Divorce: When can a husband or wife terminate the marriage?

In the name of Allah, Most Compassionate, Most Merciful,

Divorce is something that is permissible in Islam but used as a last resort. As such, a couple deciding to end a marriage must really think deep and hard before going ahead with the divorce.

In the brother’s case, he should first sit down and discuss matters with his wife, other family members (from both sides) and a local scholar of knowledge and piety. Explain the problem to him and seek his advice.

Allah Most High says:

“If you 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 has full knowledge, and is acquainted with all things.” (Surah al-Nisa, V. 35)

If it is thought that there is no way in making the marriage work, then the brother should explain this to his parents in a gentle and polite manner, using allot of wisdom. The mediation of a local scholar, whom the parents also respect, may well make maters easy in explaining to the parents.

The parents may be explained that divorce is not something that is unlawful. At times, people don’t get on well with one another, thus there is no option but divorce. Even some of the Prophets (Peace and blessings be upon them) divorced their wives. The Messenger of Allah (Allah bless him & give him peace) also contemplated divorcing all his wives, thus gave them an option to remain with him or otherwise.

Thus, despite being a last resort, divorce is not unlawful and should not bring about disrespect and humiliation to the family. Unfortunately, many Muslim societies regard divorce as an evil and sin, which is completely untrue.

The consequence of this is manifested in the fact that due to divorce being considered an evil and an act of sin, it is presumed that there has to be one guilty party, thus both parties start to point fingers at one another and become enemies for life.

The perception of Islam is quite the opposite. Divorce does not mean that there has to be one guilty party, rather it occurred because of the couple not being able to get on with another, which can be quite normal.

This is the reason why at times we see that two of the best people (in their piety, manners and characteristics) could not save their marriage. Many people start to wonder, how their marriage failed, but with the above explanation it becomes clear that, divorce does not mean that one of the spouses was evil or bad.

Islam commands the husband to give his wife a small gift (known as Mut’a) at the time of divorce, as to avoid any hard feelings.

Allah Most High says:

“For divorced women, maintenance (mut’a) (should be provided) on a reasonable (scale). This is a duty on the righteous.” (Surah al-Baqarah, v. 241)

The meaning of maintenance (mut’a), according to the Hanafi jurists is a small gift consisting of cloths, blanket, etc. (See: al-Ikhtiyar li Ta’lil al-Mukhtar, 2/127)

Thus, Islam orders the husband to release his wife in a polite manner without having any grudges due to the failure of marriage. The same command is given to the woman, in that she should not blame her former husband on the breakdown of her marriage.

Despite this, the unfortunate situation in most Muslim societies is that when divorce takes place, not only do the man and woman have grudges with one another but the whole family and other relatives are involved and become lifelong enemies. The woman’s family use the children as a means to make the man suffer. This, along with being a major sin, is totally inhumane and unacceptable.

Well, coming back to your questions, the brother concerned does not have to divorce his wife if she demands it, as divorcing is the exclusive right of the husband, for which there are many wisdoms that have been explained in an earlier post.

However, if there is allot of hatred between the spouses and there is no real life in the marriage, and all efforts in saving the marriage have failed, then the husband should divorce his wife.

In the situation where the brother does not divorce his wife, his responsibilities will be no different from any other husband. However, if he does decide to divorce his wife, he will have to maintain her financially throughout her waiting period (iddah), which is three menstrual cycles. His will have to support his male children until they reach puberty and female children until they marry. However, there are certain situations here, for which you may refer to an earlier post titled “Rights of the Child with Regards to Religious Learning” on www.sunnipath.com 

Rights of the Child with Regards to Religious Learning
http://www.sunnipath.com/resources/Questions/qa00002074.aspx 

And Allah knows best

Muhammad ibn Adam al-Kawthari

Darul Iftaa, Leicester, UK