Organization of divorce

Man knew divorce since he knew marriage. When man was raping woman and forcing her to have sexual intercourse with him, he used to abandon her when he got what he wanted. Moreover, he may expel her violently with no mercy or tender and without a committed fault or a sin, but because he did not want her and did not desire her. When man advances in the ladder of civility, some nations used to limit divorce with special constrains in accordance with the Divine Scriptures or in response to the advice of the leaders of these nations.

Divorce according to the Romans was done by the consent of man and woman according to a signed agreement. The Greece admitted that man only is the one who has the right of divorce, but the justice system did not guarantee justice to women and did not secure them against the oppression and tyranny of man.

As for the Ancient Egyptians, they preceded all nations in the prohibition of divorce and their women had power over men, where women used to dictate whatever they wanted to men in most cases. This was confirmed by the story which Allah narrated about the wife of the Pharaoh when he wanted to kill Moses, but she commanded him not to kill Moses. "And the wife of Fir'aun (Pharaoh) said: "A comfort of the eye for me and for you. Kill him not, perhaps he may be of benefit to us, or we may adopt him as a son." And they perceive not (the result of that)." [Surat Al Qasas: 9].

The story of the wife of Al `Aziz who dictated her will to her husband and said: "What is the recompense (punishment) for him who intended an evil design against your wife, except that he be put in prison or a painful torment?" [Surat Yusuf: 25]. She said to the women of the city with self-confidence and assured of the power she had: "And now if he refuses to obey my order, he shall certainly be cast into prison, and will be one of those who are disgraced." [Surat Yusuf: 32].

Destiny drove Alexander, the Great, to Egypt and subjugated it to his rule, but he was fascinated by the system of construction and sociology which he transmitted to his country, of which was the prohibition of divorce and the banning of polygany then it prevailed to Europe and spread therein from that time on.

Torah came to permit divorce and made it one of man's rights and took into consideration intention and determination. Torah estimated men and women and gave the right to man to divorce his wife if he intends divorce even without uttering the word of divorce which caused difficulty and hardship to people.

Then the Bible came to ban divorce and brought its followers to the condition which prevailed in Egypt then to Europe long before the Torah was revealed.

As for Arabs in the Pre-Islamic Era, division had multiple causes and for each one a special ruling.

The causes that required division were: Zhihar (a form of separation between a husband and wife until expiation is fulfilled. it signifies the man's likening of his wife to a kinswoman unmarriageable to him. the usual formula is, you are to me as my mother's back), Ila', and divorce.

As for Zhihar, a man says to his wife: You are prohibited to me like my mother.

If a person says that, his wife shall be prohibited to him forever.

As for Ila', it is a husband's oath not to have a sexual intercourse with his wife for a certain period that may be long or short.

As for divorce, it is well-known among people, but in the Pre-Islamic Era, it was away from justice, discipline, and goodness and was different amenably according to the conditions of tribes in terms of advancement, deterioration, richness and poverty.

Of them were some people who would never take their wives back in marriage if they divorce them three times.

Some of them divorced their wives whenever they wanted and took them back in marriage whenever they wanted even if they have divorced them one thousand times.

The reasons for which they did so were their keenness to harm women because ardor of the Pre-Islamic Era disdained that a man would allow his wife to marry another after divorcing her.

Islam came while that chaos was covering all nations and people of reason were seeking the straight path to get rid of it. Islam came with its light, guidance, easiness, tolerance, justice, mercy, system, and wisdom; and facilitated for the people after hardship, widened after narrowness, regulated after disorder and chaos; and made the people taste justice and its sweetness after the pain of oppression and its bitterness.

What Islam has done regarding those issues?

It annulled Zhihar and made it abominable. Allah (may He be Exalted) says: "Those among you who make their wives unlawful to them by Zihâr (i.e. by saying to them "You are like my mother's back,") they cannot be their mothers. None can be their mothers except those who gave them birth. And verily, they utter an ill word and a lie. And verily, Allâh is Oft-Pardoning, Oft-Forgiving." [Surat Al Mujadalah: 2].

So, if someone practices Zhihar of his wife, his Zhihar shall not have any effect in forbidding her to himself, but he has to pay a penance to erase the sin he has committed. Allah (may He be Exalted) says: "And those who make unlawful to them their wives by Zihâr and wish to free themselves from what they uttered, then (the penalty in that case is) the freeing of a slave before they touch each other. That is an admonition to you (so that you may not repeat such an ill thing). And Allâh is Well-Acquainted with what you do. * And he who finds not (the money for freeing a slave) must fast two successive months before they both touch each other. And he who is unable to do so, should feed sixty Miskîn (needy persons). That is in order that you may have perfect Faith in Allâh and His Messenger. These are the limits set by Allâh. And for disbelievers, is a painful torment." [Surat Al Mujadalah: 3 - 4].

This ruling is given as a mercy to spouses to glorify Allah and to know the favor of Islam.

As for a husband's oath not to have a sexual intercourse with his wife for a certain period, Islam has fixed four months for it, and when a husband takes his wife back in marriage, there will be no sin against him and his Ila' is considered an oath but if he waits until the elapse of the period, his wife shall irrevocably divorced.

Allah (may He be Exalted) says: "Those who take an oath not to have sexual relation with their wives must wait four months, then if they return (change their idea in this period), verily, Allâh is Oft-Forgiving, Most Merciful. *And if they decide upon divorce, then Allâh is All-Hearer, All-Knower."[1][Surat Al Baqarah: 226 - 227].

As for divorce, Islam looked to it with wisdom, justice, and mercy, and ordained a just ruling which is incomparable in which the sublime wisdom, the justice which has no oppression, and the mercy which has no limit appear. Man may make mistakes in choice because he has no knowledge of the Unseen, so he may choose a woman who is not suitable for him in manners or in religion, and may also be deceived by the beauty of his wife, then he has no choice but divorce.

