Jurisprudence Made Easy

Dialogue on divorce

Allah Almighty hates divorce. Traditions discouraging divorce abound. It has been narrated from Imam Ja’far as-Sadiq (a.s.), “There is nothingmore hateful to Allah, the Exalted, than divorce”. The Imam (a.s.) wasalso quoted as saying, “Marry and do not divorce your wives, for divorcecauses the Throne to rock”.

* Is it that abhorrent?

- Yes, and to keep abreast with the rules of divorce, I am going to outlinethe conditions that should be fulfilled so that divorce can be deemed valid.

The party who is filing for divorce must be adult, sane, and have freewill. That is, a divorce coming from a boy, the insane, or one who is underduress is invalid.

The intent, by either or both parties, to go their own separate ways. That is, the divorce shall not be in order when it is done in jest, inadvertently,or by someone who is not able to discern what it means to divorce one’spartner.

* What is the formal wording of divorce?

- Divorce shall not be enforced, unless a particular procedure is followed. The formal wording of divorce should be recited in Arabic, for those whocan speak the language, in the presence of two witnesses of impeccable character.

The husband may utter the following, “My wife - mentioning her name - ishereby divorced”. If she is present, he could say to her, “You are divorced”. If there is a proxy acting on behalf of the husband, he could say, “Thewife of my mandator - stating her name - is hereby divorced”. There andthen, divorce becomes a reality.

* Is it compulsory to mention the name of the wife?

- No, it is not necessary, if she is known, identifiable, and the husbanddoes not have any other wife beside her.

However, divorce cannot be carried out, unless the wife is free from haydhor nifas, except for a wife in a marriage that was not consummated, a pregnantwoman, and some cases of absent husbands. The husband is not permittedto divorce his wife, who was tahir of haydh, after having a sexual intercoursewith her; he should wait until she had her next haydh and become tahirthereof. Only then can he divorce her.

In a temporary marriage there shall be no divorce. Instead, the expirationof the agreed duration of marriage heralds the end of the relationship. If separation is sought before the end of the duration of marriage, thehusband can grant the wife the remaining period by saying, “I grant youthe remaining period”.

The validity of granting the remaining period does not warrant the presenceof witnesses, nor does it require the woman to be tahir from a haydh ornifas.

A divorced wife who has not attained menopause, after the marriage wasconsummated, should observe a waiting period from the date the divorce waspronounced, not from the date the news of the divorce was broken to her.

The waiting period for a non-pregnant woman is three menstrual periods. The duration between the divorcee and menstruation is considered one period,irrespective of whether it was short.

* Does this mean that the period of waiting of a divorced woman ends assoon as the third menstruation occurs?

- Yes, that is correct.

* What about the waiting period of a divorced pregnant woman?

- The waiting period of a divorced pregnant woman is the duration of herpregnancy, irrespective of whether it was full, culminating in birth, orpremature or still birth.

* Is it the case, even she gave birth to her baby one day after the divorcewas announced?

- Yes, even if her giving birth took place one hour after she was divorced,provided that the born baby is the offspring of her ex-husband, i.e. notillegitimate.

* Should the woman, who was a party to a temporary marriage, observe awaiting period, after separating from her husband?

- Yes, if she was adult, of a menopausal age, not pregnant, and her marriagewas consummated, the waiting period is [two menstrual periods], for thewoman who still has a period, and forty five days for her whose period hasstopped due to illness or any other reason.

As for divorce, which is the prerogative of the husband, it is of two kinds- irrevocable and revocable.

In an irrevocable divorce, the husband may not return to his divorced wife,without a new marriage contract.

In a revocable one, the husband may return to his wife without the needof a new contract or dowry, so long as she was still in her waiting period.

Of the types of irrevocable divorce is (khal’ie), i.e. at the instanceof the wife, who must pay a compensation to the husband. It is the caseof a wife who is unhappy with her husband, so much so that she resorts tothreatening that she will not grant him his matrimonial rights. This khali’edivorce can come about when the wife is determined to end the marriage. She can address the husband thus, “I absolve you of paying my dowry, providedthat you part company with me”. The husband can reply, in Arabic and inthe presence of two witnesses of unblemished character, “My wife, -statingher name- is divorced in return for the compensation she offered”, or “Xis divorced in return for - x - amount”.

* Do you have to mention the name of the wife here?

- If she was identifiable, i.e. being the only wife for instance, youmay choose not to mention her name.

* Is it all right if the compensation offered to the husband is anythingother than the dowry?

- Yes, it is in order.

* Can man and wife appoint proxies to carry out the divorce procedure?

- Yes, they can.

* In some cases, the absent husband’s whereabouts are not known and itcannot be ascertained as to whether he is alive, can the wife divorce him?

- The wife has the right of recourse to the Marji’. In such a case hewould normally request that every effort should be made to trace the absenthusband. This could take the best part of four years. The investigationperiod may yield nothing of substance regarding the husband’s whereaboutsor fate. The other course of action, that must be exhausted, is if thehusband has any property the marriage can still be salvaged by providingmaintenance for the wife. If he has an agent, he should provide for thewife. If neither is forthcoming, the Marji’ could instruct the agent togrant her a divorce. In the event of the agent refusing to comply, or thehusband having no agent, the Marji’ can pronounce her divorced.

* If the husband was imprisoned for life, and thus not in a position tomaintain his wife, but was insistent on not divorcing her, what will happen?

- She could approach the Marji’. He would contact the husband to instructhim to grant his wife a divorce. Should he choose not comply, and it wasnot feasible to force him to do so, the Marji’ could pronounce her divorced.