Reflections on Divorce in Islam

Please see my new post instead of this one:

Divorce In Islam

If you prefer, you can continue reading my original one below, but the new one is far better

One of the things I used to find strange, or hard to comprehend in Islam was the Three Divorce Rule (Three Talaqs).
Not only are the rules ridiculously one-sided to favour men, it seems like such a haphazard rule and causes so much suffering in the community.  You should also see my post on Punishment for Adultery as its highly relevant and also shows how one-sided and unfair the Islamic rules are towards women.  You should also see Arab women before and after Islam: Opening the door of pre-Islamic Arabian history as this shows how Islam has actually reduced a lot of women’s rights.
Before we discuss divorce, Marriage in Islam is a contract where the man pays a woman a maher in order to get exclusive access to sex with her.  In return for continued exclusive access to sex, he has to provide for her.  Meaning, a woman’s primary contribution is sex, and a man’s is money.
Now, this divorce law causes a lot of problems in the Muslim community.  Men get angry, and divorce their wife in a split second.  Some will even say 3 divorces all at once, and then there is the fiqhi question of whether this is valid or not.  Some scholars will say the 3-in-1 divorce only counts a 1 divorce.  Others will say she is now haram (forbidden) on you.
Once the marriage is broken, there is so much damage that is done to the family.  You can literally never get back together with your wife except through a very strange way which is described below – she has to marry and have sex with another man.
This rule says that the way divorce works in Islam, is that the man says “divorce”, “talaq (divorce in arabic)”, or any word that can mean divorce (you are no longer my wife, etc), to his wife, to start the process.
The Quran says,
O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period, and fear Allah , your Lord. Do not turn them out of their [husbands’] houses, nor should they [themselves] leave [during that period] unless they are committing a clear immorality. And those are the limits [set by] Allah . And whoever transgresses the limits of Allah has certainly wronged himself. You know not; perhaps Allah will bring about after that a [different] matter.  (Surah Talaq, Quran 65)
You can also stipulate conditions on a divorce. Here are some examples.

If you don’t make me strawberry cheesecake in 5 minutes, you are divorced.
If someone knocks on the door and they are wearing a red shirt, you are divorced.
if you open this envelope, you are divorced.

And the permutations of this are endless. You can just look up on any popular QA site to see the strange divorces that people have uttered. This does not mean you should do such a wacky thing, but I’m just saying that if you do, its actually legit and is valid. Also, you can divorce her while she is pregnant or menstruating.

The first time this happens, and also the second time, he can “take her back” within 30 days by telling her “I am taking you back” or having sex with her.
Now we see where the problems arise.  If God came up with this rule, he really caused a lot of troubles for people.  Islamic Question and Answer sites are full of questions as to “did my divorce count” or “was it really final?”, or “do I really have to leave my wife and kids??”  This divorce system seems completely made up and is awful.  There are some general rules to this rule. One of them is that if you were drunk or crazy, obviously the divorce doesn’t count. If you were in a state of extreme anger, then maybe it didn’t count. Scholars differed as to what exactly this extreme anger is. I know most websites I looked up didn’t allow this, but IslamQA (salafi) stated that extreme anger made it void and that you needed to go see a judge to confirm.  How is this a divine religion?  In Canada, you have to separate for 1 year before you can divorce, which allows you lots of time to think about if you really want to do it or not.

After the first two times, the 3rd divorce is final and irrevocable. You cannot touch her after that, except it would be considered adultery. Except if she marries someone else, has sex with him, and then goes through the above process again, then you can marry her.
“And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband” [al-Baqarah 2:230]

There is a hadith that says one of the most hated things to Allah is divorce, which is not a saheeh (authentic) hadith but it does have some merit.  It’s so permanent, yet it’s done so easily.

Now if the wife wants a divorce, this is a totally different story.
“Divorce is the right of the one who seizes the leg (i.e., consummates the marriage)” i.e., the husband.
(Narrated by Ibn Maajah, 2081; classed as hasan by al-Albaani in Irwa’ al-Ghaleel, 2041).

The Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Any woman who asks her husband for a divorce with no reason, the fragrance of Paradise will be forbidden to her.” Narrated by Ahmad (21874), Abu Dawood (2226) and al-Tirmidhi (1187); classed as saheeh by al-Albaani in Irwa’ al-Ghaleel (2035).
A telling story is that maher is a price a man pays in order to have sex a woman.  If she doesn’t want to be married to him, she has to give it back to him.
If she wants to end the marriage, she can do so via “khula”.  Khula’ means the separation of the wife in return for a payment; the husband takes the payment and lets his wife go, whether this payment is the mahr which he gave to her, or more or less than that.   Khula’ (Arabic: خلع) means the separation of the wife in return for a payment; the husband takes the payment and lets his wife go, whether this payment is the mahr which he gave to her, or more or less than that.   The Quran states,
“And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal-money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allaah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allaah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul‘ (divorce)”  (Surah Baqara, Quran 2:229)
The evidence for that from the Sunnah is

The wife of Thaabit ibn Qays ibn Shammaas (may Allaah be pleased with him) came to the Prophet (peace and blessings of Allaah be upon him) and said, “O Messenger of Allaah, I do not find any fault with Thaabit ibn Qays in his character or his religious commitment, but I do not want to commit any act of kufr after becoming a Muslim.” The Prophet (peace and blessings of Allaah be upon him) said to her, “Will you give back his garden?” Because he had given her a garden as her mahr. She said, “Yes.” The Prophet (peace and blessings of Allaah be upon him) said to Thaabit: “Take back your garden, and divorce her.”

(Narrated by al-Bukhaari, 5273).

How is that fair?  How is that an equal commitment between husband and wife?
Sources:

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