Surat Aţ-Ţalāq (The Divorce) - ‫سورة الطالق‬

‫بسم هللا الرحمن الرحيم‬

65:1
to top

Sahih International
O Prophet, when you [Muslims] divorce women, divorce them for [the
commencement of] their waiting period and keep count of the waiting period,
and fear Allah , your Lord. Do not turn them out of their [husbands'] houses,
nor should they [themselves] leave [during that period] unless they are
committing a clear immorality. And those are the limits [set by] Allah . And
whoever transgresses the limits of Allah has certainly wronged himself. You
know not; perhaps Allah will bring about after that a [different] matter.
65:2
to top
Sahih International
And when they have [nearly] fulfilled their term, either retain them according
to acceptable terms or part with them according to acceptable terms. And
bring to witness two just men from among you and establish the testimony for
[the acceptance of] Allah . That is instructed to whoever should believe in
Allah and the Last day. And whoever fears Allah - He will make for him a way
out
65:3
to top

Sahih International
And will provide for him from where he does not expect. And whoever relies
upon Allah - then He is sufficient for him. Indeed, Allah will accomplish His
purpose. Allah has already set for everything a [decreed] extent.
65:4
to top
Sahih International
And those who no longer expect menstruation among your women - if you
doubt, then their period is three months, and [also for] those who have not
menstruated. And for those who are pregnant, their term is until they give
birth. And whoever fears Allah - He will make for him of his matter ease.
65:5
to top

Sahih International
That is the command of Allah , which He has sent down to you; and whoever
fears Allah - He will remove for him his misdeeds and make great for him his
reward.
65:6
to top
Sahih International
Lodge them [in a section] of where you dwell out of your means and do not
harm them in order to oppress them. And if they should be pregnant, then
spend on them until they give birth. And if they breastfeed for you, then give
them their payment and confer among yourselves in the acceptable way; but if
you are in discord, then there may breastfeed for the father another woman.
65:7
to top

Sahih International
Let a man of wealth spend from his wealth, and he whose provision is
restricted - let him spend from what Allah has given him. Allah does not
charge a soul except [according to] what He has given it. Allah will bring
about, after hardship, ease.
65:8
to top

Sahih International
And how many a city was insolent toward the command of its Lord and His
messengers, so We took it to severe account and punished it with a terrible
punishment.
65:9
to top

Sahih International
And it tasted the bad consequence of its affair, and the outcome of its affair
was loss.
65:10
to top
Sahih International
Allah has prepared for them a severe punishment; so fear Allah , O you of
understanding who have believed. Allah has sent down to you the Qur'an.
65:11
to top

Sahih International
[He sent] a Messenger [Muhammad] reciting to you the distinct verses of
Allah that He may bring out those who believe and do righteous deeds from
darknesses into the light. And whoever believes in Allah and does
righteousness - He will admit him into gardens beneath which rivers flow to
abide therein forever. Allah will have perfected for him a provision.
65:12
to top

Sahih International
It is Allah who has created seven heavens and of the earth, the like of them.
[His] command descends among them so you may know that Allah is over all
things competent and that Allah has encompassed all things in knowledge.

Divorce in Islam
From Wikipedia, the free encyclopedia
Part of a series on

Islamic jurisprudence
(fiqh)
Economic
History
Zakat
 Jizya
 Nisab
 Khums
 Sadaqah (Waqf)

 Bayt al-mal

Banking
 Riba
 Murabaha
 Takaful
 Sukuk

Inheritance
Political

 Islamic leadership

 Caliphate
 Imamah
  Wilayat al-faqih
 Bay'ah
 Dhimmi

Marital
Marriage
 Contract
 Mahr

Misyar
Halala
 Urfi
 Mut‘ah

 Polygyny
 Divorce
 Iddah

 Ma malakat aymanukum
 Adoption

Sexual

 Masturbation
 Hygiene
 Zina
 Awrah

 Ma malakat aymanukum

Criminal
Hudud
 Blasphemy
 Maisir  (gambling)
 Zina  (illicit sex)
 Hirabah  (unlawful warfare)
 Fasad  ("mischief")
  Rajm  (stoning)

 Tazir  (discretionary)
 Qisas  (retaliation)
 Diyya  (compensation)

Etiquette

 Adab
 Gender segregation
 Mahram
 Honorifics
 Toilet

Theological
Salat
 Raka'ah
 Qibla
 Turbah

 Sunnah salat
o (Tahajjud
o Tarawih)
 Nafl salat

Sawm

Hajj
 Ihram (clothing
 Mut'ah)
 Tawaf
 Umrah (and Hajj)

Hygiene

 Sexual
 Toilet
  Taharah
 Ihram
 Wudu
 Masah
 Ghusl
 Tayammum
 Miswak
 Najis

Dietary
 Dhabihah
 Alcohol
 Pork

 Comparison with kashrut

Military

 Defensive jihad
 Offensive jihad
 Hudna
 Istijarah (asylum)
 Ma malakat aymanukum
 Prisoners of war

Islamic studies

 v
 t
 e

In the ṭalāq divorce, the husband pronounces the phrase "I divorce you" (in Arabic, talaq) to his
wife. A man may divorce his wife three times, taking her back after the first two (reconciling).
After the third talaq they can't get back together until she marries someone else. Some do a
"triple ṭalāq", in which the man says in one sitting "I divorce you" three times (or "I divorce you,
three times", "you're triple divorced"). Many Islamic scholars believe there is a waiting period
involved between the three talaqs, pointing to Quran 65:1[Quran 65:1] and various hadiths. However
the practice of "triple ṭalāq" at one sitting has been "legally recognized historically and has been
particularly practiced in Saudi Arabia."[1]

Shia and Sunni Muslims have different rules for performing a ṭalāq divorce. According to some
Sunni schools of jurisprudence, each talaq utterance should be followed by a waiting period of
three menstrual periods for women or three month (iddah), when the couple are supposed to try
to reconcile with the help of mediators from each family, until the third and final ṭalāq. Some
Sunnis who believe the practice of triple talaq in one is wrong; nonetheless accept it as final,
especially the Hanafi schools of jurisprudence.

Shias don't have the concept of verbal "Triple Divorce" ie. just uttering the phrase "I divorce
you" three times. Shi'a practice also has a iddah waiting period when the couple are supposed to
try to reconcile with the help of mediators from each family, but requires two witnesses for the
declaration of ṭalāq.[2] If the couple breaks the waiting period, the divorce is voided. After the
waiting period is over, the couple is divorced and the husband is no longer responsible for the
wife's expenses, but remains responsible for the maintenance of the children until they are
weaned.

It is also possible for a woman to petition a qadi (judge of Muslim jurisprudence) for a divorce
under certain conditions. The circumstances which are regarded as acceptable vary amongst the
four Sunni groups of Islamic schools of jurisprudence.

Divorce
Issue 2507: * A man who divorces his wife must be adult and sane, but if a boy of ten years of
age divorces his wife, precaution must be exercised. Similarly, a man should divorce of his own
free will, therefore, if someone compels him to divorce his wife, that divorce will be void. It is
also necessary that a man seriously intends to divorce; therefore, if he pronounces the formula of
divorce jokingly, the divorce will not be valid.

Issue 2508: It is necessary that at the time of divorce, wife is Clean (tahir/pak) from Haidth and
Nifas, and that the husband should not have had sexual intercourse with her during that period.
Issue 2509: * It is valid to divorce a woman even if she is in Haidh or Nifas in the following
circumstances:

(i) If the husband has not had sexual intercourse with her after marriage.

(ii) If it is known that she is pregnant. And if this fact is not known and the husband divorces her
during Haidh, and he comes to know later that she was pregnant, that divorce will be valid, and
as a recommended precaution he should divorce her again.

(iii) If due to the husband's absence or imprisonment, he is not able to ascertain whether or not
she is Clean (tahir/pak) from Haidth or Nifas. But in this case, as an obligatory precaution, man
must wait for at least one month after separation from his wife and then divorce.

Issue 2510: If a man thinks that his wife is Clean (tahir/pak) from Haidh and divorces her, but it
transpires later that at the time of divorce she was in the state of Haidh, the divorce is void. And
if he thinks that she is in the state of Haidh and divorces her, and it is later known that she was
Clean (tahir/pak), the divorce is in order.

Issue 2511: * If a person who knows that his wife is in Haidh or Nifas, is separated from her,
like when he proceeds on a journey, and wishes to divorce her, he should wait till such time
when he becomes sure that his wife must have become Clean (tahir/pak) from her Haidh or
Nifas. Thereafter, having known that she is Clean (tahir/pak), he can divorce her. And if he is in
doubt he will act according to rule no. 2509 for precaution.

