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Divorce in Islam: How Can a Muslim Women Get a Divorce According to Sharia

by in Relationships on 26th November, 2018

Join us at Lush x Amaliah to watch The Judge – a documentary following the first female Shari’a judge in the Middle East. Watch as Judge Kholoud rules on divorce hearings and family matters, reinstating the rights of women in courtrooms which have for so long been dominated by men. Followed by a post-screening discussion on Muslim women, equality and justice.

There is also often an underlying assumption that there should be absolute equality between men and women in all aspects of life. Islām identifies that there is absolute equality between men and women with regards to their souls, their intrinsic value as servants of God, and the value of their acts of obedience to God. However, Islām recognises some biological differences between men and women ( birthing a child, for instance) and accommodates for these differences. Therefore, Islām calls for justice rather than equality: justice means equality for those who are the same, and inequality for those who have differences. Due to the concept of justice being defined by God, the premise of “why can’t women do x if men can” does not fit in with the Islamic concepts of men and women to begin with.

As our rights and responsibilities in Islām are ordained by God, and not man, it is important as Muslim women to determine our worth and positions in relation to God, and not in relation to man. Something doesn’t become greater or better, just because men do it, or become lesser because women do. This article by sister Yasmin Mogaheddiscusses why it is important not to make men the standard for comparison when discussing gender issues in Islām.

Sometimes it may feel as though we as women are at a disadvantage, that the laws ordained by God always favour men. This may happen as a result of the way we have our conversations surrounding these issues (for example, conversations may be approached from the lens of misogyny), and not because of the issues themselves. When discussing laws pertaining to men (for example, their duties and responsibilities within the family), their responsibilities are often much greater than that of women. The current culture forces the discourse in one unnatural direction with more of a focus on the limitations placed upon women. As many conversations are led by men, there is skewed attention given to the duties of women, and the responsibilities of men are not emphasised.

As a Muslim sister recently expressed:“…Take it from my husband who is a single child of divorced parents, they are both elderly now and in poor health. He is financially responsible for me and our kids and also his parents, without much of a support system in the form of extended family. I don’t envy him at all.”

What divorce looks like for Muslim women according to Shariah.

In Islam, there are three main types of divorce (talaq). The word talaq literally means divorce and can refer to any of the three, but is commonly used for the third type.

  1. Khula’: A divorce initiated by a woman (which is exclusive to women)
  2. A divorce accorded by an Islamic court (such as in cases where an abusive husband is refusing to agree to the Khula’)
  3. A divorce given verbally by a man. This option of pronouncing divorce is the only one that’s exclusive to men. What many are also unaware of, is that if the couple chose to write it into their marriage contract, both the husband and wife would be able to initiate a divorce in this manner.

This third type of divorce means that a man is able to divorce with a few words. It is important to note the several warnings given in hadīth about divorces that are given rashly, without care and consideration, and without due process.

In fact, the concept of halāla is often used as a ‘get out’ by those who have rashly uttered an irrevocable divorce, when the Islamically recommended method of divorce would have allowed them two opportunities to reconsider and reconcile. The concept of halāla means that after a complete divorce, a woman who then marries and divorces someone else, can remarry her first husband.

Halāla with the intention of reconciliation is actually prohibited in Islām, although some scholars hold that it does not render the nikāh void (i.e. a person who engages in halāla is sinful). It is far from a ‘must’ for either a woman or a man to betray a third person in order to get back together after they have already abused their right to divorce. It is not a get-out clause, rather a deterrent to the husband – If he does not behave responsibly and control his words and emotions, he is not able to spend his life with the person he wants, unless she happens to marry and divorce someone else. Therefore, although he has the ability to dissolve the marriage instantly, the consequences are so extreme that he must deliberate sincerely before making a decision.

If a man and woman were able to get back together without them first pursuing happiness with others, it would defeat the purpose of divorce, which is separation. It would enable couples to divorce and reconcile, without recognising the weight of their decision, and may place the woman in a vulnerable position of uncertainty and expectation to return.

Unfortunately, cultural taboos have restricted a woman’s right to divorce by khula often citing the hadīth ‘The most detestable of all permissible deeds to Allāh is divorce (6).’ However, where reconciliation results in undue pressure and notions of ‘shame’ being placed solely on the woman’s shoulders, this is abuse of the application of the law and should be called out. We need only look at our history and the many sahābiyāt who divorced and remarried in the life of the Prophet (pbuh), to know that ‘divorce-shame’ should be shunned and has no place in Islām.

This article is written in response to ‘12 Things I Can’t Reconcile About Islam as a Muslim Woman’ a response to all 12 things can be found here

The views of the authors are not those of Amaliah, we also recognise that the responses are a snapshot of thinking and there are a variety of responses that could be surfaced to each of these 12 points. We also recognise issues of fiqh cannot be thoroughly and deeply explored in this article to account for all schools of thoughts, contexts, and viewpoints. We pray all efforts are accepted by Allah.

Alimahs Respond

Alimahs Respond

A group of five women have come together to respond to Islamic matters to help unpack and unravel academic responses to problems we face as Muslim women in today’s context. Rumaysa, Umm Eesa, Nuriddeen Knight, Aamenah Patel and Yusairah have each studied Islamic sciences in detail.