6.4.5 Divorce

It is ultimately true that a man can dispense with his wife merely by the pronouncement of “Ta’alaq, Ta’alaq, Ta’alaq” – ‘I cast you off’ repeated three times.  However Islamic law is much more subtle and the pronouncement of "Ta’alaq, ta’alaq, ta’alaq" in one instance is a grave sin in Shari’ah, even though divorce must still follow.

Firstly in Islam, although divorce is permissible, it is regarded as the most abhorrent of permissible acts.  Therefore it is incumbent on anyone close to the family threatened by divorce, to do whatever they can to reconcile the couple or make reconciliation easier for them before a divorce is made.

There are four variations of divorce in Islam, three of which have approximate equivalents in English law and the fourth is the ‘Ta’alaq’.

Firstly if the couple agree to divorce by mutual consent they can petition a Qadi (someone learned in Shari’ah to hear the case) to annul the marriage in front of two witnesses.

Secondly if one partner wishes but the other does not, he or she can still petition the Qadi for the same end.  In this case the aggrieved party takes an oath that he or she has been betrayed by the partner, repeated three times, and the fourth time adds an oath that the aggrieved party him/herself deserves the punishment of the Fire if lying.  The partner then repeats the same oaths against the instigating partner, from which the objective judgement is that an irretrievable breakdown of the marriage has occurred.

The third case is a de facto separation.  If a couple have been living apart for at least two years and one partner has no intention of returning to the other, the other partner can action a divorce by petitioning a Qadi to annul the marriage unilaterally.

Finally the ‘Ta’alaq’ divorce.  The procedure is that the husband may pronounce one “Ta’alaq” to the wife.  They must wait one month (equal in fact to the period between menses) before he pronounces the second “Ta’alaq”.  Meanwhile they must live in the same household as before without physical contact between them.  Also the relatives and friends will now be on hand to try to bring about understanding and try for reconciliation.  If there is any physical contact between the two, the marriage resumes unbroken.  Otherwise, after the first month the husband pronounces a second “Ta’alaq” and similarly after 2 months the third “Ta’alaq”.  When three monthly courses have passed in this way with no reconciliation, the divorce has been completed.

“A divorce (Ta’alaq) is only permissible twice: after that the parties should either hold together on equitable terms, or separate with kindness.” (Holy Qur’an, Surah Baqarah, v 229)

Marriage and divorce according to Shari'ah is intended to be as humane and fair as possible for both partners while maintaining the integrity of the family.  In the context of the Islamic social structure in which men and women have separate social lives, the degree of mutual support and co-operation among women and among men is usually high.  This is why the role of relatives and friends is very significant.