Divorce or Dissolution of Marriage (2)

Divorce or Dissolution of Marriage (2)

Conditions of the effectiveness of divorce 

Divorce is valid and operative only if the following conditions are fulfilled: 
* The husband who divorces must be of mature age and must be possessed of understanding. Divorce pronounced by a minor, a lunatic or an idiot is invalid. 
* The husband must be exercising his own free will. Divorce  under compulsion is not valid. 
* Presence of two witnesses at least. 

According to the Shiah school of thought and as expressly mentioned in the Quran(3), divorce must be pronounced in the presence of at least two trustworthy and righteous witnesses. This condition automatically implies that two righteous persons should become aware of the decision of the spouses to dissolve marriage. In many cases their intervention and help may save the situation, and they may find a suitable way of reconciling the husband and wife. Further, their knowledge and presence may be helpful in settling financial and other questions and finding a most appropriate arrangement for looking after the children. 

Kinds of divorce

After the enforcement of divorce it is possible to resume conjugal relations in some cases without contracting marriage anew. In some other cases a fresh marriage is required before the resumption of these relations. Hence divorce is of two kinds; revocable and irrevocable. In the case of revocable divorce if the man regrets and wants to resume conjugal relations, the tie is automatically restored and there is no need of contracting marriage again, provided he revokes his act within the period of probation (iddah) which is normally three months. In the case of irrevocable divorce it is not possible to resume conjugal relations in this way. 

Kinds of irrevocable divorce 

There are several kinds of irrevocable divorce: 
(1)  If the husband agrees to dissolve the marriage at the request of the wife, it is called khula. 
(2) If the marriage is dissolved because both the husband and the wife have asked each other to terminate it, it is called mubarat, that is mutual release.
(3) The divorce pronounced by the husband on his own is regarded as irrevocable in the following circumstances: 

(a) If the dissolution of marriage has been brought about before its consummation. 
(b) If the divorcee is a girl whose periods have not commenced or an old woman who does not menstruate, because she has reached the age of menopause i.e. is no longer capable of bearing children.
(c) If the divorce has been pronounced for the third time. 

In all these cases if the two parties decide to resume conjugal partnership, they should remarry, for the first marriage is no longer effective. 

Important Points:

(1) Remarriage with a woman, who has been divorced three times, by her former husband who divorced her is possible only on the condition that she is married to another man first and that such second marriage is terminated after consummation. (This condition precedent to reunion has been laid down to deter and discourage the people from taking the question of divorce too easy). If divorces take place between the husband and wife again, and again (till nine times) they cannot remarry under any circumstances. This restriction also ensures that as far as possible divorces on frivolous grounds may be avoided. 

2) In the case of khula and mubarat reunion is possible only if the woman demands back what she had surrendered to the husband. Such demand must be made before the period of probation expires. In other cases, if they are inclined to resume conjugal partnership, they should remarry in accordance with the conditions they agree to. 

Iddah of divorce 

In the case of separation between the husband and the wife an important question is to find out whether she is pregnant by her former husband.  To ascertain this point, the Islamic law has laid down that during a period of probation the woman should not marry another person. This period is called iddah. 

Period of Iddah 

The period of iddah for a woman who is not pregnant is the period covered by three menstrual courses, which is normally three months. The iddah of a pregnant woman is till she is delivered. 

Rules regarding the period of iddah 

During the period of iddah the woman cannot take a new husband, and nobody should make an offer of marriage to her. She is to be maintained by her former husband like a married woman. In the case of revocable divorce if the husband or the wife dies during the period of probation, the survivor will inherit the deceased. 

Right of guardianship of children 

One of the important questions that crop up on the dissolution of marriage is that of the guardianship of the children which is called the right of hizanah. The Islamic law gives the custody and care of the children in the early years of their life to the mother, even if the father is competent enough and willing to look after them. The limit for a boy is two years and for a girl, seven years. In case the mother is not capable or fit to take care of the child, the responsibility of guardianship devolves on the father. In both cases, the father has to bear the expenses of the child, as the right of guardianship is recognized solely for the benefit of the infant, it should be in the custody of the person who can look after it the best. On this principle the Islamic law has given priority in the matter to the mother in the first years of the life of the child.  If both the parents are unable to look after it, some other suitable arrangements should be made to ensure the welfare of the child. If the father and the mother agree, the infant may be given in the custody of a third person under whose guardianship it can, in their view, make proper physical and spiritual progress. 

Source: “Philosophy of Islam”
by Dr. Behishti and Dr. Bahonar 

NOTE:

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1. (the 2nd verse of Surah al-Talaq)

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