Just as Allah (swt) legislated marriage He also legislated divorce. The basis of its legitimacy is the Kitab, Sunnah and Ijma’a. As for the Kitab, Allah (swt) said:
“The divorce is twice, after that, either you retain her on reasonable terms (bilmaroof) or release her with kindness” [Al- Baqarah: 229]
As for the Sunnah it has been narrated on the authority of Umar b. al- Khattab that the Prophet (pbuh) divorced Hafsa then took her back. And it was narrated on the authority of Abdullah b. Umar who said: “I had under my charge a wife whom I loved but my father did not like her so He ordered me to divorce her. I refused.” He then mentioned it to the Prophet (pbuh). He (pbuh) said: “O Abdullah b. Umar divorce your wife.” The Sahabah reached an Ijma’a on the legitimacy of divorce.
Divorce is an annulment of the contract of marriage i.e., the knot of marriage. The permissibility of divorce has no Shari’ah Illah. The texts which allow it do not include any Illah whether in the text (reason) of the Qur'an or the Hadith. It is allowed because the Shar’a has allowed it and not for any other reason. The Shari’ah divorce consists of three pronouncements, one after another. If a man divorced his wife once then that constitutes one pronouncement. It is allowed for Him to take her back (Raj'aa) during the Iddah (waiting period) without a new contract of marriage. If He divorced her the second time, then the second pronouncement has taken place. It is permitted for the husband to take her back during the Iddah without a new contract. When the Iddah has been completed in those two cases and He has not taken her back then she will become irrevocable (Bain) to Him, this being the lesser irrevocability (Baynuna Sughra). He is not permitted to take her back except with a new contract and dowry. If He divorced her a third time then three pronouncements have taken place, and she will become irrevocable to Him, this being the greater irrevocability. It is not allowed for Him to take her back except after she marries another person and He consummates the marriage with her and she completes her Iddah from Him. Allah (swt) said:
“The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness. And it is not lawful for you to take back any of the dowry which you gave them, except when both parties fear that they would be unable to keep the limits ordained by Allah. Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (the dowry or a part of it for her Khula (divorce)). These are the limits ordained by Allah, so do not transgress them. Whoever transgresses the limits of Allah, then such are the Zalimin (wrong-doers). And if He has divorced her (the third time), then she is not lawful unto Him thereafter until she has married another husband. Then, if the husband divorced her, it is no sin on either of them that they reunite, provided they feel that they can keep the limits ordained by Allah. These are the Limits of Allah, which He makes plain for the people who have knowledge” [Al- Baqarah: 229-230]
So in the Ayah Allah (swt) has taught the Muslims how to divorce. He (pbuh) said: “The divorce is twice”. Then He gave them the choice after teaching them (the manner of divorce) either to hold onto their wives and live with them honourably and discharge their obligations to them, or release them in a nice way, which is incumbent upon them. Then He (pbuh) said: “And if He has divorced her (the third time), then she is not lawful to Him thereafter until she has married another husband”; i.e. if He divorced her a third time after the two previous times, it is not allowed for Him to marry her until after she had married another husband. Then He said: “Then, if the husband divorced her, it is no sin on either of them that they reunite”; i.e. if the other husband divorced her, then, it will be allowed for the first husband to take her back with a new contract and dowry. The subject of the second word 'He divorced her' refers to the closest person mentioned which is the expression: 'another husband'. i.e. the second husband. And the subject of s refers to the first husband i.e. there is nothing to prevent each of them from returning back to his/her companion by marriage. Therefore, the man has the authority of three pronouncements of divorce over the woman, two of which allow Him to take her back and the third of which does not allow Him to take her back until she has married another husband.
