Conditions for Divorce

I’ve never been very sure about what the Qur’an and hadith say about divorce. I know that Muslim men have the unilateral right to divorce their wives. I also know that shari’ah does NOT allow Muslim women to initiate a divorce.  Does anyone know what this ruling is based on?

In terms of custody I know that shari’ah does not allow women full custody of their children if the kids are past puberty.  I personally find this problematic since I think it should depend more on the nature of the parents rather than a black and white rule for all cases.  In 7th century Arabia men were the breadwinners so it makes sense that they would be responsible for the children, but today this is no longer the case.

Any thoughts or info on divorce and custody?

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34 thoughts on “Conditions for Divorce

  1. I’ve read that women can initiate but that it involves returning the mahr…? A mosque in Sydney (Shia though?) has a page about divorce, here are some points from it:
    Conditions of Irrevocable Divorce:

    (This type of divorce applied for by wife or both parties)

    1) The wife may detest her marriage and find it impossible to continue in her marital life. [[detest seems like a strange word here but anyway lol]]

    2) Reimbursing the marriage gift or Sedaaq (if she hasn’t already received it) or its equivalent, that the husband is satisfied with, is required.

    3) Conditions 1,2,3,4 and 5 apply as mentioned in revocable divorce. (In the event of the absence of the husband or his refusal to give the authority, any decision can only be made by the highest jurists.)

    5) Divorce applied by the wife is irrevocable by the husband and the case of reuniting is the wife’s decision only.

    — So I guess maybe the difference here from this article is that women initiate a permanent divorce whereas men can easily just say one talaq but unless they say 3 then they can still remain married? Ah I don’t know, divorce law in any religion is confusing to me!

  2. Wow my understanding is much different than yours.
    From my own research a woman most definitely can initiate a divorce, it’s called khul. The exception would be the hanafi school. This is based on a hadith where a woman wanted out of her marriage and the Prophet (pbuh) said fine just return your mahr.
    On custody, it goes to the mother when children are younger than puberty (despite what you will see in some Islamic societies) and from what I’ve read after puberty there is some gray area and the children do have a voice in which parent they prefer.
    Sorry I can’t give you any links… this is just a compilation of what I’ve found. As you know, shariah is rarely ever black and white. There are so many differing opinions and the dynamics of the situation should always be taken into account.

    • From my understanding of khul as it is applied in Egypt, it means a woman can initiate a divorce BUT will lose any financial claims and custody of her children. So definitely not the same kind of a divorce a man has access to.

  3. I’ve learned that women are able to obtain divorce, the only difference is that they have to go to court to get the divorce, whereas a man can merely say it three times and voilah, legally divorced. I know from law cases I have read from Malaysia, (which is shafi’i school of thought) it is harder for a woman to divorce, and sometimes the courts give women a hard time; but they are able to divorce. There are women’s rights groups in Malaysia that are advocating for an easier path to divorce for women, so I guess it must get pretty complicated.

    As for custody, yea, woman gets the child until they reach puberty, then the man is able to obtain it.
    Not sure how flexible this condition is.

    • Good point, there is also the fact that men can divorce by saying it 3 times, whereas women don’t have this option.

      From what I’ve seen many men abuse the custody rules because courts are more likely to give custody to men. This is how patriarchal societies implement laws that may not be patriarchal at all.

  4. Salams Cairo,

    Im of the view that joint custody is best when the child is young – unless one of the parent is proven totally incapable of being a good parent to the child. Once the child hits an age when he or she is capable of making decisions, he or she should be allowed to decide whom he or she wants to live with. But even so, Joint Custody is still much preferred over Full Custody since the mum and the dad are as responsible for the child/children.

  5. The laws concerning divorce laid down by God and the Prophet have almost nothing to do with Sharia Law..which is man made and based on…”whats mine is mine and stays mine..if it isnt mine anymore…I want to make sure it isnt happy”…*sigh*

    • It really depends on where someone is and which Shari’a laws they apply.
      Does Shari’a specify a minimum legal age?
      Would this girl have gotten her divorce without all the international attention?
      I know that many Muslim men are against a minimum age because the Prophet married a 9 year old girl.

      • Well they are changing the minimum age now so that a girl has to be of a certain age before she is permissable for marriage and scholars are supporting this – so its not all bad. There are some non-lunatic scholars till going thank God

        • Yeah there are some non-lunatic scholars, but the most authoritative (e.g. Qaradawi) seem quite lunatic to me at times.

