The subject of divorce is always a sensitive one, no matter what context it relates to. But, when we have to juggle a separation with our religion, things can quickly become even more complicated.
For whatever reason, it’s an unavoidable fact of life that some marriages don’t work out. When that happens, the best, or only, way forward for couples is to file for a divorce.
That’s often easier said than done. Every religion has a different perspective when it comes to divorce, which means that simply filing for a divorce isn’t always straightforward and may require the use of free family law and divorce advice.
As a Muslim, you may already be aware that divorce is permitted in Islam. But if you’re not sure exactly how Islamic divorce works, or if you have any questions about the general process, this post should help to clarify how you can juggle a divorce while staying true to Islamic societal and religious expectations of marriage.
What Does Islam Say About Divorce?
Although divorce is not necessarily encouraged, most Muslims agree that divorce is allowed if a marriage has irretrievably broken down. It should be noted that certain steps still need to be taken to ensure that all possible options are at least explored before divorce is seriously considered.
It must be noted that, unlike English Law, where neither of the parties have the power to grant divorce and it is instead in the hands of a judge, Islamic law puts the power into the hands of the man in the first instance.
However, this isn’t to say that, as a Muslim woman, you’ll never be able to have any sort of control over a divorce. There are a number of different methods of divorce and separation in Islam which can be affected by different parties.
What Are the Methods of Divorce and Separation in Islam?
In basic terms, Talaq is the unilateral right for a husband to divorce his wife. It’s the most well-known form of Islamic divorce, which is why there’s a common misconception that this is the only type of divorce that exists in Islam.
To get a Talaq, the husband will make an application to the Islamic Sharia Council, who will then contact the wife to ask whether she would like to engage in mediation to reconcile the marriage. If mediation is not required, or is unsuccessful, then the Council will issue the Talaq to the husband.
It’s important to note that, after the Talaq is issued, the wife enters into Iddah, which is essentially a waiting period. She must wait three months, during which time the marriage can still be reconciled, and the husband must continue maintenance.
Once Iddah has been completed, the Council issues the certificate to both parties to finalise the divorce.
It is possible for a woman to terminate an Islamic marriage through what’s known as a Khula. This is where the wife makes the application for divorce and the husband grants Talaq in response. This will be upon the wife repaying Mehr (the Islamic dowry originally paid to the wife).
Though Khula is initiated by the wife, this form of separation is mutual and collaborative by nature. There is no allegation of fault from either party and, in certain situations, the wife might not have to repay the Mehr.
If a husband refuses to give his wife Talaq, there is a risk that the wife would be effectively stuck in the marriage. However, Islamic jurisprudence provides for a wife to have their marriage dissolved by a Qadhi (a judge in a Shariah court).
A Faskh-e-Nikah is the dissolution of an Islamic marriage pronounced by a third party upon the application by the wife.
The refusal to give Talaq, when there are clear grounds for doing so, is in itself prohibited for the husband from an Islamic standpoint as the rights of the wife are not being fulfilled.
Tadweedh-e-Talaq is where the power of the Talaq is transferred from the husband to the wife. This delegation of power can be made at any time, either before or after the marriage. Quite often, it’s inserted as part of a prenuptial clause in the marriage contract.
Tafweedh-e-Talaq does not give a woman the right to automatically divorce their husband, but instead means that she has the delegated right of pronouncing Talaq upon herself.
Who Gets What After an Islamic Divorce?
The most important questions that need to be answered following an Islamic divorce usually centre on the arrangements that need to be made for property and any children from the marriage.
Deciding who gets what from an Islamic divorce will depend on the circumstances of the separation and what method was used to finalise it.
For legally valid Islamic marriages, both spouses have an equal right to remain in the matrimonial home, regardless of who bought it or who has the mortgage in their name. During divorce, assets are always divided as equally as possible, which includes the family home.
Once the separation has been finalised – either by Talaq or Khula – the matter of child custody will be one of the most important matters to be resolved.
Almost universally, jurists in Islam will take into account the wellbeing of the children before they make a decision regarding custody. This means that there is no definitive answer as to whether the husband or wife will be granted custody – it will almost always be decided on a case-by-case basis.
Do You Have Any More Questions About Divorce as a Muslim?
In this post, we’ve detailed how divorce works as a Muslim and how you can juggle a potential separation with your religion.
The legislation surrounding Islamic divorces can quickly become confusing, so if you have any further questions or suggestions, please leave a comment below!