A year ago, I wrote a blog about the act of marriage (The Marriage Contract, March 25, 2021). I knew, eventually, I would need to address the unpleasant topic of divorce. In Islam, marriage is proceeded by an actual contract. Just like in business, services are provided in return for compensation. Both parties, the woman and her guardian, negotiate with the man and his advisors for the range of services and types of compensation. The Islamic point of view is that women are providing the services, and men are paying for them. While services provided by men can be negotiated into the contract, that is the exception and not the rule. As in any agreement, there are ways to break it, and the penalties are standard for both parties. Of course, all that goes out the window if the divorce is adjudicated in a court in the United States. Most states have a boilerplate process for handling divorces. In the U.S., the divorce process is almost like a no-fault decision. Of course, there will be case-by-case decisions about the children, the division of financial assets, and any discrepancies the court recognizes, but the process has much precedence.
An Islamic Divorce versus a U.S. Divorce
An interesting case study came to light from a New Hampshire courtroom in 2006. A well-educated couple married in Lebanon. Both had signed an Islamic marriage contract. They moved several times to different locations in the U.S. and to Egypt for his job with the World Bank. She was a housewife with little means of support. They settled in New Hampshire, and the husband divorced her using the contemporary Sharia process. The husband declared, "I divorce you," three times in the wife's presence in New Hampshire. He then telephoned a lawyer in Lebanon, with two witnesses listening, and declared he had divorced his wife. He promptly went to Lebanon and secured an order from a religious magistrate that he had done so. Meanwhile, the wife instituted an action for divorce and ancillary relief in New Hampshire, serving him upon his return from Lebanon.
The husband retained counsel who informed the court of the prior Lebanese divorce. The case went through the New Hampshire court system, and the husband lost. If you are domiciled in New Hampshire, divorces obtained elsewhere are not recognized. The moral is if you choose to live in this country, you are subject to the laws of this country. Sharia divorces normally do not grant communal property, but the woman was given one-half of a nice-size World Bank pension and other substantial joint property.
Today, about 46 countries and 1.8 billion Muslims follow variations of Sharia. Divorce, by Sharia, is governed by the laws of different countries, the various Muslim sects, and other law schools. For example, India does not recognize the same divorce rules as Saudi Arabia. Rules governing Sunnis are slightly different than the Shia. Each of the four schools of Islamic law (Hanbali, Hanafi, Shafi'i, and Maliki) for Sunnis and the three for Shia (Asharis, Ismailis, and the Zaidy) also follow different rules from each other. So, with all of these organizations influencing the local Sharia law, how do you get a consistent ruling for your divorce? Usually, a local judge called a Qadi is authorized to make rulings. If there is no Islamic judge, there is an Islamic Shura Council composed of local imams, ulama (religious scholars), and other respected elders. Shura is the principle of consultation, as applied by the government. The judge or the council will administer Sharia as they understand it. Underlying all of the variations and different applications of Sharia, there is a core understanding from which everything is based. Let's examine the core tenets of divorce.
Divorce under Islamic Law
There are three kinds of divorce, each with separate rules.
1. Talaq: the divorce process initiated by the man.
Talaq is rendered as a repudiation as in a breach of contract. Talaq is a condition that gives the other party the right to cancel a contract. "Talaq" is Arabic, meaning to release an animal from its tether. In this sense, a woman is released from the bondage of marriage. How talaq works is the husband pronounces the phrase "I divorce you" to his wife. Depending on the local law, there may be a waiting period of one month. If the husband and wife reconcile before the final waiting period ends, the divorce is absolved. The husband must repeat the cycle twice for a total of three. Divorce is final if the process is completed three times without reconciliation during the waiting period. In some cultures where there is no waiting period, the man can literally say, "I divorce you three times," or any variation that means the same thing. Different countries recognize different outcomes, for example, Nigeria legally recognizes the "triple talaq" with no waiting period, whereas India does not.
A woman can negotiate this process into her marriage contract. For example, if the man takes a second wife (see my articles on Polygyny), the first wife may have legal permission to pass talaq onto the man. There are other examples of women putting talaq into their marriage contracts if the man is not sexually compatible.
One verse in the Qur'an explains why men have this simple means of divorce. Verse 4:34 suggest that men are maintainers of women; they spend money out of their assets on maintenance for their wives. Back to the terms of the agreement, if you are paying for services you are not getting or services you are not satisfied with, then the contract should be terminated.
One small note about remarriage: The woman cannot remarry her ex without first marrying another man. If the woman divorces husband number two, she can remarry husband number one.
2. Khula: the divorce process initiated by the woman
It is the right of a woman in Islam to seek a divorce or separation from her husband. She may petition a judge or a council to grant her divorce if her husband refuses. Again, there is a three-month waiting period to see if reconciliation works. There are two reasons a wife may be granted a divorce under these circumstances: if she can prove that her husband did not have intercourse with her for more than three months or if the husband does not provide her with what she needs for living, such as food or shelter. In other words, if the husband does not meet the contract terms, she can repudiate him. However, this type of divorce is usually by mutual agreement, and it happens more frequently than divorce by talaq.
3. Li'an: character assignation by the husband
If the husband levels false charges of unchastely behavior or adultery against his wife, the wife has the right to ask for divorce on these grounds.
After the divorce is granted, the two most important questions usually center on the arrangements for the property and any children from the marriage. In classic Sharia, there is no communal property; however, in most countries, some communal property distribution is honored, especially the principle residence. Usually, the marriage contract requires a dowry-type payment to be made to the woman. Depending upon the couple's economic status, the dowry amount could be very large or very small. In the West, men give their future wives a diamond ring as a sign of engagement. The average value of this diamond ring is equivalent to two to three times the man's monthly salary. A dowry is sort of like this, but usually in some form of cash. If she is smart, the woman still has this money set aside for crisis events like a divorce.
Generally, Islamic jurists will consider the children's well-being before deciding on custody. However, Sharia calls for the children to stay with the woman until weaned or the age of seven. At seven years, custody goes with the man. There are exceptions, and different countries and jurisdictions have additional rules, but usually, this is a case-by-case basis.
Sharia in the Shadows
The U.S. has had a strong migration of Islamic immigrants in recent years. Just from Afghanistan alone, some 124,000 immigrants came in this past year. It is one thing for an immigrant to be ignorant of local laws and another to know how the local legal system works. The U.S. legal system is difficult to understand; thus, we need lawyers to navigate the system and money to pay those lawyers. Women immigrants bear the brunt of this predicament. We can expect to see the Islamic immigrants reverting back to Sharia in their own communities. Sharia is not as equitable to women as to men in terms of ease of getting divorced, child custody, and distribution of joint assets. While Sharia is not incorporated into our lexicon of laws, Sharia can be found in the back rooms of the Islamic community. For some immigrants, it's the only law they know.
It is essential to remember that although divorce is permitted in Islam, it is not encouraged. In one hadith by Dawoud, it was said that the Prophet Muhammad stated that divorce is most displeasing to Allah of all the legal acts allowed.
Credit to Wikipedia Commons and Yogesh Maharaja for the 2017 image showing the "Triple Talaq" debate before it was made illegal in India.