24 July 2019   21. Zul Qadah 1440
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Divorce

Marriage is a sacred bond of worship in Islam. When the boundaries of this relationship are violated continuously it leads parties to consider divorce.

Talaaq is the arabic term used to denote divorce. Talaaq is a valid concept in Islam which should only be resorted to in cases of dire necessity when all attempts to reconcile are exhausted. In a Hadith, divorce is regarded as the worst of all lawful things. Rasulullah (Sallallahu Alaihi Wasallam) said, “The most detestable of lawful acts in the sight of Allah is Talaaq” (Abu Dawud)

A couple deciding to end a marriage must reflect deeply over their decision. Contemplating over the consequences of divorce will aid in making a more measured decision.

All possible efforts to secure a reconciliation must be attempted. Different mechanisms and options should be explored to save the marriage. Ulama and experts must be consulted.

However, when a marriage has reached a point where no hope of reconciliation remains, then in such circumstances a divorce becomes the final option to allow the individuals to move forward with their lives. This process must be concluded amicably. Talaaq is a valid concept in Islam which could be availed of when there is no possibility of reconciling. Withholding Talaaq when there are valid grounds is an act of oppression and something Un-Islamic and goes against the teachings of the Quran Shareef.

The Quran Shareef states:

a. “Either retain her with kindness or release her with on good terms”. (Al Baqarah)

b. “Then if you fear that they would not be able to keep the limits ordained by Allah Ta'ala, then there is no sin on either of them if she (the wife) gives back (the mahr or a part of it) for her release Al-Khul' (divorce). (Al Baqarah)

c. “And do not hold them (your wives) back by inflicting harm/anxiety upon them by constraining the matter and exceeding the bounds of reasonability, whoever does so then indeed he has caused oppression to himself. (Surah Baqarah)

Knowing the Rules

To learn the rules governing divorce is necessary for every Muslim. Unfortunately many divorces occur due to sheer ignorance and negligence.

In the event of divorce, Islam requires the husband to release his wife respectfully and the spouses should separate without holding grudges against each other due to the failure of marriage.

The trend among some Muslims is that when divorce takes place, the spouses and their families begin maligning, condemning and begrudging each other.

Talaaq and its Effect

Talaaq can only be issued by the husband or anyone whom he may delegate this authority to. The use of the word Talaaq or any statement that may construe divorce must be used cautiously by the husband. Talaaq in Islam is a serious matter and not one to trifle with. Once the husband utters the word divorce or a statement implying divorce with the intention of divorce, his wife is divorced from him. The effect of divorce is instant and the wife commences her Iddat (waiting period) immediately.

The Different Types of Talaaq

Talaaq is of two types – Sareeh (clear words) and Kinayah (ambigious form).

In Talaaq Sareeh (clear form) the husband utters the clear word/s of divorce. There is no ambiguity in such a statement and there is no need to question his intention. Divorce takes place immediately with the clear words.

In Talaaq Kinayah (ambiguous form) the husband utters a statement that construes Talaaq but does not mention the clear words of divorce or Talaaq. An example of this is the husband says to his wife, “Get out of this house” or “Go back to your mother’s house” These statements necessitate the intention of divorce for it to take effect.

Raj'ee (Revocable Divorce) & Baain (Irrevocable Divorce)

When the husband uses the clear form of divorce once or twice, then the divorces are revocable (Raj'ee) by him within the Iddat (waiting period). A clear Talaaq is not dependent on his intention.

Should the husband revoke these divorces verbally or by reuniting with his wife, the Nikah is restored, however, the Talaaqs issued stand as counted. Caution should be exercised when considering divorce again for a second or third time.

An irrevocable divorce occurs when the husband uses ambiguous terms to address his wife and intends divorce. Such a divorce is known as Baain. With such a divorce, the Nikah is broken immediately, and should the husband and wife wish to reunite, a new Nikah has to be performed.

Three Divorces

Considered to be the most painful degree of divorce - when the husband in a fit of anger fires all three Talaaqs at once or separately. Such a Talaaq is known as Mughallazah (permanent and binding). This breaks the Nikah irretrievably and rules out the possibility of a new Nikah immediately.

In the instance of three Talaaqs the couple will only be permitted to remarry if, after serving her Iddat the woman marries another man wilfully and consummates the marriage. Thereafter, she is released from this marriage through death of her husband or divorce. Further to serving her Iddat of this second marriage she will be permitted to remarry her previous husband.

Common Rulings on Talaaq

Merely thinking about divorce or contemplating issuing a divorce does not constitute a divorce, as long as one does not actually issue a divorce verbally or in writing.

Talaaq is issued to a woman in her state of purity. However, Talaaq given in menstruation or impurity is valid.

If the husband utters divorce three times, or says to his wife: "I give you three Talaaqs” three Talaaqs will take place, not one.

Mere separation of the husband and wife does not constitute Talaaq, irrespective of the length of separation.

Witnesses are not incumbant for a divorce to be valid and effected in Shariah.

Talaaq is effected by SMS, Whatsapp, fax, phone, etc.

The husband is obliged to maintain the wife in her Iddat.

The rules of Talaaq are complex. Slight variation in wordings could change the ruling. A ruling must always be sought from a learned authority (Aalim/Mufti) by putting the case forward factually and honestly.

Three things are such, whether said in jest or earnestly they are effective, Nikah, Talaaq and revocation of Talaaq. ” (Tirmizi)

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