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Women’s right to divorce

Question: Why is it that a man can independently and unilaterally divorce his wife, while a woman can only get a divorce with his agreement or through legal intervention?

Answer:

Wa alaykum assalam wa rahmatullahi wa barakatuh,

Dear questioner,

Thank you for your important question.

The reason why Allah has given different rights and responsibilities to men and women is that men and women are physically and emotionally different.

Allah has said in the Quran, ‘Men are in charge of women because We have given more to some than others.’ (Qur’an, 4: 34)

Please see:

https://seekersguidance.org/answers/general-counsel/can-muslim-women-be-imams-are-women-equal-to-men-in-islam/

Generally speaking, men can independently enter and exit a marriage, while generally speaking women cannot independently enter and exit a marriage. This is not to harm women, but to protect them. The need to protect women is something recognizable to many people who have lived life and is demonstrable by the differences between men and women.

In the case of genuine physical or emotional harm, she can exit the marriage. But in order to be fair, there has to be some kind of greater legal authority to judge whether or not there is genuine physical or emotional harm. (Hashiya al Dasuqi)

I pray this helps.

[Shaykh] Farid

Checked and Approved by Shaykh Faraz Rabbani

Ustadh Farid Dingle has completed extensive years of study in the sciences of the Arabic language and the various Islamic Sciences. During his studies, he also earned a CIFE Certificate in Islamic Finance. Over the years he has developed a masterful ability to craft lessons that help non-Arabic speakers gain a deep understanding of the language. He currently teaches courses in the Arabic Language

 

 

Mortgage and Divorce

Answered by Shaykh Salman Younas

Question: Assalam aleykum

My ex husband and I put money together to buy a house. We did a mortgage and had to put each a down-payment. We bought a house then he made the payments for the monthly mortgage.I took care of all the bills for the house including feeding. Now we are divorcing and I would like to know what is the fair way to deal with the house.

Answer: In the Name of Allah, Most Merciful and Compassionate

assalamu alaykum

This is a difficult question for which I currently do not have a conclusive legal answer.

However, even in the absence of a clear shariah legal position regarding the division of assets in such cases, what I would advise you and your ex-husband is to reach an amicable and fair settlement (sulh). This should take into account both of your contributions – whether financial or otherwise – to your home, its purchase, and maintenance.

Engaging in an amicable settlement in cases of dispute is praised by Allah who says, “If a woman fears ill treatment or aversion from her husband, then, there is no sin on them in entering into an amicable settlement between themselves. Settlement is better. Although human souls are prone to selfishness, if you do good and are mindful of God, He is well aware of all that you do.” (Qur’an, 4:128)

This is the recommended way forward when it comes to matters of dispute. It may require involving people who have legal expertise and can fairly adjudicate the matter, but it should be the first step one takes in such situations.

[Shaykh] Salman Younas

Checked and approved by Shaykh Faraz Rabbani

Shaykh Salman Younas  graduated from Stony Brook University with a degree in Political Science and Religious Studies. After studying the Islamic sciences online and with local scholars in New York, Ustadh Salman moved to Amman where he spent five years studying Islamic law, legal methodology, belief, hadith methodology, logic, Arabic, and tafsir. He is currently a PhD candidate at the University of Oxford and continues his traditional studies with scholars in the United Kingdom.

Saying “I Divorce You Thrice”

Answered by Ustadha Shazia Ahmad

Question: Assalamu alaykum

My wife and I have issues; her father sides with her and doesn’t try to solve the problems between us. Unfortunately I said to her once, “I divorce you“. Then I forgave her and asked that she came back home. Her dad refused to let her return and he argued with my brothers whom I sent to bring her back home. Later I called him to ask why, and he said he was angry with me because I told my wife to come back before 8 pm. He kept yelling at me and he provoked me, so I said to him instantly with one phrase, “in fact since you are taking your daughter to be special, I divorce her thrice“. This is in addition to the first divorce from the other day. Am I still married?

Answer: Assalamu alaykum brother,

I am saddened to see that you were not able to reconcile with your wife especially since you tried to bring her back home.

First, I must inform you that when you divorced your wife for the first time, it was not permissible for her to leave her home. Her waiting period (`iddah) should have taken place in her home, where the divorce took place, and you should have left. “A woman in her waiting period is obliged to remain in the home (O: and neither the husband nor his family may force her out; nor may she leave. If the husband agrees to allow her to leave when there is no necessity, it is still not permissible). [The Reliance of the Traveller, p.569]

If this rule of shari`ah had been applied, you would not find yourself in this predicament. I only say this to demonstrate that you must take a course in personally obligatory Islamic knowledge, and an Islamic marriage course before you intertwine your life with someone else’s.

