The family's legislation

The dissolution of marital relationship

 Introduction.

The marital relationship may face many problems. The latter can be solved through different means, among them good admonition and family arbitration. But if the problems are persistent, separation will be the last resolution.

       The marital relationship can be dissolved through different ways, among them:

-   divorce that occurs  by the free will of the husband.

- divorce that occurs by common consent between the husband and the wife.

- divorce that is asked by the wife from the judge if there is legal reasons (judicial separation).

- Al khôl’: the divorce that is asked by the woman from her husband.

I. The dissolution of marriage through the divorce that occurs  by the free will of the husband.

1-The definition of divorce.

It is the dissolution of the legal marital relationship through particular words such as “you are divorced”, or through  other words or actions connoting divorce that may take effects immediately or after a while.

2-Its Islamic stance.

Originally, divorce is banned but the Islamic Sharia allowed it in case of necessity. Allah -High Exalted is He- Said:

«Divorce is the lawful thing that is loathed by the Almighty Allah ». [Reported by Abu Dawud.]

Unlike the Islamic Sharia, the Catholic doctrine forbids divorce. It stipulated: «Human being shall not separate what is united by God ». [Matthew ,13].

3-Its kinds.

A- A Revocable divorce.

This divorce occurs by pronouncing the word "divorce" one time. In such divorce, the husband can restore his wife during her Idda (i.e. her legal prescribed period) without a new contract. 

The provisions of this divorce are:

- It reduces the number of divorce. In Islam, the husband has the right to restore his divorcee only twice during her Idda , and since he divorced her once, it remains to him only one opportunity.  

-The woman must wait for the end of her prescribed period (Idda).

- She must stay in her husband’s house i.e. she must not leave her house either by her free will or even if she is compelled to do so. The Almighty Allah Said: «O  prophet! When you divorce women, divorce them at their Idda ( prescribed period) and count (accurately) their Idda. And fear Allah your Lord (O Muslims). Do not expel them from their houses nor shall they leave, unless it is proven that they have committed indecency. And those are the limits set by Allah, and whosoever transgresses them, surely has been unjust to his own soul.  You (the one who divorces  his wife ) know not, Allah may change the situation (reconcile between them) after that». [Surat Talâq /Divorce, 1].

- The husband is obliged to expend on his wife.

- The inheritance: the alive among the spouses will inherit the dead one.

- The woman must not be engaged to someone else before the end of her Idda either explicitly or implicitly.

- The husband has the right to restore his wife without a new contract and  dowry.

B- Final divorce/The irrevocable divorce.

 There are two types of this kind of divorce:

1- Final divorce with short interval: it occurs when the husband divorces his wife and then her prescribed period is finished (without restoring her), or after the contraction of marriage (Fâtiha) and  before consummating it, or  when the husband divorces his wife in return of giving him money.

2- Final divorce with long interval: it occurs when the husband divorces his wife for the  third time. In such a case, the husband can not restore his divorcee unless the latter marries another man and became divorced or widowed. Besides, she must wait for the end of her legal prescribed period. The Almighty Allah Said: «So if a husband irrevocably divorces his wife, upon the third divorce between them, she will not be lawful to him to marry after that, unless she consummates marriage with another husband with the intention of remaining to him, and the other husband divorces her, then there is no blame on them if they remarry, if they think they can keep the bonds set by Allah, these are the bonds set by Allah which he expounds for those who have knowledge». [Surat Al Baqara/Heifer,verse230]

4- The Sunni and the heretical divorce.

- The Sunni divorce: it is the legal divorce which occurs in conformity with the Sunna of the prophet-may peace be upon him.

- The husband in such divorce pronounces the  word “divorce” once and in one place.

- He must divorce her in the period of her purity (i.e. clean from her menses)  during which he must not have sexual intercourse with her. 

- The heretical divorce: it is the divorce which disagrees with the Islamic Sharia. This  divorce occurs when the husband utters the word “divorce” more than three times in one place, during the wife’s menstruation period, in her childbed or when she is pure from her menses but her husband has sexual intercourse with her.

5-The conditions of divorce.

To divorce ones’ wife, the husband must be wise and willing to divorce and his divorce must confirm to the requirements of the Sunni divorce.

The divorce that is uttered from the following types of men has no effects.

1-The one who divorces according to the heretical divorce.

2-The one who is compelled to divorce his wife. The prophet-may peace be upon him- said: «Allah the Great overlook all what my nation does by error and oblivion, and all what it [nation] is compelled to do». [Reported by Muslim].

3-The shocked.

4-The drunken.

5-The mistaken.

6-The furious.

7-The ignorant of the consequences of uttering the word “divorce”.

8-The joker. According to some Ulemas, there is no joke concerning matters of divorce. Therefore, divorce occurs even if it is said jokingly. Allah the Great Said: «Not a word does he or she utter, but there is watcher by him ready (to record it)». [Surat Qâf, verse18].

The prophet-may peace be upon him- said: « There are three things which, whether undertaken seriously or in jest,  are  treated as serious: divorce, wedlock and the manumission of slaves ». [Reported by An Nassâ’i].

Other Ulemas claimed that divorce in this case has no effects, because of the lack of the intention of divorcing. The Prophet -may peace be upon him- said: «The rewards of deeds are according to the intentions, and  every body will get the reward for what he has intended…». [Reported by Muslim]

6-Its expressions.

a- The explicit expression: it is the word that imply divorce. It takes its effects immediately.

b- Connotative expression: it is the word that has more than one meaning. The effects of this divorce depends on the  intention of the husband (if the husband, by uttering such expressions, intends to divorce his wife, the divorce takes effects and the contrary is true).

