamidi's interpretation

Topic URL: http://www.studying-islam.org/articletext.aspx?id=611