How can a woman who is not given the right to divorce be divorced?

The Answer

Dear Brother / Sister,

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.

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Can you explain divorce through arbitrators?

The Details of the Question

- I want to learn the details of divorce through arbitrators.
- Can an arbitrator be chosen to divorce the husband and wife who do not get on well?
- Does the arbitrator have authority like a court judge?

Answer

The verse regarding the issue is as follows:

“If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with all things.” (an-Nisa, 4/35)

When one of the parties breaks the peace and order in the family, “nushuz” is in question. If the family order is broken by mutual disagreements, violations of law and incompatibility between the two parties, and if the possibility of separation and family disintegration arises because this situation continues for a long time, the state of “shiqaq-breach” is in question. In that case, the way the Quran shows and the solution method it proposes is to take the disagreement to the arbitrators. According to the clear expression of the verse, the authority that will appoint an arbitrator is not the wife and husband or their families, but the relevant institution of the state (ulul-amr).

The institution is obliged to appoint an arbitrator in case of complaints, but this obligation does not prevent the husband and wife from appointing an arbitrator.

It is mentioned in the verse that one of the two arbitrators to be appointed by the institution (for example, the court) is to be from the family of the husband and the other from the family of the wife. Whether this condition is binding or not is debatable. Some scholars like Shafi’i say, “It is better; it is mustahab.” There are also scholars who say, “As long as there are people suitable for arbitration among relatives, it is not permissible to appoint an arbitrator from non-relatives.”

An arbitrator is a person who decides the issue of the disagreement with the consent of the parties or the determination of the judge. It is also debatable whether the authority of the arbitrator is like a “judge” or a “deputy”.

Prominent Companions such as Umar, Uthman, Ali, and Ibn Abbas, scholars such as Nahai, Shabi, Malik, Awzai and Shafii state that the authority of the arbitrators is like that of judges, that the decision they will make at the end of the research, investigation and consultation, whichever they decide, to continue or terminate the married life, will be valid, and that the wish of the wife or the husband that is opposite to their decree will have no effect because - according to these mujtahids - that is the meaning and function of the appointment of an arbitrator.

This ijtihad gives the arbitrators the authority to end the marriage without the intervention of the court, eliminating the inconvenience of disclosure of the family secrets in public courts.

Abu Hanifa and a few mujtahids who think like him hold the opinion that the authority of the arbitrators is like the authority of the deputy and that they cannot reach a solution against the will of the parties.

Accordingly, the duty of the arbitrators consists of the issues such as compromising the parties, determining the method and sanction to be applied in order to correct the party that is at fault.

Hukuk-u Aile (Family Law) Decree (dated 1917) adopted toward the end of the Ottoman State called the arbitrators applied in the case of shiqaq the “family council” and enacted the ijtihad of the majority, not the Hanafi madhhab, regarding the authority of the council (art. 130).

In the Islamic law, the right to divorce (tatliq, talaq) belongs to the husband. Those who do not understand or want to abuse this decree regard it as “contrary to women’s rights”. They say, “According to the Islamic law, even if the woman is harmed in marriage life, is wronged and is not happy, she has to put up with them unless her husband divorces her.   

The clear expression of the verse and the ijtihads made in the light of the verse do not lead to this understanding. A woman who is harmed and wronged in her marital life and who is not happy can end her marriage life by applying to the judge or arbitrators even though her husband does not want to divorce.

Besides, the way of divorce by paying a price (mukhala’a), which will be in question with the will and attempt of the woman is also possible.

In the systems that do not activate the Islamic solution through official institutions, it is possible for the family council or the community to step in, and to resolve disputes through arbitrators they will appoint because the Quranic verse does not consider certain individuals or official institutions, but the ummah and the community, as the addressee. (see Kur’an Yolu, Heyet, Heyet, the interpretation of the verse in question)

References:

- Ahmet Akgündüz, Hakem, TDV İslam Ansiklopedisi.
- Muharrem Balcı, İhtilafların Çözüm Yolları ve Tahkim, İstanbul, 1999.
- Halil İbrahim Acar, İslam Hukukunda Evliliğin Sona Ermesi, Erzurum, 2000.
- Baki Kuru, Hukuk Muhakemeleri Usulü, Vol. 6, 6th ed., İstanbul, Beta yayınları, 2001, 6/5875.
- Servet Armağan, İslam Hukukunda Temel Hak ve Hürriyetler, Ankara, 1987, p. 26.
- Rasih Yeğengil, Tahkim, İstanbul, 1974, p. 65.
- Hamza Aktan, Kur’an’a Göre Boşanma Prosedürü, Dini Araştırmalar Dergisi, V/14, Ankara 2002.
- Nihat Dalgın, İslam Hukukunda Boşama Yetkisi, İstanbul, 2001.
- Mustafa Yıldırım, İslam ve Medeni Yargılama Hukukunda Tahkim, İzmir, 2002.

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How can a woman who is not given the right to divorce be divorced?

The Details of the Question  

- I remember you state in one of your articles that a woman can only divorce if she gets a permission of divorce from the man before marriage. 
- If a husband who does not fulfill his duties has not given his wife the right to divorce before or after marriage, how can that woman be divorced from her husband?

Answer

The woman can demand divorce by applying to the judge for reasons such as the husband’s illness, loss, not providing sustenance, bad treatment and incompatibility that may harm the woman. I will quote the part related to the last article from the book titled “Ana Hatlarıyla İslam Hukuku”:

If bad treatment, incompatibility, non-compliance with family law come from the husband, what the woman needs to do is to report the situation to the judge and arbitrators. In accordance with the verses that introduce these rules (an-Nisa, 4/33-34), all mujtahids agree that the judge will refer the situation to the arbitrators if he is applied due to bad treatment and incompatibility. Different opinions generally arise about the authority of the arbitrators, one of whom is 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 they cannot do it unless they are given the authority to divorce and terminate the marriage.

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).

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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 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.

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