Divorce (2/5)

Revocable and irrevocable Divorce

1- The revocable divorce, when the husband divorces his wife, with whom he has already cohabited, a single divorce. He may reapproach her while she is in her iddah, if he wishes, because she would remain as his wife as long as she is in her iddah. Both spouses can legally inherit each other.

Resumption of marital status may be achieved verbally when the husband says to his wife:  "l reapproach you." or practically by having an intercourse with her, or simply by an act leading to copulating with the intention of resuming marital life.

2- Irrevocable divorce, by which the wife would be separated from her husband permanently. It is of two kinds:

a) Divorce of lesser severance, the divorce which a husband issues his wife for the first, or the second rime, without approaching her before the end of her iddah. In this case, divorce would be considered of lesser severance because the husband can remarry his divorced wife by a new contract and dowry, even if she did not remarry another man.

b) Divorce of greater severance, the third divorce after which the divorced wife separates from her husband permanently. She would not be lawful to him until she has married another man under a legitimate marriage contract, and with the intention of maintaining proper marital life. The second husband must have an intercourse with her. If the second husband divorced her, and she has concluded her iddah, the first husband would be permitted to remarry her with a new contract and dowry.

• It is permissible for the wife to request a divorce in the presence of a judge if the marriage is causing her injury that makes her life unbearable under the following circumstances:

1- If the husband falls short of maintaining her.

2- If the husband inflicts injuries upon her that makes her unable to continue living with him, such as abusing, swearing, battering, or forcing her to commit unlawful things, or the like.

3- If she suffers as a result of prolonged absence of her husband, and fears succumbing to the lower desires.

4- If her husband has been incarcerated for a long term, and she becomes harmed by his absence.

5- If her husband has terminal disability, impotency, serious ailment, or the like.

• If a male says to his wife: "The divorce decision is in your hand", she would thus have the right of divorcing herself three times, unless the husband intended to give her the right of one divorce only.

• If the husband says to his wife: "lf you menstruate, you would be divorced" she would be divorced by her subsequent menstruation.

• If the husband says to his wife: "lf you give birth to a baby boy, you would be divorced once, and if you give birth to a baby girl, you would be divorced twice, and if she gives birth to a boy and a girl, she would be divorced by the birth of a boy and would be divorced irrevocably by the birth of the girl. She would not have to observe the iddah.

• He who is doubtful as to whether he has divorced his wife, or whether he has attached a condition to it, he does not have to divorce his wife. But if he is doubtful as to the number of the divorces, it should be considered as one.

• It is recommended for a divorced woman to stay home to go out only if she has to.

• Permissibility of divorce is one of the meritorious features of Islam, and so is the permissibility of resumption of marital status. lf the married Life lacks harmony and becomes impossible, divorce becomes allowable. All praise is due to Allah.

• It is the Sunnah to have the divorce, and the resumption or reunion witnessed. It is valid though, to divorce or resume married Life without witness.

Al-Khal’ (Instant divorce)

• The khal’, a state of instant divorcement for a ransom, or compensation given to the husband by the wife.

• The khal’ is a good Islamic remedy. If detesting to continue the marital life was on the part of the husband, divorce is his decision to make. But if it was on the part of the wife, Islam allows her to request for instant divorce by returning to her husband what he gave as a dowry to release her from the wedlock.

• The khal’ becomes permissible when the wife detests her husband's conduct, temper, features, impiousness, or if she fears to commit a sin if she falls short of being dutiful to him. It is unlawful for the husband to withhold her release for the purpose of forcing her to give her dowry. He would be entitled to the dowry he gave her only if the wife commits an atrocious sin, such as adultery, or a gross act of disobedience.

• The khal’ is the break of marriage whether it takes place by pronouncing the term of divorce, khal’, or by giving a ransom, such as saying by the husband to the wife: "You are divorced," or "I quit you by khal’." And she would respond by saying: "I accept", or the like.

• Any property that is permissible to give as dowry is permissible to give as a compensation for separation of instant divorce. If the wife says to her husband "Divorce me instantly, (by way of khal’) for a ransom of a thousand of such and such", and he responded positively, the divorce would take place instantly, and he would be entitled to the thousand. It is commended for the husband to take no more than what he gave her as a dowry.

* The khal' is permissible whether the wife is in her purity period, or menstruation. A woman divorced in this manner, should observe as iddah, three menstruation periods.

* It is permissible for the husband to remarry the wife whom he divorced by khal’, with a new contract and dowry, and with her consent.

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