The Fiqh of Divorce in the Hanafi school

In Islam, marriage is the lawful union of a man and woman based on mutual consent. If one wants to break the union, Islam gives a way out, i.e., allows a divorce to take place.

The Shariah provides guidelines for the process of divorce with emphasis on both parties upholding the values of justice and kindness in formalising the end to their marriage. Divorce is not a process to display hatred and animosity.

Allah in the Qur’an advises couples to seek mediation before deciding on divorce. An arbitrator from his side and an arbitrator from her side. The aim is to achieve reconciliation. Allah promises to be with the spouse who seeks best for the marriage. There are also societal and psychological ramifications one must consider.

There are a number of methods in which divorce can take place. The main one being Talaaq. Only the husband has right to pronounce Talaaq. The other methods for divorce are 1) Khula, Divorce initiated by the wife and mutually agreed by the couple. 2) Faskh/Tafriq, Divorce by a court order and 3) Tafweed, where a man delegates his right to divorce to a third person, like his wife or a mufti and the third person pronounces the Talaaq.

Method of divorce

When a man wishes to divorce his wife or they mutually wish to dissolve the marriage, then the husband should pronounce the divorce to his wife in clear words whilst she is a period of purity (from menstruation). He should only pronounce the divorce once.

He may use words such as ‘You are divorced’ or ‘I have divorced you’ or ‘Talaaq’. This may be said in any language. He may divorce her over the phone, via text or over a video call. The moment he pronounces it, it is effective. His wife does not need to present nor hear it. But she must be made aware as soon as possible. He may pronounce it in front of witnesses but this is not necessary. An intention is also not required, so whether he means it or says it in jest, the divorce will take place.

If a man gives a divorce mentally or silently, then it does not count but if a man pronounces divorce whilst angry or whilst drunk, then it will count. The only exception would be if he had totally lost his mind. If a couple discuss divorce or a man suggests divorce, then this will not be considered as pronouncing divorce. The divorce from a minor, insane or sleeping person is also invalid.

A man may also give divorce conditionally, e.g. ‘You are divorced if you go on holiday on your own.’ If she goes on holiday on her own, then the divorce is intact. There are cases where conditions are legally or logically invalid, so a scholar must be consulted to clarify the condition and fulfilment.

If the divorce is pronounced whilst the wife is menstruating, then this is haraam and the husband will be sinful, however the divorce will still be effective. It is recommended for him to take her back and pronounce the divorce again when she is in her period of purity.

Once the divorce is pronounced, the wife then enters a waiting period, called iddat. Note the iddat begins when the divorce is pronounced and not when the wife is made aware. The purpose of the iddat is to make sure the wife is not pregnant and give the couple some time to reconcile the marriage. It gives them time to think things through. If the woman is menstruating, this lasts three cycles, if not, then three months. If she is pregnant, the iddat lasts until the baby is born. If the divorce is pronounced before the marriage is consummated, then he can pronounce the divorce whether she is menstruating or not and there is no iddat.  The man is however encouraged to leave her with a parting gift.

The wife must remain in the family home during the iddat, unless there is danger or a specific reason for separation. Or if she has committed adultery, then he may request her to be away from the family home. During Iddat, the couple should sleep in separate beds/rooms but the remaining behaviour may be the same. The wife does not have to observe hijab and she may carry out duties for him.

The purpose of the iddat is to 1. check for pregnancy 2. give the couple time to reconcile the marriage and 3 give the wife security, if she is pregnant.

From a personal etiquette perspective, the wife should avoid wearing perfume, jewellery or henna and be in a state of sadness. This protects her gheera as well as the respect of her husband. No other man may propose to the woman during the iddat (but they may hint a proposal, although even this is detested as the ideal position is for them to reconcile and a new proposal may push them away).

The man must also provide spousal maintenance for shelter, clothing and food during the iddat and period she breastfeeds the child. One must consult a scholar with regards to a divorce and eligibility for spousal maintenance or inheritance.

