Can a husband divorce his wife unilaterally?
A Brief Description of the Question:
Can a husband divorce his wife unilaterally? Talaq means freeing oneself from the contract of Nikah (or the bond of holy matrimony). Marriage is a solemn contract, a strong commitment and a tenacious bond [2/235, 2/237, 4/21]. By virtue of this solemn contract, a man and a woman make the pledge to accept the rights and obligations laid down by the Quran in respect of their being husband and wife in order to lead a life of companionship. Since this contract was made between two parties, namely a man and a woman, no one of them has the right to revoke it on ones own, whenever one wants, by just saying, "divorce, divorce, divorce". The rights of the other person have also to be safeguarded. Quran does not leave the matter of divorce to an individual. The society is ordered to take up this matter which decides on the disputed issue. Nowadays, this is either called a government or a court. Quran says in 4:35 If you fear a breach between them twain, appoint (two) arbiters, one from his family and the other from hers; if they wish for agreement, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with all things. [4:35] If we see the above verse carefully, the addressees are neither the arbiters nor the husband or wife but Islamic Authority or the Court. If the arbiters succeed to persuade them to come together, then well and good, but if their efforts fail, they will have to report to the court that appointed them. This court will decide whether a divorce should become effective and what the conditions should be. When the prophet [p.b.u.h] was alive, he himself was the judge (of such a court). The first verse of Sura At-Talaq reads: O Nabi (p.b.u.h), when you divorce your women then… [65:1] In 65:1, Nabi has been ordered to make the divorce effective. Nabi never divorced his own wife. This order from Allah is for deciding the divorce cases for believers. In 4:59, the believers have been commanded by Allah to refer their disputes to Allah and Rasool. The verse 4:65 also makes this point clear. O you who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. If you dispute in anything among yourselves, refer it to Allah and His Messenger, if you do believe in Allah and the Last Day: That is best and most suitable for final determination. [4:59] But no! by your Lord! they do not believe (in reality) until they make you a judge of that which has become a matter of disagreement among them, and then do not find any resistance in their hearts as to what you have decided and submit with entire submission. [4:65]. Now if we come back again to verse 65:1, the key word used for divorce is "Tallaqtum" which is a plural word. This signifies that the prophet [p.b.u.h] may not be the only one to affect the decisions about divorce. Those who he charged with authority could also make such decisions when and where the prophet [p.b.u.h] would not be present, as is also suggested by 4:59. From this, it is clear that in respect of divorce, it is the Islamic Authority i.e. the Islamic Court that makes the final decision and the husband and wife cannot do so individually. The court should announce its decision when the monthly period of the woman expires because ‘IDDAT’ will be counted from onwards. This shows that a unilateral announcement of divorce by a husband is nothing more than his intention to do so. Divorce will take effect from the day the court of law decides the case after the observance of due formalities. The wife shall then complete her Iddat prescribed by Quran before she choose to remarry. If this is the process of divorce according to Quran then what shall be the position of divorces inflicted in contravention of these laws?. Muhammad Latif Chaudhery
The Answer:
Yes, although it is not advised, a man can divorce his wife unilaterally; it is permissible.
Talaq (divorce), in Islamic law, means to break the connection of a marriage and abolish it. The word is also used as in the form of “talaq” meaning “divorcing”.
Talaq (divorce), in Islamic law, means to break the connection of a marriage and abolish it. The word is also used as in the form of “talaq” meaning “divorcing”.
According to Islam, the aim of marriage is to establish a peaceful family life and to raise a good generation in that home. However, it is not possible for all marriages that have such high purposes to be successful. Sometimes natural obstacles such as death and illness, and sometimes obstacles that arise from spouses such as incompatibility, mutual hatred, not loving each other or not getting along well with each other may prevent marriages from continuing.
When a marriage moves away from the main purpose and there is no possibility of living together peacefully, and when necessary, Islam allows ending such a marriage. In accordance with that permission, the marriage can be ended by the husband directly or by receiving a determined amount of compensation from the wife; it can also be ended by the wife who has the right of “talaq”, by a judge or with the decision of an adjudicate or a judge.
The wisdoms (reasons) of “talaq”:A marriage’s continuation in a peaceful and happy life -before everything- depends on the love and respect of the spouses towards each other. Almost every marriage is established having that thought in mind. However, it cannot be said that all of the marriages reach that target. If those people who were happy and had sincere feelings towards each other at first and became unhappy afterwards, there is no point in putting up with such a marriage for the rest of their lives. In this case, they should end such a marriage in order to get rid of that distress.
When we deal with man in terms of his material and spiritual characteristics, we see that he is not perfect in every aspect. For this reason, one of the parties may have done wrong, made a mistake at the beginning of or during the marriage. It may be impossible to correct those wrongs or mistakes. It is not right for the parties to suffer the consequences for the rest of their lives. Then, the solution is to end the marriage which has become unbearable and enable the parties to have different marriages that they may be happy.
The judgment of the “talaq”:Islam is a realistic religion. That is to say, its judgments have been laid by paying attention to the existing features of man. Allah Almighty, who knows man the best because He knows about those situations, let the marriages that become unbearable be ended:
“A divorce is only permissible twice: after that, the parties should either hold together on equitable terms, or separate with kindness...” (Qur’an, Al-Baqarah, 2/229).
“O Prophet! When you do divorce women, divorce them at their prescribed periods, and count (accurately), their prescribed periods...” (Qur’an, At-Talaq, 65/1).
And Our Prophet (pbuh) said:
“By Allah, the most unlikable halal (permissible act) is divorcement.” (Abu Dawud, Talaq, 3)
As it can be understood from the verses above, talaq is permissible and acceptable. However, it is an alternative that must be carried out when necessary and when there is no other alternative. That is the general judgment of talaq but it may change in accordance with the situations. For example, the “bid-i talaq” is haram (forbidden) (Bid-i talaq: Divorcing wife with a word saying “talaq” several times when she is in the period of menstruation or when getting clean or after having sexual intercourse). Divorcing a wife who has no fault in a convenient way is makrooh (abominable); divorcing in order to become more devout and chaste is mandub (laudable); in case of discord, the divorcement that the arbiter approved is fardh (obligatory); and divorcing a spouse who is not loved is permissible.
The Authority of Talaq:
a. The right of divorce belongs to man in principle. In respect of having much more responsibilities and difficulties during marriage life, man has been regarded as deserving it. However, in order that the talaq can be valid, man has to have some conditions. They are intelligence and puberty. It is controversial among scholars whether the talaq that the compelled (by being threatened to death), the drunk, the madhush (one who is in the state of fury) uttered is acceptable or not, that is to say, whether the talaq that they uttered is valid or not. According to the Hanafi Sect, their talaq is valid.
b- The right of talaq can be handed over to the woman or to a third person if is laid down as a condition during the marriage agreement. Handing over the right of talaq is called “tafweez”; and the woman who gets the right of divorce is called “mufawwaza”. In that case, the woman can use the right of talaq whenever she wants. If man wishes, he can hand over the right of divorce after nikah (marriage).
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