Issue 2512: * If a man who is separated from his wife wishes to divorce her and can acquire
information as to whether or not she is in the state of Haidh or Nifas, even if that information is
based on her habit, or any other signs known in Shariah, if he divorces her and later finds out that
his information was wrong, the divorce will be void.

Issue 2513: * If a man has sexual intercourse with his wife during her Clean (tahir/pak) period,
and then wishes to divorce her, he should wait till she enters into Haidh again and becomes
Clean (tahir/pak). But if the wife has not completed her ninth year, or if she is pregnant, she can
be divorced after the sexual intercourse. The same rule applies to a wife in menopause. The
meaning of menopause has been explained in rule no. 2457).

Issue 2514: * If a person has sexual intercourse with a woman during her Clean (tahir/pak)
period and divorces her during the same period, and if it transpires later that she was pregnant at
the time of divorce, the divorce will be void. As a recommended precaution, he should divorce
her again.

Issue 2515: * If a person had sexual intercourse with his wife during her Clean (tahir/pak)
period, and then separated from her, like, if he proceeded on journey and wishes to divorce her
then, not knowing whether she is Clean (tahir/pak) or not, he should wait till such time when the
wife enters into the state of Haidh and becomes Clean (tahir/pak) once again. And, as an
obligatory precaution, this period should not be less than one month.
Issue 2516: * If a man wishes to divorce his wife who does see blood of Haidh at all by habit, or
because of some disease, while other women of her age habitually see Haidh, he should refrain
from having sexual intercourse with her for three months from the time he has had the
intercourse, and then divorce her.

Issue 2517: * It is necessary that the formula of divorce is pronounced in correct Arabic using
the word “Taliq”; and two just ('Adil) persons should hear it. If the husband wishes to pronounce
the formula of divorce himself and his wife's name is, for example, Fatima, he should say:
Zawjati Fatima taliq (i.e. my wife Fatima is divorced) and if he appoints another person as his
Wakil to pronounce the formula of divorce, the Wakil should say: Zawjatu muwakkili Fatima
taliq (Fatima, the wife of my client is divorced). And if the woman is identified, it is not
necessary to mention her name. And if the husband cannot pronounce divorce in Arabic, or
cannot find a Wakil to do so, he can divorce in any language using the words of the same
meaning as in Arabic formula.

Issue 2518: There is no question of of divorce in the case of a woman with whom temporary
marriage is contracted, for example, for one month or one year. She becomes free when the
period of her marriage expires or when the man forgoes the period of her marriage by saying: “I
hereby exempt you from the remaining time of marriage”, and it is not necessary to have a
witness nor that the woman should be Clean (tahir/pak) from her Haidh.

Iddah of Divorce (The Waiting Period after Divorce)

Issue 2519: A wife who is under nine and who is in her menopause will not be required to
observe any waiting period. It means that, even if the husband has had sexual intercourse with
her, she can remarry immediately after being divorced.

Issue 2520: * If a wife who has completed nine years of her age and is not in menopause, is
divorced by her husband after sexual intercourse, it is necessary for her to observe the waiting
period of divorce. The waiting period of a free woman is that after her husband divorces her
during her Clean (tahir/pak) period, she should wait till she sees Haidh twice and becomes Clean
(tahir/pak). Thereafter, as soon as she sees Haidh for the third time, her waiting period will be
over and she can marry again. If, however, a husband divorces his wife before having sexual
intercourse with her, there is no waiting period for her and she can marry another man
immediately after being divorced, except if she finds traces of her husband's semen in her private
part, then she should observe Iddah.

Issue 2521: If a woman does not see Haidh in spite of being the age of women who normally see
Haidh, if her husband divorces her after sexual intercourse, she should observe Iddah for three
months after divorce.

Issue 2522: * If a woman whose Iddah is of three months, is divorced on the first of a month, she
should observe Iddah for three lunar months, that is, for three months from the time the moon is
sighted. And if she is divorced during the month, she should observe Iddah for the remaining
days in the month added to two months thereafter, and again for the balance from the fourth
month so as to complete three months. For example, if she is divorced on the 20th of the month
at the time of sunset and that month is of 29 days, she should observe Iddah for nine days of that
month and the two months following it, and for twenty days of the fourth month. In fact, the
obligatory precaution is that in the fourth month, she should observe Iddah for twenty one days
so that the total number of the days of the first month and the fourth month comes to thirty.

Issue 2523: * If a pregnant woman is divorced, her Iddah lasts till the birth or miscarriage of the
child. Hence, if, for example, she gives birth to a child one hour after being divorced, her Iddah
is over. But this is in the case of a legitimate child of the husband who is divorcing. If the
pregnancy is illegitimate, and her husband divorces her, the Iddah will not be over.

Issue 2524: * If a woman who has completed nine years of age, and is not in menopause,
contracts a temporary marriage, for example, if she marries a man for a period of one month or a
year and the period of her marriage comes to an end, or her husband exempts her from the
remaining period, she should observe Iddah. If she sees Haidh, she should observe Iddah for two
periods of Haidh, and cannot marry again during that period. But if she does not see Haidh, then
she should refrain from marrying another man for forty five days. And if she is pregnant, she
should observe Iddah till the birth or miscarriage of the child, or for forty five days and as a
recommended precaution, she should wait for whichever period is longer.

Issue 2525: The time of the Iddah of divorce commences when the formula of divorce is
pronounced, irrespective of whether the wife knows about it or not. Hence, if she comes to know
after the end of the Iddah that she had been divorced, it is not necessary for her to observe Iddah
again.

Iddah (Waiting Period) of a Widow

Issue 2526: If a woman is free and is not pregnant and her husband dies, she should observe
Iddah (the waiting period) for four months and ten days, that is, she should not marry during that
period even if she has entered into menopause or her husband had contracted temporary marriage
with her, or he may not have had sexual intercourse with her. If, however, she is pregnant, she
should observe the waiting period till the birth of the child. But if the child is born before the end
of four months and ten days from the death of her husband, she should wait till the expiry of that
period. This period is called the waiting period after death (Iddatul Wafat).

Issue 2527: It is haraam for a woman who is observing the Iddah of death to wear brightly
coloured dress, or to use surma and to do any such act which is considered to be an adornment.

Issue 2528: * If a woman becomes certain that her husband has died, and marries another man
after the completion of Iddah of death, and later on learns that her husband had died later, she
should separate herself from her second husband. And as a precaution, if she is pregnant, she
should observe Iddah of divorce for the second husband till she gives birth to a child, and should
thereafter observe Iddah of death for the first husband. But if she is not pregnant, she should first
observe Iddah of death for her first husband and thereafter she should observe Iddah of divorce
for the second husband.
Issue 2529: * The Iddah of death begins, in the situation when the husband has disappeared or is
absent, when the wife learns of his death, and not from the time when he actually died. But this
rule does not apply to a wife who has not attained the age of Bulugh, or if she is insane.

Issue 2530: * If a woman says that her Iddah is over, her word can be accepted unless she is
known to be unreliable, in which case, her word will not be accepted. For example, if she claims
to have seen blood three times in the month, her claim will not be trusted, except when her
women relatives confirm that it is her habit.

Irrevocable and Revocable Divorce

Issue 2531: * Irrevocable divorce means that after the divorce, the husband is not entitled to take
back his wife, that is, he is not entitled to take her as his wife without Nikah. This divorce is of
five kinds, namely:

(i) The divorce of a woman who has not completed nine years of age.

(ii) The divorce of a woman who is in menopause.

(iii) The divorce of a woman whose husband has not had sexual intercourse with her after their
marriage.

(iv) The third divorce of a woman who has been divorced three times.

(v) The divorce called Khul'a and Mubarat.

(vi) The divorce by intervention of Mujtahid, in the case of a wife whose husband is neither
prepared to maintain her nor to divorce her.

Rules pertaining to these kinds of divorces will be detailed later. Divorces other than these are
revocable, in the sense that as long as the wife is observing Iddah her husband can take her back.

Issue 2532: * When a person has given revocable divorce to his wife, it is haraam for him to
expel her out of the house in which she was residing at the time of divorce. However, in certain
cases, like, when she has committed fornication or adultery there is no harm in expelling her.
Also, it is haraam for the wife to go out of the house unnecessarily, without her husband's
permission.

Orders Regarding Return (Ruju')

Issue 2533: * In the case of a revocable divorce a man can take back his wife in two ways:

(i) By telling her words which would mean that he wants her again as his wife.

(ii) By acting in a manner which would convey his intention to take her back.
And taking her back will be established by sexual intercourse although the husband may not
have intended it. But touching, kissing, with or without intention of taking her back is not
sufficient.

Issue 2534: It is not necessary for taking her back that the husband should call any person to
witness, or should inform his wife. On the other hand if he takes her back without any one else
realising this, the Ruju' is in order. However, if the husband claims after the completion of Iddah
that he took his wife back during Iddah, he must prove it.