If a man divorces his wife using clear words, this type of divorce is called Talaaq e Raji’, revocable divorce. This means during the iddat, the husband may revoke the divorce. He can do this by stating, ‘I revoke the divorce’ or by showing sexual affection to the wife. A point to note is, during the iddat, the couple must not engage in sexual relations, else it will make the divorce void.

It is advisable to revoke the divorce with witnesses present to prevent fitna in the community. If a man realises his wife is pregnant during the iddat, he may decide to revoke the divorce altogether.

It is also advisable to pronounce the divorce in a period of purity where there has not been any sexual contact so if you had marital relations a few days ago, then it is best to wait for her next period of purity.

When the iddat ends, the couple become fully divorced. This is known as Talaaq e Baa’in, an irrevocable divorce. The husband may no longer retract the divorce. If the couple want to be together, they must perform a new Nikkah (with all associated rules). As the couple are no longer married, hijab and other rules of mixing of the sexes apply. The couple cannot cohabit together.

If a man divorces his wife, he must give her the full dowry as per the Nikkah contract and he must not take back what he has already given her, unless she commits adultery or initiates the divorce via Khula’. In the Qur’an, it is advised to be generous to ones divorced wife in gifts and money.

Maximum divorces

A man can divorce and remarry the same woman up to three times only. So he may marry her, divorce her, marry her again, divorce her again, marry her again and if he divorces her a third time, the divorce becomes known as a Talaaq Mughaalizah, a divorce with no return. This means the man can no longer do Nikkah with the woman. They must separate and observe Hijab.

If they wish to marry once again, the only way the woman becomes permissible for him is, if she marries another man, the marriage is consummated and then gets a divorce from him. This process is called Halala but it must occur incidentally and cannot be planned. If a couple marry with the intention of temporality or divorce then the Nikkah is invalid.

If a person pronounces three divorces in one sitting (triple Talaaq), as done in some cultures, then three divorces will take effect. This form of pronouncing divorce is a bida’ and haraam. Although a man may use clear words, the divorce will automatically become a Talaaq Mughalizah. For the couple to return to marriage, halalah must take place. This would be the same case, if one, gave three divorces in one period of purity/impurity. This is a heinous method of divorce; thus, the consequence is Talaaq Mughalizah. The severity is in place to prevent men from hastily abusing their right to divorce. Note there are some opinions triple Talaaq counts as one divorce, but with ample proof from the sunnah, the default position of the four schools of jurisprudence is triple Talaaq counts as three divorces.   

If a couple return to marriage after Halalah, then the man has right to three divorces again.

If a couple are certain they want divorce with no return, then the Sunnah method is for the man to pronounce a clear divorce in each period of purity.

Whether one pronounces the divorce once or once in each period of purity, it leads to irrevocable divorce. So, it is recommended to pronounce only once. This leaves the door open to return to marriage in the future, otherwise halala must take place. However, Allah reminds men in the Qur’an, to not toy with women, intend harm or transgress against them. If so, then it is best to let go.

If a man intends one divorce, then one divorce is regarded. If he sends a text as well as tells her directly and also via a third person, but means for each divorce to be one divorce, then only one is counted.

Other Irrevocable Divorces

We have already mentioned a type of irrevocable divorce, where a man pronounces a divorce to his wife in clear words, either once or twice and the iddat has come to an end. There are other instances of immediate irrevocable divorce:

Ambiguous divorce

If one pronounces a divorce using ambiguous words with the intention of divorce, then the divorce cannot be revoked, e.g., a man says to his wife, ‘Pack your bags!’ or a figurative expression e.g., ‘we are finished’ or ‘hijab is fardh on you in front of me’ with the intention of divorce. If there are terms or phrases used colloquially that strictly allude to divorce only then these will not be regarded as ambiguous and won’t be irrevocable, e.g. ‘That’s it, we are D’d’. With the understanding D is short of Divorce.