7-Its wordings.

a) The wording by which divorce takes effects immediately. (i.e. at the moment the husband utters the word of "divorce").

b) The wording that is related to a particular time. That is, divorce can not take effects until the appointed time comes. 

c) The wording that is related to a condition: divorce occurs only if the condition to which it is related takes place, (e.g. when the husband threatens his wife of divorce if she leaves the house). The condition of divorce here is leaving the house, so she remains his wife as long as she stays at home.

II. The dissolution of marriage through Al Khôl'.

1-The definition of Al Khôl’: It is the divorce that is asked by the wife from her husband in return of a compensation. In his book The Beginning of the Diligent (Biddayaat Al Mujtaheed), Ibn Rushd defined Al Khôl’ as follow: it is when the wife gives a compensation (dowry) to her husband in return of her divorce.

2-Its legitimacy.

Allah the Great said: «…Except when both parties that they would be unable to keep the limits ordained by Allah (e.g. to deal with each other on fair basis).Then if you fear that they would not be able to keep the limits ordained by Allah, there is no sin on either of them if she gives back (the dowry or a part of it) for her Al Khôl’. These are the limits ordained by Allah, so do not transgress them. And whoever transgresses the limits ordained by Allah, then such are the wrong-doers». [Surat Al-Baqara/The Heifer, from the verse 229].

3- The conditions of Al-Khôl’.

- There should be a legal and reasonable reason.

- The wife must give back the dowry she received without adding anything except if she wills to do so. In addition, she must wait one menstruation course before remarrying. 

It was reported that the wife of Thââbit bnu Qais came to the prophet -may peace be upon him- and said: «O Allah’s messenger! I do not blame Thââbit for defects in his character or his religion, but I, being a Muslim, dislike to behave in an un-Islamic manner (if I remain with him). On that Allah’s messenger –may peace be upon him –Said to (her): « will you give back the garden which your husband has given you (as a dowry)?». She said “yes”. The prophet –may peace be upon him-said to Thââbit: «O Thââbit! Accept your garden, and divorce her once». [Reported by Imam Ahmmad and the others].

III The dissolution of marriage judicially.

 Due to his discretionary power that can not exceed his district, the judge has the power to end up a contraction of marriage if the wife asks for divorce.

 The reasons of this divorce are:

1- A defect: The defect may be physical or mental in the husband.

2- The non  expense of the husband: when the husband refuses to expend on his wife within his ability and according to the custom, she has the right to ask for divorce.

3- The husband’s long absence or missing: the wife can ask for divorce because of her husband’s absence. The period of this absence is  limited to four years according to Omar Bnu Al- khatab, and to one year according to the others.

Concerning the wife of the missing who is the one whom we ignore if he is died or still alive, she must wait four years. If this period elapsed and no sign of his life is shown, the procedures of issuing the verdict of his death start. After that the wife must wait four months and ten days (it is the Idda of the widowed).

4- A damage: damage can be moral as verbal injuries or physical as violent beat.

IV. The factors of divorce.

 These factors can be summarized in the following points:

1- Their non fearing of Allah (the spouses  or one of them).

2- A bad choice: a good end is due to a good start, and a bad end is due to a bad start. The prophet -may peace be upon him- advised the ones who intend to marry to make a good choice. He said: «A woman is married for four things: her wealth, her family status, her beauty and her religion, so marry the religious woman you will prosper». [Reported by Muslim].

He also said: « If you are asked in marriage by a person, and you are pleased with his religion and character, so marry him, otherwise it will be a riot on the earth and a great disturbance».

3- Neglecting the marital duties: One of the spouses or both of them may neglect their duties or their common rights.

4- The non commensurability of the husband with the wife. The Ulemas claimed that commensurability is the equality between the spouses at the religious, social or cultural levels.

5- Living with the family in-law. Some contemporary studies showed that divorce occurs because of the conflicts between the wife and the members of her husband’s family with whom she lives.

6-The work of the wife outside the house may create some troubles like neglecting her house i.e. the wife does not care for her duties and tasks in her house, and the rising of conflicts between the spouses about her salary.

7- The wife’s mannish manner: the fact that the wife abandons her femininity and adopts mannish qualities leads to an infringement on the authority of man and his virility.

8- The spouse’s different visions of life.

9 - The economic factor like poverty and wealth.

10- The absence of values and morals.

VI-The impacts of divorce.

1- At the level of the family: the children are the first victims. The divorce of their parents leads to their vagrancy and deviation.

2- At the level of the society: the break up of the relations between families leads to the break up of the social structure.

VII- The way of dealing with the divorce phenomenon.

1- The precautionary measures.

a) A good choice.

b) Providing the spouses with legal and realistic information (experiences) about the marital life.

2- Curative solutions.

1- To resort to the  Islamic Sharia to solve any conflict that occurs between the spouses. The Almighty Allah Said: «By your Lord! They will not believe until they accept you to judge between them in disputes, and accept your decision with entire submission without feeling the least resentment in their hearts». [Surat an-Nissâ’ /The Women, 65].

2- To follow the divine injunctions and the recommendations of the prophet-may peace be upon him- for they are the guidelines of the marital life. Among the texts (the Ahadith) that are directed to men, we mention:

- «A believer man should not loath a believer woman, if he hates one of her characters, he will be pleased by another». [Reported by Et-Termidi].

- « I recommend you to be kind to women». [Agreed on].

- « The best of you are those who are kind to their wives, and I the most kind to my wives». [Reported by Muslim].

Among the Ahadith that are directed to women, we mention:

- «The woman who dies and her husband is pleased with her enters paradise». [Reported by An-Nassâ’i].

- «The woman’s duties towards Allah can not be complete until she performs her duties towards her husband». [Reported by Abu Dawud].

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