The Quran regulates the matters of divorce so that it isnt approached lightly, not caused by transient emotional factors
65:1,4:19"If you take a dislike to them it may be that you dislike a thing and Allah brings about through it a great deal of good".
It bans the pre-islamic practice of dhihar/zihar where husbands would arbitrarily physically repudiate their wives, considering them as unlawful as would be their biological mothers 33:4,58:1-4. Such injustice towards the sanctity of both motherhood and the institution of marriage must be compensated through repentance and atonement; charity, fasting or the freeing of a captive. If not, then the wife remains unlawful to the husband, opening the way for her to seek divorce due to the husband not completing his matrimonial rights.
It is to be noted, the disapproval of that practice was mentioned in surah ahzaab much prior to sura mujaadila, where the options for atonement are given. We read in the traditions of a woman who complained to the prophet that her husband had declared zihar on her. Knowing that the Quran severely disapproved it, the woman, despite the prophet's advise to return to her husband and resume her marital life, sought for a way, on behalf of her husband to regain God's approval. The prophet's advise was due to the man's old age, described in some reports as becoming mentally confused as to his statements. Further, the Quran considers zihar a falsehood that has no bearing on the validity of the marriage. In pre-islamic days, the statement of zihar amounted to divorce. The verses 58:1-4 were then revealed, reiterating the negativity of the practice and opening a way for repentance. Khawlah desired to return to her husband, even pleading for him, but due to her piety, wanted to do so with God's blessing, and God honoured her attitude forever through the revelation of these verses
"My husband, Aws ibn as-Samit, pronounced the words: You are like my mother. So I came to the Messenger of Allah, complaining to him about my husband. The Messenger of Allah disputed with me and said: Remain dutiful to Allah; he is your cousin. I continued (complaining) until the Qur'anic verse came down..I said: I shall help him with another date-basked ('araq). He said: You have done well. Go and feed sixty poor people on his behalf, and return to your cousin. The narrator said: An araq holds sixty sa's of dates. Abu Dawud said: She atoned on his behalf without seeking his permission". The traditions report that her status among the companions was such that they would stop and listen to whatever she had to say, bowing their heads in humility, calling her "the one whose complaint was heard at the seventh heaven".
The divorce matter is neither wholly in the husband's nor the wife's hands. If the wife wants a divorce, called khul', due to fear not to honour her marital duties, she is to return her dower so as to obtain separation 2:229. Once a woman complained to the prophet about her new husband’s repulsive physical appearance, and the prophet divorced them by returning the two orchards her husband had given her. The verse also warns against any type of abuse in the matter, such as by mistreating the wife so as to compel her to initiate the divorce and return the dower. The man may also resort to khul', but will not get the dower back, unless marriage has not yet been consummated. In that case he may ask and get up to half of what he gifted, although it would be more considerate to leave the bridal gift altogether to the divorced wife 2:237.
Once marriage has been consummated and the man initiates a divorce, called talaq, a judge designates two arbiters, one belonging to the wife's family and the other to the husband's 4:35. The arbiters' primary objective is to effect a reconciliation during a counselling period of three months -called idda- where the husband remains financially responsible for his wife 65:1,6. She cannot be turned out of the home, unless the actions leading to the husband announcing the divorce, were immoral.
The primary purpose of the 3 month cycle is to determine a possible pregnancy. A woman may miss one, even 2 menstruations for other reasons that pregnancy. But she obviously cannot be kept in such situation indefinitely, thus the limit of 3 cycles. If menstruation occurs anywhere within the 3 month time period, pregnancy is ruled out, but the marriage is still not dissolved until the waiting period is over. During that time the husband may not expel his wife nor can she leave, as stated earlier. The reason is that this type of divorce, called revocable, is issued by the husband and wasnt necessarily wanted by the wife. By not leaving the house, perhaps he may have second thoughts and take her back. A revocable divorced woman is still considered to be a wife.
Divorces for the vast majority of cases are pronounced hastily. Through this device one might still be able to seize a chance at reconciliation. Of course, this period of reflection within the household cannot be done with physical or mental harm 65:6,2:231 the hope being that conjugal relations may resume. Islam is based upon justice, fairness, and human rights; it never approves of oppressive behaviour, especially not in a couple
"Among His signs is that He created for you spouses from yourselves so that you might find repose with them. And He has placed between you affection and mercy. In that there are certainly signs for people who reflect".
