Can a husband divorce his wife unilaterally?
Submitted by on Tue, 27/01/2009 - 05:40
Dear Brother / Sister,
Yes, although it is not advised, a man can divorce his wife unilaterally; it is permissible.
Talaq (divorce), in Islamic law, means to break the connection of a marriage and abolish it. The word is also used as in the form of “tatliq” meaning “divorcing”.
According to Islam, the aim of marriage is to establish a peaceful family life and to raise a good generation in that home. However, it is not possible for all marriages that have such high purposes to be successful. Sometimes natural obstacles such as death and illness, and sometimes obstacles that arise from spouses such as incompatibility, mutual hatred, not loving each other or not getting along well with each other may prevent marriages from continuing. When a marriage moves away from the main purpose and there is no possibility of living together peacefully, and when necessary, Islam allows ending such a marriage. In accordance with that permission, the marriage can be ended by the husband directly or by receiving a determined amount of compensation from the wife; it can also be ended by the wife who has the right of “talaq”, by a judge or with the decision of an adjudicate or a judge.
The wisdoms (reasons) of “talaq”:
A marriage’s continuation in a peaceful and happy life -before everything- depends on the love and respect of the spouses towards each other. Almost every marriage is established having that thought in mind. However, it cannot be said that all of the marriages reach that target. If those people who were happy and had sincere feelings towards each other at first and became unhappy afterwards, there is no point in putting up with such a marriage for the rest of their lives. In this case, they should end such a marriage in order to get rid of that distress.
When we deal with man in terms of his material and spiritual characteristics, we see that he is not perfect in every aspect. For this reason, one of the parties may have done wrong, made a mistake at the beginning of or during the marriage. It may be impossible to correct those wrongs or mistakes. It is not right for the parties to suffer the consequences for the rest of their lives. Then, the solution is to end the marriage which has become unbearable and enable the parties to have different marriages that they may be happy.
The judgment of the “talaq”:
Islam is a realistic religion. That is to say, its judgments have been laid by paying attention to the existing features of man. Allah Almighty, who knows man the best because He knows about those situations, let the marriages that become unbearable be ended:
“A divorce is only permissible twice: after that, the parties should either hold together on equitable terms, or separate with kindness...” (Qur’an, Al-Baqarah, 2/229).
“O Prophet! When you do divorce women, divorce them at their prescribed periods, and count (accurately), their prescribed periods...” (Qur’an, At-Talaq, 65/1).
And Our Prophet (pbuh) said:
“By Allah, the most unlikable halal (permissible act) is divorcement.” (Abu Dawud, Talaq, 3)
As it can be understood from the verses above, talaq is permissible and acceptable. However, it is an alternative that must be carried out when necessary and when there is no other alternative. That is the general judgment of talaq but it may change in accordance with the situations. For example, the “bid-i talaq” is haram (forbidden) (Bid-i talaq: Divorcing wife with a word saying “talaq” several times when she is in the period of menstruation or when getting clean or after having sexual intercourse). Divorcing a wife who has no fault in a convenient way is makrooh (abominable); divorcing in order to become more devout and chaste is mandub (laudable); in case of discord, the divorcement that the arbiter approved is fardh (obligatory); and divorcing a spouse who is not loved is permissible.
The Authority of Talaq:
a. The right of divorce belongs to man in principle. In respect of having much more responsibilities and difficulties during marriage life, man has been regarded as deserving it. However, in order that the talaq can be valid, man has to have some conditions. They are intelligence and puberty. It is controversial among scholars whether the talaq that the compelled (by being threatened to death), the drunk, the madhush (one who is in the state of fury) uttered is acceptable or not, that is to say, whether the talaq that they uttered is valid or not. According to the Hanafi Sect, their talaq is valid.
b- The right of talaq can be handed over to the woman or to a third person if is laid down as a condition during the marriage agreement. Handing over the right of talaq is called “tafweez”; and the woman who gets the right of divorce is called “mufawwaza”. In that case, the woman can use the right of talaq whenever she wants. If man wishes, he can hand over the right of divorce after nikah (marriage).
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