Divorce is in the hands of the man rather than the woman; so the man alone has the power to divorce, a power she does not have. As for why the man has that power, this is because Allah (swt) has put it in his hands. No reasoning can be found for it in the Shar’a. Accordingly no reason (Illa) should be sought for it. Indeed, reflecting on the reality of marriage and divorce, one notices that marriage is the beginning of a new marital life, where the man and the woman cooperate in choosing each other as the spouse whom they respectively wish to marry. Each one has the right to marry or to refuse marriage with whomever he/she wants. However, once the marriage actually takes place, the man is given the leadership of the family and He is given guardianship over the woman. It is then inevitable that divorce too be the prerogative of the man, or his right, because He is the chief of the family and head of the household. The sole responsibility and the duties of the house have been placed on Him. Therefore only He should have the authority to untie the knot of marriage. The authority is commensurate with the responsibility, and separation between the spouses is in the hands of the one who has guardianship over the other. However, this is a description of the existing reality and not a reasoning for the Shar’a rule, because the Illa of the Hukm Shar'i is not allowed to be other than a Shari’ah Illa found in the Shar’a text.
Nonetheless, divorce being in the hands of the man does not mean that the woman cannot divorce herself or bring about a separation between her and her husband. Indeed he, originally and unequivocally, has the sole authority without being restricted by any situation. In fact, He has the right to divorce her even without a reason. However, the wife has the right to divorce herself from Him and bring about separation between herself and her husband in special cases as stated by the Shar’a. The Shar’a has permitted the wife to annul the contract of marriage in the following cases:
1. If the husband puts the issue of divorce under her authority. In this case she has the right to divorce herself from Him according to what He Himself has authorised her with. So she should say: I divorce myself from my husband such and such person or address Him saying: I divorce myself from you. She should not say I divorce you or you are divorced because divorce occurs on the woman and not the man, even if the divorce came from the woman. It is permitted for the husband to leave the issue of divorce to the wife because the Messenger (pbuh) gave his wives the choice (to remain as his wives or not) and also due to the Ijma’a of the Sahabah on this matter.
2. If she learns of a defect in the husband which prevents intercourse, such as impotence or castration, and she is free from such defects herself. In such a situation, she has the right to request the annulment of her marriage to Him. If the judge confirmed the existence of this defect, He would delay the issue for a year, and if He was still unable to have intercourse with her then her request would be answered and the marriage would be annulled. It has been reported that Ibn Mundhir married a women while being castrated. Umar said to Him: “Have you informed her?” He said: “No.” He (Umar) said: “Tell her and give her the choice (to ask for divorce).” And it has been narrated that Umar delayed the impotent for one year. If the wife finds that her husband's penis is cut or paralysed then her choice is given at once. No delay would be imposed on her because sexual intercourse is hopeless and there is no point in waiting.
3. If it became apparent to the wife before or after intercourse that the husband had a certain disease that does not permit her to reside with Him without fear of harm, such as leprosy, burs, syphilis or tuberculosis, she can refer to the judge and demand separation between her and her husband. Her request would be answered if the existence of this illness was established and there was no possibility of a cure within a specified period of time. Her choice is permanent and not temporary. That is due to what has been mentioned in the Muwatta on the authority of Malik that Said ibn al- Musayyab said: “If a man married a woman, and He was insane or had a physical defect, she has the right of choice. If she wished she could stay, and if she wished she could separate from Him.”
4. If the husband became mentally insane after the contract of marriage the wife has the right to refer to the judge and demand separation from Him. The judge would delay the separation for the period of a year. If his insanity did not cease in this period and the wife was insistent, then the judge would give a verdict of separation. This is according to the aforementioned Hadith of Muwatta.
5. If the husband travelled to a place either distant or close, and failed to return, and reports of Him cease and obtaining maintenance became impossible. In such circumstances she has the right to demand separation from Him after trying her best to search for Him and making inquiries about Him. That is due to the saying of the Messenger (pbuh) (about the wife who said to her husband) “Give me (something) to eat or divorce me.” He made the absence of feeding the Illa of divorce.
6. If the husband stopped maintaining his wife and He is wealthy, and it became impossible for her to reach his wealth for the purpose of maintenance in any way whatsoever, then she has the right to demand divorce and the judge is obliged to divorce her from Him at once without delay. This is because the Messenger (pbuh) said: “Your wife whom you support should say: give me (something) to eat or divorce me.” And because Umar (ra) wrote to those who were absent from their wives and ordered them to give them their maintenance or divorce them. The Sahabah knew this and they did not go against his decision. Thus it indicates Ijma’a (consensus).