          I always tend to see these situations negatively. Yes it’s good that finally there might be a minimum age for marriage but the way I see it is: HOW COULD IT HAVE TAKEN THIS FREAKING LONG?!
          Until now girls younger than my little sister were getting married and it was being sanctioned Islamically! I really think that while we should appreciate that change is happening, we should also be critical of why it took so damn long.

  6. I like submission.org for these types of things. Since they follow the Qur’an only, they often have articles that go over all verses of a certain subject which I find useful, knowing that most answers I can find online will put equal emphasis on hadiths and Qur’an, something I’m not especially interested in. I am always careful though, keeping in mind their position about Code 19 (which isn’t an issue in most articles) and keeping in mind that their translation is not the mainstream Sunni one, so I always have another to compare with, to see if it seems to make enough sense.

    I don’t follow the approach of the Qur’an to base everything on circumstances of the time, but I do feel that having the children stay with the husband once they hit puberty is something that would have worked better then and that it’s not necessarily the way to go now. I don’t know what the Qur’an says about custody, but I wouldn’t be surprised if it is not very specific. I wish I knew though so I could find where I stand on the issue…

    • Yeah I agree, I think the custody thing made sense back then but now many situations are different. If the dad is unemployed and the mum isn’t, then maybe it would be better for the child to stay with the mum after puberty.
      I think the best option is for the children to choose at a certain age.

    • I too like the Quran-only philosophy but there are some issues with that, for example, Quran-only allows the beating of women, but hadiths tell us the Prophet (pbuh) never did that – and also hadiths like “the best of you are those who are best to their wives” and “the best of you are those with the best character” would be lost on a Quran-only system.

      Quran only I could have supported 100% were it not for the “beat women” sentence.

        • Its the one thing that really affects me faith wise actually – how can I accept something that says “beat women” in it?

      • I used to think Muhammad never hit his wives, until I saw in Sahih Muslim Book 4 number 2127, Aisha reports “He struck me on the chest which caused me pain”.

      • They have articles and forum posts about that saying the word translated as “hit” can translate and eman something else… You should use the search option on http://free-minds.org/forum to try to find something. Free-minds is a group for any Qur’an only view so it includes people who believe in Code 19 and ones who don’t. And all sorts of different interpretations on verses of the Qur’an. Super interesting.

        • Also, if we take a word in a hadith literally, then we should apply that to all other hadith. We can’t interpret some things metaphorically/liberally and others literally. Like Candice said, “struck” can be interpreted in different ways, just like “daraba” in the Qur’an.

  7. Isnt the quranists (submission) saying that certain ayahs of the Quran, which sunnis and shias believe in, dont belong in the Quran because they dont make sense to the submissioners?

    Cairo you cant just say that sharia says this and that, sharia between the 4 sunni schools of thought and the shia jafari differ between each other in many fields.
    So the view on marriage and on divorce, does differ between them and you cant just state that sharia says this or that.

    I think you should do a comperative study and compare the differend schools view on these issues.

    • The people of submissions.org believe in this “Code 19” and beacuse of this, they do remove a verse of the Qur’an. It doesn’t fit into their code, I guess. I definitely don’t agree with that… It’s important to be careful about their stuff related to that Code of their’s…

      • I think specifically it’s 2 verses, which when I read them myself seem kind of out-of-place … but don’t change anything when removed. Other than the fact that they’re removed. :p

  8. http://english.bayynat.org.lb/WomenFamily/index.htm
    The Ayatollah that i follow, he is one of those learned men who are very moderate and very openminded (one issue he has made many “muslim” enemies through was when he said masturbation for women is allowed)

    Tried to find information on his site about divorce, couldnt find it very busy but i recall that women can issue divorce but that its a bit harder then for a man, she has to have some kind of reason (her man cant make her pregnat or is a drunk and so forth)

    • Your Ayatollah sounds interesting! Many scholars say that women can initiate divorce but it is just harder and they need different reasons, whereas a man can simply say “I divorce you” 3 times. That said, God does make it clear that divorce is one of the worst things you can do, for both men and women, so men shouldn’t go around divorcing women for no reason.

  9. I prefer laws that are fair to women. Not this junk that gives men every right and the easy path and the children to boot.

    Did you make some double chocolate brownies, Dear?

  10. “I prefer laws that are fair to women.”

    Me too! Unfortunately Shari’a was made by men and so often there are rules in there that seem very gender-biased.

    Double chocolate brownies are in the over 😀

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