FAQ in the category of Divorce

According to the hadith mentioned in the question, one of the things that Satan likes most is conflict between spouses and divorce.  

The hadith in question is as follows:

“Iblis places his throne upon water and sends his groups (helpers) to do evil deeds. The closest to him are those who tempt people to commit the most grievous of sins (fitnah). They come to him to tell him about what they did. One of them says, ‘I have done such-and-such.’ However, Iblis tells him, ‘You have done nothing.’ Another one comes and says, ‘I did not leave a man until I caused him to leave his wife and divorce her.’ Iblis becomes very pleased and calls him close to his throne and says to him, ‘How good you are!’” (Muslim, Munafiqun 67; Musnad, 3/314)

Attention is drawn to a social event and an illness that is widespread today in the hadith.

The statement “Iblis places his throne upon water” tells us where devils settle and play tricks on people more. In other words, places where devils settle are generally the places that are used for debauchery and that are open to all kinds of sins like sea shores.  

The statement “He sends his groups” is also significant. Some of the helpers of Iblis make man charge interest; others dominate the eyes and make them look at haram things, making people pursue their carnal feelings by triggering their animal impulses; yet others dominate the mouth and make people tell lies, backbite and slander. Maybe each one of them causes people to commit sins based on their talents.

In fact, Iblis becomes pleased with every sin that is committed because there is a way leading to unbelief in every sin. Every sin causes a black spot to be formed in the heart. In addition, a person that commits a sin moves one step away from Allah. However, Satan expects more from his helpers.   

One of the things that pleases Iblis most is conflict between spouses and hearing that they were divorced.

Thus, divorce is so important in terms of Satan that he compliments his helper who causes a husband and wife to divorce and maybe rewards him but he does not compliment his other helpers who cause people commit other sins.  

- Why is this issue so important for Satan?

When Satan destroys a marriage, he does not destroy only two people. He also destroys the lives of children, the parents, relatives and beloved ones of the divorced spouses and even, in a sense, the whole society by destroying a marriage. For, when the family, which is the molecule of the society, disintegrates, cracks occur in society and society becomes exposed to very serious deformations. In addition, divorced spouses set a bad example for others, and this spreads to other homes like an infectious virus. As it is seen, Satan seems to be doing something that looks trivial, but in fact, he turns many things upside down with this evil he commits.

In this respect, it should never be forgotten that Satan will never stand idle and will do anything he can to set the spouses against each other in order to turn a home that is suitable for being a corner of heaven into a pit of hell. Besides, he will want to constantly damage the family establishment by means of demonized people that he gets under his thumb and directs as he wishes to realize his aim.

Allah warns the believers with the following verse:  

“Nor let the chief Deceiver deceive you about Allah.” (Luqman, 31/33)

That is, Satan has a terrible and dizzying deception. He tries to corrupt man by constantly adding his own distorted thoughts, intrigues and tricks to man’s intentions and thoughts.

In another verse, Satan is described as "khannas (withdrawer)" because he is a sly creature that withdraws first and attacks when he gets the opportunity, approaches people from the right side, shows the bad and ugly things as beautiful, and wants to make man blunder whenever possible.

The decrees of our religion for the protection of the family should be strictly adhered to, and maximum sensitivity should be displayed to protect family privacy and family secrets. If this can be done, Satan’s helpers and demonized people will not have the opportunity to penetrate into the family and destroy it from within.

In addition to taking protective and preventive material and spiritual measures like that, it is also very important to assume a spiritual shield with prayers and to take refuge in divine protection for the continuation of a happy family life.

The Messenger of Allah (pbuh) always took refuge in God Almighty with the following words in the prayers he said in the morning and evening:

اَللّٰهُمَّ احْفَظْنِي مِنْ بَيْنِ يَدَيَّ وَمِنْ خَلْفِي وَعَنْ يَمِينِي وَعَنْ شِمَالِي وَمِنْ فَوْقِي وَأَعُوذُ بِعَظَمَتِكَ أَنْ أُغْتـَـالَ مِنْ تَحْتِي

“O Allah! guard me in front of me and behind me, on my right hand and on my left, and from above me: and I seek in Thy greatness from receiving unexpected harm from below me (being swallowed by the earth).” (Abu Dawud, Adab 110)

According to the Hanafi madhhab, the divorce uttered by a sane man who has reached the age of puberty becomes valid. It does not matter whether he is a free man or a slave, whether he has divorced her of his own accord or due to the pressure of somebody else. However, according to the Maliki madhhab, divorce does not occur under pressure. (al-Jawharatun Nariya)

Islam has always protected the institution of marriage. It does not approve of divorcing a woman indiscriminately; it does not allow a man to harm the honor of a woman by uttering words of divorce for fun or randomly. Therefore, it is accepted that if a man says to his wife jokingly or for no reason, "I have divorced you", the divorce is valid.

For, the Messenger of Allah (pbuh) said,

"Three things are regarded as serious even if they are uttered jokingly: Marriage, divorce and taking back a wife."  (Abu Dawud, Talaq 9)

Similarly, if a man stumbles and divorces his wife by mistake, divorce takes place. Therefore, a believer has to be very careful when he does or utters something and he has to control himself.

Clear divorce is divorce that is uttered through certain words that are distinct and that reflect the aim.Since it is clear, intention is not necessary. When it is uttered, it becomes valid; intention is not taken into consideration. The following expressions and similar ones are clear: "You are divorced. I have divorced you."

If divorce is uttered through ambiguous words, intention is taken into consideration. For, the words that are uttered can mean divorce or some other things. Therefore, scholars say divorce that is expressed through ambiguous words becomes certain only through intention because it is not clear in which sense the words are used.  

(see Celal YILDIRIM, İslam Fıkhı)

According to the Islamic decrees, there are three bonds of marriage between a person and his/her spouse. One of these bonds is broken with each divorce. When all of them are broken, that is, when a person divorces his wife three times, it is not religiously permissible for them to continue their marriage.  

The term "hulla", which is derived from the verb halla, which means rendering halal, means the marriage of a woman who was divorced by her husband to marry another man first in order to marry her previous husband again. This deed is also called tahlil or tahlil ash-shar'iyya.

The religion of Islam prohibits harming women through divorce and limited the unlimited number of divorces that causes it. The following is stated in the Quran:

"A divorce is only permissible twice: after that, the parties should either hold together on equitable terms or separate with kindness. (...)So if a husband divorces his wife (irrevocably), he cannot after that, re-marry her until after she has married another husband and he has divorced her. In that case there is no blame on either of them if they re-unite, provided they feel that they can keep the limits ordained by Allah. Such are the limits ordained by Allah, which He makes plain to those who understand." (al-Baqara 2/229,230)

If the spouses who were divorced by three talaqs want to get married again, the woman needs to marry another man truly, without any tricks, and has to have sexual intercourse with him. Hz. Prophet states that it is not halal for a woman to marry her first husband again without any sexual intercourse with her new husband. (Bukhari, Talaq, 4; Abu Dawud, Talaq, 49)

The dishonest marriage called hulla, which is made in order to make it halal for the woman to marry the previous husband, is contrary to the principles of Islam and the limitation of divorce as three times in order to protect the rights and prestige of the woman. Therefore, Hz. Prophet declared the man who makes hulla and who makes another man to make hulla as people are damned by Allah. (Abu Dawud, Nikah, 15; Ibn Majah, Nikah, 33; Ibn Majah, Nikah, 33)

The Companions also state that hulla is not halal. The madhhabs of Islam also state that the marriage made based on the condition of hulla is haram;  two Hanafi imams, Abu Yusuf and Muhammad, and Imam Shafii say this marriage will not render marrying the previous husband halal; Imam Malik and Ahmed ibn Hanbal say a marriage made on the condition of hulla is invalid. 

However, if a woman who was divorced with three talaqs marries another man truly, without any tricks, and if her husband dies or if she is divorced due to dissension, etc, it is halal for her to marry her previous husband again. 

Accordingly, if a woman marries an old man truly even if he is 70, she can marry her previous husband again if her husband dies or if she is divorced. 

