Islamic Law on Divorce

Your Islamic divorce options:

1. • Talāq: Initiated by the husband
   • Khula: Initiated by the wife
   • Faskh: Annulment through an Islamic court usually initiated by wife.

The best form of Talāq, according to most Islamic scholars, is known as “Talāq-Ahsan” or “the most proper divorce.”

Here’s what it involves:

• • The husband pronounces Talāq (divorce) once, during a time when his wife is not menstruating and they haven’t had intimate relations since her last period.
  • After this single pronouncement, the couple waits for three menstrual cycles (or three months if the wife doesn’t menstruate). This is the Iddah period.
  • During this waiting period, the couple continues to live in the same house, giving them a chance to reconsider and possibly reconcile.
  • If they don’t reconcile by the end of the Iddah period, the divorce becomes final.

 This method is considered best because:

• • It gives the couple time to reflect and potentially reconcile.
  • It avoids hasty decisions made in anger.
  • It follows the guidance given in the Quran about divorce.
  • It’s a single, revocable divorce, which allows for easier reconciliation if both parties wish.

Remember, while this is generally considered the best form, individual circumstances can vary. It’s always wise to consult with a knowledgeable local Islamic scholar for personalized guidance.

• Revocable: The divorce is not final and the couple can reconcile during the Iddah period without remarrying.
• Irrevocable: The divorce is final and remarriage is necessary to reconcile.

Yes, you can generally work during your Iddah period. Islamic law doesn’t prohibit women from working during this time, especially if it’s necessary for your livelihood or if you were already employed before the divorce.

Reconciliation varies according to Islamic law schools, but generally reconciliation includes resuming marital relations or clear statements of reconciliation.

Yes, the husband is generally obliged to provide maintenance during this period.

It is when a husband pronounces divorce (Talāq) three times in one sitting. It is considered a single irrevocable divorce by most scholars, whilst a minority of scholars argue that it only constitute one revocable Talāq. Although most scholars regard it as permissible it is considered morally reprehensible (makrū).

If a husband refuses Talāq, you can seek Khula or Faskh through an Islamic court or scholar.

Khula’ is a no-fault divorce which means:

• • You don’t need to prove your husband did something wrong to get a divorce.
  • You can ask for a divorce simply because you no longer wish to be married, without having to give a specific reason like abuse or neglect.
  • It’s based on the idea that if a wife is unhappy in the marriage and doesn’t want to continue, she has the right to end it.
  • You don’t have to show that your husband failed in his duties or mistreated you in any way.
  • The focus is on your desire to end the marriage, not on blaming or finding fault with your husband.
  • This type of divorce aims to make the process simpler and less confrontational.
  • However, in Khula’, you might need to give back the Mahr/Maskavi (dowry) or some other compensation to your husband.

The main idea is that you can seek a divorce based on your own feelings and decision, without needing to prove any wrongdoing by your husband. It’s a way to end the marriage that focuses on your right to choose, rather than on finding fault with your spouse.

Yes, Khula’ is accepted as a form of divorce in several countries that follow Islamic family laws.

Some countries that recognise Khula’ in their legal systems include:

• • Egypt: Khula’ was legalized in 2000. A wife can seek Khula’ even if her husband disagrees, but she must return her dowry and give up financial rights.
  • Malaysia: Khula’ is accepted, but the process and conditions can vary between different states within the country.
  • Pakistan: Khula’ is legally recognized. A wife can file for Khula’ without her husband’s consent, but she may have to return her mahr.

A Faskh is a type of Islamic divorce where a wife asks an Islamic judge (qādi) or scholar to end her marriage. It’s like asking for the marriage to be cancelled or annulled. You use this when your husband won’t give you a divorce (Talāq) or when you can’t get a mutual divorce (Khula’).

Shafi’i school grounds include:

• • Physical or mental abuse;
  • Husband not providing financial support (Nafaqah);
  • Husband’s prolonged absence;
  • Husband’s imprisonment;
  • Husband’s failure to fulfil marital duties.

Hanafi school grounds include:

• • Husband’s impotence;
  • Husband’s severe mental illness;
  • Husband’s disappearance for a long time.