As for your proclamation of divorce, the words used were plain (not allusive) and with your explicitly stating “thrice“, the divorce has been finalized. You may not marry her again, unless she were to marry another and then end that marriage, first.

May Allah give you tawfiq and help you succeed with a happy family life. Please the links below for much more excellent information on the topic.

Shazia Ahmad

Has My Husband Divorced Me?
Do These Sentences Uttered by My Husband Count as a Divorce? (Shafi’i)
Have I Divorced My Wife?
Is Pronouncing ‘Talaq’ in Anger Valid?

Wassalam,
[Ustadha] Shazia Ahmad

Ustadha Shazia Ahmad lived in Damascus, Syria for two years where she studied aqidah, fiqh, tajweed, tafseer and Arabic. She then attended the University of Texas at Austin, where she completed her Masters in Arabic. Afterwards, she moved to Amman, Jordan where she studied fiqh, Arabic and other sciences. She recently moved back to Mississauga, Canada, where she lives with her family.

Divorce and Abuse

Answered by Shaykh Jamir Meah

Question: Assalamu alaykum

I know that typically the views about women initiating divorce might be more limiting and men have greater permissions to initiate divorce. However, if a husband repeatedly over a duration of time expresses an intent to divorce once a certain condition occurs, is it within the realm of acceptability for a wife to initiate the legal process of divorce (either before or after that condition occurs)? Has the husband actually effectuated divorce by stating many times under calm conditions that he does not have an intention to remain married?

I love my spouse and don’t like this option, and I’ve been really patient hoping for an intention to change of heart or a willingness to seek help through an imam or a counselor, but there is no shared willingness to work things out.

Answer: Assalam ‘alaykum. I’m sorry to hear about your situation between you and your husband. May Allah grant you patience and steadfastness.

First let’s deal with the fiqh aspect of your question. It is not clear from the information you have given what the conditional statement of divorce is. What I have understood is the following, with the related rulings:

1. Your husband has said that he ‘does not have an intention to remain married’. This would be considered a promise or threat of divorce, but not an actual divorce.

2. Your husband has conditioned your divorce by a specific time, meaning when that time enters, divorce occurs. If this is the case, then whatever number of divorces he has made dependent, will automatically take effect upon the entrance of the specified time.

Where to go from here

Given the above, there is really nothing for you do to in regards initiating the conditioned divorce, as it will automatically occur when the time it is conditioned upon enters.

In terms of initiating a divorce before the time occurs, the only option you have is to either initiate a new and separate divorce, either by a) asking him to issue you a divorce now, which will take effect immediately, or b) seek a khul’a agreement, a divorce in exchange for remuneration, which will end your marriage contract immediately, and means he cannot take you back except via a new marriage contract, should you desire to enter into marriage with him again. Given your situation, there is nothing wrong with you pursuing either of these options.

It is sad that your husband does not seem to want to fix the marriage or stay married, nor seek outside help. At this point, as hard as it may be and despite the love for your husband, you need to think about yourself, your own happiness and emotional needs, and if you have children, their happiness and stability.

I would suggest asking your husband one more time to get help, marriage counselling, or any other means to salvage your marriage. However, if he shows no willingness, then start thinking about your next step and how you will move forward in your own life.

I hope you have family and friends who can help you through this and support you during these difficult times. If not, then do explore what local support services are available to you, including financial support.

May Allah grant you all the best, and if you ask, then ask Him to provide for you, and take solace in Him when things get difficult. Please feel free to follow up if you need.

Warmest salams,
[Shaykh] Jamir Meah

Counselling disclaimer: This answer has been written specifically for this questionner. Please consult a local scholar or ask us your question if you are experiencing similar issues.

Shaykh Jamir Meah grew up in Hampstead, London. In 2007, he traveled to Tarim, Yemen, where he spent nine years studying the Islamic sciences on a one-to-one basis under the foremost scholars of the Ribaat, Tarim, with a main specialization and focus on Shafi’i fiqh. In early 2016, he moved to Amman, Jordan, where he continues advanced studies in a range of Islamic sciences, as well as teaching. Jamir is a qualified homeopath. 