7. If dispute and conflict appeared between the spouses. In this case she has the right to demand separation. The judge is then obliged to appoint an arbitrator from the wife's family and an arbitrator from the family of the husband. This family assembly will listen to the complaints of both parties and do its outmost to bring a reconciliation. If a reconciliation between them was not possible, then the assembly would separate them from each other in the manner that it sees fit, according to the findings of its investigation. He (swt) said:
“If you fear a breach between them appoint arbitrators, one from his family and the other from hers; if they both wish for peace, Allah will cause their reconciliation” [An- Nisa: 35]
So, it is in these situations that the Shar’a has granted the woman the right to divorce herself in the first case, and the right to request separation between her and her husband in the remaining cases. The reality of these cases, shows that the Shar’a has looked upon the woman as a companion of the husband in marital life. Any distress and cause for aversion which takes place in the house, affects her just as it affects the husband. Therefore it became necessary that the Shar’a would ensure that she can free herself from the misery that takes place in the house by untying the knot of marriage. Therefore, the Shar’a did not abandon her, nor did it force her to remain with a husband when a peaceful marital life has become impossible. So the Shar’a has permitted her to annul the contract of marriage in situations which lead to the impossibility of an honourable or tranquil life.
In this way, it becomes clear that Allah (swt) has placed divorce in the hands of the man because He is the guardian over the woman and He is responsible for the house. He (swt) has also given the woman the right to annul the marriage so that she does not suffer misery in her marriage, and that the house, which is a place of tranquillity and stability, does not become a place of misery and anxiety.
As for the Illa (reason) re the legality of divorce, we have stated that the Shar’a texts do not give an Illa for divorce, so it has no Illa. However, it is possible to clarify the reality of the legislation of divorce and the manner in which its validity has been mentioned in relation to marriage and what it entails. The reality of marriage indicates that it exists for the creation of the family and to provide tranquillity for this family. If anything happens in this marital life which threatens this tranquillity and the situation reaches a point where it becomes impossible to lead a married life, then there must be a way by which the spouses can separate from each other. It is not allowed to compel them to maintain this bond which is hated by both or by one of them. Thus Allah (swt) has legislated divorce. He (swt) says:
“The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness” [Al- Baqarah: 229]
In order that misery does not continue in the house and so that marital tranquillity may exist between couples. If it becomes impossible to establish tranquillity between the two, due to their incompatibility or because of something which befell them causing disorder in their life together, then each should be given the opportunity to find marital tranquillity with a different partner. However, Islam did not make the mere existence of discontent and aversion a reason for divorce. Rather it ordered the spouses to live together honourably, and encouraged them to bear the aversion because there may be some good in it. He (swt) said:
“And live with them honourably (Bilmaroof). If you dislike them, it may be that you dislike a thing and Allah brings through it a great deal of good” [An- Nisa: 19]
He (swt) ordered the men to use means by which they can lighten the fury of the woman's disobedience. So He (swt) said:
“As to those women on whose part you see ill-conduct, admonish them (first), (next), separate from them in the beds, (and last) beat them (lightly), but if they return to obedience, seek not against them means (of annoyance)” [An- Nisa: 34]
In this manner the Shar’a ordered the taking of all lenient and non-lenient means to solve the problems which occur between spouses in order to find a solution which helps them to avoid divorce. Even when living together is not honourable and other stern means do not help, and the matter has gone beyond dislike, rebellion and disobedience to a state of dispute and breach between them, Islam did not make divorce the second step, despite the intensity of the crisis between them. Rather it ordered that the issue be referred to persons other than the spouses from their families. This is so that they could undertake an attempt to bring about a reconciliation between them. So He (swt) said:
“If you fear a breach between them appoint arbitrators, one from his family and the other from hers; if they both wish for peace, Allah will cause their reconciliation. Indeed Allah is Ever All-Knowing, Well-Acquainted with all things” [An- Nisa: 35]
