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Marriage and Divorce

             One of the most distorted concepts of Islam is the real meaning of marriage. In addition to the brief statement made earlier in this survey, a few more remarks may be useful. Marriage in Islam is not a business deal negotiated by two partners, nor is it a secular contract whereby material benefits and obligations are evaluated in contrast to one another. It is something solemn, something sacred, and it would be erroneous to define it in simply physical or material and secular terms. Moral charity, spiritual elevation, social integrity, human stability, peace and mercy constitute the major elements of marriage. It is a contract to which God Himself is the First Witness and the First Party; it is concluded in His Name, in obedience to Him and according to His ordinances. It is a decent human companionship, authorized and supervised by God. It is a Sign of His blessings and abundant mercy as He clearly says in the Qur’an, (30:21).

             It is evident, therefore, that marriage in Islam is a means of permanent relationship and continuous harmony not only between man and women but also between those and God. It is also clear that when two Muslims negotiate a marriage contract, they have every intention to make it a lasting success, for good or for bad, for better or for worse.

             To insure this result, Islam has laid down certain regulations to give every possible assurance that marriage will serve its purpose fully. Among these regulations are the following:

1.         The two parties should acquire a fair knowledge of each other in a way that does not involve any immoral or deceptive and exploitative behavior

2.         Man in particular is exhorted to choose his female partner on the basis of her permanent values, i.e., religious devotion, moral integrity, character, etc., and not on the basis of her wealth or family prestige or mere physical attractions.

3.         Woman is given the right to make sure that the proposing man is a suitable match, worthy of her respect and love, and capable of making her happy. On this ground, she may reject the proposal of a man whom she finds below her level or unfit, because this may hinder the fulfillment of her obligations as a wife and may even break her would-be marriage.

4.         Woman has a right to demand a dowry from her suitor according to her standards and also according to his means. If she wishes to disregard this right and accept him with a little or no dowry, she may do so. The injunction of dowry on man is to assure the woman that she is wanted, needed, and that the man is prepared and willing to undertake his responsibilities, financially and otherwise. Dowry is also a symbolic gesture indicating that the woman will be secure, and that the man is not looking for any material gains as his motive for entering the marriage. It draws the clear lines between what each party should expect and not expect of the other.

5.         Marriage should be made public and celebrated in a most joyful manner. The free consent of both parties is an essential condition without which marriage is not valid.

6.         Every marriage, in order to be legal, must be witnessed by two adults and registered in official documents.

7.         Complete maintenance of the wife is the husband’s duty. She is entitled to that by virtue of marriage. If she happens to have any property or possessions, that will be hers before and after marriage; the husband has no right whatsoever to any portion or share of his wife’s property. This is to restrict marriage to its noble purposes and disentangle it from all unworthy objectives.

            With all these measures, it can be seen that Islam has given all possible assurances to make marriage a happy companionship and a solid foundation of continuous harmony and permanent peace. But in view of the fact that human behavior is changeable and sometimes unpredictable, Islam takes a realistic outlook on life and makes allowances for all unexpected events. Marriage, as has been said, has decent and noble purposes which must be fulfilled. Islam does not accept or recognize any marriage which is not functional and effective. There can be no nominal or idle marriage. There must be a successful marriage or no marriage at all. Marriage is too solemn a contract to be stationary or non-effective. So if it does not serve its purpose or function properly, it may be terminated by divorce with conservation of all rights of the parties concerned. This is because there is no point in keeping a nominal and worthless contract, and to save human kind from being tied by vows which cannot be honored.

            When the Islamic marriage, which is based on the said regulations and governed by the said precautions, does not function properly, there must be some very serious obstacles in the way, something that cannot be overcome by reconciliation. In a situation like this, divorce is applicable. However, it is the last resort because it is described by the Prophet as the most detestable of all lawful things in the sight of God. But before taking this final and desperate step, some attempts must be made in the following order:

1.         The two parties involved must try to settle their disputes and solve their problems between themselves.

2.          If they fail, two arbitrators, one from the husband's relations and the other from the wife's, must be commissioned to try to make peace between them and settle their differences.

3.          If this attempt also fails, divorce might be applied.

                In applying divorce to such a difficult situation, Islamic Law requires that it should be agreed upon by both parties, and grants each of them the right of seeking divorce. It does not confine the right of divorce to the man only or to the woman alone. Both can exercise this right. If either one of the two parties does not feel secure or happy with the other who arbitrarily refuses to grant divorce, and if the demand of divorce is found justifiable, the court must interfere and help the wronged party to obtain a divorce. It is the duty of the Law administrators to see to it that all rights are preserved and that harm is minimized.

                After the divorce takes place, there is waiting period during which the divorcee is completely supported and maintained by her former husband. She cannot marry another man before the expiration of this period, which is between three months to 12 months time depending on the circumstance of the woman. If one divorces his wife after touching her (made love to her), it will be mandatory for her to pass three consecutive full periods of menstruation if she is of those who got menstruated and is not pregnant. Allah says in the Holy Qur'an "Divorced woman shall wait concerning themselves for three monthly periods…" (2:228)

            “For those who are pregnant, their period is until they deliver their burdens…" (65:4)

            If the woman is of the type who is not menstruating for some reasons (i.e., young girl, one who removed her reproduction organ or one who for some reasons have no more hope to menstruate) her waiting period shall be three months.

