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Chapter twenty-nine » The prescribed waiting period (ʿiddah) of a divorce → ← Chapter twenty-eight » Miscellaneous rulings on breastfeeding

Chapter twenty-nine » Divorce

Ruling 2516. A man who divorces his wife must be of the age of legal responsibility (bāligh) and sane (ʿāqil). If a ten-year-old child divorces his wife, then observing precaution (iḥtiyāṭ) in this case must not be abandoned. A man must also divorce his wife of his own volition (ikhtiyār), and if he is compelled to divorce his wife, the divorce is invalid (bāṭil). Furthermore, he must have an intention (qaṣd) to divorce his wife; therefore, if, for example, a person says the divorce formula (ṣīghah) jokingly or while intoxicated, it is not valid.

Ruling 2517. At the time of divorce, the wife must be clear of menstruation (ḥayḍ) and lochia (nifās), and her husband must not have had sexual intercourse with her in the period that she was clear [of ḥayḍ and nifās]. The details of these two conditions will be mentioned in subsequent rulings (masāʾil).

Ruling 2518. The divorce of a woman who is in the state of ḥayḍ and nifās is valid in the following three cases:

1.
since getting married, her husband has not had sexual intercourse with her;
2. she is known to be pregnant. If she is not known to be pregnant and her husband divorces her while she is in the state of ḥayḍ and she later realises that she was in fact pregnant, the divorce is void (bāṭil), although it is better that precaution be observed here, albeit by means of another divorce.
3. the man is unable to determine whether or not his wife is clear of ḥayḍ or nifās owing to his absence or some other reason, even if that be because his wife is hiding. However, in such a situation, based on obligatory precaution (al-iḥtiyāṭ al-wājib), the man must wait at least one month from the time of separation from his wife and then divorce her.

Ruling 2519. If a man knows his wife to be clear of ḥayḍ and divorces her but later realises that she was in the state of ḥayḍ at the time of the divorce, the divorce is void except in the aforementioned scenario [in the previous ruling]. If he knows her to be in the state of ḥayḍ but divorces her nonetheless and it later becomes known that she was not in the state of ḥayḍ, the divorce is valid.

Ruling 2520. If a person knows that his wife is in the state of ḥayḍ or nifās and he separates from her – for example, he goes on a journey – and he wishes to divorce her, he must wait until he attains certainty (yaqīn) or confidence (iṭmiʾnān) that she is clear of ḥayḍ or nifās and then, in the event that he knows she is clear [of ḥayḍ or nifās], he can divorce her. The same applies if he doubts (i.e. has a shakk) [that she is clear of ḥayḍ or nifās] as long as he observes what was said in Ruling 2518 about divorce by an absent man.

Ruling 2521. If a man who has separated from his wife wishes to divorce her and he is able to find out whether or not his wife is in the state of ḥayḍ or nifās, albeit by means of her menstrual habit or other signs that have been specified in Islamic law, then, if he divorces her and it later becomes known that she was in the state of ḥayḍ or nifās, the divorce is not valid.

Ruling 2522. If a man has sexual intercourse with his wife, irrespective of whether or not she was in the state of ḥayḍ or nifās, and he wishes to divorce her, he must wait until she experiences ḥayḍ again and she becomes clear of it. However, if a man divorces a girl who has not completed nine lunar years or a woman who is known to be pregnant after having sexual intercourse with her, there is no problem. The same applies if she is postmenopausal (yāʾisah) (the meaning of which was explained in Ruling 2466).

Ruling 2523. If a man has sexual intercourse with a woman who is clear of ḥayḍ and nifās and he divorces her during the period of her being clear, in the event that it later becomes known that she was pregnant at the time of the divorce, the divorce is invalid. However, it is better that precaution be observed, albeit by means of another divorce.

Ruling 2524. If a man has sexual intercourse with a woman who is clear of ḥayḍ and nifās and he then separates from her – for example, he goes on a journey – then, in the event that he wishes to divorce her while he is away but is unable to find out about her state, he must wait long enough for her to experience ḥayḍ once more and become clear of it. And the obligatory precaution is that the period of time [he waits] must not be less than one month. Furthermore, if he divorces her having observed what was said and it then becomes known that the divorce took place during the first period of her being clear, there is no problem.

Ruling 2525. If a man wishes to divorce his wife who does not menstruate due to a congenital defect, an illness, breastfeeding, taking medicine, or some other reason, and if it is usual for women of her age to menstruate, then the man must refrain from having sexual intercourse with her for three months from the time he last had sexual intercourse with her and then divorce her.

Ruling 2526. The divorce formula must be said in correct Arabic and it must employ the word ‘ṭāliq’ (divorced). Furthermore, two just (ʿādil) men must hear it. If the husband wishes to say the divorce formula himself and the name of his wife is Fāṭimah, for example, he must say:

زَوْجَتِي فَاطِمَةُ طَاِلقٌ

zawjatī fāṭimah ṭāliq

My wife Fāṭimah is divorced.

If he appoints an agent (wakīl) [to say the divorce formula on his behalf], the agent must say:

زَوْجَةُ مُوَکِّلِي فَاطِمَةُ طَاِلقٌ

zawjatu muwakkilī fāṭimah ṭāliq

Fāṭimah, the wife of my client, is divorced.

In the event that the wife is specified, it is not necessary to mention her name. And if she is present, it is sufficient for him to say the following while indicating her:

هٰذِهِ طَاِلقٌ

hādhihi ṭāliq

This woman is divorced.

Or, he must say the following while addressing her:

أَنْتِ طَاِلقٌ

anti ṭāliq

You are divorced.

In the event that a man can neither say the divorce formula in Arabic nor appoint an agent, he can divorce his wife using any words that are synonymous with the Arabic formula in any language.

Ruling 2527. There is no divorce in a temporary marriage (mutʿah). Instead, the woman is released when the marriage period comes to an end or when the man gives the remaining period to her; for example, he says, ‘I give the marriage period to you’. Furthermore, it is not necessary to have any witnesses nor is it necessary for the woman to be clear of ḥayḍ.
Chapter twenty-nine » The prescribed waiting period (ʿiddah) of a divorce → ← Chapter twenty-eight » Miscellaneous rulings on breastfeeding
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