DIVORCE is separation of a husband and wife after the legal breakup of their marital union. In other words, it is legal termination of a marriage contract between a man and a woman. It has a negative impact on both parties, and the impact is usually much stronger on the woman than on the man. But the children of the separated couple are the most affected, because they are the weaker parties and are the most in need of the marriage contract remaining intact. Divorce is legal in all countries in the world with the exception of the Vatican and the Philippines. However, it exists among the Muslim minorities in the Philippines. Laws regulating divorce vary considerably from one country to another, but in most countries, divorce is regulated through courts as it involves the rights and obligations of both parties, such as alimony, custody and support of children, distribution of property, division of debt and the like. Both parties have the right to seek a second marriage in those countries where polygamy is not allowed. A divorcee is allowed to get married again in those countries where polygamy is permitted. In Islam, it is the man who is given the right to initiate the divorce process by pronouncing the talaq. In the early period of Islam, divorce was an open and unrestricted affair, and a man could pronounce divorce or cancel it whenever he wished. This was the situation until the revelation of the following Qur'anic verse: “Divorce is twice; then either to retain in the recognized manner or to release in fairness. And it is not lawful for you to take back anything from what you have given them, unless both apprehend that they would not be able to maintain the limits set by Allah. Now, if you apprehend that they would not maintain the limits set by Allah, then, there is no sin on them in what she gives up to secure her release. These are the limits set by Allah. Therefore, do not exceed them. And whosoever exceeds limits set by Allah, then, those are the transgressors” (Surah Al-Baqarah -229). The reason for the revelation of this verse was explained in a Hadith narrated by Al-Tirmidhi after quoting Ayesha (may Allah be pleased with her), the wife of the Prophet (peace be upon him). According to the Hadith, there was a time when men used to pronounce the divorce of their wives at their own free will. Some men used to pronounce divorce and then take the woman back while she was in her iddah or waiting period. This happened even after a man pronounced divorce several times. After the revelation of the above verse, pronouncing divorce was fixed at two times after which the man can take the woman back as long as she is in iddah, i.e. three menstrual periods or three periods of purity after menses. During this period, she has to stay in the marital home and that gives the man an opportunity to re-think with regard to taking her back because in Islam divorce is “the most hated of the halal (permissible things) to Allah.” At the end of the iddah, there comes the minor separation between the couples under which it is permissible for the man to approach the woman only after entering into a new marriage contract and the payment of dowry. If he pronounces the third divorce, then comes the major separation under which the divorce is irrevocable and the man cannot marry the woman again unless she gets married to another man who later divorces her. The woman's marriage with the second man should be a valid one and there should not be any hidden plan or intention to terminate the contract so as to facilitate a second marriage with the woman's former husband. If the second husband divorces the woman, she has the right to marry the first husband as if it were a marriage for the first time. Although Islam allows a man to initiate the divorce process, it does not mean that he can arbitrarily misuse it. In order to avoid such a misuse, laws and regulations must be enacted to prevent men from taking reckless and impulsive decisions to divorce. It is also necessary that divorce be made in front of a judge in a court and this should be done only after making every effort to keep the institution of the family intact so as to preserve the rights of the wife, and, in particular, the children because they are the weakest party who are most often subjected to ill-treatment by the stepmother if they join their father or by the stepfather if they join their mother after the couple's separation. It would be better if the government took the initiative to conduct marriage ceremonies in accordance with the laws enacted for the same under which marriage would be conducted in the presence of a licensed marriage official in line with a marriage contract prepared by the official, duly endorsed by a judge with a seal from the court. The process of divorce should also be done in the same way, and pronouncing divorce out of court must be made a punishable offense so as to preserve the family and protect the rights of children. This is essential to reduce the number of divorce cases that are rampant in Arab countries in general, and in the Gulf states in particular, especially in the Kingdom. It seems that when any dispute erupts between couples, the woman rushes to seek divorce and the man pronounces it without thinking about the consequences as well as about the tragedy and hardship that will ensue for everyone concerned. One of my friends, who is a university professor and a learned man, told me about a relevant incident. When he wanted to hold marriage party after his son's engagement, he invited all the family members and relatives of the couple to a meeting. Then, he said to them: “I invited you to have an agreement on the terms of the divorce before we agree on the terms of the marriage so that things will be clear to each party and they will know their rights and duties in order to avoid problems and disagreements in future.” Although it surprised everyone, they accepted the idea after he explained to them its benefits in the long run. Finally, it is time to legalize divorce and to require that it be done in court after making every effort to avoid it in order to preserve the institution of the family and society as a whole.
— Dr. Ali Al-Ghamdi is a former Saudi diplomat who specializes in Southeast Asian affairs. He can be reached at [email protected]
