27.2 DIVORCE & ANNULMENT, fiqh al talaaq & fasakh

By Professor Omar Hasan Kasule Sr.

27.2.1 DIVORCE

Divorce is in the hands of the husband. He can commission someone else (man or women) to effect the divorce. He can also give the right of divorce to the wife, tamliik. Divorce cannot be valid unless the husband is adult, sane, and does so voluntarily. It has no legal effect if it is by coercion, by a honest mistake, or by forgetfulness. An oath to divorce can be broken with atonement. Reversible divorce is limited to a maximum of 2 divorces. Return, ruj'at, is allowed during the waiting period, iddat, for 1 or 2 divorces. Divorce can be conditional. It is lawful in the inter-menstrual period. It is unlawful divorce during the menstrual period. It is unlawful in the inter-menstrual period if the possibility of pregnancy exists. Special rules on iddat and return of mahr apply to the following special situations: wife who is pre-menarche, post menopausal wife, pregnant wife, and a wife with whom no sexual relations have ever been had. A husband can divorce his wife in his terminal illness (death-bed) but her rights of inheritance from him are not affected. During the waiting period, each spouse can inherit from the other



The marital relation is automatically annulled on the death of the spouse. The wife's mourning period for a deceased husband is 4 months and 10 days. If the husband is lost, the wife remains legally married until definite information on the death of the husband is received. In another ruling the maximum waiting period is set at 4 years after which the woman observes ‘iddat for 4 months and 10 days and can then remarry. Some other rulings base the maximum waiting period on the expected maximum life-span.


27.2.3 ANNULMENT OF MARRIAGE, fasakh al nikaah

A wife can apply to court for marital annulment for male impotence (persisiting for more than a year) and the husband’swithholding nafaqat. Other reasons for annulment are female anatomical or functional disorders that prevent coitus, disease, change of religion, and cruelty (physical or emotional). Khuluu, marital dissolution in return for a wife paying a sum of money to her husband, has the same effect as a 3-time divorce except that remarriage is possible without consuming a marriage to another man. Marriage can also be annulled by the process of mutual li’aan if the husband accuses his wife of adultery without 4 witnesses.


27.2.4 THE WAITING PERIOD, ‘iddat

The purposes of ‘iddat are to ensure the wife is not pregnant, to provide an opportunity for reconciliation, and to provide gradual transition from married to divorced life. No waiting period is prescribed in cases of divorce before sexual intercourse. A once or twice divorced woman can continue her marriage by returning to her husband before completion of the period of ‘iddat and without a new marriage contract. If the ‘iddat expires she can remarry her former husband under a new contract. A thrice divorced woman cannot remarry her former husband only after consummating a marriage with another man. ‘Iddat for a divorced pregnant woman ends with delivery. If the woman committed adultery with or had artificial insemination from another man, her iddat is the equivalent of three menstrual cycles. The ‘iddat for a post-menopausal woman is 3 lunar months. The iddat for a lactating woman (no menstrual periods) is three lunar months. The ‘iddat for a pregnant woman whose husband dies is the delivery of the baby. The ‘iddat of non-pregnant woman whose husband dies is 4 months plus 10 days. A woman divorced before sexual intercourse does not have to observe ‘iddat but can be given a gift.


27.2.5 CUSTODY and CHILD CARE, khadhanat & ri'ayat

The father has legal custody. The mother has physical custody until the age of 7 when the child is asked to choose between the 2 parents. The conditions of physical custody are upright character, Islam, and sanity. Either parent can lose physical custody if any of the conditions of the custodian is violated. Physical custody is lost on remarriage of the mother but not that of the father. The father, whether he is the custodial or no-custodial parent, is obliged to provide child support. He also has to provide financial support to a divorced pregnant wife until delivery and may continue during 2 years of breast feeding unless he employs a wet nurse. Boys who are in the mother's physical custody must stay with the father during the day for training. If a wife gives birth to a baby while legally married to a man, the child belongs to the man. This position holds even if the marriage was not valid, i.e. did not fulfill all the criteria. A child born through adultery belongs to the legal husband. The aim of the Law is to protect the interests of the child. The father can deny paternity by the process of liaan if he has valid proof. Paternity cannot be denied on the basis of suspicions. Legal adoption that suppressed information and links to natural parents is forbidden.

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