What kind of happiness that may combine two spouses without any kindness, intimacy, or mercy between them?

Do not they feel that they are living in hell?

Do not they think that they live chained in a dark prison?

Can man live with a woman who has betrayed the covenant of marriage, played around, and gave up her chastity?

What kind of happiness in which a husband has a woman who spends every penny without saving some for hard days or for children, and whenever her husband advises her, she becomes worse?

What kind of happiness in which a husband has a bad-mannered wife who receives him with a gloomy face, blame, and rebuke because he has forgotten to bring her needs which he cannot afford?

Is not divorce better for such cases to end these relationships?

For those reasons, Allah has permitted divorce if there is a pressing need. Allah has permitted divorce but confined it by heavy constraints so as not all people would resort to it when facing minor problems. The Prophet (peace be upon him) started to depict a bad image about divorce from which a truthful believer be disgusted. The Prophet (peace be upon him) said: "The most hated of permissible things to Allah is divorce." [2]

This wise saying makes the believers who are keen to the obedience of Allah and following His Way keep away from divorce if there is another solution. How could they approach divorce while they have another way out?

Allah commanded them to resort to arbitration before divorce to maintain the family and the relationship. Allah (may He be Exalted) says: "If you fear a breach between them twain (the man and his wife), appoint (two) arbitrators, one from his family and the other from hers; if they both wish for peace, Allâh will cause their reconciliation. Indeed Allâh is Ever All-Knower, Well-Acquainted with all things." [Surat An-Nisa': 35].

So, if reconciliation had been difficult, there is no other solution better than divorce in order that each spouse regulates his own affairs as he or she likes and to save himself or herself from the reasons of unhappiness. The wisdom of the Best Wiser [i.e., Allah] has ordained that divorce should not be the final solution and if it is done, there are other stages.

So, Allah made divorce three types:

First, revocable during which a husband can take his wife back in marriage as long as she is still in the waiting period even without her consent and without dower.

Second, minor irrevocable divorce during which a husband has the right to take back his wife in marriage but with a new marriage contract and new dower whether during the waiting period or after it is finished.

Third, major irrevocable divorce during which a husband cannot take his wife back in marriage until she marries another man and the second man divorces her or dies then he may take her with a new marriage contract and a new dower.

The wisdom behind this graduation is not hidden from reasonable people. It is probable that divorce has happened due to wrath that may abate after a while; therefore the Lawgiver has given the husband the chance to take his wife back. If a husband repeats divorce, it was made difficult for him to take her back in marriage as if she is a new wife with a new marriage contract and new dower. If a husband repeats divorce for the third time, it was made difficult for him to take her back in marriage until she marries another person.

A jealous man refuses to take back his wife after marrying another man. The Wise Lawgiver ordained that a man should not divorce his wife except while she is pure so as to divorce her willingly and in moderate mode. So, if he divorces her in her menses, he shall be sinful and he has to take her back in marriage if it is not the third time [3] then he may divorce her or not.

Imam Al Bukhari narrated from `Abdullah ibn `Umar that he divorced his wife and she was menstruating during the lifetime of the Messenger of Allah (peace be upon him), then `Umar asked the Messenger of Allah (peace be upon him) about that. Thereupon, the Messenger of Allah (peace be upon him) said: "Order him (your son) to take her back and keep her till she is clean and then to wait till she gets her next period and becomes clean again, whereupon, if he wishes to keep her, he can do so, and if he wishes to divorce her he can divorce her before having sexual intercourse with her; and that is the prescribed period which Allah has fixed for the women meant to be divorced."[4]

Perhaps the cause of prohibiting divorce during menstruation is not to prolong the waiting period which will harm her. Or perhaps his distaste to her is not real because during menstruation period women are not in their normal conditions. The Wise Lawgiver did not leave out any means that may make man averse from divorce but it exhorted to so as to keep this holy bond. Allah (may He be Exalted) says: "And live with them honorably. If you dislike them, it may be that you dislike a thing and Allâh brings through it a great deal of good." [Surat An-Nisa': 19]. Furthermore, Allah prohibited man to take anything from his wife that he gifted or offered so as not to escalate the matter for her.

Allah (may He be Exalted) says: "But if you intend to replace a wife by another and you have given one of them a Qintâr (of gold i.e. a great amount as Mahr) take not the least bit of it back; would you take it wrongfully without a right and (with) a manifest sin? *And how could you take it (back) while you have gone in unto each other, and they have taken from you a firm and strong covenant?"  [Surat An-Nisa': 20 - 21]. Allah commanded man to provide homage for her and to spend on her until she is able to find a way of spending after her life was ruined by divorce.

Allah (may He be Exalted) says: "Lodge them (the divorced women) where you dwell, according to your means, and do not harm them so as to straiten them (that they be obliged to leave your house). And if they are pregnant, then spend on them till they lay down their burden. Then if they give suck to the children for you, give them their due payment, and let each of you accept the advice of the other in a just way. But if you make difficulties for one another, then some other woman may give suck for him (the father of the child)."  [Surat At-Talaq: 6]. So, is there -after this explanation- another system that a researcher can admire or feel relief about? That wonderful system is a real pride for Muslims and cannot be denied but by those who have lost all senses "Such are they whom Allâh has cursed, so that He has made them deaf and blinded their sight. * Do they not then think deeply in the Qur'ân, or are their hearts locked up (from understanding it)?" [Surat Muhammad: 23 - 24].

May Allah guide us to understand the secrets of His Book, provide us success, and guide us to the best way.