Divorce in Islam

According to the Quran, marriage is intended to be permanent, as indicated by its characterization as a "firm bond" and by the rules governing divorce. The relationship between the spouses should ideally be based on love () and important decisions concerning both spouses should be made by mutual consent. although this decision is not to be taken lightly, and the families of the spouses are called upon to intervene by appointing arbiters to attempt a reconciliation. For post-menopause women and non menstruating women, the waiting period is three months. This is to ensure the woman is not pregnant and thus guarantee the paternity of future children she may have with her next husband, and to give the husband time to reconsider his decision. Before Islam, divorce among the Arabs was governed by unwritten customary law, which varied according to region and tribe, and its observance depended on the authority of the individuals and groups involved. In this system, women were particularly vulnerable. The early Islamic reforms included giving the wife a possibility to initiate divorce, abrogation of the husband's claim to his wife's property, condemnation of divorce without compelling reason, criminalizing unfounded claims of infidelity made by the husband, and institution of financial responsibilities of the husband toward his divorced wife. The subject of divorce is addressed in four different surahs of the Quran, including the general principle articulated in 2:231: == Classical sharia ==

Legal context Classical Islamic law is derived from the scriptural sources of Islam (Quran and hadith) using various methodologies developed by different legal schools. It was historically interpreted by jurists (muftis) who were expected to give a legal opinion (fatwa) free of charge in response to any query. Family disputes are handled in a religious court, presided over by a judge (qadi) who had enough legal education to decide some legal questions, and queried a mufti if faced with a difficult legal issue. Actual legal practice sometimes deviated from the precepts of the legal school that was dominant in the area, at times to women's benefit, and at times to their disadvantage. Women were commonly involved in litigation, usually as plaintiffs, were assertive in arguing their cases, and they were often treated sympathetically by the judge. According to legal doctrine, a woman's testimony in some areas of law carried half the weight of that of a man, though available evidence suggests that practical effects of this rule were limited, and the legal standing of women in pre-modern Islam was comparable to or higher than that of their European contemporaries. Talaq (repudiation) Jurisprudence The term talaq is commonly translated as "repudiation" or simply "divorce". though they did not require the husband to obtain court approval or provide a justification. It also acts as a deterrent to rash repudiations. Available evidence from Mamluk Egypt indicates that talaq was not the principal means of divorce. Some legal schools held that a triple talaq performed in a single meeting constituted a "major" divorce, while others classified it as a "minor" divorce. Tafwid (delegated talaq) The husband can delegate the right of repudiation to his wife. Many women included such terms in their marriage contracts. Commonly, the contract gave the wife the right to "repudiate herself" if the husband married a second wife. However such marriages are forbidden in Islam, according to a Sahih graded Hadith which states that Muhammed cursed those who did such marriages. Judicial divorce Jurisprudence A marriage can also be dissolved by means of judicial divorce. Either spouse can petition a qadi court to obtain judicial divorce, but they must have compelling grounds for dissolving the marriage. The court starts the process by appointing an arbitrator from each of their families in order to seek a mediated reconciliation. If this effort fails, the court adjudicates the dispute by apportioning fault for the breakdown of the marriage with the associated financial consequences. Oaths Jurisprudence The husband can end marriage through three types of oaths: the oath of continence (īlāʿ and iẓhar), the denial of paternity (liʿan), and conditional ṭalāq. In the izhar (or ẓihār) oath a man declares that his wife is as sexually prohibited to him as his mother. The husband is able to break the oath and resume the marriage. Breaking either oath requires expiation by means of feeding the poor or fasting. Islamic jurisprudence has clear guidance on handling of mahr in the case of divorce, depending on who asks for the divorce and whether or not the intercourse occurred. If the husband asks for a divorce and intercourse has occurred or he had been alone with her, he pays full mahr; if the husband asks for a divorce and the intercourse has not occurred, the husband pays half the dower; if the wife asks for a divorce and intercourse has occurred, the husband pays half the mahr; and if the wife asks for a divorce and intercourse has not occurred, then no mahr is required to be paid by the husband. == Modern era ==

Legal transformation In the modern era, sharia-based laws were widely replaced by statutes based on European models, and its classical rules were largely retained only in personal status (family) laws. Important changes in family laws took place in the modern era. The laws underwent codification by legislative bodies and were also displaced from their original context into modern legal systems, which generally followed Western practices in court procedure and legal education. In particular, control over the norms of divorce shifted from traditional jurists to the state, though they generally remained "within the orbit of Islamic law". Many Muslim countries are finding ways and means to account for non-financial contributions of women to a marriage and improve divorce compensations. These reforms have utilized a number of methods, of which the most important are: • Imposition of penal sanctions • Modernistic interpretation of Quranic scriptures (sometimes called neo-ijtihad and feminist tafsir) • Appeal to the doctrine of public interest (maslaha) According to Sulema Jahangir in Turkey, the revised Civil Code expects equal division of property and assets acquired during the marriage as the default property regime. In Indonesia and Singapore, the courts have the discretionary powers; in Indonesia courts can split the matrimonial property upon divorce to recognise women's non-financial contributions to the marriage where as in Singapore wife's contribution to family is taken into account, and even in absence of financial contribution 35% assets have to be shared with wife as contributing in caring for home and children, where as in Malaysia depending on length of marriage and each spouse's contribution a divorcing spouse can get up to one third share in assets. In India, The Muslim Women (Protection of Rights on Marriage) Act, 2019 was passed in July, 2019 which made instant triple talaq (talaq-e-biddah) in any form — spoken, written, or by electronic means — illegal, void, and punishable by up to three years imprisonment. Under the new law, an aggrieved woman is entitled to demand maintenance for her dependent children. India is among 23 countries that have banned triple talaq. == Prevalence ==

According to Yossef Rapoport, in the 15th century, the rate of divorce was higher than it is today in the modern Middle East, which has generally lower rates of divorce. In 15th century Egypt, Al-Sakhawi recorded the marital history of 500 women, the largest sample on marriage in the Middle Ages, and found that at least a third of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with many marrying three or more times. According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo ended in divorce. In the early 20th century, some villages in western Java and the Malay Peninsula had divorce rates as high as 70%. == See also ==