HULLA

In Islam, the family established through marriage is a serious and holy institution. The marriage makes the woman connected to her husband through three bonds. If a man divorces his wife once and breaks one of these bonds, he can return to his wife when she feels the pain of separation; their relationship continues with two bonds and more carefully. If the man trifles with this serious institution and divorces his wife again and then wants to return to his wife again, he is given one more right and their relationship continues with one bond. If the man divorces her again and trifles with such a serious institution, it is regarded as making fun of the honor of the woman and his demand to return to her again is not accepted. The Quran decrees it as follows: "... if a husband divorces his wife (irrevocably), he cannot after that, re-marry her until after she has married another husband and he has divorced her." (al-Baqara (2, 230) That is, after the third divorce, she needs to wait for her iddah, marry another man truly and have sexual intercourse with him; and if she is divorced by her new husband after that and waits for her iddah again, she can marry her previous husband if he wants to marry her again. For, if he puts up with something which harms his honor, that is, his wife's marriage with another man, it means he has learned a lesson.

However, people find ways of bypassing laws; when a man wants to marry his wife that he divorced three times, he makes a deal with another man and make him marry her on condition that he will divorce her immediately. This is called "hulla" or "tahlil"; the second husband that marries the woman on that condition is called "muhallil". These words are derived from the word "halal". "Hulla" means becoming halal, "tahlil" means making halal, that is, rendering halal, and "muhallil" means the one that makes halal.

Since the Prophet likened this second man who makes "hulla" to a male goat for rent (Ibn Majah, Nikah 33) and he said, "May Allah damn the one who makes hulla and the one for whom hulla is made" (Ibn Majah, Nikah 33; Abu Dawud, Nikah l4; Tirmidhi, Nikah 28; Musnad 1/83, 88, Il/323), all of the Islamic scholars unanimously agree that it is a very ugly and haram deed. However, what will happen if it is done despite its ugliness? All of the Islamic scholars except Hanafis state that "hulla" has no value and that a woman who returns to her previous husband like that is not halal for her husband. Hanafis say it is a damned deed but if a person does it without being disgusted, he/she will have committed haram. However, the woman can be halal for her previous husband because when the Prophet damned it, he used the phrase "makes halal". (see. Sabuni, ibid 1/340) That is, making halal takes place even though it is through an ugly way.

Islam has given the right to divorce to the man because the power of divorce, which can destroy a marriage in an instant, could not be given to the woman, who can often act emotionally. If this right belonging to the man had been given to the woman in the same way, the destruction of the marriage would occur frequently; the woman who would use the word divorce in every moment of anger and rage would not be able to keep the home standing, and it would collapse. It is because of this sensitivity of the woman the following is stated in the aphorisms:

“The woman is always dominated by feelings and the man by reason.”

The right to divorce was not given to the party overwhelmed by feelings in the first place.

However, the woman is not completely deprived of this right. During the marriage contract, the woman can say yes to the marriage on the condition that she is given the right to divorce. This right can be valid for life or for a certain period of time. During this period, if she is sure of her husband, she can give up her right to divorce before the end of that period. The man cannot take back this right of divorce that he gave at the time of marriage even if he later regrets it. He is obliged and bound to be faithful to what he promised.

In Islamic law, “tahyir” actually means the transfer of the right to divorce. The husband gives his wife the option of divorcing him or staying with him. The decrees of the fiqh scholars deduced from the Book and Sunnah on this issue are as follows:

1) Once the husband has given this right to his wife, he cannot take it back or prevent her from using it. However, the wife does not necessarily have to use this right. She can decide to stay married to her husband, or to divorce him, or she can choose to do neither and cancel the right of tahyir.

2) There are two situations in which this right (tahyir) can be transferred to the woman:

      a) The husband must make it clear that he has given his wife the right to divorce. If he does not explicitly mention divorce, he must have that intention. For example, indirect statements like “It is your choice” or “It is up to you” do not cause the right to divorce to pass to the wife unless the husband’s intention is certain. If the wife makes a claim and her husband swears that he did not mean it, the husband’s statement will be accepted unless the wife proves that those words were uttered during a quarrel or in connection with divorce. If they are uttered during a quarrel, they are regarded to have been uttered with the intention of divorce and tahyir.

      b) The woman knows that she has been given the right to divorce. If she was not there when it was said, she would learn it from others, and if she was there, she would hear it herself. The right of divorce does not pass to her unless she hears those words or is informed of them.

3) As for the time limit for her to use this right, if her husband has given her the right to divorce without specifying a time limit, fiqh scholars have different opinions on the issue. Some scholars are of the opinion that she should use her right in the assembly where her husband has given her this right. If the woman leaves the assembly without giving any answer, or if she turns her attention to something else as if she does not want to give an answer, it means she has given up the right she has been given, and there is no longer any right of freedom of choice for her. That is the view of Umar, Uthman, Ibn Mas’ud, Jabir b. Abdullah, Ata, Jabir bin Zayd, Mujahid, Sha’bi, Nahai, Imam Malik, Imam Abu Hanifa, Imam Shafii, Imam Awzai, Sufyan ath-Thawri and Abu Thawr. According to the other view, the decision is not limited to that assembly and that the woman can decide later on. That is the view of Hasan Basri, Qatada and Zuhri.

4) If the husband sets a time limit for his right, for example, if he says, “You have one month or one year to choose, or you are free to choose within such and such period,” the woman can use this right only within that period. However, if he says: “You can use this right at any time,” she can use it indefinitely.

5) If a woman decides to divorce, she must express this intention clearly and decisively. Vague and slippery words that do not fully reveal the intention are of no effect.

6) Legally, the husband can give this right to his wife in three ways: He can say, a) “It is in your hands”, or b) “Choose for yourself”, or c) “If you wish, divorce yourself”. The legal consequences of each of those statements are different:

     a) If the husband says, “It is in your hands” and the wife clearly states that she has decided to divorce him, according to Hanafis, it is a ba’in talaq (irrevocable divorce). It means that the husband and wife can remarry after that if they wish. If the husband says, “It is in your hands, but only for one talaq,” it is regarded as a rij’i talaq (revocable divorce) meaning that the husband can return to his wife within the period of iddah. However, if the husband intends to do all three talaqs at the time he gives her the right of freedom of choice, and if he himself expresses it, the woman’s use of this right is an irrevocable talaq, whether or not she says that she has divorced him three times (three ba’in talaqs).

      b) If the husband gives this right to his wife with the words “choose for yourself”, and she uses this right with a clear statement, according to Hanafis, it means revocable (rij’i) talaq even if the husband has intended three talaqs.

However, if the husband has explicitly given the right of choice for three talaqs, three talaqs will take place when the wife uses this right. According to Imam Shafii, if the husband had the intention of divorce at the time he gave her the choice, and she uses this right, it is a revocable divorce (rij’i talaq). According to Imam Malik, if this right is given to a woman who has had sexual intercourse, it means three talaqs, and if this right is given to a woman who has not had sexual intercourse, the husband’s claim that he intended one talaq is accepted.

     c) If the statement “If you wish, divorce yourself” is used, and the wife uses this right and chooses to divorce, it is a rij’i talaq (in which the husband has the right to return to his wife during the period of iddah), not a ba’in talaq (which is irrevocable without a marriage contract).

7) If the husband gives the woman the right to remain married after the husband has given her the right to choose, the divorce does not take place. Umar, Abdullah bin Mas’ud, Aisha, Abud-Darda, Ibn Abbas and Ibn Umar hold this view. Many other fiqh scholars have also accepted this view. When Masruq asked Aisha (ra) about it, she replied as follows: “The Prophet (pbuh) gave his wives the right to choose and they chose to live under his marriage. So can it be considered talaq?” According to the narrations regarding the issue, Ali (ra) and Zayd (ra) are of the opinion that in such a case, an irrevocable talaq takes place. However, according to another narration, both of those two Companions hold the view that talaq does not occur.

The marriage is not invalidated if a man insults (swears at) his wife. However, if the insult includes a word that requires talaq (divorce), the marriage will be invalidated.

According to Hanafi madhhab, the divorce uttered by a sane man who has reached the age of puberty becomes valid. It does not matter whether he is a free man or a slave, whether he has divorced her of his own accord or due to the pressure of somebody else. However, according to Maliki madhhab, the divorce of a forced person is not valid. (al-Jawharatun-Nayyira)

Islam has always protected the institution of marriage. It does not approve of divorcing a woman indiscriminately; it does not allow a man to harm the honor of a woman by uttering words of divorce as a joke or just for the sake of conversation. Therefore, it is accepted that if a man says to his wife as a joke or just for the sake of conversation, “I have divorced you”, the divorce is valid.

