Family Law

In my last article, I briefly mentioned the four main methods of separation in Islam. They are:

• 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

In this article I focus on the first type of separation mentioned above, and certainly the most well-known out of the four, Talaq.

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Talaq is the unilateral right of the man to divorce his wife. He can do this either verbally or in writing. That much is common knowledge. What isn’t, however, is that there are actually three different types of Talaq. The type of Talaq pronounced by the husband affects the type of separation that ensues and also affects the methods of reconciliation to be adopted by the parties if reconciliation does indeed happen.

I think it would be prudent to mention at this point that whilst Islam has not made divorce a sin and has kept the door open for both men and women to end their marriages, divorce as a whole is the least liked out of all the Halal (permissible) acts in Islam. Indeed, a saying of the Prophet Muhammad confirms that Talaq ‘shakes the Throne of God’.

This is to emphasise to Muslims the gravity of marital break-up and how much thought and consideration the parties should give to try to save their marriage before embarking upon the process of separation. It would be fair to say that this teaching,that of the unity of the family and of maintaining ties of kinship, is one of the most central yet most overlooked teachings of Islam. The Qur’an is very clear on many occasions of the need to preserve these ties, even directing at one verse how reconciliation should be approached to try to bring two estranged parties (not limited to married couples) together again.

However, it must also be stressed that any attempts at reconciliation are only advocated from an Islamic point of view as long as both parties as consenting – to force a married couple to stay together or indeed to force a marriage in the first place is against the teachings of Islam.

What follows is a brief exposition on the different types of Talaq and the process for each, as this piece is meant to provide the reader with an insight into the practical side of how Talaq is given and its consequences.

The three differenttypes of Talaq

They are as follows:

1. Talaq-e-Raj’i – RevocableDivorce
2. Talaq-e-Ba’in – IrrevocableDivorce
3. Talaq-e-Mughallazah – IrrevocableDivorce

1. Talaq-e-Raj’i – Revocable divorce

This type of Talaqfalls 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. Readers will note that the word of Talaq need only be uttered by the husband for it to be effective.

However, as lawyers, we are trained to confirm things in writing and so from a personal point of view, I take the view that if a husband gives Talaq, it is better that it is in written form so that there is record of it. This can be beneficial especially when parties wish to re-marry and their prospective spouses or families want to see proof of Islamic divorce.

Talaq-e-Raj’i is a revocable form of Talaq. It is revocable because if after pronouncement the couple wish to reconcile, they can do so as long as reconciliation occurs before the expiration of what is known as the Iddah period or waiting/cooling-off period.

Traditionally, Iddah is a requirement so that the couple can think about what has happened and for thereto be time for reconciliation before the Talaq is made final. I always compare this to the 6-week period between decree nisi and decree absolute which was again, traditionally seen as a cooling-off period before it was made into a procedural requirement for the purposes of matrimonial law in England and Wales. For me it is one of many similarities between Islamic and English family law procedure.

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.

2. 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 (see my previous article ‘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-e-Ba’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.

3. Talaq-e-Mughallazah – Irrevocable divorce

Finally, the most controversial method and also most misunderstood method of Talaq, Talaq-e-Mughallazah also known as giving triple Talaq.

From the outset, I must say that there is vastly differing (and sometimes heated) Islamic jurisprudential opinion as to what constitutes Mughallazah. That is due to the differing opinions in the four main schools of thought (Madhab) in Islamic jurisprudence. Without wishing to spend too much time on this, most Muslims will know and it is correct that the four main schools of thought in Islamic jurisprudence are not seen as a point of conflict but as a point of debate and a continuing example of the diversity of opinion in Islamic jurisprudence.

The schools of thought are important for maintaining consistency of action and belief in the day-to-day practice of a Muslim and can be viewed as a codification of the laws of Islam carried out by the greatest Islamic Jurists (or as I like to think of them,Judges) that ever lived. Each Madhab has its own criteria for the interpretation of Hadith (sayings of the Prophet Muhammad), giving rise to differences in interpretation of the same legal point (Mas’ala). Muslims believe that all four are correct and it is up to each individual as to which one he/she follows.

For the purposes of this piece,however, I will stick to the Hanafi school of thought founded by the leading Islamic Jurist and Imam, Abu Hanifa an-Nu’man and followed by an estimated one-third of all Muslims worldwide. Indeed, all the points and Mas’ala mentioned in this article relating to the different types of Talaq are from the Hanafi school of thought.

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 Haraam (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, ie 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.

Now you know why I said this was the most controversial method. 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.

The practice of giving Talaq three times in one sitting stems from the nomadic culture of the Arabs at the time of the Prophet Muhammad – a culture which perceived as being backwards, full of ignorance and one which the Prophet was tasked to reform. Muslims believe that this was undertaken by revelation of the Holy Qur’an and the practical example of the Prophet himself.

I mentioned earlier that this was also the most misunderstood. I say this because in my experience as pro-bono Advisor to a Shariah Council in the north of England for 8 years and the continuing enquiries of clients, Talaq-e-Mughallazah is still thought of as the only method of Talaq which is effective in separation of the marriage – this could not be further from the truth.

My mentor always gave the example, ‘Why fire three bullets when you can get the job done in one?’  Crude as it may seem, it sums up the situation precisely and I have lost count how many times I have had to explain this to clients. Of course, what is most saddening is when I am approached by Muslim couples after Mughallazah has been pronounced and I have had to tell them that they are no longer man and wife and cannot even reconcile.

Talaq-e-Ahsan – The preferredmethod 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? Once again, the Qur’an provides us with an answer in Talaq-e-Ahsan.

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

Please note my comments about only the Hanafi school of thought being taken into consideration as I can already imagine people coming forward with different views on each of the different types of Talaq.

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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