Issue 2535: * If a person who has given revocable divorce to his wife takes some payment from
her, making a compromise with her that he will not make Ruju' to her, though this compromise is
valid and it is obligatory on him not to 'return', yet he does not forfeit the right to 'return'. And if
he 'returns' to her, the divorce given by him does not become the cause of their separation.

Issue 2536: * If a man divorces a woman twice and takes her back, or divorces her twice and
takes her back by Nikah, or takes her back after one divorce and returns her by Nikah after the
second divorce, she becomes haraam for him after the third divorce. But if she marries another
man after the third divorce, she becomes halal for the first husband on fulfilment of five
conditions, that is, only then he can remarry her:

(i) The marriage with the second person should have been of permanent nature. If he contracts
with her a temporary marriage for one month or a year, and then separates from her, the first
husband cannot marry her.

(ii) The second husband should have had sexual intercourse with her, and the obligatory
precaution is that the sexual intercourse should have taken place in the normal way.

(iii) The second husband divorces her, or dies.

(iv) The waiting period (Iddah) of divorce or Iddah of death of the second husband should have
come to an end.

(v) On the basis of obligatory precaution the second husband should have been Baligh at the time
of intercourse.

Khula' Divorce or Talaqul Khula'

Issue 2537: * The divorce of a wife who develops an aversion from husband and hates him, and
surrenders to him her Mahr or some of her property so that he may divorce her, is called Khula'
Divorce. The hatred must have reached a proportion where she would not allow him conjugal
rights.

Issue 2538: If the husband himself wishes to pronounce the formula of Khula' divorce and his
wife's name is, say, Fatima, he should say after receiving the property: “Zawjati Fatimatu
Khala'tuha 'ala ma bazalat” and should also say as a recommended precaution: “Hiya Taliq” i.e.
“I have given Khula' divorce to my wife Fatima in lieu of what she has given me, and she is free'.
And if the wife is identified, it is not necessary to mention her name in Talaqul Khula' and also
in Mubarat Divorce.

Issue 2539: If a woman appoints a person as her representative to surrender her Mahr to her
husband, and the husband, too, appoints the same person as his representative to divorce his
wife, and if, for instance, the name of the husband is Muhammad and the name of the wife is
Fatima, the representative will pronounce the formula of divorce thus: “An muwakkilati Fatimah
bazalat mahraha li muwakkili Muhammad li Yakhla'aha 'alayh”. Then he says immediately:
“Zawjatu muwakkili khala'tuha 'ala ma bazalat hiya Taliq”.

And if a woman appoints a person as her representative to give something other than Mahr to her
husband, so that he may divorce her, the representative should utter the name of that thing
instead of the word “Mahraha” (her Mahr). For example, if the woman gives $500 he should say:
bazalat khamsa mi'ati Dollar”.

Mubarat Divorce
Issue 2540: * If the husband and the wife develop mutual aversion and hatred and the woman
gives some property to the man so that he may divorce her, this divorce is called 'Mubarat'.

Issue 2541: * If the husband wishes to pronounce the formula of Mubarat, and for example, his
wife's name is Fatima he should say: “Bara'tu zawjati Fatimah 'ala ma bazalat”. And as an
obligatory precaution, he must add: “Fahiya Taliq”, that is “my wife Fatima and I separate from
each other in consideration of what she has given me. Hence, she is free.” And if he appoints
someone as his representative, the representative should say: “An qibali muwakkili bara'tu
zawjatahu Fatimata 'ala ma bazalat Fahiya Taliq”. And in either case, if he says: “bima bazalat”
instead of the words “'ala ma bazalat” there is no harm in it.

Issue 2542: * It is necessary that the formula of Khula' or Mubarat divorce is pronounced in
correct Arabic. And if that is not possible, then the rule explained in 2517 will apply. However,
if for the sake of giving her property, the wife says in English or any language that: “I give you
such and such property in lieu of divorce” it will be sufficient.

Issue 2543: If during the waiting period of Khula or Mubarat divorce the wife changes her mind
and does not give her property to the husband, he can take her back as a wife without Nikah.

Issue 2544: The property which the husband takes in Mubarat divorce should not exceed the
Mahr of the wife. But in the case of Khula' divorce, there is no harm if it exceeds her Mahr.

Various Rules Regarding Divorce

Issue 2545: If a man had sexual intercourse with a non-mehram woman under the impression
that she was his wife, the woman should observe Iddah, irrespective of whether she knew that the
man was not her husband or thought that perhaps he was her husband.
Issue 2546: * If a man commits fornication with a woman knowing that she is not his wife, it is
not necessary for the woman to observe Iddah. But if she thought that the man was probably her
husband, as an obligatory precaution, she should observe Iddah.

Issue 2547: * If a man seduces a woman so that her husband decides to divorce her and then she
can marry him, the divorce and marriage are in order, but both of them have committed a major
sin.

Issue 2548: * If a woman lays a condition at the time of Nikah that if her husband goes on a
journey or, for example, does not give her maintenance for six months, she will have the right of
divorce, the condition is void. However, if she lays a condition that if her husband goes on a
journey or, for example, does not give her maintenance for six months, she will be his Wakil for
her own divorce, the condition is in order.

Issue 2549: If the husband of a woman disappears and she wishes to marry another man, she
should approach an 'Adil Mujtahid and act according to his directive.

Issue 2550: The father and the paternal grandfather of an insane man can divorce his wife.

Issue 2551: If the father or paternal grandfather of a child contracts a temporary marriage
between him and a woman, and a part of the period fixed for the marriage covers some of the
time when the child will have attained the age of bulugh, for example, if he contracts the
marriage of a fourteen years old boy for a period of two years - he (the father or the paternal
grandfather of the child) can exempt the woman from a part of the period of marriage if doing so,
is in the interest of the child, but he cannot divorce the child's permanent wife.

Issue 2552: If a man considers two person to be just ('Adil) according to the standard prescribed
in Shariah, and divorces his wife in their presence, another person to whom their being 'Adil is
not proved can, after the expiry of that woman's Iddah, marry her or give her in marriage to
another person, although the recommended precaution is that he should not marry her nor should
he give her in marriage to someone else.

Issue 2553: If a person divorces his wife without informing her, and he continues to maintain her
the way he did when she was his wife, and after a year tells her that he divorced her a year ago,
and also proves it, he can take back from her the things which he supplied her during that period
if she has not used them up, but he cannot demand from her the things which she has already
expended.

 Iddah of Divorce (The Waiting Period after Divorce)

 Iddah (Waiting Period) of a Widow
 Irrevocable and Revocable Divorce
 Orders Regarding Return (Ruju')
 Khula' Divorce or Talaqul Khula'
 Mubarat Divorce
 Various Rules Regarding Divorce
Women’s Rights in Islam Regarding
Marriage and Divorce
April 11, 2011 · by lawandpractice · Bookmark the permalink. ·

[A]

4 Wm. Mitchell J. L. & P. 3

By: Imani Jaafar-Mohammad, Esq. and Charlie Lehmann [Y]
 

Introduction

There are many misconceptions surrounding women’s rights in Islam.  The purpose of this
article is to shed some light on the basic rights of women in Islam in the context of marriage and
divorce.  This article is only to be viewed as a basic outline of women’s rights in Islam regarding
marriage and divorce.  Muslim clients’ situations will vary greatly depending on what Islamic
School of Thought (Hanafi, Hanbali, Maliki, and Shafi) they follow, whether they are Sunni or
Shiite, their cultural traditions, and a variety of other factors.

It is also important to understand that the religion of Islam and people’s cultural traditions are two very
different factors.  A major pitfall for practitioners is confusing cultural practices with religious beliefs. 
Many attorneys make the major mistake of assuming that all of a Muslim’s manners and practices are
related to Islam.  In fact, many Muslims are heavily influenced by their individual cultural backgrounds. 
Islam is an extremely culturally diverse religion. American Muslims alone hail from countries all over
Africa, the Middle East, Asia, Europe, and many are born in the United States with a variety of ethnic
backgrounds. [1]

It is also important not to over generalize cultural practices.  A client’s conduct could simply be a
family tradition or a common practice in a small region that is not representative of an entire
country or people.  Islam is by no means a homogeneous religion.  The most effective advocates
who routinely work with Muslims are practitioners who are open minded and take their clients as
individuals.

The goal of this article is to give practitioners insight into the basic beliefs of Muslims regarding
women’s rights in two specific areas: marriage and divorce.  Effective advocates learn to be
culturally and religiously competent, which does not necessarily mean that attorneys agree with
the client’s practices.  Not judging clients based on their cultural or religious practices, but
merely understanding the client’s religious and cultural background is essential to representing
Muslims or any other minority group.

