Divorce

[Hajira4545]

Can women initiate divorce according to Quran? I know men can basically initiate it without any reason or nushuz involved, and they don’t need any help from court where as women traditional have been barred from initiating divorce at all and in cases they do they have to pay back mahar and that too only in cases of abuse and also the husbands permission  is needed which makes no sense.  This all has been disturbing me a lot.

[Wakas]

peace,

You may find the following helpful:

....... it does give a guideline and mentions situations and conditions that should be considered before marriage:

Determining mutual attraction/compatibility [2:221, 2:235, 30:21, 33:52]
Ascertaining whether the potential partner is of similar beliefs/faith [2:221, 60:10]
Discussion of and agreeing to the level of dower and other terms (if any) [4:4, 4:24]
Understanding and mutual acceptance of marriage as a solemn/strong oath/contract [4:21, 2:232, 2:237, 24:33]
If male, capable of providing for the family/household [2:228, 2:233, 4:34, 65:6]
To have physically matured / post-puberty [4:6, 24:31, 24:58-59]
To have the marriage contract/oaths witnessed [2:235, 2:237, 2:282, 65:2]
If the marriage is unsuccessful, one should also be capable of undertaking divorce proceedings, e.g. separation period, arbitration, discussion of settlement etc [2:226-232, 2:241, 4:35, 4:128-130, 33:49, 65:1-6].

To understand the sequence of events, we must fully understand the divorce procedure according to The Quran:

'cooling-off' period for those who swear away from their wives sexually, limited to 4 months [2:226]*
after this 4 month 'cooling-off' period, the options are: revert to normal relations or divorce/talaq [2:227]
post-divorce interim/waiting period is 3 menstruation periods or 3 months, if pregnant it is until they deliver, if widowed it is 4 months and 10 days [2:228, 2:234, 65:4]
if no sex has taken place after marriage, then no interim period is required after divorce/talaq [33:49]. Compensation may be due however if dower was agreed upon [2:237]
during post-divorce interim period, wife remains in the same house, and is compensated by way of maintenance during this period in the same living standard as the husband, each according to their means [2:236, 2:241, 65:1, 65:6-7]**
divorce is automatically retracted if sex between the couple takes place during the interim period [inference from 2:226, 33:49, 65:1]***
if couple reconciles, then divorce/talaq may be retracted twice during interim-period. If divorced a third time it is final unless she marries another then they divorce, only then can original partners re-marry. If the couple fear they will not maintain God's bounds, then wife may give some dowry back to release herself [2:229-230]
if couple still wishes to follow through with the divorce/talaq after the end of the interim period and undergo final separation, then two witnesses are required to complete the process [65:2]
exceptions exist, in certain situations [60:10-11]
the onus is upon the person in the wrong to rectify the situation or initiate divorce/release, and it is an obligation upon the contract-breaking party to compensate the other [2:229, 2:237, 4:19, 4:128-129, 33:28, 60:10-11]

As a side note, the last point is also mentioned in traditional Islamic law and sources, see M.Asad's note on 2:229. This system would also protect the male if he were to marry a female who only did so for his money or the marital gift then she wished to end the marriage later, because since the contract-breaking party compensates the other partner, she would have to do so accordingly. Similarly, this would protect the female if she were to marry a male who only did so for lustful reasons then wished to end the marriage later, as he would then have to compensate her.

*Also possibly provides a time limit due to a practice of the time in which husbands did not have sex with their wives but also did not divorce them, see 58:1-4, 33:4; i.e. leaving them in a state between marriage and divorce. Similar to what is implied by 4:129.

**And the same goes for the lesser situation of 'cooling-off' period. Obviously, the wife would not be removed from the home for the lesser serious 'cooling-off' period then brought back just for the post-divorce interim period.

***Inference from 2:226 is that resumption of sexual relations is equated to reconciliation, thus no initiation of divorce. Hence, same proviso for post-divorce interim period, i.e. sex = reconciliation.

From the plural usage in the following verses it can be seen that the court/authority becomes involved post-divorce/talaq:
2:229 ("... and if you (plural) fear that the couple will not uphold God's limits...")
65:1 ("... and you (plural) keep count of the period...")
Which makes sense, because it is only after divorce/talaq that the authority would be needed to make things official and ensure The Quran's laws are being followed, e.g. record divorce date, keep count of the interim period, possible examination of marriage contract, mediate, determine compensation/maintenance, living arrangement and any settlement (if disputed).

In Quran, to my knowledge, there is no discussion of divorcing by man/woman for no reason. Before marriage a lot of additional stipulations could be put into the marriage contract if the couples agreed, assuming they do not violate specifics in Quran. For example the wife could clarify divorce rights etc.
Again, to my knowledge, there is no initiation of "talaq" (the classical term for "divorce") from the wife to the husband in Quran. It would perhaps be more fitting to say she can release herself by way of ransom/exchange (which usually means giving up a part or all of her dower). This would make sense with the principle that the contract-breaking party should compensate the other.

Also you can read up on 58:1-4 and 4:128 here for situation of no resolution / intransigence:
http://www.quran434.com/wife-beating-islam.html#part3

The above is my understanding.

