In the name of Allāh, Most Gracious, Most Merciful

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Divorce/ Ṭalāq

 .بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ

DISSOLUTION OF NIKĀḤ (MARRIAGE)

Note that divorce and ṭalāq are not synonymous. However, the word divorce is often used to refer to ṭalāq.

In Islāmic law marriage can be terminated in a number of ways. The dissolution of the marriage may be initiated by the husband, by the wife, by mutual agreement or by a judge (court of law). For the purposes of inheritance, it is necessary to determine if the martial tie has been completely severed or not.

Dissolution of marriage can be categorised in the following manner:

  1. Dissolution by the husband:

       Ṭalāq 

       Īlāʾ

       Ẓiḥār

       Liʿān

2. By mutual consent:

      Khulʾ

      Mubāraʾa

3. By the Judge (Court of Law):

      Faskh

     (Liʿān)

Under certain circumstances the wife may be in a position to dissolve a marriage, thus:

4. Dissolution by the wife:

      Option of puberty

      Delegation of power to pronounce ṭalāq given to her by the husband

 

AL-ṬALĀQ (DIVORCE)

  • Ṭalāq (divorce) is the dissolution of the marriage contract by prescribed formulae.
  • Divorce and ṭalāq are not exactly the same. Divorce is a judicial procedure whereas ṭalāq is extra-judicial. The term divorce has been used here to refer to ṭalāq.
  • Ṭalāq can be classified in a number of ways:

     Ṭalāq al-Sunna  v  Ṭalāq al-Bid‘a

    Ṭalāq al-Rajʾī  v  Ṭalāq al-Bā’in  v  Ṭalāq al-Mughallaz

  • Ṭalāq al-Sunna is the method approved by the Prophet Muḥammad (). It is important from a religious perspective as Muslims wish to live their lives according to the Sunna of the Prophet (). For the purposes of inheritance, we are interested primarily in determining if the marriage contract has been extinguished or not, for this purpose we are interested when ṭalāq becomes irrevocable[1].

 

alāq al-Sunna v Ṭalāq al-Bida

  • All scholars agree that a single pronouncement of ṭalāq during the wife’s period of ṭuhr (purity, i.e. when she is not menstruating) and the husband has not had sexual intercourse with her during that period of purity followed by completion of the waiting period (‘idda) is ṭalāq al-sunna. The scholars disagree about other forms of ṭalāq whether they constitute ṭalāq al-sunna or not.
  • Amongst the Ḥanafī scholars the view is that the difference between ṭalāq al-sunna and ṭalāq al-bid‘a is that of irrevocability. So a triple ṭalāq in one sitting or a single ṭalāq pronouncement indicating it to be irrevocable (bā’in) are both forms of ṭalāq al-bid‘a. These details are not necessary for the ordinary person to know about. The customised Muslim marriage contract generated on FreeIslāmicWill.com© allows the prospective couple the option that the husband will pronounce ṭalāq al-sunna as detailed above should he ever need to.

 

Delegation of alāq (Takhyir, Tamlīk, Tafwīḍ al-ṭ alāq)

  • The right to pronounce ṭalāq lies exclusively with the husband [2]; he can delegate this right to his wife (tafwīḍ), he can transfer this power (tamlīk) or let the wife choose (takhyir). The power to pronounce ṭalāq can be delegated to a third party as well.
  • Tafwīḍ al-ṭ alāq, the delegation of power to the wife to pronounce ṭalāq means that she can pronounce independently without having to depend on any other authority or any set of circumstances. There has been considerable debate on a number of issues regarding delegation of such power. The key issues include, whether delegation is revocable or not; how long the delegation should last; whether the husband was delegating one or more ṭalāq. The Ḥanafī scholars grant the woman the most power, so that the husband cannot withdraw it, thereby making the delegation permanent, and allowing three ṭalāq or a finality of ṭalāq. The Ḥanafī scholars considered tafwīḍ as the complete transfer of power rather than power of attorney (tawkīl). However, legal actions such as tafwīḍ and tamlīk are limited to the session (majlis) in which they are discussed, and expire once the couples part company, or even when the subject of conversation is changed. This problem was solved by extending the delegation beyond the session in to the indefinite future using appropriate verbal formulae to convey the intention of the husband. “Divorce yourself whenever you like.” “You are divorced as many times as you like.” 

 

The customised Muslim marriage contract generated on FreeIslāmicWill.com© allows the prospective couple the option of including the following condition, "The husband pledges to delegate his power of ṭalāq (divorce) to his wife permanently and irrevocably in the form of tafwīḍ al- ṭalāq such that she may pronounce ṭalāq upon herself."

 


[1] Under certain circumstance a woman can inherit even when the ṭalāq is irrevocable if it is pronounced in a state of death sickness (marḍ al-mawt).

[2] Similarly, in Jewish law only the husband can grant a divorce (ghet; גט) to his wife and he must do this willing. The Jewish religious court cannot terminate a marriage if the husband refuses to grant divorce.