Divorce and Oath

Answered by Shaykh Abdurragmaan Khan

Question: Assalam alaykum,

If before marriage Zaid takes an oath that after
marriage if he utters any word it will count as a divorce, will his wife be divorced if utters any word according to Shaf’i fiqh?

Answer: Assalamu alaykum

Shukran for your question.

The Messenger of Allah (peace & blessings be upon him) said, “There is no divorce prior to marriage” [ibn Majah and others]. Accordingly, Shaf’i scholars amongst other schools of fiqh, held that divorce would not be valid in the instance where a man, prior to marriage pronounces that any lady that he marries, is divorced. Similarly, they opined, that the divorce will not be valid when he addresses a specific lady saying to her, “If I marry you, you are divorced”. [Iqna’]

Explaining the reasoning behind the non-occurrence of these divorces, Imam al-Shafi’i said, “because the utterance that holds the ruling (of divorce) emenated from one that did not own (the right) of divorce.” [Kitab al-Umm]

Accordingly, the divorce of Zayd in the question above will not occur if he was to marry and then utter words. This is so, because he pronounced a divorce while he was not entitled to issue one.

And Allah knows best
Wassalam
[Shaykh] Abdurragmaan Khan

Shaykh Abdurragmaan
received ijazah ’ammah from various luminaries, including but not restricted to: Habib Umar ibn Hafiz—a personality who affected him greatly and who has changed his relationship with Allah, Maulana Yusuf Karaan—the former Mufti of Cape Town; Habib ‘Ali al-Mashhur—the current Mufti of Tarim; Habib ‘Umar al-Jaylani—the Shafi‘i Mufti of Makkah; Sayyid Ahmad bin Abi Bakr al-Hibshi; Habib Kadhim as-Saqqaf; Shaykh Mahmud Sa’id Mamduh; Maulana Abdul Hafiz al-Makki; Shaykh Ala ad-Din al-Afghani; Maulana Fazlur Rahman al-Azami and Shaykh Yahya al-Gawthani amongst others.

Divorce and Conversion to Islam

Answered by Shaykh Abdurragmaan Khan

Question: Assalam alaykum,

My wife and I married as Christians, and we
have several children. I converted to Islam . She just filed for divorce primarily because she is opposed to Islam. I don’t want to divorce her, but that
makes no difference to the government. Where can I find detailed
guidance on my responsibilities under Islam and Ihsan during and after
this process, as well as what effect a secular divorce has on the
status of my marriage?

Answer: Wa alaykum al-Salam

Thank you for your question. May Allah bring ease and subtleness in all your affairs, Amin.

Your marriage with your Christian wife – provided it was considered valid according to the dictates of Christianity – remains valid after your conversion to Islam [1]. The divorce she applied for at a secular court will have no bearing on the validity of the nikah according to Islamic Law.

Further, it is unclear whether (1) your wife wishes to move out; (2) she wants you to move out; or (3) she’s willing to continue living with you. In cases one and two, it would be best not to engage in any type of conflict, and to fulfill her wishes, while not severing ties altogether. In case three, Islamically, you may continue living with her as she is still considered your wife. In all cases, it is incumbent that you show her kindness, compassion, and understanding. Your actions and interaction with her may be key in calling her to Islam and its beauty.

May Allah guide you in your actions and sayings. May He guide your wife to Islam and bless you both with happiness and contentment, Amin.

[1] This would only be the case – when strictly following the Shafi’i school – if your wife is an Israelite or her family embraced Christianity prior to the council of Nicea in 325. However, according to other schools, the above is not a requirement.

And Allah knows best

Wassalam
[Shaykh] Abdurragmaan Khan

Shaykh Abdurragmaan
received ijazah ’ammah from various luminaries, including but not restricted to: Habib Umar ibn Hafiz—a personality who affected him greatly and who has changed his relationship with Allah, Maulana Yusuf Karaan—the former Mufti of Cape Town; Habib ‘Ali al-Mashhur—the current Mufti of Tarim; Habib ‘Umar al-Jaylani—the Shafi‘i Mufti of Makkah; Sayyid Ahmad bin Abi Bakr al-Hibshi; Habib Kadhim as-Saqqaf; Shaykh Mahmud Sa’id Mamduh; Maulana Abdul Hafiz al-Makki; Shaykh Ala ad-Din al-Afghani; Maulana Fazlur Rahman al-Azami and Shaykh Yahya al-Gawthani amongst others.