Many such verses encourage men and women to actively seek and maintain their companionship with God-consciousness. The prophet embodied these Quranic principles
"The most perfect man in his faith among the believers is the one whose behaviour is most excellent; and the best of you are those who are the best to their women".
If a woman fears oppression, she must approach the team of arbitrators as stated in the Quran and ask them to advise and council her husband and induce him to observe justice and fairness, and to perform his duties. If he reforms his behaviour, she continues her life with him and if he does not, the case is transferred to the judge who tells him to stop his behaviour, as witnessed by the arbitrators, and perform his duties. If he does not accept, he is obligated to divorce her. If he refuses to do so, the judge himself divorces them and forcefully takes the wife's rights from her husband.
As stated earlier, during the cooling off period of 3 months, the husband may go back to his wife at any time
2:228"and their husbands have a better right to take them back in the meanwhile if they wish for reconciliation; and they have rights similar to those against them in a just manner".
Once the prescribed time reaches its end, a decision must be taken to
65:2"either retain them according to acceptable terms or part with them according to acceptable terms".
For a marriage that breaks up very early on, in fact so early that it has not even been consummated, then there is no use to observe a waiting period of reflection as is the case above. The man is nevertheless required, out of courtesy to
33:49"provide for them and give them a gracious release".
This type of divorce is called irrevocable, and takes immediate effect. It may also apply after the consummation of the marriage while conditioning a compensation for the divorce. Husband and wife in this case become unlawful to oneanother and cannot remain alone in the same space without remarrying. Along the same lines is the "triple divorce" which not only ends the marriage irrevocably, but also makes it very hard for the couple to come back together unless the woman remarries someone else and they are both fully consenting for the union, then divorces him, so as to eventually return to the first husband. It should be noted that this method of separation is viewed as sinful, but if pronounced it is still effective.
The reality of human relations is complex and the divine law aims at tempering the hasty nature of people, especially in strained relationships. It does so through a delicate balance between pragmatism and emotional considerations. The intricacies and formalities are disputed among the four main schools of thought in Islamic jurisprudence, which is a continuing example of how sharia is flexible and allows a diversity of opinion so as to accommodate the changing times.
A man may swear not to ever go near his wife again 2:226-7. When this type of oath, called "ilaa'" is issued, the sacred law allows a maximum of 4 months separation. Neither are strained relations allowed to continue indefinitely nor is a man entitled to keep his wife in suspense for as long as he wishes. During this period they must either make a reconciliation, and the man has to atone for his broken oath, or part for good when the 4 months expire, so that they may be free to marry a suitable person of their liking.
Once divorce takes place, it is by no means viewed as a stain, rather the start of a new phase with God's blessings
Once divorce takes place, it is by no means viewed as a stain, rather the start of a new phase with God's blessings
4:130"if they (should) separate, Allah will enrich each out of His abundance, and Allah is All-Embracing, the Wise".
The wife gets to keep her dower, a command preceded by an injunction to
65:2,2:229"let them go with kindness".
Whatever she has earned during marriage through business activities, she may keep it to herself 4:32 while the husband, even after the divorce is obliged to provide sustenance to his former wife in case she is nursing or is pregnant with his child until she delivers, according to his means 65:6-7. This is based on the overarching principle of male courtesy towards an ex-wife
2:241"And for divorced women is a provision according to what is acceptable - a duty upon the righteous"
a principle the prophet was to apply in such eventuality 33:28.
However in an exceptional case it is lawful for him to take back some gifts: when both parties desire legal separation, but the husband desists from divorce because he believes his financial loss, through wealth, assets or property, would be too significant. In such a case, it would be acceptable for the wife to return the gifts to her husband and for the husband to accept them
2:229"it is not lawful for you to take any part of what you have given them, unless both fear that they cannot keep within the limits of Allah; then if you fear that they cannot keep within the limits of Allah, there is no blame on them for what she gives up to become free thereby".
