What is the duration of the divorce? How is it to be conducted?
Mu' meneen Brothers and Sisters,
As Salaam Aleikum wa Rahmatullahi wa
Barakatuh. (May Allah's Peace, Mercy and Blessings be upon all of you)
One of our brothers/sisters has asked
this question:
What
is the duration of the divorce? How is it to be conducted? Do people have to
witness it three times of pronouncement before it can be legal? or once? If
witness once, is that suffice for it? If the husband refuse to allow witness
for the second time what happeened. Pls! I need a clear picture of what divorce
is all about, How is to be conducted, where and when? Jazakumllahu khairan
(There may be some grammatical and spelling
errors in the above statement. The forum does not change anything from
questions, comments and statements received from our readers for circulation in
confidentiality.)
Answer:
The correct method of divorce
In the name of Allah, We praise Him, seek His help and ask
for His forgiveness. Whoever Allah guides none can misguide, and whoever
He allows to fall astray, none can guide them aright. We bear witness that
there is none worthy of worship but Allah Alone, and we bear witness that
Muhammad (saws) is His slave-servant and the seal of His Messengers.
Although Islam absolutely encourages and guides the
believers to maintain their marriage, it also recognizes that it is possible
that sometimes a man and a woman who chose to commit to each other in the
sacred bond of marriage may not be compatible to each other….and if after all
avenues of reconciliation have been exhausted, Islam, as an absolutely last
resort, has permitted the married couple to separate through a divorce.
Sunan of Abu-Dawood Hadith 2173 Narrated by Abdullah ibn Umar
The Prophet (saws) said: ‘Of all the lawful
acts’ the most detestable to Allah is divorce.’
Sunan of Abu-Dawood Hadith 2172 Narrated by Muharib
The Prophet (saws) said: ‘Allah did not make
anything lawful more abominable to Him than divorce.’
If after all the avenues of reconciliation have been
absolutely exhausted and the couple still seek to separate from each other
through divorce, Islam guides and reminds the believers that just as the couple
who married united in peace, if Allah forbid, they wish to separate, they
should do so in peace.
Allah Says in the Holy
Quran Chapter 65 Surah Talaq verses 1-2:
1 O Prophet! When ye do divorce
women divorce them at their prescribed periods and count (accurately) their
prescribed periods: and fear Allah your Lord: and turn them not out of their
houses nor shall they (themselves) leave except in case they are guilty of some
open lewdness. Those are limits set by
Allah: and any who transgresses the limits of Allah does verily wrong his (own)
soul: thou knowest not if perchance Allah will bring about thereafter some new
situation.
2 Thus when they fulfil their term appointed either take them back on
equitable terms or part with them on equitable terms; and take for witness two
persons from among you endued with justice and establish the evidence (as)
before Allah. Such is the admonition
given to him who believes in Allah and the Last Day. And for those who fear
Allah He (ever) prepares a way out.
The correct
way to pronounce divorce in Islam, as taught in the Holy Quran, is that the husband, making sure that his
wife is not experiencing her menstruation, pronounces 1-divorce to his wife,
and they ‘stay-away’ from conjugating with each other for a time period of
three menses periods. If before the
three menses periods are over, the husband decides to revoke the divorce and
take his wife back, he is well within his rights to do so; and although one of
the three divorces will be deemed established in the marriage, the couple may
continue to live together as a married couple.
But if after the declaration of
a revocable (1st and 2nd) divorce, the three menses
period duration passes, and the couple
do not come together, then the husband
and wife will be considered legally divorced and the woman may marry any man of
her choice thereafter. If they wish to
re-marry after this period, a brand new ‘nikaah’ needs to be done for them to
be husband and wife again; but the
husband has used up one of his three divorce rights, and has only two more divorce rights left in
this marriage. The divorce and
re-marriage can only be done twice; and
the third time the husband pronounces the divorce, then it will be considered a final divorce
and the couple cannot remarry; unless
the woman marries someone else and that husband divorces her or dies.
Allah Says in the Holy
Quran Chapter 2 Surah Baqarah verse 229 (part):
229 A divorce is only permissible twice: after that the parties should
either hold together on equitable terms or separate with kindness.
Thus, in Islam, one need not use all the three divorce
pronunciations to divorce his wife.
Only one divorce pronunciation is enough to obtain a legal and full
divorce, and after the woman passes the ‘iddah’ or waiting period of three
menses periods she is free to marry anyone she wills, and it also leaves the
option for the couple to re-marry again, if they wish to do so.
