Divorce in Islam
Divorce according to Islamic law can occur in a variety of forms, some initiated by a husband and some by a wife. The main categories of Islamic customary law are talaq, khulʿ and faskh. Historically, the rules of divorce were governed by sharia, as interpreted by traditional Islamic jurisprudence, though they differed depending on the legal school, and historical practices sometimes diverged from legal theory.
In modern times, as personal status laws have been codified in Muslim-majority states, they generally have remained "within the orbit of Islamic law", but control over the norms of divorce shifted from traditional jurists to the state.
Quranic principles
According to the Quran, marriage is intended to be permanent, as indicated by its characterization as a "firm bond" and by the rules governing divorce. The relationship between the spouses should ideally be based on love and important decisions concerning both spouses should be made by mutual consent. When marital harmony cannot be attained, the Quran allows spouses to bring the marriage to an end, although this decision is not to be taken lightly, and the families of the spouses are called upon to intervene by appointing arbiters to attempt a reconciliation. The Quran also sets waiting periods to discourage hasty divorces. For a menstruating woman, the waiting period before the divorce is finalized, as three monthly periods. For post-menopause women and non menstruating women, the waiting period is three months. This is to ensure the woman is not pregnant and thus guarantee the paternity of future children she may have with her next husband, and to give the husband time to reconsider his decision. Moreover, a man who vows not to have sexual intercourse with his wife, which would lead to automatic divorce, is allowed a four-month period to break his oath.The Quran substantially reformed the gender inequity of divorce practices that existed in pre-Islamic Arabia, although some patriarchical elements survived and others flourished during later centuries. Before Islam, divorce among the Arabs was governed by unwritten customary law, which varied according to region and tribe, and its observance depended on the authority of the individuals and groups involved. In this system, women were particularly vulnerable. The Quranic rules of marriage and divorce provided a fixed set of norms for all Muslims, backed by divine authority and enforced by the community. The early Islamic reforms included giving the wife a possibility to initiate divorce, abrogation of the husband's claim to his wife's property, condemnation of divorce without compelling reason, criminalizing unfounded claims of infidelity made by the husband, and institution of financial responsibilities of the husband toward his divorced wife. In pre-Islamic times, men kept their wives in a state of "limbo" by continually repudiating them and taking them back at will. The Quran limited the number of repudiations to three, after which the man cannot take his wife back unless she first marries another man. Additionally, the pre-Islamic bridewealth, which was paid by the groom to the bride's family, was transformed into a dower, which became property of the wife, though some scholars believe that the practice of giving at least a part of the mahr to the bride began shortly before the advent of Islam.
The subject of divorce is addressed in four different surahs of the Quran, including the general principle articulated in 2:231:
Classical sharia
Legal context
Classical Islamic law is derived from the scriptural sources of Islam using various methodologies developed by different legal schools. It was historically interpreted by jurists who were expected to give a legal opinion free of charge in response to any query. Family disputes are handled in a religious courts presided over by a judge who had enough legal education to decide some legal questions and queried a mufti if faced with a difficult legal issue. The judges were active members of the local community and were also involved in informal arbitration, which was the preferred method of resolving disputes. In court proceedings, they mediated between the letter of the law and exigences of the local social and moral concerns, with the overarching aim of ensuring social harmony. Actual legal practice sometimes deviated from the precepts of the legal school that was dominant in the area, at times to women's benefit and at times to their disadvantage. Members of all social classes and their witnesses argued their cases in court without professional legal representation, though members of the upper class generally did so through a representative. Women were commonly involved in litigation, usually as plaintiffs, were assertive in arguing their cases, and they were often treated sympathetically by the judge. According to legal doctrine, a woman's testimony in some areas of law carried half the weight of that of a man, though available evidence suggests that practical effects of this rule were limited and the legal standing of women in pre-modern Islam was comparable to or higher than that of their European contemporaries.Talaq (repudiation)
Jurisprudence
The term talaq is commonly translated as "repudiation" or simply "divorce". In classical Islamic law it refers to the husband's right to dissolve the marriage by simply announcing to his wife that he repudiates her. Classical jurists variously classified pronouncement of talaq as forbidden or reprehensible unless it was motivated by a compelling cause such as impossibility of cohabitation due to irreconcilable conflict, though they did not require the husband to obtain court approval or provide a justification. The jurists imposed certain restrictions on valid repudiation. For example, the declaration must be made in clear terms; the husband must be of sound mind and not coerced. Upon talaq, the wife is entitled to the full payment of mahr if it had not already been paid. The husband is obligated to financially support her until the end of the waiting period or the delivery of her child, if she is pregnant. In addition, she has a right to child support and any past due maintenance, which Islamic law requires to be paid regularly in the course of marriage.Giving the husband a prerogative of repudiation was based on the assumption that men would have no interest in initiating a divorce without good cause, given the financial obligations it would incur. Additionally, classical jurists were of the opinion that "the female nature is wanting in rationality and self-control". Requiring a justification was seen as being potentially detrimental to the reputation of both spouses, since it might expose family secrets to public scrutiny.