The Messenger of Allah (pbuh) said,

“Three things are regarded as serious even if they are uttered jokingly: Marriage, divorce and taking back a wife.” 

Similarly, if a man stumbles and divorces his wife by mistake, divorce takes place. Therefore, a believer has to be very careful when he does or utters something and he has to control himself.

Clear divorce is divorce that is uttered through certain words that are distinct and that reflect the aim. Since it is clear, intention is not necessary. When it is uttered, it becomes valid; intention is not taken into consideration. The following expressions and similar ones are clear: “You are divorced. I have divorced you.”

If divorce is uttered through ambiguous words, intention is taken into consideration because the words that are uttered can mean divorce or some other things. Therefore, scholars say divorce that is expressed through ambiguous words becomes certain only through intention because it is not clear in which sense the words are used.

Accordingly, divorce does not occur when a person insults or swears at his wife or his wife’s mother without the intention of divorce.

For detailed information, see: Celal Yıldırım, İslam Fıkhı.

The family institution is a very important institution in terms of the individual and society. In order to fulfill this important function, the family must be stable, peaceful and suitable for happiness.

Let us imagine a family in which discord, quarrel, tension, separation and reunification continue. No parties of this family cannot be happy and peaceful. Thus, they cannot be successful in their deeds related to the world and the hereafter.  They always have the question “what will happen to me/us?...” in their minds.

As for the children, they cannot be happy, peaceful and successful either; they acquire false information, negative feelings and consciousness about the dignity of the family institution, and the fact that the family is the warmest and safest home.

Therefore, Islam does not consider the union of marriage as a contract that will continue regardless of the circumstances, as in other religions and legal systems, or as a contract that will not have any sanctity or dignity like the purchase of goods.

Divorce is a deed that Allah does not like; therefore, it is necessary to try to continue with patience and persistence before divorcing.

However, despite the utmost efforts of both parties or one party, if it is not possible for the marriage union to continue by fulfilling the above-mentioned function and when this conviction becomes certain, separation will be legitimate.

Most of those who know that the husband has the right to divorce (talaq) directly (without the involving the court, by undertaking the financial burden) in Islamic law do not know that women who are not satisfied with their marriage and who have been wronged have the right to divorce even if their husbands do not want it; they criticize Islam because of it.

However, the right to demand divorce through court by citing the reasons, which is practiced in many countries of the world today, is also recognized in Islamic law. This right can also be exercised by applying to arbitrators rather than to the court.

In addition, the woman can also get the right to divorce her husband when the marriage contract is made or later, and can divorce directly (on her own will) by using this right when necessary.

The decision of the judge to terminate the marriage upon the woman’s demand and in the presence of legal reasons was in question only in very narrow limits in Hanafi madhhab; therefore, it was not popular in the Ottoman country until the Family Law Decree.

Upon the adoption of the aforementioned law, the authority of the judge expanded, and other Islamic countries developed the same institution through citation and expansion.

The reasons for the woman’s demand to divorce are as follows:

1. Disease and defect

There are of two types disease, disability and defect.

The first is related to sexual life and includes the defects and diseases that prevent sexual intercourse in men or women; such as the man’s being impotent, his genital organ’s being cut or disabled, the woman’s having a disability or abnormality in the genital organ that prevents intercourse.

The second is the diseases that are disgusting and hateful or contagious, like leprosy, smallpox, syphilis, ringworm, mental illness.

2. Loss (Absence)

A person who has been lost and whose place is unknown, and it is not known whether he is alive or not is called “mafqud”.

Imam Malik said that a woman needed to wait for four years to be free, and after that, she could apply to a judge for the verdict of death and divorce. Family Law also adopted and enacted this decree.

The husband who is known to be alive but has left his home is called “ghaib”. According to Abu Hanifa and Shafii, the wife of the missing person cannot apply to the court and demand to divorce.

According to Imam Malik and Ahmad b. Hanbal, she can demand to divorce.

If the husband’s place is known, the judge writes him to come or take his wife and gives him a certain time; if the situation does not change at the end of the period, he divorces them.

If the place of the husband is not known and the period of absence has exceeded one year, the judge decides to divorce them upon the demand of his wife.

For these results, the absence must not be based on an excuse such as military service, education and jihad.

Family Law regards the impossibility of providing sustenance as a condition for the absence of the man to be a reason for divorce (art. 126).

According to Imam Malik, the decision of the judge to divorce due to absence is bain (irrevocable) divorce; According to Ahmad b. Hanbal, it is a termination.

3. Ceasing sustenance

Providing sustenance is among the legal consequences of the marriage contract since it is the duty of the husband and the right of the woman. If the husband does not or cannot provide sustenance, what is the sanction for the woman to get her right?

Acting upon the verses and general principles about sustenance, mujtahids gave different answers to this question:

According to Abu Hanifa and Thawri, a woman cannot file a divorce case because of this; she needs to be patient and ask her husband to allow her to work; if her husband cannot provide sustenance, he owes her the amount of sustenance and she collects it according to the general rules of collecting receivables. The basis of this opinion is the following verse: “… Allah puts no burden on any person beyond what He has given him...” (at-Talaq: 65/7) Based on this verse and similar evidence, Ibn Hazm went further and said, “The poor husband’s sustenance has to be provided by his wife if she is rich.”

According to the imams of the other three madhhabs, the husband’s failure to provide sustenance is a reason for the woman to file for divorce. The following verse and similar ones are the proofs of this ijtihad: “... but do not take them (your wives) back to injure them, (or) to take undue advantage...” (al-Baqara: 231).

According to Ibn Qayyim, a woman cannot file for divorce on the grounds of sustenance unless she has been deceived about the financial strength of her husband.

Family Law preferred the ijtihad of Abu Hanifa (art. 94-99) regarding sustenance being the reason for divorce.

4. Ill-treatment and incompatibility

If ill-treatment, incompatibility, non-compliance with family law come from the husband (if the fault belongs to the husband), what the woman needs to do is to apply to the judge and arbitrators. In accordance with the verses that introduce these rules (an-Nisa: 4/33-34), all mujtahids agree unanimously that the judge would refer the situation to the arbitrators if he was consulted due to ill-treatment and incompatibility.

Different opinions arise about the authority of the arbitrators, one of whom is usually from the wife’s family and the other from the husband’s family.

According to Abu Hanifa, the arbitrators are in the position of deputies and unless they have been given the authority to divorce and terminate the marriage, they cannot do so.

According to Imam Malik and some other mujtahids, the arbitrators have the authority to compromise them, and if it is not possible, to end the marriage life with or without a fee. The aforementioned verses and the practice of the Companions show it.

In the Ottoman State, where Hanafi madhhab was dominant, Hukuk-u Aile (Family Law) Decree preferred Imam Malik’s ijtihad on this issue and enacted it. Article 130 of the Law briefly states the following:

“If there is a severe conflict between the spouses and one of them applies to the judge, the judge appoints an arbitrator from the families of the parties each. If there is no suitable person in the family, the judge appoints appropriate people from non-relatives as arbitrators. The family council established in this way will listen to the parties, examine the situation and try to compromise them. If it is not possible to compromise them, it will decide as follows: If the husband is at fault, it will separate them and end the marriage life; if the woman is at fault, it will end the marital life in return for some or all of the mahr (it will decree for mukhala’a). If the arbitrators are unable to reach a decision, the judge will either set up another arbitration committee or include a third person who is not a relative of the parties in the committee. The decision of the arbitrators is final.” The separation decreed by the arbitrators is like bain (irrevocable) divorce (art. 131).

Spouses are regarded to have divorced with one talaq in official divorces; they are also regarded to be divorced religiously. However, the divorce in the court is regarded as one talaq; therefore, they can marry each other again afterwards.

Islam gives the right of divorce to the husband. Therefore, a woman cannot divorce a man. However, there are some exceptions to it.

1. If the man has given the woman the right to divorce, the woman can divorce the man.

2. If the woman has a civil marriage and applies to the judge and if the judge decides to divorce them, the divorce takes place.

