Abstract
Unlike Christianity, Islam permits divorce since marriage is a contract that can be dissolved, not a sacrament. The Qur’ān speaks of divorce as a right exercised by husbands or wives, but never mentions repudiation. Divorce is by mutual consent, at the request of the husband, or at the request of the wife (khul’). Before Islam, divorce, as repudiation, was the right of husbands, exercised when and as often as they pleased. In divorces initiated by husbands, the Qur’ān urges men not to expel their wives from their homes. And everything should be conducted in ma’rūf (honor) and the presence of witnesses. In Fiqh, however, divorce is primarily a husband’s right, while a women’s right to divorce is exceptional because of women’s incapacity to make rational decisions!
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Notes
- 1.
This is in reference to Orthodox Christianity.
- 2.
The 2004 family code in Morocco, which resulted from a rereading of the Qur’ān, describes divorce as breaking the marriage contract, exercised by both the husband and the wife, according to their conditions and subject to the discretion of a judge.
- 3.
The Qur’ān 4:35.
- 4.
Ibid.:130.
- 5.
The Qur’ān 4:19.
- 6.
Ibid.:128.
- 7.
Tafsīr Ibn Kathīr , commentary 4:35.
- 8.
The Moroccan Family Code (Moudawana) of February 5, 2004, was “drafted in conformity with Islam’s tolerant rules and exemplary purposes while providing balanced, fair and pragmatic solutions resulting from enlightened open ijtihad (juridical reasoning). This code further stipulates that human and citizenship rights are accorded to all Moroccans, women and men equally, in respect of the holy divine religious references.” Gender equality and Women’s Empowerment, The Moroccan Family Code (Moudawana), The Global Human Rights Education and Training Centre (HREA), February 5, 2004.
- 9.
Aïcha El Hajjami, Le Code de la famille à l’épreuve de la pratique judiciaire, Service de cooperation et d’action culturelle (The French Embassy, Morocco, 2009), p. 54.
- 10.
The Qur’ān 2:237.
- 11.
Fāhisha mubayyina: adultery or some other reprehensible act.
- 12.
The Qur’ān 65:1–2. In fact, the first eight verses of this surah, called al-Talāq (divorce), composed of twelve verses, deal directly with the question of divorce.
- 13.
Cf. Tafsīr of Zamakhsharī, commentary on these verses.
- 14.
Ibid.
- 15.
A hadīth reported by Zamakhsharī, in his commentary on the verse.
- 16.
According to French jurisdiction, the law had instituted a waiting period of 300 days (to avoid possible paternity conflicts) during which the divorced wife could not contract a new marriage. This provision was repealed by law No. 2004-439 of May 26, 2004.
- 17.
Hanān Laham, Adhwā’ hawla sūrat at-talāq (Dār al-hanān, 2008).
- 18.
“Partage des tâches: chantier en cours,” Le Monde, June 28, 2011. Women in France continue to do 80% of the domestic work.
- 19.
With the exception of Scandinavian countries where genuine social policies, such as paid paternity leave and the institutionalization of nurseries in workplaces, have been established to promote a balanced sharing of parenthood.
- 20.
The Qur’ān 2:241.
- 21.
Cf. Tafsīr Ibn Kathīr , commentaries on the first verses of sūrah 65.
- 22.
With the exception of Tunisian legislation and the new reform in Morocco, both of which show real progress; however, they have not yet been implemented on the ground.
- 23.
The Qur’ān 2:229.
- 24.
Tafsīr Ibn Kathīr , commentary on the verse.
- 25.
Ibid.
- 26.
Hadīth reported in Sahīh al-Bukhārī, vol. 9, p. 352, and in the Collection of An-Nasā’ī, vol. 6, p. 169. An-Nasā’ī‘s collection is considered to have the fewest weak hadiths after the two Sahīh al-Bukhārī’.
- 27.
Known in the West as Averroes, Ibn Rushd (1126–1198; born in Cordoba, died in Marrakech) was an influential philosopher who at “the request of the Almohad caliph Abu Yaʿqub Yusuf … produced a series of summaries and commentaries on most of Aristotle’s works … and on Plato’s Republic, which exerted considerable influence in both the Islamic world and Europe for centuries. … He wrote the Decisive Treatise on the Agreement Between Religious Law and Philosophy (Faṣl al-Maḳāl), Examination of the Methods of Proof Concerning the Doctrines of Religion (Kashf al-Manāhij), and The Incoherence of the Incoherence (Tahāfut al-Tahāfut), all in defense of the philosophical study of religion against the theologians.” Averroes, Muslim Philosopher, Editors of the Encyclopedia Britannica, June 21, 2002.
- 28.
Ibn Rushd, op. cit., p. 112.
- 29.
This is particularly the view of Abū Bakr ibn ‘Abd Allāh al-Māzini, cf. supra, p. 111.
- 30.
Ibid., p. 113.
- 31.
The nature and amount of the compensation have generated a number of debates among Muslim jurists and scholars. For example, in the Māliki school of jurisprudence, the sum that the wife must pay her husband is not specified. Nevertheless, it is advisable that it would be the equivalent of the amount of mahr ; others insist that the compensation is not important and that the divorce can take place without a return.
- 32.
Cf. Abd ar-Rahmān al-Jazīrī, op. cit., p. 205, and Abd al-Karīm Hāmidī, Maqāsid al-qur’ān min tashrī’ al-Ahkām (Dar Ibn Hazm, 2008), p. 350.
- 33.
Ibid.
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Lamrabet, A. (2018). The Principles of Divorce in the Qur’ān. In: Women and Men in the Qur’ān. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-78741-1_10
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