Talaq is considered in Islam to be a reprehensible means of divorce. The initial declaration of talaq is a revocable repudiation which does not terminate the marriage. The husband can revoke the repudiation at any time during the waiting period which lasts three full menstrual cycles. The waiting period is intended to give the couple an opportunity for reconciliation, and also a means to ensure that the wife is not pregnant. Resumption of sexual relations automatically retracts the repudiation. The wife retains all her rights during the waiting period. The divorce becomes final when the waiting period expires. This is called a "minor" divorce and the couple can remarry. If the husband repudiates his wife for the third time, it triggers a "major" divorce, after which the couple cannot remarry without an intervening consummated marriage to another man. This is known as tahlil or nikah halala. Making the third pronouncement irrevocable prevents the husband from using repeated declarations and revocations of divorce as a means of pressuring his wife into making financial concessions in order to "purchase her freedom". It also acts as a deterrent to rash repudiations.
Practice
Women often entered marriage with substantial capital in the form of mahr and the trousseau provided by their family, which they were not obliged to spend on family expenses, and they frequently loaned money to their husbands. Because of this, and the financial obligations incurred, talaq could be a very costly and in many cases financially ruinous enterprise for the husband. Many repudiated women used the divorce payment to buy their ex-husband's share in the family house. In the historical record talaq appears to have been less common than khul'.Available evidence from Mamluk Egypt indicates that talaq was not the principal means of divorce. Talaq was considered to be disastrous for the woman because it deprived her of long-term protection and financial support, preventing her from remarrying, since this would cause her to lose child custody. This led to repudiation without good reason being considered socially improper. Studies of the Ottoman Levant showed that women could invalidate a declaration of talaq by stating that the husband had shown signs of "diminished rationality" when he made it, while others used a husband's unrevoked declaration of talaq to obtain divorce at a later date if they could prove that he made it.
''Talaq al-bid'ah'' and triple talaq
Talaq types can be classified into talaq al-sunnah, which is thought to be in accordance with Muhammad's teachings, and talaq al-bid'ah, which are viewed as a bid'ah deviations from it. Talaq al-sunnah is further subdivided into talaq al-ahsan, which is the least disapproved form of talaq, and talaq al-hasan. The ahsan talaq involves a single revocable pronouncement of divorce and sexual abstinence during the waiting period. The hasan divorce involves three pronouncements made during the wife's state of ritual purity with menstrual periods intervening between them, and no intercourse having taken place during that time.In contrast to talaq al-sunnah, talaq al-bid'ah does not observe the waiting period and irrevocably terminates the marriage. It may involve a "triple talaq", i.e., the declaration of talaq repeated three times, or a different formula such as "you are haram for me". Some legal schools held that a triple talaq performed in a single meeting constituted a "major" divorce, while others classified it as a "minor" divorce. Talaq al-bid'ah reflects pre-Islamic divorce customs rather than Quranic principles, and it is considered to be a particularly disapproved, though legally valid form of divorce in traditional Sunni jurisprudence. According to Islamic tradition, Muhammad denounced the practice of triple talaq, and the second caliph Umar punished husbands who made use of it.
Shiite jurisprudence does not recognize talaq al-bid'ah.