In case of incompatibility in the family, relatives of both parties come together and try to resolve the conflict. It is not permissible for a woman to leave her husband for trivial excuses.

Let us try to explain the general rights of women briefly:

“When news is brought to one of them, of (the birth of) a female (child), his face darkens, and he is filled with inward grief.” (an-Nahl, 16/58)

In the verse above, Allah describes the view of the people of Ignorance (Jahiliyya) about women and criticizes it.

“Or He (Allah) bestows both males and females, and He leaves barren whom He will…” (ash-Shura, 42/50)

A woman is born just like a man and is a human being. Parents will be held responsible if they treat their sons and daughters differently in compassion and giving them things. They will deserve to be deprived of intercession by not following the will of our Prophet (pbuh). Knowing that people’s feelings of ignorance will recur from time to time, our Prophet (pbuh) emphasized the education of girls in particular and said, “A father who raises three, two or even one daughter by protecting her rights will be with him in Paradise” (Ibn Majah, Adab 3).

When a girl is born, an animal (“aqiqa”) is sacrificed as “gratitude”. She is given a nice name and compulsory education. She receives the necessary sexual information from the mother.

No verse and hadith that encourages knowledge in the Quran and Sunnah excludes women from it. On the contrary, our Prophet (pbuh) recommended women’s education in particular because he knew that they would be neglected; he enjoined men to protect their rights. In his time, women who were “mujtahid” were brought up. [For example, our mother Aisha (ra), one of the wives of the Messenger of Allah (pbuh), is one of them.]

The woman is brought up and raised without being separated from the man in any respect, and when it is time for her to marry, she has the right and it is a sunnah to see the candidate to marry. If she does not like him, she can refuse; the insistence of the parents and the candidate does not change anything.

When she is to marry, she can get as much “mahr” as she wants from her prospective husband. Mahr is her most natural right and life guarantee determined by Allah. She can spend it however she wishes within the legal framework. She can spend her mahr or other property, if any, for charity or use them in commercial enterprises, establish companies, become partners in companies through shares, earn and spend what she earns however she wishes. Her own social security is guaranteed when she marries. All the necessary expenses for the house and for her are met by her husband. A man cannot tell his wife to buy her clothes or ornaments with her own earnings. He has to provide for the woman’s sustenance to the extent of his own wealth; if he cannot afford it, he cannot get married. If he does not provide sustenance after marriage, the woman’s demand for divorce will be accepted.

Her husband cannot insult her; he must not forget that she is his life partner; he cannot get cross with her and leave her alone at home.

“The best man is the one who treats women in the best way.” (see Bukhari, Nikah 43; Muslim, Fadail 68)

It is the duty of the husband to joke with his wife at home, to have fun and to entertain her.

A man cannot beat his wife with trivial excuses, except for the woman’s rebellion and not abiding by rights and laws. (See an-Nisa, 4/34; Ibn Kathir, Qurtubi, Elmalı interpretation of the verses in question; Abu Dawud, Manasik 56; Ibn Majah, Manasik 84; Muslim, Hajj 147; Tirmidhi, Rada’11; Abu Dawud, Manasik 56; Halabi Saghir, p. 395; Halabi Kabir, p. 621; Canan, Terbiye, p. 391)

A man cannot disturb his wife with sudden raids because of his suspicion caused by his illness of jealousy. In one of his hadiths, our Prophet (pbuh) forbids a person who has been away from his family for a long time from coming home suddenly at night without informing. In addition, the fact that she will have the opportunity to prepare for her husband by shaving her armpits and pubic hair and making up and combing her hair is also mentioned as a reason. A hadith regarding the issue is as follows:

“When you come (from a distant place) at night, do not go near your wife at once so that she can use a blade to do her cleaning and comb her hair if she is messy (prepare for you).” (Bukhari, Nikah 121,122; Muslim, Rada’ 58, Imarah 181,182; Darimi, Nikah 32, Jihad 163)

As a reason for this, hadith scholars also show the possibility that his sudden entry into the house at night may mean that he suspects his wife’s betrayal.

The husband also has a duty to satisfy his wife sexually. Our Prophet (pbuh) likened the men who had ejaculated and ended the intercourse quickly to roosters, i.e., animals, and advised us not to have sexual intercourse without caressing first because the man can be immediately aroused by looking but the woman gets ready for sexual intercourse only after a long period of caressing. A good man is a man who can prepare his wife for it and who can satisfy her as well as himself.

The men who think only of themselves in sexual intercourse should not forget that they persecute their spouses and that they take pleasure by torturing their spouses.

A woman has the right to divorce from a man who cannot have sexual intercourse within one year after marriage.

The woman has the right not to surrender herself to the man before receiving her “advance mahr”.

Just like the wife’s sustenance, her treatment and medication expenses also belong to the husband. If the woman is someone who cannot make bread, the man has to buy ready-made bread. If he wants her to adorn herself, the cost of ornaments and fragrance belongs to the man. Two suits (dresses) per year, for summer and winter, have to be provided by the men. If there is a dispute, the qualities of the dresses are determined by the local administrations.

A woman can get enough money for her sustenance for the days when her husband is away on a journey. If she wants to sleep separately from her husband during her menstrual days, she has the right to ask for a separate bed.

Depending on her situation, a woman can ask her husband for a maid. The wages of the maid belong to her husband. Women are not obliged to do any work other than housework, for which women are customarily condemned when they do not do them.

If she needs it, she can agree with her husband on the amount of monthly sustenance. If she realizes that it is not enough, she can ask him to increase it; if the husband does not accept it, she can apply to the court.

If the wife does not want her husband’s relatives in her house, her husband has to make her live in a separate house. The reason for it is shown as the woman’s desire to have fun with her husband and the fact that their presence in the same house will prevent it. In fact, it is a woman’s right to ask for separate rooms for her children for the same reason except for the child who is too young to know about sexual intercourse.

The woman has the right to visit her parents once a week, and the man cannot prevent it.

It is the right of the woman to work within a legitimate framework in legitimate jobs that do not harm the rights of men.

If she wants to go to the public bath because of her menstrual period and puerperium, the man has to pay for the bath but if it is known that the private parts of the women are opened in the public bath, the woman is not sent to the bath.

The man provides all kinds of sustenance for his wife who has been separated with “rij’i” (revocable) or “bain” (irrevocable) divorce in the period of iddah (waiting).

They are just a few examples of the issues that are explained in all fiqh books when the rights of women over men are listed. They are not recommendations; they are legal rights with sanctions. If women are forced to do hard work in certain parts of the Black Sea region and in Anatolia and are crushed by the hard work that only men can do, it is be the fault of those who alienated Islam from their lives, not of Islam.

As for the issue of elections, most Islamic scholars state that women have the right to vote because there is no evidence that they do not have such a right. Moreover, voting consists of an “allegiance”. Our Prophet (pbuh) took allegiance also from women. (See al-Mumtahina, verse 60/12 and its interpretations.) The opinions of everyone, including unmarried young girls, were asked for the caliph to be elected after Umar (ra). (see Muhammad Hamidullah, İslâm Müesseselerine Giriş, İst.1981, p. 112)

Finally, when the woman dies, her shroud has to be provided by her husband.

(For a broader explanation of these articles, which we have presented as a summary, see Ibn Abidin, Raddul-Muhtar and nafaqah sections of all fiqh books and especially Sarakhsi and Mabsut)

As it is seen, a woman is a person who has no worries and concerns about her livelihood, that is, she has utmost social security. And all these are legal rights that will be determined by a court decision in case of a dispute. In Islam, the husband and the wife are not poles apart that constantly quarrel to obtain rights from each other. They are two halves of a whole, complementing each other, helping and supporting each other, creating a source of peace and morale, just like our Prophet who helped his wives with housework and the division of labor between Ali and his wife Fatima.

The Quran clearly states for what reasons divorce becomes a necessity:

1. Open Lewdness (Adultery)

Adultery is a major crime in Islam; it is a sin that can be equal to polytheism. Adultery, which destroys the family order, is a terrible act that damages the marital bond.

It is unthinkable that such an act would be committed in a Muslim house. A man or woman who sees this deed as suitable for a Muslim’s house cannot be worthy of that house.