The Quran further prevents marrying them to someone else so as to take back their dower 4:32. The mahr/dower, once marriage has been consummated, is the wife's property. It cannot be taken by her husband unless she is proven guilty of immoral conduct 4:19, or if she knows that she will not honour her marital agreements, without any wrongdoing on the husband's part, thereby deciding to end the marriage 2:229,4:4 (khul' divorce as described earlier). In the reverse case, the husband has no right to take back even a fraction of that dower 4:20. It is inconceivable he should take it back after being intimate with her, it would amount to a great sin from him, and humiliation to the wife. Although none can be forced to remain in a marriage one dislikes, even if it is for purely physical reasons as is the case here, the Quran again tries protecting the woman's dignity by discouraging the separation
4:19"live with them in a proper manner; then if you hate them, it may be that you dislike a thing while Allah has placed abundant good in it".
The Quran then demands mutual understanding regarding the child's future
65:6"take mutual counsel together, according to what is just and reasonable"
and if they disagree in the matter then it will be returned to the judge's decision 4:35.
Men are particularly reminded in 2:229,2:230 that they cannot abuse of their right to divorce, neglecting the wife's feelings in the process. If he asks to divorce the same wife twice then he may not ask her hand a third time unless she has married another man and he has divorced her. Even if she feels the need to go back to that same man, he remains forbidden to her until she has experienced marriage with another man (muhallil). This not only deters emotionally abusive men, but it serves as an eye opener to women who might be tempted out of fear and psychological control, to keep on pardoning and returning to their abusive relationship. It opens the way to these abused women to go into society free of any blame, and start a new life with another man.
We find something similar in the HB in Deut24 where a divorced woman that remarries then divorces a second time, becomes forbidden to the man she was first married to. This is speaking of repeated sinfulness and sexual misbehaviour short of adultery. It is different that the problem the Quran addresses, as well as the solution it proposes. It would be of course inappropriate for a man to remarry a woman he had himself divorced for her immoral behaviour. Especially if the second husband divorces her for the same reason, showing an established pattern of behaviour. It would be an acceptance of sinfulness within one's household. The Quran equally forbids the righteous from marrying a sexually immoral person, until that person repents and mends his/her ways 24:1-25. There are no deadlocks in Islam.
A slightly longer period of 4 months and 10 days is to be observed by a widow prior to remarrying, again with the purpose of ascertaining pregnancy but also to allow a dignified mourning of the husband in the eyes of his offspring, close and extended family 2:234. Even if not consummated, the purpose of the husband and wife coming together in the eyes of their family and the people was, theoreticaly, to spend a lifetime together. For the widow to suddenly switch to another relationship for no other reason than emotional/physical attraction would be insensitive. Beyond symbolizing the wife's consideration for the late husband, this period of mourning consolidates the widow's relation with the deceased's children and extended family. During the prescribed waiting period, the widow may be subtly approached for a marriage proposal but can only formalise it at the end of the period 2:235.
There are however cases where a widow could immidiately remarry upon her husband's death. And that is in case she was pregnant and delivered shortly after his passing 65:4. This way she will find the needed support of a husband/father.
One may ask why the same doesnt apply in the reverse, with the widower having to sit through a period of mourning; the difference is obviously a man doesnt get pregnant. Also, he may have other wives, but most importantly, a man needs someone to care for the household while he is in charge of sustaining the family. The widow on the other hand is maintained from the deceased's estate during the mourning, even if he did not leave a will for that purpose, provided she remains in the same house. It is based on the presuposition that she is receiving money that the majority opinion among the jurists argue she is obligated to stay in the house of her husband for the prescribed time. This is seen from the fact that all agree that in case of rent, if the husband did not leave sufficient wealth behind, then she may go to her own place of safety. Should she decide to and if it is in accordance with the husband's will, she could stay passed the prescribed 4 months and 10 days in the family home, for up to a year, and still live off the deceased's wealth 2:240. After that point the deceased's family are no more obligated to maintain her from the total wealth, and could each receive their prescribed shares, including herself. According to a minority opinion attributed to Ali, Ibn Abbas, Aishah, Jabir bin Zaid, Hasan Al-Basri, she can spend her period of iddah wherever she wants.