Definitions of some basic vocabulary related to Islam and Muslims are needed to fully understand the
content in this article.  Please take note of the following terms:

Islam- the actual religion; Arabic word that means peace through submission to God (Allah).

Muslim(s)- the followers of Islam; an Arabic word that means one who submits to God.

Allah- the Arabic word for God; Islam is a monotheistic religion that teaches that God has no
partners, children, or associated entities.

Quran- the Holy Book of Muslims; Arabic word that literally means the recitation.  This is the
primary source for the teachings of the Islamic faith.

Muhammad- the last and most important Prophet in Islam, he was the first leader of the Islamic
state and the prime example of how a Muslim should live his or her life.

Hadith – statements of the Prophet Muhammad that have been written down and compiled.  Used
as a supplement to the Quran as a secondary source.  There is a science used to authenticate and
verify authentic hadiths.  Hadiths are referred to as “strong” or “weak” based on their chain of
transmission and whether they can strongly be linked to the Prophet Muhammad.  This article
will cite Hadith as support for the principles described.

Sunna – Actions of the Prophet Muhammad also used to supplement the Quran as a secondary
source.

MARRIAGE

Marriage in Islam is viewed as an important and sacred union between a man and woman that
fulfills half of one’s religious obligations. [2]
A well-known passage in the Quran discusses marriage as follows:  “Among His signs is that He
created for you spouses from yourselves so that you might find repose with them.  And He has
placed between you affection and mercy. In that there are certainly signs for people who
reflect.”[3]

Marriage in Islam is often referred to in a poetic manner describing the love and mutual rights
that exist between men and women.[4] Islam puts a strong emphasis on mutual love and respect
between a husband and wife.[5] Men are also specifically commanded to treat their wives with
kindness and respect.  The Prophet Muhammad is reported to have said: “The most perfect in
faith amongst believers is he who is best in manners and kindest to his wife.”[6]
Marriage is also viewed as an act of worship to God (Allah).[7] Islam views emotional and sexual
expression between a husband and wife as a form of worship.[8] Sexual relations are not solely
for procreation but are viewed as a way for a couple to connect, strengthen their relationship, and
help relieve everyday stresses.[9] As a result, celibacy is forbidden for men or women even if
either happens to be an Islamic scholar or religious leader (shaykh, imam, etc.).[10] Fidelity is also
highly stressed in Islam.[11] Spouses are expected to be loyal and faithful to one another and seek
emotional and sexual pleasure within the bonds of marriage.[12]

Marriage requirements

There are basic requirements for marriage in Islam.  First, a couple must mutually consent to the
marriage.[13] This requires both a clear proposal and acceptance.[14] A woman also must have a
wali or legal guardian present during the process.[15] If a wali is not present a woman must be past
puberty and competent to make the decision to marry.[16] There are no requirements regarding
who can propose marriage.[17] One historical event in the Prophet Muhammad’s life reflecting
this principle is the proposal of Khadija bint Khuwaylid, the first wife of the Prophet
Muhammad.[18] Khadija was the Prophet Muhammad’s employer, and through working with him
she grew to respect his honesty and integrity and proposed marriage to him.[19] Khadija was 25
years older than the Prophet Muhammad and in a much better financial position at the time of the
proposal.[20] He accepted her proposal and their marriage is known for the love and compassion
they had for one another.[21]

This proposal illustrates the ability of Muslim men and women to marry whomever they choose,
and highlights the fact that marriages arranged without the consent or involvement of Muslim
women is completely contrary to the Islamic tradition.  There is a documented decision by the
Prophet Muhammad where a girl approached him stating her father forced her into marriage.[22]
The Prophet Muhammad gave her the choice to either accept the marriage or invalidate it
immediately due to the duress involved.[23] Although Islam provides many rights to women
regarding marital issues, cultural traditions can greatly influence the proposal and acceptance
process beyond the Islam requirements and, in some cases, directly contradict Islamic practices.

Once a couple decides they want to marry and an official proposal is accepted in writing or
orally, the next required step is to agree on the terms of a marriage contract.[24] The marriage
contract in its most basic form reflects the couple’s consent to the union without duress and is
signed in the presence of competent witnesses.[25] The couple is free to make their marriage
agreement as detailed as they like.  The contract allows couples to discuss major aspects of their
marriage before they become husband and wife and make binding agreements.  For example,
contracts can include an agreed upon place to live or decisions regarding careers and children.[26]
Islamic marriage contracts are very practical tools that allow couples to engage in negotiations to
ensure their major goals and philosophies are in line.

Brides are also entitled to a dowry that is typically negotiated at the same time as the marriage
contract.[27] The dowry is specifically a gift showing love and devotion to the bride.[28] There are
two types of dowries a bride is entitled to: the mahr and the muakhr.[29] Each dowry will be
discussed individually.

First, the mahr is the dowry given to the bride at the time of marriage before consummation takes
place.[30] She is not required to share this dowry and is free to do what she wishes with the gift.[31]
Cultural traditions often shape the dowry gift because there are essentially no requirements other
than the actual giving of the dowry.[32] For example, some cultures encourage cash payments
while others traditionally give one of the groom’s family heirlooms to the bride.[33] The families
involved will typically discuss the dowry and their individual expectations.  The bride is often
asked her opinion to make sure she receives a gift she enjoys.  However, the actual mahr will
take many different forms and practitioners who review Muslim marriage contracts will see a
variety of items being given as the mahr.[34]

Muakhr is the second type of dowry that is given upon the death of the husband or the couple’s
divorce.[35] This is also referred to as the “deferred” dowry.[36] Muakhr is meant for both financial
support and as a large consequence that the couple should consider when contemplating divorce.
[37]
In situations of death, this amount is paid out before the estate is divided.[38] If the estate
cannot cover the entire amount, the wife is entitled to collect the amount from the husband’s
surviving family members who are also heirs to the estate.[39] She can also waive the obligation
for any reason, including hardship on her husband’s family.[40]

After the negotiations are concluded, a marriage ceremony takes place.  There is no requirement
that a religious authority conduct marriage ceremonies, but it is a common Islamic practice to
adopt the laws of the land a Muslim lives in as long as the laws do not conflict with required
Islamic practices.[41] Many mainstream American Muslim scholars have come to the opinion that
the person conducting a marriage ceremony must be licensed by the state in which the marriage
is occurring.[42] It is also imperative for the couple to register their marriage properly with the
state in addition to executing an Islam marriage contract.[43] The actual marriage ceremony and
reception will vary greatly depending on the cultural traditions.  It was the example of the
Prophet Muhammad for the reception to include providing a meal for members of one’s
community.[44]

It is important to remember the Islamic framework for the marriage process described above is
greatly influenced by an individual’s cultural and family traditions. Distinguishing between
culture and religion is essential for practitioners who work with Muslim clients, especially in
such delicate matters as drafting marriage contracts.

Polygamy

Polygamy is often a misunderstood concept in Islam.  The Quran allows polygamy in the
following verse:

If ye fear that ye shall not be able to deal justly with the orphans, Marry women of your choice,
Two or three or four; but if ye fear that ye shall not be able to deal justly (with them), then only
one, or (a captive) that your right hands possess, that will be more suitable, to prevent you from
doing injustice.[45]
Historically, the practice of polygamy existed before Islam without restrictions.[46] Islam limited
the number of wives to four and established clear rules and regulations for the practice to ensure
fair treatment of each wife.[47] Aisha Bint Abu Bakr, a wife of the Prophet Muhammad, was
reported as saying:

Allah’s Prophet (peace and blessings of Allah be upon him) distributed everything justly
amongst his wives; yet after all, he used to say: O Allah! This is the fair way of dividing what I
possess amongst my wives. O Allah! Blame me not for what You alone possess while I do not,
i.e., the heart, feelings and emotions of a man.[48]

The passages above reflect a strict requirement that a man who has multiple wives must treat
each wife equally.  This equality is expected in regards to finances, emotions, and even sexual
relationships.[49] The Quran unequivocally states that if a man is unable to do this and treat his
wives justly he should not marry more than one wife.[50]

Polygamy is an option and not a requirement in Islam.[51] As was mentioned earlier, Muslims
must follow the laws of the land that they live in as long as it does not contradict the
requirements of the faith.[52] In America, polygamy is illegal.[53] As a result, it is Islamically
unacceptable for Muslims in America to practice polygamy.  Muslims living in countries where
polygamy is legal and practiced may choose to include in their marriage contract that the
husband not take any other wives.  If a husband violates an agreement not to engage in
polygamous marriage, that constitutes grounds for divorce and the financial penalties that are
typically included in the marriage contract are fully enforceable.[54]

Polyandry, or marrying more than one husband, is not permitted to maintain the children’s
lineage for purposes of inheritance and protect children’s rights as heirs.[55] Monogamy is the
normal practice in the majority of Muslim communities due to the financial and emotional
burden it carries.[56] It is far more common for American lawyers to see issues involving
monogamous marriage and divorce rather than disputes involving polygamy.[57]