“…Nor should ye treat them with harshness, that ye may Take away part of the dower ye have given them, -except where they have been guilty of open lewdness; on the contrary live with them on a footing of kindness and equity...” (an-Nisa, 4/19)

“O Prophet! When ye do divorce women, divorce them at their prescribed periods, and count (accurately), their prescribed periods: And fear Allah your Lord: and turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some open lewdness....” (at-Talaq, 65/1)

2. Causing Unrest, Disagreement

The family, which forms the core of the society, must be peaceful for an Islamic society to establish a peaceful environment. Peace in the family is provided by spouses who get along very well with each other. If the basic pillars of the family are not balanced, the family nest is doomed to collapse at any moment.

In order to ensure peace and continuity in the family, it will be useful for both the family and the Islamic society to repair the unbalanced pillar, and if it is not possible to fix it, to renew it by replacing it.

If the woman, who is one of the pillars of the family, opposes her husband and causes unrest at home, that is, if a woman does not support her husband’s opinion, hinders him, opposes his cause verbally or de facto or tries to keep him from his cause, it means that it has become necessary to divorce that woman.

If the man does not divorce that woman, two options arise.

The first option, the man does not care about his wife and continues on his way. However, in that case, there will be unrest in the house. With the onset of unrest, children, if any, will be affected, resulting in a depressed generation. This generation will perhaps be so far from religion and belief that they will not recognize Allah.

The woman will affect them more because she is always with the children at home. In the future, these children will be a great loss for a struggling man and a heavy blow to his cause. In addition, since the man cannot find a peaceful environment at home, he will fail in his activities or at least will not be able to reach the level he wants. If believing men and women, who are supposed to be supporters of each other, cannot establish this friendship at home, they will never be able to establish it outside; they cannot enjoin good and forbid evil. In that case, it will be necessary to divorce the woman within the criteria ordered by the Quran.

In the second option, a believing man will obey his wife’s words and give up his cause and activities, which will cause that man to become a sinner and turn away from religion. There have been many examples of it in recent years.

“Say: If it be that your fathers, your sons, your brothers, your mates, or your kindred; the wealth that ye have gained; the commerce in which ye fear a decline: or the dwellings in which ye delight - are dearer to you than Allah, or His Messenger, or the striving in His cause;- then wait until Allah brings about His decision: and Allah guides not the rebellious.” (at-Tawba, 9/24)

“O ye who believe! Truly, among your wives and your children are (some that are) enemies to yourselves: so beware of them...” (at-Taghabun, 64/14)

Every woman who tries to hinder her husband from the way of Allah is also his enemy. The way to avoid and protect oneself from this enemy is to keep away from her. The best way to do it is to divorce that woman because such women are not good women. It is the ideal way to divorce rebellious women if they do not improve.

“Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means. Therefore, the righteous women are devoutly obedient, and guard in (the husband's) absence what Allah would have them guard. As to those women on whose part ye fear disloyalty and ill-conduct, admonish them (first), (Next), refuse to share their beds, (And last) beat them (lightly); but if they return to obedience, seek not against them Means (of annoyance): For Allah is Most High, great (above you all).” (an-Nisa, 4/34)

If they do not improve and put themselves in order despite being advised, kept away from their beds and beaten, a divorce is the best remedy. However, if they improve, it is forbidden to seek a way against them.

3. Preferring the Life and Ornament of the World to Allah

Whether male or female, a person is responsible for obeying (serving) Allah, the main purpose of creation, and working for His religion. Those who are conscious of their creation arrange their deeds accordingly. And it is the duty and responsibility of everyone who claims to believe to work until there is no mischief on earth and the dominion belongs only to Allah. Here are the Quranic facts:

“I have only created Jinn and men, that they may serve Me.” (adh-Dhariyat, 51/56)

“... Thee do we worship, and Thine aid we seek...” (al-Fatiha, 1/5)

“And fight them on until there is no more tumult or oppression, and there prevail justice and faith in Allah altogether and everywhere; but if they cease, verily Allah doth see all that they do.” (al-Anfal, 8/39)

Divorcing women (or men) who forget the purpose of their creation and want the adornment of the worldly life should be an act that every believer must do.

Otherwise, these women or men will hinder and prevent the inviter. Therefore, it is best to divorce them, and if they are women, to give their mahr and release them.

“O Prophet! Say to thy Consorts: “If it be that ye desire the life of this World, and its glitter,- then come! I will provide for your enjoyment and set you free in a handsome manner. But if ye seek Allah and His Messenger, and the Home of the Hereafter, verily Allah has prepared for the well-doers amongst you a great reward.” (al-Ahzab, 33/28-29)

Men or women who do not work for the domination of Allah’s system but want the worldly life and adornment are barriers and obstacles in front of the invitees who try to make the system of Allah prevail. Removing this obstacle is a necessity for believers because our Almighty Lord states that those who want worldly life and adornment will not have their share in the hereafter. It is not possible for a person who does not have a share in the hereafter to be with those who have a share in the hereafter:

“These are the people who buy the life of this world at the price of the Hereafter: their penalty shall not be lightened nor shall they be helped.” (al-Baqara, 2/86)

“Those who desire the life of the present and its glitter,- to them we shall pay (the price of) their deeds therein,- without diminution. They are those for whom there is nothing in the Hereafter but the Fire: vain are the designs they frame therein, and of no effect and the deeds that they do.” (Hud, 11/15-16)

“To any that desires the tilth of the Hereafter, We give increase in his tilth, and to any that desires the tilth of this world, We grant somewhat thereof, but he has no share or lot in the Hereafter.” (ash-Shura, 42/20)

Since the one who desires the worldly life and ornaments will have nothing to do with the one who desires the hereafter, the best thing a believer can do is to divorce his spouse who desires the worldly ornaments. How, when and in what form this divorce will take place are clearly shown by Islamic principles.

When a man says the words used for divorce to his wife, divorce (talaq) occurs.

The words used for divorce are of two types: Explicit words and allegorical words.

Statements such as “Be divorced from me”, “I have divorced you” are explicit words. As soon as a man says those words, even in jest or in confusion, he has divorced his wife, even if he does not know their meaning.

The statements, “I have left you; I have abandoned you” are considered as explicit words. Divorcing once or twice with such clear words is called talaq ar-riji, i.e. a divorce that can be revoked. However, one of the three rights is regraded to have been used. If any of these words are said once, and if the person regrets it, he can continue the marriage with two ties without remarrying if he holds his wife’s hand with the intention of returning to the previous marriage.

There are three bonds in marriage. So, if the words of divorce are repeated three times, if a man says, “I have divorced you, I have divorced you, I have divorced you,” or if he says, “I have divorced you three times,” he has broken all three bonds and divorced her irrevocably. When he divorces her three times like that, talaq ar-riji (revocable divorce) becomes talaq al-ba’in (irrevocable divorce).

Statements such as “Go to your father’s house!”, “Get out of here!”, “Go to Hell!”, “I am not your husband anymore!”, etc., which are also used in other meanings, are allegorical, ambiguous statements. When those words are uttered with the intention of divorcing, divorce takes place. It is called talaq al-ba’in, that is, a final divorce that cannot be revoked within the period of iddah.

In this kind of divorce, one cannot come together with his wife unless the period of iddah has passed and a new marriage has been made. 

If a man says to his father-in-law, “I do not want your daughter, let her go to whomever she wants,” and when his wife asks for permission to go somewhere, “I have not tied you with a rope; go”, “You go where you want, you will not be my wife”, “I do not want you anymore,” or “I want to divorce you” etc., he is not regarded to have divorced her unless he has intended to divorce her.

In case of divorce with allegoric words, he cannot enter his wife’s room during the iddah of ba’in talaq. She cannot adorn herself or wear perfume, and she must stay away from her husband who has divorced her like a non-mahram woman. A new marriage is necessary at the end of the iddah.

If no number is mentioned in the divorce, it is regarded as one talaq. If he says three or more, he divorces with three talaqs. If he says, “As many as the hairs on my body,” or “As many as the fish in the sea,” or “As many as the stars in the sky,” or “from three to nine,” it is still regarded as three talaqs.

The man who wants to divorce his wife must be wise and alert. The words of a drunkard, a sick person, a threatened person, or divorce via a letter, e-mail or fax are regarded as valid talaqs. As soon as they reach the woman, she is divorced. In other words, divorce occurs when the woman learns about it and becomes aware of it.