            "Such of your woman as have passed the age of monthly courses, for them the prescribed period, if ye have any doubts, is three months, and for those who have no courses (it is the same).." (65:4)

            In another circumstance, if the woman is one who used to menstruate regularly, but the blood has stopped for a certain reason, such as being afflicted with sickness or fostering a baby. The woman must be confined in an unlimited period of waiting even if it will last long. Under such circumstance, she has to wait until the blood comes out. Then her period of waiting will be calculated by the days in which the blood will be remaining and nothing else. However, if the woman gets cured or finished fostering (i.e., the cause of stoppage of blood has ceased) and yet she is not menstruated, she must then wait for a full year period (as Iddat) after which the reason thereof is cleared. It is said further, that if the reason for the interruption of the blood has been cleared but still no presence of the blood, she will be like one whose blood of menstruation has stopped for an unknown reason. Thus, she must wait for a period of one full year (i.e., nine months attributed to pregnancy being the maximum period as step for precaution in addition of the three months waiting period). (A Treatise on The Natural Blood of Woman by Sheikh Mohammad As-Salih Al-Othaiymeen, translated by Mohammad mostafa Shamma and revised by Dr. Huda Afshi).

            The waiting period is another chance for both to reconsider their attitudes in a more serious manner and deliberate on the reflections of their separation. If they desire during that period to reunite, they are permitted to do so. In fact, they are encouraged to reunite because separation in this way usually helps them appreciate one another more. When the waiting period expires, the divorcee is free to marry another man. They are no longer obligated to one another.

            Should there be a reunion between the divorcee and her former husband, their marriage will be just like fresh one. If their relations do not improve, they can resort to the same solution of divorce, after which they may reunite by a new marriage in case they so desire. But if this second reunion does not succeed, then a final divorce may be applied.

            By allowing divorce in the first place, Islam declares its policy that it cannot  tolerate unhappy, cold and stagnant marriages which are much more harmful than divorce. By making it twice, one after the other, with the choice of the parties to reunite, it offers every conceivable chance to make marriage effective and purposeful. Here, Islam is prepared to tackle all kinds of problems and cope with all situations. It does not endanger marriage by allowing divorce. On the contrary, it insures it by the very same measure, for the wrong person would know that the wronged one can free himself of herself from injustice and harm by divorce. By realizing that marriage is binding only as long as it is functional and successful, both parties would do their utmost to make their marriage fulfilling before doing anything that might affect the continuance of marriage. It makes each party careful in choosing the other partner before marriage and in treating that partner afterwards.

            When Islam makes divorce obtainable by mutual consent or by the interference of the court on behalf of the wronged party, it stands firmly on guard for morality and human dignity. It does not force a person to suffer the injustice and harm of an unfaithful partner. It does not drive people to immorality and indecency. It tell them this: either you live together legally and happily or else you separate in a dignified and decent way. What is morally and humanly most remarkable about Islam in this respect is that it does not force any person to lower his or her dignity and degrade his morality just to obtain a divorce. It is not necessary for a Muslim to "separate" from his or her partner some years before divorce can be granted. Nor is the granting of divorce conditional on adultery. "Separation" as endorsed by many systems can and certainly does involve immoral and indecent actions. In case of "separation" of this kind the person can neither enjoy his rights not fulfill his obligations of marriage. He or she is officially married, but how much does he enjoy married life? He is tied as tightly as can be, yet he is loose that no restrictions can affect him. He cannot get a divorce or remarry, but is there any legal limit to his scope of extramarital relationships? He can move with whomever he likes unchecked and unrestricted. These are things which happen every day and need no elaboration. "Separation" of this kind might help someone to finally get a divorce, but how costly it is to morality and how high the price is for society to pay! This is something that Islam can never accept or endorse, because it would violate the whole system of moral values which Islam cherishes.

            Considering the case of adultery and its endorsement by some systems as a basis for divorce, we can only say this: it is so humiliating to human dignity and detrimental to morality that a person should commit adultery or pretend to have committed it to obtain a divorce. The viewpoint of Islam on adultery has been already stated above. What happens, however, in most cases is this: people are not divorced because they have committed adultery or pretend to have committed it, but they commit adultery or pretend it in order to obtain divorce decrees, which are not granted otherwise. What a reverse and disgraceful course in human relations!
This is the stand of Islam on the matter. If divorce has to be obtained as a last resort, it must be granted with dignity and due respect. When Islam is applied to married life, there will be no room for "separation" or "adultery" as bases for divorce. Nor will there be that easy Hollywood-type divorce, which sprang as an extreme reaction to an extreme rigidity. Any system dealing with human nature has to be realistic and moderate, making allowances for all circumstances with preparedness to cope with all conditions. Else, it would be self-destructive and groundless, a state of which Islam is absolutely free (see Qur'an, 2:224-232; 4:34-35; 4:127-130).

            One final remark will conclude this discussion. In virtually every known society and religion, there are ways to terminate any marriage. The divorce rates in industrialized world are rapidly rising and divorce laws are increasingly liberalized. However, divorce in Islam remains a remarkable moral act. Mates are commanded by God to be kind and patient and are reminded of how one may dislike something in one's mate in which God has placed much good and virtue. They are assured of God's help if they mean well and stay together. But if they must part by divorce, it is to be sought without intent of injury or harm. If they part gracefully and honorably, God assures them of enrichment of His all-reaching bounty. The whole marital context, from beginning to end, is centered around and oriented to the belief in God. The verses dealing with divorce are not dry legal stipulations; they commence and conclude with moral exhortations of a high order. The moral commitments of the parties extend far beyond the divorce date. Indeed, the entire question is so incorporated into a highly moral system that divorce is rightly regarded as a moral act in the main.