If these two arbitrators cannot reconcile the two spouses, then there is no room for the marital life to remain between them after all these attempts. For the problem between them has no solution except separation. In this case divorce is inevitable, so they might find marital tranquillity in another marriage or perhaps the problem is solved by the divorce. He (swt) said:
“But if they separate, Allah will provide abundance for everyone of them from his Bounty. And Allah is Ever All-Sufficient for his creatures needs, All-Wise” [An- Nisa: 130]
However, in this issue of divorce an opportunity has been left for the spouses to reunite, in a way that the separation between them is not definite. They have been given the right to go back a first time and a second. The first and second divorce might cause the spouses to return to marital life, for a second time after the first pronouncement of divorce, and for a third time after the second pronouncement of divorce. Therefore, we find that the Shar’a made divorce in three stages: “The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness” [Al- Baqarah: 229]. In this way, each one of the spouses has the opportunity to take the other back and return to the Taqwa of Allah which is entrenched in his/her heart. Thus they may attempt to go back again and try to have a marital life and attain marital tranquillity, and ease or peace of mind which they could not attain before. Consequently, we find that Islam permitted the husband to take back his wife after the first and second pronouncement of divorce. Thus Shar’a has legislated something that will assist the spouses to take each other back and review the matter and re-consider it more earnestly than they had done before. Islam made the period of the Iddah after divorce into three menstrual cycles which is approximately three months or until the time of delivery, (in the case of a pregnant woman) and imposed on the man the duty of providing maintenance to the divorcee and housing her throughout the period of the Iddah, and prohibited the man from expelling the woman that is observing her Iddah until she completes it. This is for the purpose of bringing reconciliation between them and making room for an opportunity by which they can take each other back and resume a new and peaceful life. From this point of view, a clear admonition has been given in the Qur'an. He (swt) said:
“And when you have divorced women and they have fulfilled the term of their prescribed period, either retain them on reasonable terms or set them free with kindness. But do not retain them back to hurt them. And whoever does that, then He has wronged Himself” [Al- Baqarah: 231]
If these procedures did not have an effect, or it had an affect after the first and second pronouncements of divorce and then the third took place despite all of this, then the issue is more deep rooted, complicated and intensely disputed. There is no point in going back, let alone in continuing the marriage. In this case a complete separation is inevitable and resuming another marital union is necessitated without re-attempting the same marital union, before trying another marital union. That is why the third pronouncement of divorce has been made the decider. He (swt) said:
“And if He has divorced her (the third time), then she is not lawful unto Him thereafter until she has married another husband” [Al- Baqarah: 230]
The husband has been absolutely forbidden to take back his wife after the third divorce until she has lived with another husband other than Him who consummates the marriage with her. She must taste his honey and He tastes hers i.e. to have sexual intercourse with Him, in order to experience the marital union completely. If she tries another marital union with someone else naturally, and she does not find ease and peace of mind in this second marital union and separation takes place between her and the second husband, it is then possible for her to return to marital union with the first husband because she has passed the second attempt of a marital union with the second husband and she has compared between the two. Then when she chooses to return, she does so with a better awareness. Consequently, we find that the Legislator permitted her to return to her first husband who divorced her three times after her marriage to another husband. He (swt) said:
“And if He has divorced her (the third time), then she is not lawful unto Him thereafter until she has married another husband” [Al- Baqarah: 230]
Then after that He (swt) immediately said in the same verse: “And if He has divorced her”. i.e. the second husband and not the first: “It is no sin on both of them”. i.e. the first husband and the woman who has been divorced for the second time: “That they reunite”. i.e. each one returns to the other in marriage.
This is what the procedure of divorce legislation alludes to. Thus it appears that what is contained in the legislation of divorce, the procedure of its legislation and the manner of its occurrence, has a far-reaching wisdom and an accurate view towards the social life, so as to ensure for it the peaceful comfortable life in a way that imparts tranquillity. If this comfort is lost and there is no hope to restore it, then it is inevitable that the spouses should separate. That is why Allah (swt) has legislated divorce in the form which we have clarified.