Struggling to Find a Spouse After a Divorce.

Answered by Shaykh Farid Dingle

Question: Assalamu alaykum

I have been divorced 5 years ago. Now I am struggling to find a spouse. I have prayed and tried everything. How do I make it better? How to get my peace back?

Answer: Assalamu alaykum wa rahmatullahi wa barakatuh,

Dear questioner,

You just have to keep making dua, and trying different suitors. Make sure you don’t get too picky yourself.

Ibn Ata Allah said, ‘May it lessen off you the pain of your affliction that fact that it is He (glorified beyond description) who is trying you with it.’

You have to see Allah before and after the difficulty. You have to look to how it can be improving you inwardly and what afflictions and problems He is saving you from.

Always look to those who are worst off than you. The Prophet (Allah bless him and grant him peace) said, ‘Look at those who are worse off than you and do not look at those who are better off, for this will keep you from belittling Allah’s favour to you.’ [Al-Bukhari and Muslim]

Please also have a read of the following answer.

I pray this helps.

Wassalam,
[Shaykh] Farid Dingle

Shaykh Farid Dingle grew up in a convert family in Herefordshire, UK. In 2007, he moved to Jordan to pursue traditional studies. Shaykh Farid continues to live in Amman, Jordan with his wife and kids. In addition to continuing his studies he teaches Arabic and several of the Islamic sciences.

Shaykh Farid began his journey in sacred knowledge with intensives in the UK and Jordan (2004) in Shafi’i fiqh and Arabic. After years of studying Arabic grammar, Shafi’i fiqh, hadith, legal methodology (usul al-fiqh) and tafsir, Sh. Farid began specializing in Arabic language and literature. Sh. Farid studied Pre-Islamic poetry, Umayyad, Abbasid, Fatimid, and Andalusian literature. He holds a BA in Arabic Language and Literature and continues exploring the language of the Islamic tradition.

In addition to his interest in the Arabic language Shaykh Farid actively researches matters related to jurisprudence (fiqh) which he studied with Shaykh Hamza Karamali, Shaykh Ahmad Hasanat, and continues with Shaykh Amjad Rasheed.

How Can I Protect Myself from Uttering a Divorce in Anger?

Answered by Ustadh Tabraze Azam

Question: Assalam alaykum

Inshallah this year I should be getting married and something I am very worried about is verbal divorce. I am scared that perhaps in a state between wakefulness and sleep that I might utter something I don’t mean or that I might say a statement of divorce inadvertently in anger. Would it be permissible for me to stipulate in my marriage contract that I am not allowed to conduct a verbal divorce and must instead conduct it in writing format? And if not, are there any ways I can avoid a divorce I don’t want to happen?

Answer: Wa alaikum assalam wa rahmatullah,

Congratulations on your upcoming wedding. May Allah Most High make it a means of joy and blessings in this life before the next. Amin.

No, you cannot revoke your right to divorce your wife verbally. But you should train yourself to avoid mentioning the word in the presence of your wife, except when it is clearly required. Don’t pay attention to misgivings.

As for divorcing her whilst asleep, it would not count because you aren’t considered to be legally responsible for your actions whilst you are sleeping. If you are referring to a hypnagogic state, and if possible to speak at this time, the same ruling would generally appear to apply because you aren’t entirely with your senses and experiencing reality. However, you should always consult a reliable scholar regarding such matters because they are often very sensitive.

Divorce in Anger

Anger, on the other hand, is inexcusable, and almost inevitably counts as an effective divorce. In a tradition (hadith) recorded by Imam Nawawi as one of the most central traditions in Islam, the Beloved Prophet (Allah bless him and give him peace) instructs a Companion (sahabi), “Don’t get angry.” (Bukhari) Certainly, there is a place for anger in religion, namely, that which is for Allah Most High, but not misplaced anger or that which is for merely selfish interest. If you fear divorcing your wife in some burst of anger, you need to work on your gracious character and realise your role of being a caretaker (qawwam) more fully.

If there is marital discord which is regularly reaching argumentative levels, without any signs of complete resolution, there is a problem which needs to be immediately addressed. Many people fall into unwanted situations of divorced and otherwise because they couldn’t control their words and anger, and the Sacred Law (shari‘a) cautions husbands, in no uncertain terms, about the harms of abusing their station of “caretaking.” Ask Allah Most High to grant you the ability to fulfil the rights of your spouse, and to remain cool-headed in difficult times.