If the husband is the one who
initiates the divorce, then it is not permissible for him to take back anything
he has given his wife in the least. He
should fear Allah, remember His favors upon him, and just as he once married
and united with this woman with the spirit of peace and generosity, if for any
reason he wishes to separate from her, he should do so with justice, kindness,
peace, generosity and benevolence.
Allah Says in the Holy Quran Chapter 2 Surah
Baqarah verse 229 :
229 A divorce is only permissible twice: after that the parties should
either hold together on equitable terms or separate with kindness. It is not lawful for you (men) to take
back any of your gifts (from your wives) except when both parties fear
that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would
be unable to keep the limits ordained by Allah there is no blame on either of
them if she give something for her freedom (if it is the wife who initiates the
divorce). These are the limits ordained by Allah; so do not transgress
them. If any do transgress the limits
ordained by Allah such persons are the wrong-doers.
Allah Says in the Holy Quran Chapter 2 Surah
Baqarah verse 229 (part):
231 When ye divorce women and they fulfil the term of their (`Iddat)
either take them back on equitable terms or set them free on equitable
terms; but do not take them back to injure them or to take undue advantage;
if anyone does that He wrongs his own soul.
Do not treat Allah's Signs as a jest but solemnly rehearse Allah's
favors on you and the fact that He sent down to you the Book and Wisdom for
your instruction. And fear Allah and
know that Allah is well acquainted with all things.
Allah Says in the Holy Quran Chapter 4 Surah
Nisaa verses 20-21:
20 But if ye decide to take one wife in place of another even if ye had
given the latter a whole treasure for dower take not the least bit of it
back: would ye take it by slander and a manifest wrong?
21 And how could ye take it when ye have gone in unto each other and
they have taken from you a solemn covenant?
When separating through divorce each party should fear
their Lord Who is watching over everyone and everything in His creation, and
during the entire divorce proceedings and thereafter, they should never ever
slander, or injure, or take undue advantage of the other; but rather just as
they once chose to unite in peace and mercy, if for any reason they wish to
separate they should do so in peace, mercy, kindness, benevolence, and above
all with honor, patience and generosity.
Allah Says in the Holy Quran Chapter 4 Surah
Nisaa verse 19:
19 O ye who believe! Ye are
forbidden to inherit women against their will.
Nor should ye treat them with harshness that ye may take away part of
the dower ye have given them except where they have been guilty of open
lewdness; on the contrary live with them on a footing of kindness and
equity. If ye take a dislike to
them it may be that ye dislike a thing and Allah brings about through it a
great deal of good.
Now to answer your specific questions:
Q-1: What is the
duration of the divorce?
There are three divorce rights in any one marriage in
Islam, the first two of which are revocable and the third divorce is absolutely
final and irrevocable.
If one pronounces a revocable divorce (the 1st
or the 2nd declaration), one may revoke this divorce anytime between
the declaration of the divorce and before the waiting period or ‘iddah’ of
three menstrual periods of the women have elapsed.
If the husband does not revoke the divorce before the
‘iddah’ or waiting period, a divorce will be established and the women is free
to marry any man of her choice.
If after declaring a revocable (1st and 2nd) divorce, the husband does not revoke the
divorce before the end of the ‘iddah’ or waiting period of three menstrual
periods….and at a later date the couple wish to remarry again, a brand new
nikaah must be performed for them to be able to live as a couple again.
Q-2: Do people have
to witness it three times of pronouncement before it can be legal? or once?
The presence of two witnesses is a legal requirement only
for a ‘nikaah’ in Islam; there is absolutely no requirement for the presence of
a witness when one declares or pronounces a divorce in Shariah Law.
A husband may declare or pronounce a divorce upon his wife
without absolutely any witnesses present….such a divorce would be deemed valid
in the Sight of Shariah Law and of Allah Subhanah.
Q-3: If witness
once, is that suffice for it? If the husband refuse to allow witness for the
second time what happeened. Pls!
There is absolutely no condition or requirement for a
witness to be present during the declaration of a divorce in Shariah Law. A divorce given by a husband to his wife in
absolute privacy will be deemed valid in the Sight of Shariah Law and of Allah
Subhanah.
Whatever written of Truth and benefit is only due to
Allah’s Assistance and Guidance, and whatever of error is of me alone. Allah Alone Knows Best and He is the Only
Source of Strength.
Your brother and
well wisher in Islam,
Burhan
Wister