Problems with the 'Idda (post-marriage waiting period)

In the name of Allah; all praise is due unto Allah; and prayers and salutations be upon the Messenger of Allah.

To proceed:

A: Firstly, I pray that Allah chooses what is best for both parties involved, and that this will lead to nothing other than an improvement in each person’s din.

The answer to this question will be given in two parts. The first part includes the text-book answers to the multi-dimensional question above. The second part consists of problem points due to this divorce (presumably) occurring in non-Muslim lands, and will include several possible answers. Please note, that since I am merely a student, and hence am not qualified to give case-sensitive fatwas, I have checked the matter with my own teacher in Hanafi fiqh, Shaykh Muhammad Khaled al-Kharsa of Damascus, who is a qualified traditional scholar, and has many years of experience as the assistant to the previous and present Hanafi muftis of Damascus.

Before we begin, however, an important distinction needs to be made in regards to technical vocabulary that will be used in the answer, which is the difference between rulings which are “legally binding” (qada’an) and those which are “religiously obligatory/binding” (diyanatan).

Distinction between “legally binding”(qada’an) and “religiously obligatory”(diyanatan)

That which is “legally binding” is any ruling according the Sacred Law issued by a legal judge (qadi), non-compliance of which would lead to legal repercussions.

That which is “religiously obligatory/binding” is that ruling of the Sacred Law which, even if no judge has ruled as such, a person would be held responsible for implementing/refraining from on the Day of Judgment by the Lord of the judges.

The key issue: religious obligations must be observed and practiced even in non-Muslim lands, while there is obviously no way to enforce sheer legal obligations in such lands (unless it can be done through the legal system of that land, in which case such measures may and should be taken if one’s rights are at stake).

Part One: Text-Book Rulings

(the codified articles are culled from Muhammad Qudri Pasha’s authoritative codification of Muslim personal law according to the Hanafi madhhab, al-Ahkam al-Shar‘iyya fi al-Ahwal al-Shakhsiyya ; other sources are named):

1. The waiting period (‘idda) is obligatory upon a divorced woman from a consummated marriage. [Article 310]
2. The husband may not “forgive” the wife the observance of the waiting period and what it legally entails, as it is the right of Allah, i.e. a religious obligation, upon the woman. [Radd al-Muhtar , 2/619].
3. The waiting period (‘idda) from divorce or legal separation begins the moment the divorce was pronounced by the husband, or legal separation pronounced by a valid Muslim judge(qadi>). [Article 321]
4. The standard waiting period in such a situation is three (3) complete menstrual cycles; the wife is considered irrevocably divorced (ba’ina) from the husband at the full completion of her third menstrual cycle, and at that point may remarry if she so desires. [Article 311]
5. She is to remain in the marriage home (i.e. the home which she had lived in during her marriage at the time of the divorce or death of the husband [Radd al-Muhtar, 2/619]) for the entire duration of the waiting period, without leaving the house, day or night, save for a legally valid reason. [Article 322] This obligation is a religious obligation. [Radd al-Muhtar , 2/619]
6. If, at the time that she is informed of the divorce, she is not at the marriage home, it is obligatory for her to return thereto immediately if the time-duration of the waiting period has not been completed. [Article 322]
7. The financial support of a divorced woman remains obligatorily due from the husband during the entire length of the waiting period; thus, under normal circumstances, she would not be required nor permitted to leave the house in order to work. [Article 324]
8. If, for whatever reason, she does not observe the proper rules of the waiting period, and, for example, lived in a different location other than the marriage home, or left the home for whatever reason during the day, she would be committing a religious sin, and the financial support due to her by the husband would no longer be obligatory upon him so long as she was not complying(nushuz); if, however, she returned, the financial support would likewise become obligatory again. [Articles 324 & 327]
9. Nonetheless, none of her compliance or non-compliance, payment or non-payment, would affect the continuation of the waiting period, such that at the end of her third menstrual cycle, her waiting period (‘idda) would end, even if she had not been informed of the divorce, had not spent a moment in the manner the Sacred Law has proscribed, or he hadn’t paid a penny. [Article 321]

Positive conclusions which can be ascertained in regards to this particular case:

• the waiting period (‘idda) has definitely begun from the moment the official divorce papers were signed by the husband [note: this is on the understanding that the questioner’s statement “the paper was signed this morning” means signed by the husband, therefore effectuating a divorce, and not something else]. It will end upon the full completion of the third complete menstrual cycle of the wife after the divorce was effectuated.
• merely “living apart” before the divorce was officially effectuated does not count towards the waiting period.
• the husband is “religiously bound and obliged” to pay financial support for the woman for the entire length of the waiting period, if she were to remain (or she were willing, and he not willing for her to remain) at the marriage home (as defined in no. 5 above).
• The parents of the woman have no relationship nor say in the waiting period, save that it may be observed at their home if the husband refuses for her to remain in the marriage home (or her own personal home).

Part Two: Case-sensitive rulings:

Due to the circumstances, in which:

(a) the divorce has occurred in non-Muslim lands;

(b) the husband may not be willing for the wife to complete the waiting period in the marriage home;

(c) depending on the laws of the land, there may be no legal way to enforce financial support payment by the husband to the wife during the waiting period (‘idda);

(d) she had (apparently) been living separately from him in her own home prior to the divorce, with his willful consent;

(e) the woman may have no other means of financial support;

the following rulings would be applicable (as checked and verified by Shaykh Khaled):

• The wife is to observe the waiting period in the marriage home. As regards her own home which she is renting:
  1. it would count as the marriage home if, before the divorce, she was living there with his full consent. In such a case, she could observe the waiting period there.
  2. If the husband does not want her in his home, she could observe the waiting period, with all of its conditions, in her own rented home.
  3. If the husband wants her to return and spend the waiting period in his home, she is to return thereto, on condition that she would be safe there; if she honestly fears for her well-being from him in such a situation , she may observe the waiting period, with all of its conditions, in her own rented home.
• If financial support is not being provided, and the husband is not otherwise fulfilling his duties towards her:
  
  1. it is permissible for her to work to the degree necessary for her to suffice herself for the duration of the waiting period.

If she does have to work, Sh. Khaled states, it would be best if she could work enough to suffice for the entire waiting period, and take as much of the rest of the waiting period off from work, in order to observe it more perfectly. If not, she could do whatever would be necessary.

If, however, she already has money from which she may support herself for the duration of the waiting period, she is to remain in full observance of the waiting period, and may not leave the house.

The rulings given as to permissibility to leave the home are those which usually apply to a woman observing the waiting period due to the death of her husband; they are analogically applied here due to the nature of the scenario, in which the husband is not fulfilling his proper duties, and where there is no Muslim judge who can enforce the legal obligations.

All of this is on the assumption that the divorce was a revocable (raj‘i) divorce. If it is a non-revocable(ba’in) divorce (i.e. the third pronouncement of divorce, or done in a way that would require a totally new contract for them to remarry), further rulings may apply.

From the wording of the question, these are all the possible dimensions that I imagine could be covered. If further questions or clarifications are needed, I would be happy to pose them to my shaykh.

And Allah is the sole grantor of success.

Talal Al-Azem
Damascus, Syria