DIVORCE

Divorce existed before Islam, but the advent of Islam made the divorce process much more
favorable to women.  Women’s property is not divided during a divorce.[58] Whatever a woman
earns or is given before and during the course of the marriage remains her property if the
marriage ends.[59] This prevents men from taking advantage of women’s property or wealth
through marriage.  On the other hand, the man’s property is divided if a divorce occurs according
to the couple’s marriage contract.[60] A woman is entitled to support and maintenance from her
former husband if she requires.[61] There are also special instructions if divorce occurs before the
marriage is consummated and before or after the dowry is set.[62]
Islam also instituted a three-month waiting period for women called Iddah.[63] During this three-
month period women are not permitted to re-marry.[64] The basic reason for this rule is to
determine whether the woman was pregnant before she remarried so the proper father could be
ascertained.[65] This practice also ensures the child’s identity and lineage can be accurately
determined.[66] A husband and wife are also allowed to attempt reconciliation during the waiting
period.[67] However, men are specifically instructed not to take back their wives to “injure or take
undue advantage” of them.[68]

Determining the proper procedure for divorce is highly dependent upon the timing of the
divorce, the reasons for divorce, the client’s Islamic School of Thought (Hanafi, Hanbali, Maliki,
and Shafi), whether he or she is Sunni or Shiite, and the circumstances surrounding the divorce.
[69]
The scope of this article cannot cover all the conceivable scenarios or grounds for divorce but
will seek to address the basic requirements for divorce. [70] It is important to keep in mind
different schools of thought can cause some variances in the basic structure described below.

Requirements for divorce

As stated earlier, Muslims in America seeking a divorce still have to comply with the laws of the
United States.[71] However, most Muslims will seek to follow the laws regarding divorce in
America but will also want documents reflecting their religious beliefs and their marriage
contract.[72] Either a man or woman can initiate a divorce.[73] Before a Muslim starts official legal
action he or she must meet the following requirements:[74]

He or she must have reached puberty and be capable of making a decision;[75]

He or she must be sane, conscious, alert, and free from intoxication or anger;[76]

He or she must be free from external pressure;[77]

His or her intention must be clear;[78]

Divorce must take place after the wife’s menstrual period and no sexual relations have occurred
since her period ended.

If all the above factors are present, either the husband or wife can pursue a divorce or they can
pursue a divorce jointly and amicably.  This will involve going through the normal divorce
proceedings according to American law but will also involve reviewing the terms in the marriage
contact and drafting language that incorporates prior agreements and ends the contract.
There are also several levels of revocability of divorce in Islam.[79] If a client approaches a
practitioner claiming the divorce is revocable the best course of action is to consult an Islamic
scholar.  This can be a complicated question that will likely require an Islamic scholar to listen to
both sides and make a determination.  Islam has a strong tradition of alternative dispute
resolution that will help resolve complex matters surrounding divorce.[80]

It is also important to keep in mind that although divorce is permitted in Islam, it is not
encouraged.  The Prophet Muhammad stated of all the permitted acts divorce is most displeasing
to God (Allah).[81] The Quran further states: “Live with them (your wives) on a footing of
kindness and equity. If you dislike them it may be that you dislike something in which Allah has
placed a great deal of good.”[82] Muslims truly view divorce as a last result and many Muslims
seek counseling and extensive assistance to avoid divorce.  If a client is coming to a practitioner
to carry out a divorce it has likely been a very long and difficult religious and personal decision.

Case Study

This section includes a fictional case study designed to provide practice tips based on the
information in this article.  The client in this scenario, Mrs. X, is a composite of common issues
that could arise in the Islamic divorce context. Discussion of this scenario below will be used to
provide best practices and practice tips for attorneys working with Muslims.  As practitioners’
communities grow and diversify, it becomes necessary for attorneys to broaden knowledge on
legal issues stemming from religious and cultural traditions.

Scenario: Client Mrs. X comes to your office for her first meeting.  Mrs. X is 32 years old, does
not have children, and is seeking a divorce from her husband, Mr. X.  Mrs. and Mr. X are
naturalized U.S. citizens who have lived in America for several years.  They immigrated with
their respective parents before age 10, but several family members remained in their home
country of Y and they maintained strong cultural ties to Y.  Mrs. and Mr. X met at a young age
and pursued marriage after forming a deeper connection while attending University together. 
When they decided to marry, they felt it would be meaningful to travel back to country Y to
perform the ceremony.  Mrs. and Mr. X had an Islamic marriage ceremony and signed a
marriage contract that had Islamic requirements and some cultural norms from country Y.  The
marriage contract itself was the result of a lengthy negotiation process. The contract is also in the
native language of Y.  Mrs. X also has a marriage certificate from Y that appears to have a seal
and signature.

Mrs. X claims that, as stated in her marriage contract, she is entitled to $20,000 as part of the
second dowry, which is paid upon divorce.  She also informs you that Mr. X believes the
marriage contract is no longer valid because they are not living in Y, and wants the assets
divided according to Minnesota law.  Mrs. X claims they agreed to the dowry amounts and the
contract should be enforced.

Discussion

To an attorney unfamiliar with the cultural and legal aspects involved in this scenario, a foreign,
religious antenuptial contract can be intimidating.  Surprisingly, Minnesota courts have yet to
directly answer whether religious agreements can constitute antenuptials.[83] However, Minnesota
has upheld religiously inspired contracts before.[84] Other state courts have specifically upheld
religious antenuptials.[85]

The validity of the marriage contract in the above scenario is a common issue that can arise in an
Islamic divorce context.  An attorney who is faced with this scenario should first turn to Minn.
Stat. § 519.11, the Minnesota statute governing antenuptials.  According to the statute, an
antenuptial contract – an agreement prior to the solemnization of marriage – is valid if: (a) there
is a full and fair disclosure of the earnings and property of each party, and (b) the parties have
had an opportunity to consult with legal counsel of their own choice.[86] After determining
whether there has been a fair and full disclosure of the earnings of each party, the attorney must
also determine whether the parties had an opportunity to consult with legal counsel prior to
signing the agreement.[87] Many couples may choose not to consult legal counsel and instead turn
to trusted family figures, but it is important to evaluate the choices that were made during the
negotiation process and how these choices impacted the outcome.

Depending on the individual culture, many Islamic marriage contracts are signed the day of the
ceremony.  This can sometimes bring into question whether both parties had the opportunity to
consult with the legal counsel of their choice.  However, despite the cultural traditions, many
Islamic marriage contracts are the result of a lengthy, well thought out negotiation process during
which both parties have the opportunity to consult legal counsel and family members.[88]
Therefore, the signing of the marriage contract on the day of the ceremony is considered a
formality.  Since Mrs. X’s marriage contract is the product of such negotiations, under Minn.
Stat. § 519.11, the contract is most likely valid as an antenuptial agreement under Minnesota law.

However, a court’s enforcement of any religiously inspired document immediately invokes First
Amendment questions.  On the other hand, if the contracts are set forth in terms that allow a
court to enforce them using neutral principals, there should be no constitutional quandary.  First
Amendment scholar Eugene Volokh argues that “[i]f two parties enter into an agreement
promising to perform a secular act (e.g., pay money) in the event of some secularly ascertainable
event (e.g., a divorce),” then there is no constitutional barrier to enforcing the agreement.[89] This
is exactly the case in Mrs. X’s situation.  Mrs. and Mr. X entered into a legally binding contract
promising to perform a secular act – pay Mrs. X $20,000 – in the event of a secularly
ascertainable event – their divorce.  The analysis of the contract’s enforceability is not affected
by the fact that their agreement had a religious motivation.  Therefore, a court should not be
precluded from enforcing Mrs. and Mr. X’s religious antenuptial agreement on constitutional
grounds.
Practitioners should not be distracted by marriage contracts that are drafted in a foreign
language.  The first step in approaching a contract of this nature is to find a reliable translator
who can provide an accurate translation of the document. Translators may also be able to help
explain what a specific seal or stamp is on a contract.  If finding a translator is difficult, consider
contacting the courts.  Many courts have a bank of court-certified interpreters who may also be
available to interpret documents for these types of cases.

Second, attorneys should not be concerned by unusual dowry items or unfamiliar customs
included in the marriage contract.[90] Attorneys should focus on the value of the dowry items and
finding reasonable solutions to compensating the wife.  Many attorneys allow unusual dowry
items to steal their attention when the true issues lie in the actual enforceability questions raised
earlier in this discussion.

