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Refutations

Why Did Islam Legalize Divorce

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Divorce in Islam: Wisdom, Stages, and Rights

Table of Contents

The Western Criticism of Divorce in Islam

Many Westerners criticize Islam for permitting divorce, considering this evidence of Islam’s disdain for women and the sanctity of marriage. Some Muslims educated in Western cultures and ignorant of the rulings of their Sharia have imitated them in this. However, Islam was not the first to legalize divorce — Jewish law came before it, and the world knew about it long ago. These critics looked at the matter from only one angle — that it harms women — without examining the issue from all sides. Their opinion was based on unconscious emotions that do not understand the wisdom behind it, its causes, and its motives.

Islam assumes, first, that the marriage contract is permanent and that marriage continues between the spouses until death separates them. Therefore, it is not permissible in Islam to set a specific time for the marriage contract. However, Islam, while requiring that the marriage contract be permanent, knows that it is only legislated for people living on earth — people with their own characteristics and human natures. Therefore, it legislated for them how to be freed from this contract if life becomes difficult, the paths become narrow, and the means of reform fail. In this, it is completely realistic and completely fair to both the man and the woman.

Why Was Divorce Legislated

There are many reasons and motives that occur between spouses which make divorce a necessary necessity and a definite means to achieve goodness and family and social stability for each of them. A man and a woman may marry, and then it becomes clear that there is a difference in morals and a dissonance in character between them, so each of the spouses sees himself as a stranger to the other, repelled by him. One of them may learn from the other after marriage something he does not like or accept in terms of personal behaviour or a hidden defect. It may appear that the woman is sterile and the highest goals of marriage cannot be achieved, and he does not desire polygamy or is unable to do so — among other reasons and motives that do not allow love between the spouses or cooperation in fulfilling marital rights as Allah has commanded.

Divorce is therefore an inevitable matter to be done to get rid of the marriage bond that has become unable to achieve its purpose. If the spouses were forced to remain in it, hatred would eat away at their hearts, and each would plot against the other and seek to get rid of him by whatever means available. This may be a reason for each of them to deviate — an outlet for many evils and sins. That is why divorce was prescribed: as a means to eliminate those corruptions, to get rid of those evils, and for each of them to find in another spouse what they lacked with the first.
“And if they separate, Allah will enrich each from His abundance. And ever is Allah Encompassing and Wise.” — Surah An-Nisa 4:130
Sheikh Al-Qaradawi says: “The divorce that Islam has legislated is more like a painful surgical operation, in which a sane person endures the pain of a wound, or even the amputation of a limb, in order to preserve the rest of the body and prevent greater harm. Imposing this life by the authority of the law is a harsh punishment that a person does not deserve except for a major crime. It is worse than life imprisonment — rather it is an unbearable hell. One of the wise men said long ago: ‘One of the greatest calamities is associating with someone who does not agree with you and will not leave you.’ Al-Mutanabbi said: ‘One of the hardships of life for a free man is to see an enemy who cannot be friends with him.’ If this is said about a friend whom a person meets for days or hours at work, then how about the wife who is his houseguest, his companion, and his life partner?”

The Ruling on Divorce — Obligatory Forbidden and Recommended

Divorce may be obligatory if the harm caused to one of the spouses cannot be removed except by it. A man complained to the Messenger of Allah ﷺ about his wife’s vulgarity, so he said to him: “Divorce her.” — Narrated by Abu Dawud.
Divorce may be forbidden if it causes harm to one of the spouses but brings no benefit to the other party. In the hadith: “Any woman who asks her husband for a divorce without a valid reason, the scent of Paradise will be forbidden to her.” — Narrated by Abu Dawud.
“The most hated of permissible things to Allah is divorce.” — Narrated by Abu Dawud
Divorce may be recommended when the woman is negligent in the rights of Allah that are obligatory upon her — such as the obligatory prayer — and the husband cannot compel her to fulfil them, or she is not chaste. Imam Ahmad said: He should not keep her, because it would be a deficiency in his faith and there is no guarantee that it will not spoil his marriage. Ibn Qudamah said: It is possible that divorce is obligatory in these two cases.
Resorting to the judiciary is only the resort of the one in need, and the last resort in treatment — which is cauterization when no other medicine is available. This is the solution to those intractable problems that is consistent with the logic of reason and necessity, human nature and life circumstances.

Stages of Divorce

It is known that the Sunnah divorce occurs in stages and under certain circumstances:
  1. The divorce is during a period of purity in which he has not been intimate with her.
  2. The divorce is with one pronouncement, during which the woman observes the waiting period in the marital home and does not leave it.
  3. If the dispute returns, the second divorce is given.
  4. If the situation continues and the husband does not return to his wife, the divorce becomes a minor irrevocable divorce.
  5. If the matter becomes heated after the two divorces, the third divorce is given — with it the separation is completed, as she is separated from her husband with a major irrevocable divorce, and she is not permissible for him until she marries another husband.

Why is Divorce in the Hands of the Man

This question is usually raised as if it is unfair to the woman. But first it must be said that this matter is a test from Allah, the Almighty, who knows best the condition of His servants:
“Does He not know who He created? And He is the Subtle, the Acquainted.” — Surah Al-Mulk 67:14
Divorce is in the hands of the man for two reasons. First, the man is the one who provides from the beginning of the marriage — paying the dowry, establishing the home, and spending on the family. Second, the man is naturally prepared to be patient and rational, and for him matters usually occur after knowledge and deliberation. He is less emotional, more self-controlled, more in control, and more aware of the consequences of things.
“Because Allah has favoured some of them over others and because they spend from their wealth.” — Surah An-Nisa 4:34

Does the Woman Not Have the Right to Annul the Contract

Although Islam has made divorce in the hands of men, women have something similar to it in several cases:

1. Khul’: This is a woman’s ransom from her husband whom she hates, with money. This is a form made available to women, similar to divorce being in the hands of men. If a woman finds that her life with a man makes her unable to uphold the limits of Allah, and she hates living with him on this basis, then Islam permits her to ransom herself from him with the dowry he gave her. In the case of the wife of Thabit ibn Qays, the Messenger of Allah ﷺ said to her: “Do you want to return his garden to him?” She said: “Yes.” He said to her husband: “Accept the garden and divorce her once.” — Narrated by al-Bukhari.
2. Stipulation: If the woman stipulates that the right of divorce is in her hands and the man agrees to that, then the matter is hers.
3. Divorce due to lack of support: If the man keeps his wife and does not support her, it is permissible for her to take her case to the court and have the judge divorce her.
4. Divorce due to absence: If the man travels and his whereabouts are not known, or he travels and is absent for a long time — and there is a difference of opinion among scholars regarding the permissible period — the woman may take her case to the judge and be divorced from her husband.
Islam has therefore provided the woman with multiple legitimate channels through which she can exit the marriage contract when circumstances demand it — ensuring that the right of the man to pronounce divorce does not translate into the woman being trapped without recourse.