Maliki school generally offers more flexibility for women seeking divorce. Here are the main grounds:

• • Harm or mistreatment: If your husband physically or emotionally abuses you, or treats you cruelly;
  • Lack of financial support: If your husband fails to provide for your basic needs like food, clothing, and shelter;
  • Abandonment: If your husband leaves you for a long time without a good reason;
  • Serious illness: If your husband has a severe, chronic illness that makes married life difficult;
  • Impotence: If your husband is unable to have sexual relations;
  • Broken marriage vows: If your husband doesn’t keep important promises he made in the marriage contract;
  • Imprisonment: If your husband is sentenced to a long jail term;
  • Missing husband: If your husband disappears and you don’t know where he is;
  • Serious disagreement: If there’s a major, ongoing conflict between you and your husband that can’t be resolved;
  • Failure to fulfil marital duties: If your husband doesn’t meet his responsibilities as a spouse;

The Maliki school is known for allowing divorce for any reason the judge considers valid, even if it’s not on this list. The key point in the Maliki school is that if staying in the marriage causes you harm or unhappiness, you have the right to seek a divorce. The judge will consider your specific situation when deciding whether to grant the Faskh.

Yes he can, according to the Islamic doctrine of Talfīq. Talfīq  means “patching together” or “combining.” In Islamic law, it’s the practice of taking rules from different schools of Islamic thought to solve a problem. It’s like picking the most suitable parts from different sets of rules to find the best solution.

How it works:

• • Islamic law has different schools of thought (like Shafi’i, Hanafi, Maliki, and Hanbali);
  • Each school might have slightly different rules on certain issues;
  • Talfīq allows a judge (Qādi) to use rules from different schools if it helps solve a problem fairly.

An Islamic judge (Qādi) can use Talfīq if:

• • It prevents harm: If following one school’s rules might cause unfairness or hardship, the qadi can look at other schools’ rules to find a better solution;
  • It serves public interest (maslahah mursala): If using a rule from a different school would be better for the community or the people involved.

It can be used in your divorce case as follows:

• • If the school of thought typically followed in your area makes it very difficult for women to obtain a Faskh;
  • But another school has rules that would allow you to divorce more easily and fairly;
  • The Qādi might choose to use the rules from the other school to ensure you’re treated fairly.

This approach:

• • Helps the Qādi make decisions that are just and prevent hardship;
  • Allows for flexibility in applying Islamic law;
  • Recognizes that different situations might need different approaches.

In many places where multiple schools of thought are recognized, Talfīq can be a useful tool to ensure fair outcomes.

To initiate a Faskh, you need to approach a recognized ulema body in your area. You’ll need to complete an intake form, attend counselling sessions, and file a formal application stating the grounds for Faskh. The process typically involves a hearing where both parties present their cases.

The time can vary depending on which ulama body you approach and depending on whether your spouse opposes the granting of the Faskh.  It can take anywhere from a few months to a year.

Your Iddah (waiting period) starts immediately after the Faskh is granted by the Islamic judge or authority. This is usually the day the decision is made, not when you first applied for the Faskh.

In most cases, yes. Even after a Faskh, your husband is generally required to provide financial support during your Iddah period. This usually includes food, housing, and other basic needs. However, the exact requirements can vary based on specific circumstances.

Yes, according to Islamic law, you can claim arrear maintenance if you assisted your husband during your marriage to maintain the household and you did not intend it as a gift. In South Africa, courts have recognized this claim, but it’s limited to three years due to the Prescription Act.

Mu’tah is a compensatory gift given by the husband to the wife upon divorce. It’s considered obligatory by some schools of Islamic law and recommended by others. Whether you’re entitled to it can depend on the circumstances of the divorce and the interpretation of Islamic law applied.

In Islamic law, child custody (Hadānah) after divorce varies according to the different schools but typically it is given to the mother for young children, with the father having custody as children get older. However, in South Africa, the “best interests of the child” principle will override the Islamic laws relating to custody. The “best interest of the child” principle means that in all decisions involving children during a divorce, the child’s wellbeing and welfare must come first. This is the most important factor that courts consider when making decisions about children.

Yes, in Islamic law the father remains responsible for the maintenance of his minor children.  However, under South African law, both parents are required to maintain their minor children.