The Right of Divorce
This is the fourth in a series of articles on marriage. They are taken from the seminar Why Marriage Contracts & Agreements Matter by Shaykh Faraz Rabbani.
The right to divorce is an important matter. There’s Divine wisdom in it, and it serves as a grave test for the husband. Divorce is meant to deter certain actions, but Allah tests us as part of our moral responsibility in this life, to see who acts rightly. Sadly, when most people engage in divorce, they do so in foolish, wrong, and hasty ways.
Benefit
Divorce has many benefits. If two people can no longer remain together in good, and there’s no reasonable expectation of restoring the good, then Allah tells us:
وَعَاشِرُوهُنَّ بِٱلۡمَعۡرُوفِۚ
“Live with them fairly” [Quran 4:19]
أَوۡ فَارِقُوهُنَّ بِمَعۡرُوف
“Or leave them fairly” [Quran 65:2]
The Default
How does a woman get out of a harmful situation? By default, if a woman seeks a divorce, she would either ask for a divorce, and the husband agrees, or he could agree to Khul’. If the husband is abusive, he has no right to demand the Mahr back or not pay the Mahr. If the husband demands it back while in the wrong, then that money would be sinful for him. He would have to return it.
If the Khul’ takes place because the woman is the one not fulfilling her rights, then she can repay the Mahr. Ultimately, the man has to agree to the Khul’. In the absence of the societal preservation of her right, a woman can have the right to divorce (such as the absence of functioning Shar‘i courts).
A Woman’s Right of Divorce
The right of divorce can be specified for a woman if she chooses for it to be specified. This specification can either be by asking for it or agreeing to it at the time of marriage or after.
If a couple frequently fights, it doesn’t mean they get divorced. They ought to restore the good. There are options that can be considered, such as seeking separation or counseling, etc. However, if there is no reasonable hope of restoring the good, then divorce is a viable option.
There are religious councils that conduct annulment (Faskh), these bodies will need proof and have to follow a protocol. But also, these religious institutions are underfunded, and the institutions are weak, so where reasonable recourse is not possible, one can specify the right of divorce.
A Conditional or Unconditional Right
The woman may seek an unconditional right of divorce, or she could mention it with agreed-upon conditions (which are put in writing). As for the unconditional right of divorce, when the woman chooses to exercise it, it counts. But as for the conditional right of divorce, if any stipulated condition is not met or if any particular things happen, the woman can exercise the right of divorce.
A woman can stipulate the right of divorce on anything that’s within the realm of the permissible. For example, an active sister in the community since childhood could mention if she is prevented from pursuing Islamic Studies or from being active in the community, without neglecting her duties as a wife, that she will exercise the right of divorce.
Conditions
One shouldn’t be trigger-happy with divorce, such as saying if you don’t cook for me I will divorce you, but there are certain significant conditions that one would seek to utilize their right of divorce.
- In the case of abuse. A woman could stipulate her right to divorce in the written contract if there’s clear physical or non-physical abuse. Now, there’s a difference between a mistake and abuse. It is wrong to allow oneself to remain in a situation of abuse Islamically. Even when exercising the right of divorce, one gets out of a situation of harm because what happened once will happen again.
- Consistent non-provision. Say, the husband gives his whole paycheck to his parents and does not provide for his wife. It is pertinent to know the Islamic limits of reasonable provision as some people may be very negligent. A practical solution is the husband giving a monthly amount to the wife, and what she does with her monthly payment is up to her.
- The disappearance of the husband. This could be a contingent disappearance such as jail. Or it could apply when the husband decides to move abroad and there is no contact. If one specifies the conditional right of divorce here, one could just pronounce it alone in a room.
- Any other agreed-upon terms. These terms could be in the marriage agreement. Practically, one should use a good marriage contract template for the reasons that have been mentioned. It’s good to consult experienced expert scholars.
Conclusion
A woman may request a right to divorce which can help her in cases where a significant issue arises. Divorce should not be something to take lightly, but certain considerable expectations may not be met. One way that a couple could make their expectations clear is by utilizing a marriage agreement which will be the subject of the following article.