Finally, it is important to remember that we are responsible for our words, whether we approve of them or not. “Are we responsible for what we say?” (Tirmidhi), asked our Master Mu’adh (may Allah be well-pleased with him). The prophetic response was in the affirmative. So a lie is a lie, an oath is an oath, and, here, divorce is divorce even if you would like to change its applicability with respect to you. If you are suffering from misgivings, I’d suggest you seek some professional help, if necessary, as such thoughts are unhealthy and you have time to resolve them before your wedding. May Allah Most High grant you ease and facilitation.

(Haskafi/Ibn ‘Abidin, Radd al-Muhtar ‘ala al-Durr al-Mukhtar; Abyani, Sharh al-Ahwal al-Shakhsiyya (Article #220))

Please also see this answer.

And Allah Most High knows best.

[Ustadh] Tabraze Azam

Checked and Approved by Shaykh Faraz Rabbani

Ustadh Tabraze Azam holds a BSc in Computer Science from the University of Leicester, where he also served as the President of the Islamic Society. He memorised the entire Qur’an in his hometown of Ipswich at the tender age of sixteen, and has since studied the Islamic Sciences in traditional settings in the UK, Jordan and Turkey. He is currently pursuing advanced studies in Jordan, where he is presently based with his family.

Implicit Divorce.

Answered by Ustadh Salman Younas

Question: Assalam aleykum

I married a woman 1.5 years ago and later found out she could not have sexual intercourse because of medical reasons. She refuses to get treatment. Whenever I try to bring up the topic of divorce, she emotionally blackmails me. I have told her «I want a divorce» several times. Does this count as an implicit divorce? Or do I have to say «I divorce you» directly?

Answer: assalamu alaykum

The statement “I want a divorce” does not constitute a divorce. However, saying “I divorce you” once would entail one revocable divorce (i.e. you may reestablish the marriage during the waiting period without a new contract).

Please note that I am not advising you in this answer on whether you should actually divorce your spouse or not. This is something you will have to decide on your own after consulting people you trust and consulting those who know your situation better and can provide sound advice. I would recommend performing the istikhara prayer, as well, and asking God to make things easy for both you and your spouse.

[Ustadh] Salman Younas

Checked and approved by Shaykh Faraz Rabbani

Ustadh Salman Younas  graduated from Stony Brook University with a degree in Political Science and Religious Studies. After studying the Islamic sciences online and with local scholars in New York, Ustadh Salman moved to Amman where he spent five years studying Islamic law, legal methodology, belief, hadith methodology, logic, Arabic, and tafsir. He is currently a PhD candidate at the University of Oxford and continues his traditional studies with scholars in the United Kingdom.

Saying One Is Divorced in Jest

Ustadh Tabraze Azam is asked if saying one is divorced in jest or thoughtlessness to others in conversation or chat counts as a legal divorce.

 

Question:

Assalam alaykum wa rahmat Allah wa barakatuh.

If one says words like “I am divorced” or “I got divorced” (not the exact wording as it happened a long time ago and in ignorance) during an online chat/phone conversation with friends, or says similar words as lie just in front of friend or in the office just as story or false statement without any intention of giving false appearances, does it count as a legal divorce in the Hanafi school?

Jazak Allah khayr.

Answer:

Wa alaykum assalam wa rahmat Allah wa barakatuh.

No, uttering the phrase “I got divorced” or “I am divorced” does not constitute a valid occurrence of a divorce. Rather, if the statement is not truthful, it would usually be an impermissible lie, and thus, something which requires sincere repentance just like other sinful actions.

Valid divorces are utterances directed at the wife, in order to permanently end a lawful relationship with her. Hence, when a statement is made regarding divorce, yet it isn’t clear in its indication of divorce, such as, “I am going to divorce you,” it doesn’t legally count.

It is also important to note that utterances of divorce can be directed at the wife actually or effectively. The latter type don’t necessarily require an entire phrase beyond the central utterance of divorce. The nature of this subject, however, is that it is very sensitive, so you should train yourself to avoid using such language, particularly in the presence of your spouse, unless required.

Please also see Does Vocally Saying the Word “Divorce” Make Me Legally Divorced? and How Can a Woman Get an Islamic Divorce? and A Reader on Tawba (Repentance).

And Allah Most High knows best.

Wassalam,

Tabraze Azam

Checked and approved by Shaykh Faraz Rabbani.