Conclusion

Working with Muslim clients poses challenges of both a religious and cultural nature.  The
information provided above is a basic framework regarding marriage and divorce in Islam. 
However, this framework can be dramatically changed by a client’s cultural or family traditions. 
The best advice for practitioners is be open to learning about clients and do not be afraid to ask
questions that will help distinguish between culture and religion.  The information provided in
this article should be used as a tool to educate practitioners about Islamic practices and give
attorneys knowledge of important Islamic concepts regarding marriage and divorce.

[A] This article originally appeared in the Family Law Forum, Summer 2010, Volume 18, No. 3,
a publication of the Minnesota State Bar Association Family Law Section. The article has been
expanded since the original publication.

[Y] Imani Jaafar-Mohammad is a partner at the law firm of Mohammad & Jaafar-Mohammed,
LLC. She practices in the areas of estate planning, business law, and criminal defense. Imani
received her J.D. from William Mitchell College of Law and her B.A. in English Literature
magna cum laude from the University of Minnesota – Twin Cities. She is a former law clerk for
the Honorable Judge Lloyd Zimmerman and a former staff attorney for the Legal Aid Society of
Minneapolis. Imani is a board member of the William Mitchell Alumni Association Committee,
a board member of the Minnesota Justice Foundation, and a board member of the Landmark
Center in St. Paul. She was named Up and Coming Attorney by Minnesota Lawyer in 2009. She
is also a senior speaker for the Islamic Resource Group. Imani was featured on National Public
Radio, Minnesota Public Radio, and WCCO Radio. She was also featured in Minnesota Law and
Politics magazine. Imani has taught several Continuing Legal Education courses on Islamic
issues throughout the Twin Cities and served as an adjunct professor at William Mitchell College
of Law in the legal writing and academic achievement departments.

Charlie Lehmann is a third year law student at William Mitchell College of Law. Charlie has
externed for the Honorable Judge Gregg Johnson and clerked for the Anoka County Public
Defender’s Office. Charlie is a member of William Mitchell’s National Security & Law Society,
the William Mitchell Journal of Law and Practice, and plays for the Fighting Eelpouts, the
William Mitchell Hockey team.

[1] See Mapping the Global Muslim Population, Pew Forum on Religion & Public Life, Oct. 7,
2009, available at http://pewforum.org/docs/?DocID=450.  It is estimated in Pew’s study of
more than 200 countries there are 1.57 billion Muslims of all ages living in the world today,
representing 23% of an estimated 2009 world population of 6.8 billion.  See id. While Muslims
are found on all five inhabited continents, more than 60% of the global Muslim population is in
Asia and about 20% is in the Middle East and North Africa.  Id.

[2] Sahih ul-Jaami Hadith: Anas bin Malik, a companion of the Prophet Muhammad, reported
that the Prophet Mohammad said,” Any man whom Allah provides with a virtuous wife has been
helped to half his Deen (religion), so he should fear Allah regarding the other half.”

[3] Quran 30:21.

[4] See Quran 4:1; Quran 7:189.  The second cited passage refers specifically to mates dwelling
with each other in love.

[5] See id.

[6] Hadith reported by Abu Dawoud, a companion of the Prophet Muhammad.

[7] See Hammudah Abd al Ati, Family Structure in Islam 54-56 (American Trust Publications
1977).

[8] Id. at 54-56.

[9] Id. at 54-56.

[10] Id. at 56.

[11] See Quran 25:68; Quran 4:23-24.  Take note that Quran 4:23-24 details which people in
society can marry each other and imposes limits on family members marrying one another that
did not exist pre-Islam.

[12] Abd al Ati, supra note 7, at 54-56.

[13] Id. at 59.

[14] Id. at 60.

[15] Id. at 60-61, 70-76.

[16] Id. at 61.

[17] Id. at 61.

[18] See Bihar ul-Anwar, Vol. 16, 56-73.

[19] Id. 56-73.

[20] Id. 56-73.

[21] Id. 56-73.

[22] See Jamal Badawi, The Status of Women in Islam, Al-lttihad, Vol. 8, No. 2 (1971), citing
Ibn Hanbal No. 2469; Ibn Maja, No. 1873.

[23] Id.

[24] See Abd al Ati, supra note 7, at 60.  The importance of reducing all agreements to writing
can be seen in the Quran (2:282).  There is a strong tradition in Islam to make sure agreements
are written down and signed to avoid future disputes.

[25] Id. at 60-61.

[26] See generally id. at 60-62.

[27] See Quran (4:4); Abd al Ati, supra note 7, at 165-166.

[28] See Jamal Badawi, The Status of Women in Islam, Al-ittihad, Sept. 1971, available at
http://www.islamfortoday.com/womensrightsbadawi.htm.

[29] See generally id.

[30] Id.

[31] Abd al Ati, supra note 7, at 64.

[32] Id. at 62-70.

[33] Id.

[34] I have personally seen the following items used as dowry: cash, a down payment for the
couple’s new home, jewelry, jewelry boxes made of mother of pearl, large sets of clothing, coins
minted during the Ottoman Empire, the fact that a husband has memorized the entire Quran that
he brings to the marriage (he is a Hafiz), and family Qurans that are considered precious
heirlooms.

[35] See Abd al Ati, supra note 7, at 165-166.

[36] Id.

[37] Id.

[38] It is basic principle in Islamic estate work that all debts be taken out of the estate before it is
divided.  Unpaid dowry is considered a debt on the husband’s estate.  See generally Abd al Ati,
supra note 7, at 62-70.

[39] See generally Abd al Ati, supra note 7.  This is a generally accepted practice and the
muakhr is considered a divine debt that must be paid before an estate is divided.

[40] Id.

[41] See Abd al Ati, supra note 7, at 59.

[42] It is a common practice that those who conduct marriages in mainstream masjids are
licensed by the state they live in and require couples seeking marriage to possess a state issued
marriage license.  The Islamic Jurisprudence Council of Minnesota is a prominent group of
religious scholars and a prime example of this practice in action.

[43] This information is supported by the oral opinions of known scholars in Minnesota and
many other states throughout the United States.

[44] Hadith reported by Ahmad and Abu Dawoud.

[45] Quran 4:3

[46] See Abd al Ati, supra note 7, at 98.

[47] Abu Dawoud, a companion of the Prophet, reported the following: Omair al-Asdee was
reported as saying: ‘When I accepted Islam, I was married to eight wives. I discussed this with
the Prophet Muhammad who said: “Keep four only, and divorce the other four.”

[48] This Hadith was reported by Abu Dawood, al-Nasaiee, Al-Tirmithee and Ibn Majah.

[49] The Prophet Muhammad’s wives each had an assigned night and were entitled to his sexual
and emotional companionship unless each wife decided to waive that obligation.  For example,
some of his older widowed wives chose to use their nights with the Prophet Muhammad to learn
from him instead of engaging in sexual activity and they had more platonic relationships with
him.

[50] See Quran 4:3.

[51] Abd al Ati, supra note 7, at 98.

[52] Imam Suhaib Webb has an excellent discussion of this concept in this article Muslim
Americans Must Obey US Laws, available at
http://www.suhaibwebb.com/society/international/muslim-americans-must-obey-u-s-laws-nidal-
hasan-disobeyed-islamic-doctrine-at-loonwatch-com/.  As stated in his article: “The Islamic
religion commands believers to obey the laws of the land they live in, even if it be one ruled by
nonbelievers.  Muslim jurists consider citizenship  . . .to be a covenant (aqd) held between the
citizen  . . . and the state, one which guarantees safe passage/security (amaan) in exchange for
certain obligations (such as obeying the laws of the land); covenants are considered sacredly
binding in Islam.  The Quran commands: And fulfill every covenant.  Verily, you will be held
accountable with regard to the covenants. (Qur’an, 17:34).  The Quran condemns those who
break covenants as not being true believers:

It is not the case that every time they make a covenant, some party among them throws it aside. Nay! The truth is
most of them believe not. (Qur’an, 2:100)  The Islamic prophet Muhammad described the religious hypocrite as
follows: When he enters into a covenant, he proves treacherous. (Sahih al-Bukhari)”

[53] See generally Loughran v. Loughran, 292 U.S. 216 (1934).

[54] See Abd al Ati, supra note 7, at 98.  Discussion of the rights of a woman to request a
divorce in the event a husband takes a co-wife without her consent.

[55] Children’s rights are highly protected in Islam.  Children’s inheritance is determined
through lineage and Islamic lineage is connected through a child’s father.  In order to determine
without doubt the child’s paternity, Islam outlawed polyandry.  This was not meant to oppress
women but to protect children.  Abd al Ati, supra note 7, at 100.

[56] See Jamal Badawi, Polygamy in Islam, http://www.al-

islamforall.org/litre/englitre/Polygainis.htm. This is a good resource for the historical scope of
polygamy and its place in modern Islam.