[Hajira4545]

So if the wife wants to give dower back and get out of marriage she can without the husband agreeing to it ? And what if the husband is abusing the wife? Does she have to give back dower still to get out? Which sounds horrible tbh. And also the fact that wife has to ask the husband to agree  to give back dower is quite abhorrent. Idk what to think about this.  This all sounds like women have no authority to leave the marriage If they want to and rather depend on the whims of their husbands. This is highly abusive.

[Wakas]

Are you referring to Traditional Islam or Quranic Islam?

I cannot help with the former, but for the latter please see my above post. Answers therein.

If, after reading the above, you still have questions then please state your question, one at a time, along with what you understand from the above, then I can better respond.

[Hajira4545]

Sorry my bad. So I’ll list the questions below

1) for Khula or ransoming out of the marriage does wife need the husbands agreement? If she does then what happens when the husband forces her to stay when she doesn’t want to?
2) in case of abuse by the husband does she still have to pay the mahr back if she wants to leave him?
3) a man can divorce without any reason but a woman cannot?

[Wakas]

1) for Khula or ransoming out of the marriage does wife need the husbands agreement? If she does then what happens when the husband forces her to stay when she doesn’t want to?

Using what I wrote above what is your response to this? i.e. what do you think the answer(s) could be.


Thanks.

[optimist]

Sorry my bad. So I’ll list the questions below

1) for Khula or ransoming out of the marriage does wife need the husbands agreement? If she does then what happens when the husband forces her to stay when she doesn’t want to?
2) in case of abuse by the husband does she still have to pay the mahr back if she wants to leave him?
3) a man can divorce without any reason but a woman cannot?

Assalamu alaikum dear sister,

The divorce process in the Quran is actually very simple.   The terms like khulh and Fasq are not mentioned in the Quran.  They are developed later by the clergy to unfairly support men.  The Quranic direction in 4:35 is that, "If you fear a breach between them (the couple), the concerned authority should constitute a board of arbitration consisting of two members, one from his family and the other from hers”. Here, the focus is strained 'husband and wife relationship' where the parties find it difficult continue the relationship, and this by default means the complainant may be the man or the woman; in both cases, as per the Quran, it is the duty of society to appoint an arbitration board.  This right is not exclusively for man.  Those who say otherwise in fact challenging the Laws of Allah stipulated in the Quran.   Same like a husband can initiate divorce, a woman has also the same right. 

Moreover, in verse 4:128 it says if a wife fears cruelty or desertion, both parties should try to reach 'sulhu', again the focus here is  mediation. If mediation not successful the natural consequence will be divorce.  The wife has the authority to handle the situation through a mediator suggested by her from her family and a mediator appointed from husband's family in a dignified manner.  If no solution they can seperate (divorce)

The Quran doesn't consider divorce as a crime.  If there is any problem (be it anything) a woman can demand the qadi or court to appoint arbitrators. Quran does recognise personal likes and dislikes of both man and woman, but tries maximum to keep the marriage relationship going. The Quran earnestly requests both parties to respect each other,  reconcile and find solutions to their problems.  In 4:19 Allah says *"...live with them honourably. If you dislike something about them do not resolve immediately to separate from them. It is possible that something you dislike may bring about abundant good for you."*

[AQL]

1) for Khula or ransoming out of the marriage does wife need the husbands agreement? If she does then what happens when the husband forces her to stay when she doesn’t want to?

Using what I wrote above what is your response to this? i.e. what do you think the answer(s) could be.


Thanks.

What a refusal to answer the question.

She was clearly asking if she would have to return the mahr if she wanted to divorce from an abusive husband. Your answer is yes, so why not just say that? In your interpretation, she has to return her marriage gift to an abusive husband so she is able to get out of her marriage. This is a trap.

And I agree with her. It is very unfair. It is unfair anyway but especially in countries where women don't even basic rights. This would be another way to trap them. They are often already financially dependent. Now they have to suffer financially, birth babies, take care of said babies (including the manchild husband), her in-laws, etc, and STILL return the mahr? Imagine doing all that and you still have to give more.
Yet there is no such stipulation on the husband to give anything to his ex-wife who is far more likely to suffer as a result and is far more likely to be stuck with children, and far more likely to suffer societal wrath, whether she initiates the divorce or not.

The real question in the context of this discussion should be: if one wants to follow the more Western model of divorce with both being able to initiate divorce, is that fine in Islam or not?

[Wakas]

What a refusal to answer the question.

Wrong. I already answered it.

She was clearly asking if she would have to return the mahr if she wanted to divorce from an abusive husband. Your answer is yes, so why not just say that? In your interpretation, she has to return her marriage gift to an abusive husband so she is able to get out of her marriage.

Wrong again. Rather than claiming what my position is why not provide a quote from me which proves what you claim is my position is actually my position.

Now they have to suffer financially, birth babies, take care of said babies (including the manchild husband), her in-laws, etc, and STILL return the mahr? Imagine doing all that and you still have to give more.
Yet there is no such stipulation on the husband to give anything to his ex-wife who is far more likely to suffer as a result and is far more likely to be stuck with children, and far more likely to suffer societal wrath, whether she initiates the divorce or not.

Wrong again. Where in Quran does it say the wife gets stuck with the children / father does not need to provide for them / husband does not provide anything to ex-wife etc.

The real question in the context of this discussion should be: if one wants to follow the more Western model of divorce with both being able to initiate divorce, is that fine in Islam or not?

I cannot answer for the religion of "Islam" with a capital "I". If you are referring to Quran based islam then I already answered this.