Dissolution of the Marriage – Repudiation and Divorce

A Muslim marriage ends: 

• Through repudiation
• Through divorce
• Through other means of dissolution (death, khul, apostasy, etc.)

Marriage before Allah  عزّ وجلّ joins a man and a woman according to the teachings of the Quran and the Sunnah. 

Islam’s view of divorce is summarized in the following hadith:

Ibn ‘Umar reports that the Prophet صلَّى الله عليه وسلَّم said:
“The lawful thing which God hates most is divorce.”
(Mishkat al-Masabih Hadith 3280)

In Islam, you should do everything you can to avoid divorce.

Divorce is possible and legally valid, but one should think carefully before using it, so as to use it only as a last resort.

If two married people believe, after some time, that life together is impossible, divorce is the lesser evil (Quran 4:130). 

The couple must, however, attempt to reconcile (Quran 4:35).

Unilateral repudiation (talaq) by the husband is one possible way allowed under Sharia of ending a marriage. The husband does not have to justify his decision, ask for his wife’s consent or go before a court. Witnesses do not have to be present at the repudiation. The husband continues to support (nafaqah) his wife during her waiting period (iddah).

1 – Different forms of repudiation are possible

• Revocable repudiation

A repudiation may be revoked (raj’ah) when the husband repudiates his wife for the first or second time. In these situations, the husband can resume living with his wife and renew the conjugal union with his wife without entering into a new marriage, provided that he does so within the waiting period (iddah).

• Minor irrevocable repudiation

A minor irrevocable repudiation (ba’in baynuna sughra) occurs after the first or second repudiation when the husband does not resume living with his wife before the end of the waiting period (iddah). The repudiation then becomes final. In such cases, the spouses can get remarried, but it will be a new marriage that will require a new contract and a new dower.

• Major irrevocable repudiation

A repudiation is irrevocable and major (ba’in baynuna kubra) when the repudiation is done for the third time or is done only once but is stated three times (repudiation three times in a single instance). In these cases, the spouses can get remarried, but first the repudiated wife must have been married to and divorced from another husband (Quran 2:230) (Bukhari Hadith 5261).

2 – Repudiation has the following features

The four Sunni legal schools require four conditions for a repudiation to be valid: 

• The husband must be an adult of sound mind

   

• The husband must truly have the intention of repudiating his wife

   

• It is recommended (mustahab) that a wife be repudiated while she is in a state of purity (tahara), i.e., when she is not menstruating or bleeding after giving birth and before the husband and wife have resumed conjugal relations (Muslim Hadith 1471, Bukhari Hadith 5258). Repudiation of a wife who is not in a state of purity is valid, although it is considered tainted by sin. The four legal schools agree on this point..

   

• The husband must express himself clearly by oral or written means.

Repudiation never requires the presence of witnesses.

3 – Effect of repudiation

• In the case of a revocable repudiation, the husband may change his mind and go back to living with his wife as long as the waiting period (iddah) lasts.

   

• In the case of an irrevocable repudiation, the marriage is permanently dissolved. However, a distinction must be made between major repudiation and minor repudiation (see above).    

1 – Repudiation by the wife (talaq al tafwid)

The husband may delegate his right of repudiation to his wife (Quran 33:28).

This type of delegated divorce is known by the name Talaq-al Tafwid

In this case, the wife will have the option of divorcing independently, i.e., by her own initiative and without any particular justification (Bukhari Hadith 2468).

Repudiation by the wife is not based on the husband’s wrongdoing.

A legal decision is not necessary. 

The husband can delegate this right when the couple gets married and write it into the contract, with or without conditions.

The spouses must include this option in the contract in order for it to be usable

The wife has a right to unilateral repudiation only if she first receives permission from her husband.

In any case, and according to all Fiqh schools, the husband retains the right to repudiation.

Nikahcontract.com offers two ways to write repudiation by the wife (talaq al tafwid) into the contract.

• The first, which is in the divorce portion of the contract, is a general repudiation without justification, condition or time limit, and the wife may use it at any time.

   

• The second is a conditional repudiation which the wife can use only if the husband does not meet one or more of the conditions the wife included in the contract.

2 – Repudiation as agreed between the spouses (khul or divorce by mutual consent)

Divorce by mutual consent is an agreement in which the man and woman permanently separate, whether with financial compensation for the husband or not, except in the Shafi’i school where khul without compensation is prohibited (Quran 2:229).

Either spouse can take the initiative in this procedure.

A khul contract can be done without the involvement of any authorities because it is a dissolution by mutual consent of the spouses. It is preferable that you provide for it in the marriage contract.

It is a no-fault divorce, in other words, it is not necessary to prove any wrongdoing on the part of either spouse. Thus, there is no need to provide reasons to support the khul contract.

Everything that may be considered dower from the husband, in other words, everything that has a monetary value, can be offered as compensation by the wife in the khul contract.

3 – Death 

The death of either spouse permanently dissolves the marriage and makes the deceased spouse’s inheritance available. If the husband dies, his wife must observe a waiting period of 4 months and 10 days (Quran 2:234).

The end of the waiting period for a pregnant woman is when she gives birth (Quran 65:4).

4 – Absence 

The husband’s absence for a prolonged period does not automatically lead to dissolution of the marriage.

In that case, the wife can either:

• seek a divorce after a period of time (after 6 months or 1 year, depending on the legal school).
• allow the marriage to continue as it is without seeking a divorce.

5 – Apostasy

Apostasy is the act of renouncing and, therefore, leaving the Islamic religion.

If one of the spouses becomes an apostate before the marriage is consummated, all four Sunni schools agree that the marriage is immediately terminated.

If the apostasy of one of the spouses occurs after the marriage is consummated:

• The Hanafi and Maliki schools say that separation is immediate.

   

• The Shafi’i and Hanbali schools say that final separation depends on the completion of the wife’s waiting period since the apostasy of the husband or the wife puts an end to the marriage.
  If the apostate spouse comes back to Islam during the waiting period, then the marriage remains valid.
  If the spouse does not come back to Islam during or at the end of the waiting period, then the separation is permanent.

6 – Dissolution by a judge (Qadi)

Although the wife does not have her own right to repudiation, most legal schools allow her, in certain cases and in a more or less restrictive manner, to seek separation from her husband through the Islamic justice system (Sunan Ibn Majah, Hadith 2340).

The most significant such cases are: major physical defects, failure to support the wife financially (nafaqah), and prolonged absence, as well as discord (Maliki) or failure to keep conditions included in the contract (Hanbali)

7 – Little-used divorce procedures

Although the following methods of separation are found in the Quran, they were probably quickly abandoned or were rarely used.    

They include:

• Li’an (anathema oath)  (Quran 24:6-9)
• Ilâ (celibacy oath)  (Quran 2:226 and 2:227)
• Zihâr (oath saying “you are like the back of my mother to me”) (Quran 58:1-4 and 33:4)

Yes, there is what the Quran calls mut’ah, which can be defined as a gift, a compensation, or a flat amount paid in the event of repudiation, depending on the length of the marriage (Quran 2:236).

The Shafi’i school requires it, but does not specify the amount.

In the three other schools (Hanafi, Maliki and Hanbali) mut’ah is optional but recommended (mustahab)

On the other hand, the waiting period during which the husband must continue to pay for his wife’s expenses can be seen as a type of temporary alimony (Quran 65:6).

However, a wife who is irrevocably repudiated does not have the right to either housing or any form of spousal support (Muslim Hadith 1480).

Spouses may nevertheless agree on more extensive spousal maintenance at the time if they want to and it is a good idea to include it in the marriage contract.