[57] In my legal experience I have only seen polygamy practiced among recent immigrants who
come to America already engaged in polygamy.  This is a very small portion of the Muslim
population and it is rare that American lawyers will encounter polygamous marriages in their
practices.

[58] See Quran 2:229; Quran 4:20.

[59] Id.

[60] See generally Quran 2:231; Quran 2:241.

[61] See Quran 2:231; Quran 2:241.

[62] See Quran 2:236-7.

[63] See Quran 2:228; Quran 2:231.

[64] Id.

[65] See Abd al Ati, supra note 7, at 245-6.

[66] Id.

[67] See Quran 2:228.

[68] Quran 2:231.

[69] See generally Abd al Ati, supra note 7, at 218-222. Research into each school of thought
and sect of Islam will reveal the differences between them in matters of divorce.  The scope of
this article is limited to general Islamic divorce issues.

[70] See Abd al Ati, supra note 7, at 226.  Some grounds for divorce can include a wife who
accepts Islam when her husband chooses to remain non-Muslim, apostasy from either party,
established invalidity of a marriage contract, and violation of a clause in the marriage contract
regarding polygamy.

[71] See Imam Suhaib Webb, supra note 52.

[72] See id.

[73] See Abd al Ati, supra note 7, at 243.

[74] See id. at 226-27.  The final requirement is to ensure that the wife is not experiencing pain
from her period, is not pregnant, and has a clear, uncompromised mind to make decisions
regarding divorce.

[75] Id.

[76] Id.

[77] Id.

[78] Id.

[79] See Abd al Ati, supra note 7, at 237.  In sum, the levels of revocability are as follows:
revocable Sunna divorce, revocable contra-Sunna divorce, irrevocable Sunna divorce, and
irrevocable contra-Sunna divorce..  Again, this can be a complicated determination that will
likely need to be made by an Islamic scholar if it arises in a legal matter.  Id. at 237.

[80] This can be seen in the traditional practice of Imams or Sheiks being trained as mediators
for the purpose of resolving disputes within the Muslim community.  This can be seen in
Minnesota through the Islamic Jurisprudence Council that helps parties resolve their differences
in an amicable way in accordance with Islamic teachings of peace and brotherhood.
[81] Hadith reported by Abu Dawoud, a companion of the Prophet Muhammad.  Hadith also
reported by Ibn Umar.

[82] Quran 4:19. Prophet Muhammad further stated: “A believing man must not hate a believing
woman. If he dislikes one of her traits he will be pleased with another.”  Hadith reported by
Muslim.

[83] See Charles Goldstein, The Enforceability of Religious Agreements as Antenuptials in

Minnesota, The  Hennepin Lawyer, June 23, 2005, available at
http://hennepin.timberlakepublishing.com/article.asp?article=931&paper=1&cat=147.

[84] See Abd Alla v. Mourssi, 680 N.W.2d 569 (Minn. Ct. App. 2004) (upholding a contract
where parties agreed on arbitration based on Sharia law).

[85] See Rahman v. Hossain, A.2d, 2010 WL 4075316 (N.J. Super. A.D.) (upholding the validity
of a “mahr” payment found in the parties’ marriage contract, which was based on Islamic law).

[86] Minn. Stat. § 519.11, subdiv. 1.

[87] See id.

[88] See generally Abd al Ati, supra note 7, at 50-98.  There are several issues surrounding
Islamic marriage contracts that require discussion and negotiations between the bride, groom,
and their families.  These discussions generally take some time to complete due to the
complexity of the issues and differences of cultures and expectations involved.

[89] The Volokh Conspiracy, Islamic Agreements in Civil Courts,

<http://volokh.com/posts/1216332053.shtml (last visited Oct. 13, 2010).

[90] I have received questions on the validity of dowry items such as gold bars, which are
common in the Middle East, or goats, which seem to appear in cultures with more rural roots. 
Focus on what the value of the dowry is and what specifically the wife can reasonably be
expecting in an American context as opposed to the actual item stated in the contract.

Summary:

The solemnization of marriage in any form or in any religion is nothing more than a
legalization of a sexual relationship between a man and woman and the legitimization
of the children produced by them. Common-law couples and their children are
similarly recognized after 20 years of co-habitation. Both are treated as married
husband and wife and their children have the same legal rights and inheritance rights
as provided to other legitimate children's in the eyes of law.
Nikah (marriage) in pre Islamic Arabia meant a different form of relationship between
man and women. Women where not given any right of inheritance and were
absolutely dependent. Woman were treated as chattels. But on the arrival of Prophet
Mohammad, Muslim marriage become a civil contract in which a woman does not lose
her individuality. Her personality is not merged into that of her husband. In this way
woman remains absolute owner of her property in any way she pleases without any
extraneous control of her husband.

The Prophet of Islam is reported to have said ''marriage is my Sunna and those who do
not follow this way of life are not my followers." He also said that ''there is no place
of mockery in Islam.''

In Hedya, marriage is defined as a

"... legal process by which the sexual intercourse and procreation of children are
legitimized between man or woman and is perfectly lawful and valid."

The purposes of Muslim marriage:

The purposes are:

1. To restrain sexual passion.

2. The ordering of domestic life.
3. The care and responsibility towards children.
4. The expansion of the family.

Essential pre-conditions for Muslim marriage:

Muslim marriages are social contracts between a woman and man on the following
terms:

1. There shall be a proposal and its acceptance. The proposal of marriage are tied to
agreements on a dowry (a gift by the family of the groom to the family of the bride)
and a mahr (a marriage gift by the groom to the bride), etc.
2. Competence of parties. Any Muslim who is sound mind and who has attained age of
puberty may enter into contract of marriage.
3. No legal disability. There can be no restriction on any valid Islamic grounds that would
preventing the couple to marry.
4. There shall be free consent of both parties to the marriage.
5. There shall be two male witnesses (or one male and two female witnesses). These
witnesses shall be sane, adult and Muslim.
Divorce in Islam:

Many people of other religions believe that a married Muslim man can dissolve his
marriage at any time by saying to his wife: "Talaq, talaq, talaq" at one occasion of his
own free will and desire. ("Talaq" means "I divorce you.") This motivated me to study
the the actual existence of this method of dissolution of a marriage in Islam.

After solemnization of marriage between parties, if some problems arise, the husband
may divorce his wife. The question is how he divorces his wife, and whether
pronouncement of divorce three times at one occasion is valid.

Zeenat Shaukat Ali, Professor of Islamic Studies St. Xavier's College, Mumbai published
an article in the Indian Express with title: "Divorce, Divorce, Divorce." He attempted
to clear up misconceptions by Muslims and others about the triple pronouncement of
Talaq. The main points in his article were:

1. Talaq and divorce are strongly condemned within Islam.

2. In case of difficulties within a marriage that the husband and wife cannot solve by
themselves, each shall appoint an arbitrator or conciliator to resolve the matter.

( 4:35): "If the fear Shiqaq (breach) between the Twain, appoint (two) arbiters,
one from his family and other from hers, if they wish for peace, ALLAH will
cause their reconciliation."

3. TALAQ-UL-BIDDAT or triple TALAQ: It is important to understand that the word "biddat"

itself means disapproval or something the prophet never did or recommended.
4. Caliph Umer legitimized this form of divorce as an emergency measure.

Most Muslims believe that there shall be a interval of of one month between each
"taliq" pronouncement. If the during these pronouncements, the wife disobeys the
lawful order of her husband, he may divorce her. During this time of breach they
should take measures to reconcile by themselves or with the help of their relatives
etc. All efforts as provided in the Qur'an and Sunna should be made to avoid a breach
of the marriage.

The triple pronouncement of TALAQ has been "...banned by law in many nations,
including Turkey, Tunisia, Algeria, Iraq, Iran, Indonesia, and Bangladesh. India still
permits it." 1 In all such countries arbitration councils and judicial interventions have
been introduced to promote reconciliation.

Offices staffed by female police are being established in Punjab state, India to redress
grievances, particularly by married women. These facilities promote arbitration to
help reconcile the couple. When all efforts fail, the matter is referred for
investigation and later to the court for a trial.

I hope that people of the Islamic faith will learn from the above discussion on divorce
and become aware of the controversial practice within Muslim marriages of the triple
pronouncement of Talaq at one occasion which I believe is Un-Islamic and Un-
Qur'anic. Avoiding that practice will create proper respect, honor and adoption of the
Holy Qur'an  and Sunna (Observing the path) of Prophet Mohammad.

May peace be upon Him and on us of Almighty ALLAH ! Ameen.