There is no divorce by the words of a mad person, a demented person, a person who is unconscious, a person who is asleep, a person who is sick, or a furious, absent-minded person. A furious absent-minded person does not know what he says. It happens in two ways:

If he says it without knowing its meaning, without intention and desire, there is no divorce. It is valid for allegorical words. Otherwise, if he says “I have divorced you” with explicit words, divorce will still be valid even if he has not intended or desired it.

Saying it knowingly and willingly, and then not knowing and not remembering that he has said it. If two witnesses have heard it and say it, divorce takes place. That is, if the man says, “I have divorced you” and does not remember it and when it is said to him that he said so and he says, “I do not remember; I have not said anything like that and if two witnesses say, “Yes, we heard that he divorced his wife”, divorce takes place. If they do not say so, divorce does not take place since he denies it.

If there has been no intercourse, or if they have never been together in a room or in a secluded place and if he divorces her once, she can marry someone else even on the same day without waiting for iddah.

If he divorces her three times at different times, once each, or if he says once, “I have divorced her three times,” the marriage is irrevocably broken. In order to marry that woman again, hilla is necessary. Hilla means that a woman marries another man; intercourse occurs between them; then, the man divorces her, and then the period of iddah passes again. Only then can her first husband marry her with a new marriage.

It is humiliation and disgrace for a man. Allah has given men the right to divorce, but He has imposed this disgrace of hilla on men so that they do not use this right indiscriminately and women do not become toys in the hands of men. A Muslim man cannot even utter the word divorce for fear of hilla. Divorce cannot be mentioned or joked about in the family.

He should never use the word divorce, even in jest or to frighten his wife. Even if they have decided to separate, he should not use it. Later on, they can give up the decision of separation. He should use one talaq after consulting with his relatives and friends and deciding to divorce. He should never use talaqs at once. It is a sin to use three talaqs at once.

Living conditions may cause people to endure many things. What is said to be impossible can happen. If one divorces with one talaq, the door is not completely closed. Not divorcing does not bring a risk, but divorcing, especially using three talaqs, is a great risk. It may not be possible to recompense.

Iddah is the time after divorce during which it is forbidden for a woman to remarry. It is the time from the beginning of the first menstrual period until the end of the third menstrual period. If she is not menstruating, it is three months for talaq and four months and ten days for death.

Things that invalidate marriage: Saying, “I have divorced you”; saying allegoric words with the intention of divorcing, for example, telling one’s wife to “get out and leave”. Saying words that make a person an unbeliever.

- When a person utters words of unbelief, do his belief and marriage end? How is renewal of marriage done?

Renewing a marriage means making a new marriage contract. It is not necessary to do it under the supervision of a hodja. In order to renew the marriage, the man gets a proxy from the woman and says in the presence of two male witnesses, “I have married my wife, who has been my wife since the past, off to me acting as her agent and acting as principal.” Thus, the marriage is regarded to have been renewed.

Divorce is one thing, falling into unbelief is another. It is not regarded as talaq. That is, one of the bonds is not broken. If a person falls into unbelief a thousand times, he has to renew the marriage a thousand times, but it is not regarded as talaq.

- What should a woman do to get married with the right of divorce in her power?

If the woman says, “I have married you with the right of divorce in my power,” and he says, “I have accepted it,” the woman will have the right to divorce. If he says to her, “Your work is in your power,” or “Divorce yourself,” or “You can divorce yourself if you wish,” she can divorce herself only in that session. If he says, “Divorce yourself whenever you want,” it is not limited to that session. She can divorce herself whenever she wants.

If a woman who has been given the right to divorce her husband says to him, “I have divorced you,” divorce will not take place; she must say, “I have divorced myself.” If the woman stipulates at the time of the marriage, “I will divorce myself from you whenever I want,” and the man says, “I accept this stipulation,” the conditional marriage is valid and the woman has the right to divorce.

If the man gives the woman the right to divorce and she says, “I do not want the right to divorce,” she has not rejected the right. She can divorce herself whenever she wishes. If the man says, “I have married you giving you the right to divorce yourself,” the marriage is valid, but the woman does not have the right to divorce. However, if she first says, “I have married you with the right to divorce myself whenever I want,” and he says, “I have accepted it,” the marriage is valid and the right to divorce is in her power.

A husband and wife who have fallen into unbelief have to renew their marriage in the presence of two witnesses after they have renewed their belief. For the sake of simplicity, he should get a power of attorney from his wife to renew the marriage, and he should say in the presence of two male witnesses, “I have married my wife, who has been my wife since the past, off to me acting as her agent and acting as principal.” The famous tajdid iman (renewal of belief) and tajdid nikah (renewal of marriage) utterance performed in congregation in mosques is based on this decree.

According to many verses in the Quran and the practice of our Prophet (pbuh), men have the right to divorce women and women have the right to divorce men in Islam.

Divorce without a legitimate excuse is not welcomed because the family is very important. (That is all; it is not welcomed but there’s no penalty at all).

It is like that because if you forbid divorce, or condemn the unhappy or the persecuted party to continue the marriage, - God forbid – he or she will resort to haram ways for satisfaction.

It is halal, not haram, for a woman to divorce her husband if she believes that the marriage will not work, if her marriage continues unhappily and if she has become estranged from her husband.

According to Islam, the purpose of marriage is to establish a peaceful family life and to raise a good generation in such a home. However, it is not possible for all marriages established with such lofty goals to succeed. Sometimes natural obstacles, such as death and illness, and sometimes obstacles caused by the spouses, such as incompatibility, hating each other, disliking each other and disagreement between the spouses prevent the success and continuation of the marriage.

Islam permits the termination of marriage in cases where the original purpose of marriage is lost, where the spouses are no longer able to live together in peace, and where necessity and obligation require it. In accordance with this permission, the marriage can be terminated by the man directly or in return for a price he receives from the woman, or by the woman, who retains the right of talaq (divorce) by the decision of a judge or arbitrator.

The Wisdom Behind Talaq:

The continuation of a marriage in peace and happiness depends first and foremost on the spouses loving and respecting each other. Almost every marriage is established with this in mind. However, it cannot be said that all of them achieve this goal. If those who marry with such good and sincere feelings cannot be happy afterwards and if it is not possible for them to be happy, there is no point in enduring this joint life for the rest of their lives. In that case, they should end the marriage and get rid of the distress.

When we consider man with his material and spiritual characteristics, we see that he is not perfect in every aspect. Therefore, one of the parties may have made a mistake during the establishment or continuation of the marriage. Those mistakes may be irreparable. It is not appropriate for the parties to suffer for a lifetime. In that case, the solution is to end the marriage that has become unbearable and to allow for another marriage in which the parties may be happy.

The Decree on Talaq:

Islam is a realistic religion. That is, its decrees are based on the realities inherent in human nature. God Almighty, who knows man best, is aware of them and has allowed marriages that have become unbearable to be terminated:

“A divorce is only permissible twice: after that, the parties should either hold Together on equitable terms, or separate with kindness.” (al-Baqara, 2/229)

“O Prophet! When ye do divorce women, divorce them at their prescribed periods, and count (accurately), their prescribed periods.” (at-Talaq, 65/1)

The Prophet (pbuh) states the following:

“In the eye of Allah, the most abominable halal deed is divorce.”  (Abu Dawud, Talaq, 3)

As it can be understood from those verses, divorce is permissible. However, it is a remedy that should be resorted to in cases of necessity and obligation. Although that is the general decree on talaq, this decree depends. For example, bid’i (unlawful) divorces are haram. It is makruh to legitimately divorce a woman who has no fault; it is mandub to divorce a woman who is not pious and chaste; it is fard to divorce a woman in case of incompatibility when arbitrators regard it necessary; and it is permissible to divorce an unloved wife.

