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Methods of divorce and procedure: Talaq

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Methods of divorce and procedure: Talaq

2020. december 31. - 19:33

The information published here should be interpreted together with article "Marriage contract in Islam".

Several questions have been raised in this topic. Divorce cannot be explained in one article. Therefore, divorce is discussed separately in terms of jurisprudence and doctrines, hence the Quran.

According to Sharia law there are 4 main methods of separation in Islam:
Granting of Divorce by the Husband – Talaq
Separation by way of consent between the parties – Khula
Dissolution of Marriage – Faskh-e-Nikah
When the power of Talaq is transferred to the Wife – Tafweedh-e-Talaq

Granting of Divorce by the Husband – Talaq

The three different types of Talaq, they are as follows:

  1. 1. Talaq-e-Raj’i – Revocable Divorce
  2. Talaq-e-Ba’in – Irrevocable Divorce
  3. Talaq-e-Mughallazah – Irrevocable Divorce (declared the triple Talaq in one occasion)

Talaq-e-Raj’i – Revocable divorce

This type of Talaq falls when Talaq is given by the husband and he either uses or says the word ‘Talaq’ once or twice. He can do this in writing as well. The Iddah period is 3 menstrual cycles and if reconciliation has not occurred before then, the Talaq is made irrevocable and is classed as a Talaq-e-Ba’in (discussed below). Incidentally, should a couple wish to reconcile after the expiration of the Iddah period then they simply have to perform the Islamic Nikah (wedding)ceremony again and they will be classed as man and wife again

Talaq-e-Ba’in – Irrevocable divorce

This type of Talaq falls when the husband utters the words, “I give you Talaq-e-Ba’in” or the words that are uttered in giving divorce are unclear. It also occurs if the separation is by way of Khula (Khula – The Islamic Non-Fault Divorce) or the marriage has been dissolved by a Shariah Court (in countries where there is an Islamic legal system) or by a Shariah Council (in non-Muslim countries). There is also an interesting Islamic principle, Khalwat-e-Saheeha, which means having valid privacy with a spouse. What this means in practice is any duration of time when the married couple have been alone together. If Talaq is pronounced by the husband prior to this (which is very rare and can usually only occur at the beginning of marriages), the type of Talaq that falls is immediately Talaq-eBa’in. Finally, a Talaq-e-Raj’i converts into a Talaq-e-Ba’in if reconciliation is not effected by the end of the Iddah period. The effect of Talaq-e-Ba’in is that the marriage comes to an immediate end once it is pronounced. It is not like Raj’i for instance where a cooling-off period is initiated. The couple can, however, re-marry any time during or after the Iddah by simply performing the Nikah ceremony again.

Talaq-e-Mughallazah – Irrevocable divorce

Finally, the most controversial method and also most misunderstood method of Talaq, Talaq-eMughallazah also known as giving triple Talaq. Talaq-e-Mughallazah is initiated if the husband pronounces Talaq saying, ‘I give you three Talaqs’ or saying ‘Talaq, Talaq, Talaq’ in one sitting. It should be noted that this method of separation is actually Haram (forbidden)in Islam, however, if pronounced it is still effective. It totally and irrevocably terminates the marriage with immediate effect. It is also effective if three separate Talaqs are pronounced in the duration of three non-menstrual cycles, i.e. after each menstrual period. This will lead to immediate ending of the marriage with the parties not being able to reconcile until the following procedure is carried out:

  • Completion of the Iddah resulting from the Talaq;
  • The wife marries another man by performing Nikah;
  • The new couple have sexual intercourse;
  • The new husband divorces the wife of his own free will or he passes away;
  • The wife completes the Iddah of either the Talaq or death
  • Thereafter, the first husband can re-marry his ex-wife.

The apparent reason for the undeniably draconian method of reconciliation is that it is a punishment for the husband for having resorted to pronouncing the most extreme method of Talaq when he should have exercised restraint and pronounced Talaq by either Raj’i orBa’in, both of which have the same effect of ending the marriage, the only difference being that the door of reconciliation is left open.

Talaq-e-Ahsan – The preferred method of Talaq It is quite reasonable at this juncture to ask, what, if any is the best or most correct way for a Muslim man to pronounce Talaq? Here, the husband divorces the wife once, using clear words whilst she is in her non-menstrual period and in a period in which the husband has not had sexual intercourse with her. This then leaves room for the parties to reconcile if they so wish. If not, they will be separated upon the expiration of the Iddah period.

Conclusion

One final note. I would like all readers here to consider the detail that Islamic jurisprudence places on how the marriage is brought to an end and the continuing emphasis on reconciliation and how different types of separation affect the nature of reconciliation. Islam always has and will always continue to place great importance on the structure and stability of the family unit as a whole.

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