Reference used:

1. "Triple talaq: Legal status," Wikipedia, at: http://en.wikipedia.org/

"The Qur'anic Concept of Divorce"

Author: Shehzad Saleem based on Javed Ahmad Ghamidi's interpretation

When a man and a woman marry each other, it is their utmost wish to remain in this relation
of wedlock forever. They are desirous of the fact that the change in times not change their
commitment to each other and only death separate them in this world. But then, sometimes
there does arise a situation when part they must. Differences become so pronounced that it
becomes necessary to sever this relationship. If such circumstances do befall that a husband
and wife must separate permanently, Islam lays down a specific procedure for this separation.
In Islamic terminology this dissolution of marriage is called Talaq (divorce). It says that both
a man and a woman have an equal right to it. The only difference is that a man divorces a
woman while a woman demands a divorce from her husband. In the following paragraphs, we
shall attempt to explain the Qur'anic concept of divorce.

If a husband has decided to divorce his wife, he should first wait until she has completed her
menstrual cycle and then desisting from any further carnal relationship, he should utter the
divorce sentence just once. The wife, after she has been divorced in this way, must stay in her
husband's house for a period of three menstrual cycles. This period is called Iddat. If a woman
does not have menstrual cycles owing to age, disease or any other reason, and still there is a
chance of pregnancy, then she must wait for three months. For a pregnant woman this period
is up to the birth of the child, while for a newly married couple who have had no contact,
divorce does not entail any period of Iddat for the wife. According to the Qur'an, there are
two basic reasons for this waiting period:  i) to ascertain whether a wife is pregnant or not so
that the lineage of the child does not remain a matter of doubt, and ii) to give the husband and
other family members a chance to rectify the situation, for matters in which emotions and
feelings run high, sometimes only time is needed for recovery.

During this Iddat period:

(a) The husband cannot turn his wife out from the house except if she is guilty
of adultery, nor should she leave the house herself.

(b) The wife, if she is pregnant, must not hide her pregnancy.

(c)    The husband should continue to provide for her.

(d) A husband, if he changes his mind, can revoke his decision. The only thing
required, according to the Qur'an, is that he should call in two persons to
testify to his decision1.
If after this period of Iddat, a man is still firm in his stance, his wife shall be considered as
separated permanently. She is now a free woman and if she wishes to marry some other
person, she has all the right to do so and must not be inhibited in any way. If circumstances
change, she can even remarry her former husband. Furthermore, the Qur'an stresses that on
this occasion of parting it is not at all lawful for a husband to take back any property or asset
gifted to her(2). This, it must be kept in consideration, does not pertain to mehr (dower) only,
but to every type of gift given to the wife. Not only should a husband not take back these
gifts, he should, in fact, give her something on this occasion of separation. Even if her mehr
has not been fixed, it is better for him to give her something. If the mehr has been fixed but
the divorce occurs before the husband and wife have had contact, he must return half the
money, unless the wife even forgoes this. In this case also, though it is better that he should
give her the whole money.

However, in case the husband revokes his decision during the Iddat period, there is no need
for re-marriage. The two shall be considered as husband and wife once again. If after
annulment of this divorce, due to some reason, the untoward situation arises a second time
that the husband intends to divorce his wife, the Qur'an says that the husband can exercise his
right of divorce for the second time as well. He should pronounce just one talaaq sentence to
repudiate his wife. Again, the post-divorce period shall be observed in the manner just
described. Once again, if the husband wishes, he has the chance to revise his decision during
this period, in which case the divorce shall be considered null and void and the two shall once
again become husband and wife. If, unfortunately, for the third time, the situation arises that
divorce becomes inevitable, the Qur'an says that a husband can exercise his right for the third
time as well and pronounce the divorce sentence. However, this time the wife she shall be
permanently separated from him. After divorcing his wife for the third time, he cannot re-
marry her now, unless and until, the wife marries some other person and owing to some
reason gets divorced from him -- not under a planned strategy, but on account of naturally
arisen circumstances. This last measure, actually, is meant to prevent this affair from
becoming mere childplay.

In the words of the Qur'an:

 This divorce [in which the husband can revoke his decision in the Iddat period]
is permitted twice only. (2:229)
It is evident from these details that the Qur'an only prescribes one divorce sentence and
stresses that a husband has the right to divorce her wife three times in his life. It does not at all
approve the utterance of three divorce sentences in one go. Consequently, it is clear from
these details that the two prevailing procedures of talaq ie (1) pronouncing three consecutive
talaq sentences in one instance, and (2) pronouncing each of the three sentences in three
months are not at all prescribed by the Qur'an. When the Prophet (sws) came to know that a
certain person had divorced his wife by pronouncing three divorce sentences one after the
other, he stood up in anger and said:
In my presence, such playful attitude has been adopted with the Book of Allah.
(Nisai, Kitab-ut-Talaq)
A woman, as mentioned earlier, has an equal right to divorce. The only difference is that in
such a situation she will demand a divorce from her husband. If the husband refuses, she has
all the right to take the matter to the court. The matter will then be decided by the ruling of the
court. A common misconception in this regard is that she must give some wealth to her
husband on this occasion of separation. This, we are afraid, has no basis in the Qur'an; on the
contrary, the Qur'an says that it is not at all permissible for the husband to demand anything
from his wife on this occasion. However, if a husband has gifted a lot of wealth and property
to her wife and is afraid that in divorcing her he would lose all his riches, the Qur'an says that
she can forgo some or all of her share and return it to her husband to end the whole affair. It is
clear that this is only an exception and not a general principle as is generally held and
practiced. It is allowed when only wealth is the husband's reason for not divorcing his wife.

 This is the shariah as far as the concept of divorce is concerned. However, as does happen
with prescribed laws and procedures, situations arise in which a person is guilty of breaching
the law and deviating from the right course. Human nature is prone to extreme emotional
conditions in which it deviates from the path set forth by the Almighty. These deviations, it is
extremely evident, are not part of the shariah; they fall into breach of law category and it is up
to the legislature of a country to enact laws about such departures. At times, such cases are
even left to the discretion of the judge and at other times the judge himself is bound by the
legislation done in this regard by the parliament.

In case of divorce, keeping in view various precedents, this deviation is generally of two
types:

i) A husband divorces his wife during her menstrual period, or divorces her after he has had
contact with her in her period of purity.

ii) A husband divorces his wife by pronouncing the divorce sentence thrice.

As far as the first deviation is concerned, an Islamic government can ask the husband to
revoke his decision and carry it out in the proper manner at the proper time. The Prophet
(sws) in his own times dealt with the case of Abdullah bin Umar (rta) in a similar manner.
In case of the second deviation, a deliberation on the injunctions of divorce, particularly on
their linguistic aspects, reveals that there are three possible solutions:

(a) The husband can be called to court and asked to testify to the nature of these
pronouncements: if he testifies that he had pronounced the three sentences in anger to only
strongly assert his decision or that he had thought that pronouncing three sentences was the
correct procedure of divorce, the court, if satisfied by his statement, can re-unite the husband
and wife. In this case, it shall be clearly spelt out to the husband that he now has exercised
one of his three chances to repudiate his wife. If on the other hand, a person testifies that he
had consciously uttered the three sentences knowing that he was exercising his three rights in
one time, the wife, of course, shall be divorced from him. The case of Rukaana Bin Abdi
Yazeed (rta) was decided in a similar manner by the Prophet (sws).

(b) A second possible solution in this regard is that a state, while observing that people have
adopted a carefree attitude in following this procedure, legislates that three divorce sentences
shall be considered as three whether pronounced in anger or in a normal emotional state. A
precedent of this solution can be found in the times of the Caliph 'Umar (rta). He himself, in
the capacity of a ruler in consultation with the members of the shura, upon seeing that people
had adopted a very careless attitude in this regard, as a punishment, promulgated three
divorce sentences as final.

(c) A third possible solution in this regard is that the state while observing the fact that people
are mostly ignorant of the correct procedure and in their ignorance think that the correct way
of divorce is to pronounce the sentence three times, legislates that the three pronouncements
shall be considered as one.

Any of these three ways can be adopted keeping in view the welfare of the Muslims.
However, in adopting the second or third solutions, it is necessary that a legislation has been
done in their favour, but as far as adopting the first solution is concerned, no prior legislation
is needed and the matter can be left to the discretion of the judge.

After explaining the Qur'anic concept of divorce and various aspects of legislation in case of
any deviation from it, an important issue which must be elaborated upon before we end this
article is the fate of the children after divorce. In this regard, it should remain clear that this is
basically a matter which has been left to the discretion of the court. The basic consideration in
this matter is the welfare of the children. The court can decide in favour of the father or
mother, depending upon who among them is more beneficial to the children.

1. This testimony, as is evident from the Qur'an, is not a legal requirement. It is only a sound
piece of advice for the welfare of the spouses.

2. The only exception to this rule is when the wife is guilty of committing adultery, in which
case a husband can take back all the wealth and property gifted to her.

Author: Shehzad Saleem based on Javed Ahmad Ghamidi's interpretation

Topic URL: http://www.studying-islam.org/articletext.aspx?id=611