Authority to Divorce:

a. In principle, the right to divorce belongs to the man. He is considered more worthy of it in terms of the responsibility and burden he bears in marriage life. However, the man must fulfill certain conditions for the divorce to be valid. They are to be sane and to have reached the age of puberty. There is a disagreement among the scholars as to whether a forced person, a drunkard, and a furious person have the authority to divorce, that is, whether their talaqs are valid or not. According to Hanafis, their talaqs are valid.

b. If it is stipulated in the marriage contract, the right to divorce can be transferred to the woman or to a third party. The transfer of the right of talaq is called tafwiz, and the woman to whom the right of divorce is transferred is called mufawwaza. In that case, the woman can use her right of divorce whenever she wishes. If the man wishes, he can also transfer the right of divorce to her after the marriage.

A woman can demand divorce by applying to the judge for reasons such as the husband’s illness, loss, not giving money for sustenance, ill-treatment and incompatibility that may harm the woman.

If the ill-treatment, incompatibility and non-compliance with family law come from the husband, the woman can apply to the judge and arbitrators. In accordance with the verses that introduce those rules (an-Nisa, 4/33-34), all mujtahids unanimously agree that the judge would refer the case to the arbitrators if he was applied due to ill-treatment and incompatibility. Different opinions arise about the jurisdiction of the arbitrators, usually one from the wife’s family and the other from the husband’s family.

According to Abu Hanifa, the arbitrators are in the position of deputies and unless they have been given the authority to divorce and terminate the marriage, they cannot do so.

According to Imam Malik and some other mujtahids, the arbitrators have the authority to compromise them, and if it is not possible, to end the marriage life with or without a fee. The aforementioned verses and the practice of the Companions show it.

In the Ottoman State, where Hanafi madhhab was dominant, Hukuk-u Aile (Family Law) Decree preferred Imam Malik’s ijtihad on this issue and enacted it. Article 130 of the Law briefly states the following:

“If there is a severe conflict between the spouses and one of them applies to the judge, the judge appoints an arbitrator from the families of the parties each. If there is no suitable person in the family, the judge appoints appropriate people from non-relatives as arbitrators. The family council established in this way will listen to the parties, examine the situation and try to compromise them. If it is not possible to compromise them, it will decide as follows: If the husband is at fault, it will separate them and end the marriage life; if the woman is at fault, it will end the marital life in return for some or all of the mahr (it will decree for mukhala’a). If the arbitrators are unable to reach a decision, the judge will either set up another arbitration committee or include a third person who is not a relative of the parties in the committee. The decision of the arbitrators is final.” The separation decreed by the arbitrators is like bain (irrevocable) divorce (art. 131).

How will this rule be implemented in our country, which does not apply Islamic Law today?

1. If the woman applies to a judge of the state due to something that the shari’ah considers to be a reason for divorce, and the judge decides to divorce her for the same reason, the woman is divorced.

2. If the judge refuses to divorce though there is a reason, the woman applies to arbitrators. The arbitrators are generally from the families of both parties. If it is not possible, two people whose knowledge and ethics are appropriate are chosen as arbitrators.

It is a kind of divorce that separates the wife and the husband immediately by breaking the bond of marriage between them and that ends the mutual rights and duties emerging from marriage unless they determine a mahr and have a marriage contract again.

Islamic scholars agree unanimously that irrevocable (bain) divorce occurs in three forms (Ibn Rushd, Bidayatul Mujtahid, II, 61):

1- Divorce that takes place after marriage without having sexual intercourse and a sound seclusion.

2- Divorce that takes place after three talaqs.

3- Divorce that takes place in return for a certain amount of money based on the wish of the woman.

Hanafis increase it to four by regarding allegorical divorce and uttering divorce using words that contain exaggeration or violence as irrevocable divorce. (Hayreddin Karaman, M. İslâm Hukuku, I, 303)

Irrevocable divorce is divided into two as baynunatus-sughra (small separation) and baynunatul-kubra (big separation). They are also called hurmatul-khafifah and hurmatul ghalizah respectively. The revocable divorce that takes places as a result of one or two talaqs is called small separation; the revocable divorce that takes places as a result of three talaqs is called big separation.

If a person who has divorced his wife with revocable (rij'i) divorce does not return home by changing his mind within the period of iddah (three months), this divorce is transformed into irrevocable divorce; if they want to get married again, mahr and marriage contract become necessary.

The spouses that have divorced with small separation cannot be inheritors to each other since they have been divorced immediately. If the husband has not yet paid the mahr that is the right of the wife, he needs to pay it at once.

A person who has divorced his wife with irrevocable (one or two talaqs) divorce can marry her again with a new mahr and marriage contract before his wife marries another person. A person who has divorced his wife with big separation (three talaqs) cannot marry her again before she marries another man and divorces (Sayyid Sabiq, Fiqhus-Sunna, II, 277). The following is stated in the Quran regarding the issue:

"A divorce is only permissible twice: after that, the parties should either hold together on equitable terms or separate with kindness... So if a husband divorces his wife (irrevocably), he cannot after that, re-marry her until after she has married another husband and he has divorced her." (al-Baqara, 2/229-230)

It is important whether the divorces with two or three talaqs are made at the same time or at different times. Normally, talaqs need to be made at different times. In other words, one talaq is made during one iddah (three months). The second talaq is made three months later. If another talaq is made after another three months, big separation occurs. Islamic fiqh scholars agree unanimously on it. However, there is disagreement about two and three talaqs made at the same time being regarded as two and three talaqs or one talaq. Some scholars show the apparent meaning of the verse above as evidence and say two talaqs at the same time is regarded as two talaqs and three talaqs as three talaqs while other scholars say two or three talaqs made at the same time are regarded as one talaq. For, during the time of the Prophet (pbuh), Hz Abu Bakr and up to the second year of the caliphate of Hz. Umar, two, three or more talaqs made at the same time were regarded as one talaq. (Ibn Rushd, ibid, II, 61)

Since ease is essential in religion, it is more useful to regard two, three or more talaqs made at the same time as one talaq in order to prevent the institution of family, which forms the basis of the community, from being demolished. Thanks to this, the victimization of the woman will be prevented and the door of regret will not be closed.

A woman can demand divorce by applying to the judge for reasons such as the husband’s illness, loss, not giving money for sustenance, ill-treatment and incompatibility that may harm the woman.

If the ill-treatment, disagreement, incompatibility and non-compliance with family law come from the husband, the woman can apply to the judge and arbitrators. In accordance with the verses that introduce those rules (an-Nisa, 4/33-34), all mujtahids unanimously agree that the judge would refer the case to the arbitrators if he was applied due to ill-treatment and incompatibility. Different opinions arise about the jurisdiction of the arbitrators, usually one from the wife’s family and the other from the husband’s family.

According to Abu Hanifa, the arbitrators are in the position of deputies and unless they have been given the authority to divorce and terminate the marriage, they cannot do so.

According to Imam Malik and some other mujtahids, the arbitrators have the authority to compromise them, and if it is not possible, to end the marriage life with or without a fee. The aforementioned verses and the practice of the Companions show it.

In the Ottoman State, where Hanafi madhhab was dominant, Hukuk-u Aile (Family Law) Decree preferred Imam Malik’s ijtihad on this issue and enacted it. Article 130 of the Law briefly states the following:

“If there is a severe conflict between the spouses and one of them applies to the judge, the judge appoints an arbitrator from the families of the parties each. If there is no suitable person in the family, the judge appoints appropriate people from non-relatives as arbitrators. The family council established in this way will listen to the parties, examine the situation and try to compromise them. If it is not possible to compromise them, it will decide as follows: If the husband is at fault, it will separate them and end the marriage life; if the woman is at fault, it will end the marital life in return for some or all of the mahr (it will decree for mukhala’a). If the arbitrators are unable to reach a decision, the judge will either set up another arbitration committee or include a third person who is not a relative of the parties in the committee. The decision of the arbitrators is final.” The separation decreed by the arbitrators is like bain (irrevocable) divorce (art. 131).

How will this rule be implemented in our country, which does not apply Islamic Law today?

1. If the woman applies to a judge of the state due to something that the shari’ah considers to be a reason for divorce, and the judge decides to divorce her for the same reason, the woman is divorced.

2. If the judge refuses to divorce though there is a reason, the woman applies to arbitrators. The arbitrators are generally from the families of both parties. If it is not possible, two people whose knowledge and ethics are appropriate are chosen as arbitrators.

Mahr is necessary when the religious marriage is made. If the spouses remained alone or had sexual intercourse after the marriage, the woman deserves to get the whole mahr. If not, she deserves half of the mahr. 

According to Shafii madhhab, the woman deserves the whole mahr if they had sexual intercourse, not by remaining alone with the man and as a result of the death of the man. 

If divorce takes place after the woman deserves the whole mahr, she will not return the mahr. However, if her husband says to her, "If you return the mahr I have given you to me, I will divorce you", and if the woman accepts it and returns the mahr and if the husband divorces her in return for it, she is divorced and the husband deserves that mahr.   

After the divorce, the woman takes the things that belong to her and the man takes the things that belong to him.

It is not appropriate for the woman and man to demand the things that they gave to each other as gifts. However, they can return them if they wish.

The relationship of a man with his wife that he divorced is like his relationship with other non-mahram women. For, there is no marriage between them; she is non-mahram for him. It is not permissible for them to remain alone in a room. When he talks to her on the telephone, he can talk about what is necessary; the talks that stir up sensual feelings are not permissible.

If a man or woman commits adultery, the marriage with his or her spouse does not end. However, it is a ground for divorce for both parties. They can divorce if they wish.

According to the Islamic law, the custody of the child is primarily given to the woman. For, women are more compassionate, patient and skilled than men in terms of child care. The first woman who has the right of custody is definitely the mother of the child. As a matter of fact, a woman made the following complaint to the Prophet (pbuh):

“After divorcing me, the father of my child wants to take my son, whom I bore in my womb, breastfed and brought up in my lap, from me.” The Prophet (pbuh) stated the following: “It is your right to have the child unless you marry.” (Abu Dawud, Bayhaqi and Hakim narrated it; see al-Fiqhul-Islami, VII/720)

According to Hanafis and Shafiis, the person that has the right of custody after the mother is the mother of his mother, mother of his father, his sister and his maternal aunt.

This list forms a long chain among fiqh scholars and there are different orders. (ibid)

Thus, if the children remaining from the woman’s previous husband do not have their parents, they will have to be looked after by their grandmothers and maternal aunts.

If that mother is the mother of those children remaining from her previous husband, she has to look after them if there is nobody else to take care of them. If there are others to take care of the children, the woman does not have to take care of them. When the woman marries, she loses the priority of custody. (ibid)

The man who is to marry a woman does not have to accept the responsibility of her children. However, if there is nobody else to look after them, he has to look after them. Otherwise, the children will be destroyed. The same thing is valid for a woman who marries a man who has children. She does not have to take care of his children. However, if the children need care and there is nobody else to take care of them, there is nothing else to do: she will either have to agree to take care of them or refuse to marry.

First of all, we do not advice such a divorce. For, divorce is valid even if it is uttered jokingly. Therefore, the spouses that are divorced formally are also divorced religiously. However, one talaq decreases. Since the man has two more rights of talaq, he can marry his spouse again. 

According to the religion of Islam, the husband was given the authority to divorce since he is more deliberate, farseeing and less emotional. The Quran states it clearly.

It is not religiously possible for a person who divorces his wife three times before or after applying to the court to be together with his wife again.  If he has not divorced his wife before or after applying the court, he is regarded to have given the authority to divorce to the judge, that is, he appoints him as his deputy, when he applies to the court; therefore, when the judge divorces them, one talaq decreases.

However, he has two more talaq rights. Accordingly, there is no drawback to being together with his wife religiously. However, we do not know the type of divorce decided by the court - that is, if it is a revocable or irrevocable divorce - ; therefore, it is necessary to renew the marriage (nikah) in order to come together again.

When a married man or woman commits fornication, his/her marriage does not become invalid. However, this is a reason for divorce for parties. If they wish, they can divorce.

If the husband has not divorced his wife before the court divorces her, the couples divorced by the court are regarded to have been divorced with one talaq and their religious marriage does not continue. However, they can remarry and unite together again. To be able to unite again, it is necessary for the husband not to have divorced his wife with three talaqs before the decision of the court.

According to Islam, since the husband is more cautious, foresighted and less susceptible to emotions, he has been given the authority to divorce. The Holy Quran clearly states it. The first seven verses of the chapter of at-Talaq are about divorce:

“O Prophet! When ye do divorce women, divorce them at their prescribed periods, and count (accurately), their prescribed periods: And fear Allah your Lord: and turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some open lewdness, those are limits set by Allah. and any who transgresses the limits of Allah, does verily wrong his (own) soul: thou knowest not if perchance Allah will bring about thereafter some new situation.” (at-Talaq, 65/1)

If a person divorces his wife three times, either before or after applying to the court, it is not possible for him to unite with her again according to our religion.

If he has not divorced his wife before or after the court, when he applies to the court for divorce and when the judge divorces him, one talaq will have been used because he has given the authority to divorce to the judge, i.e., he has appointed him as his proxy. They are regarded to have been divorced according to the religion too. The woman can marry someone else after waiting for her iddah.

However, there are still two more rights of talaq. Accordingly, if the spouses divorced by the court want to remarry, there is no legal or religious objection to it. However, the consent of the man and the woman is necessary. In addition, the marriage contract has to be performed again and the woman must be given mahr again.

Mujtahid scholars set examples and shed light to all scholars with the fatwas they gave up to now. Therefore, we take their fatwas directly in almost all issues or if the fatwa is similar, we benefit from their fatwa and enlighten the issue. The same thing is in question here. 

There was no telephone during the time of mujtahid scholars but they gave a decree on divorcing by sending a letter. The scholars of today benefited from it since it is similar to telephone. That is, they said, “A man can divorce his wife through telephone, letter and email by using a clear expression.”

Divorce is legitimate but it is the last resort to apply to.

"The most hated of permissible things to Allah is divorce." (Abu Dawud, Talaq 3; Ibn Majah, Talaq 1) 

"Allah damns the men and women who often change their spouses." (al-Hindi, Kanzul-Ummal, IX/661; Suyuti, al-Jamius-Saghir, H. No. 3288, from Tabarani)

That is, divorce has many religious barriers.

Such a practice is not appropriate. The people who act like that are held responsible in the eye of Allah since Allah knows people's intentions best.

Hanafis regard allegorical divorce and uttering divorce using words that contain exaggeration or violence as "bain talaq" (irrevocable divorce). (Hayreddin Karaman, M. İslâm Hukuku, I/303)

Irrevocable divorce is divided into two as baynunatus-sughra (small separation) and baynunatul-kubra (big separation). They are also called hurmatul-khafifah and hurmatul ghalizah respectively. The revocable divorce that takes places as a result of one or two talaqs is called small separation; the revocable divorce that takes places as a result of three talaqs is called big separation.

When a man says to his wife, "Get the hell out! I do not want you!", small separation occurs if he means one or two talaqs but big separation occurs when he means three talaqs.

A person who has divorced his wife with irrevocable (one or two talaqs) divorce can marry her again with a new mahr and marriage contract before his wife marries another person.

A person who has divorced his wife with big separation (three talaqs) cannot marry her again before she marries another man and divorces. The following is stated in the Quran regarding the issue:

"A divorce is only permissible twice: after that, the parties should either hold together on equitable terms or separate with kindness... So if a husband divorces his wife (irrevocably), he cannot after that, re-marry her until after she has married another husband and he has divorced her." (al-Baqara, 2/229-230)

It is important whether the divorces with two or three talaqs are made at the same time or at different times. Normally, talaqs need to be made at different times. In other words, one talaq is made during one iddah (three months). The second talaq is made three months later. If another talaq is made after another three months, big separation occurs. Islamic fiqh scholars agree unanimously on it.

However, there is disagreement about two and three talaqs made at the same time being regarded as two and three talaqs or one talaq. Some scholars show the apparent meaning of the verse above as evidence and say two talaqs at the same time is regarded as two talaqs and three talaqs as three talaqs while other scholars say two or three talaqs made at the same time are regarded as one talaq. For, during the time of the Prophet (pbuh), Hz Abu Bakr and up to the second year of the caliphate of Hz. Umar, two, three or more talaqs made at the same time were regarded as one talaq. (Ibn Rushd, ibid, II, 61)

Since ease is essential in religion, it is more useful to regard two, three or more talaqs made at the same time as one talaq in order to prevent the institution of family, which forms the basis of the community, from being demolished. Thanks to this, the victimization of the woman will be prevented and the door of regret will not be closed.