An emphasised divorce

If one emphasises a clear divorce, the divorce cannot be revoked, e.g. ‘I give you the strongest of divorces!’

Khula’

If the wife initiates a divorce, then it becomes irrevocable. She also forgoes the Mahr. Other rules of Khula’ will need to be taken into account.

Faskh/Tafriq

This is a divorce mandated by the courts where the husband and wife do not mutually consent to divorce (Khula’) or when the husband refuses to give Talaaq when there is good reason to believe the marriage has broken down or there is estrangement. Other rules of Faskh/Tafriq will need to be taken into account.

All of the above lead to Talaaq e Baa’in, irrevocable divorce. Iddat must still be observed but according to the rules of hijab, i.e., in her own home/space. As the couple are no longer married, a new Nikkah will be required.

Like a revocable divorce, one may only give a maximum of three irrevocable divorces. The third one leads to Talaaq Mughaalizah.

Calculating the ‘iddat

The iddat is the wating period a wife must undertake. The table below summarises the time of the iddat required.

Types of ‘iddat‘iddat period
‘iddat of a woman who has not consummated the marriage.No ‘iddat
‘iddat of a woman who menstruates.3 menstrual cycles.
‘iddat of a woman who is post-menstrual.3 months.
‘iddat for a woman who has become a widow.4 months and 10 days.
‘idda of a pregnant woman.The full term of her pregnancy/when she gives birth.

For menstruating women, Iddah is calculated by counting the periods of haydh (menstruation).

If he gives the divorce on 15th Shaban whilst she is pure, and then she has her menstruation and returns to purity on 1st Ramadhan, one period of haydh will be complete. From here she will complete two more periods, so the last day of her iddah will be the last day of her third menstruation cycle.

PureHaydhPureHaydhPureHaydhPure (day 1)
Divorce given1 2 3Divorced

Some women have their period every 21 days, so their ‘iddat might last 63 days, whereas others may last 40 days, so their ‘iddat will last 120 days. Therefore, one must count the periods of Haydh and not days.

If he gives the divorce 10th Safar whilst she is menstruating, and she returns to purity on 15th Safar, then one month will be only complete after her next menstruation starts. Three full periods of menstruation need to be complete. The last day of her ‘iddat will be the last day of her 4th period.

HaydhPureHaydhPure  HaydhPureHaydhPure (day 1)
Divorce given 1 2 3Divorced

Scenarios

Here are a number of scenarios that cover the rules.

Scenario 1

A husband pronounces a revocable divorce whilst his wife is in a state of purity. Her ‘iddat begins. He revokes his divorce by embracing her after one month.

The divorce is revoked and they remain married. The husband has two divorces left.

Scenario 2

A husband pronounces a revocable divorce whilst his wife is in a state of impurity. Her ‘iddat begins. He revokes his divorce by embracing her after one month.

The divorce is revoked and they remain married. The husband has two divorces left.

The difference between this and scenario one is, the husband has committed a sin by giving the divorce whilst his wife is menstruating.

Scenario 3

A husband pronounces a revocable divorce whilst his wife is in a state of purity. Her ‘iddat begins and comes to an end. The husband did not revoke the divorce. The couple become completely divorced. If they want to remarry, they need to do a new Nikkah. The husband has two divorces left.

Scenario 4

A husband has pronounced a revocable divorce twice before but then revoked them. He has just pronounced divorce again. The divorce is irrevocable with no return. The wife begins her ‘iddat. If they want to get married again, halala applies.

Scenario 5

A husband says ‘Pack your bags’ with the intention of divorce. This is an irrevocable divorce. The wife begins her ‘iddat. If they want to get married again, then a new nikkah is required.

Scenario 6

A husband says ‘Sling your hook’ without the intention of divorce. This is classed as a general statement. No divorce takes place.

Scenario 7

A husband pronounces ‘Talaaq’ three times. The divorce is final with no return. The wife begins her ‘iddat. If they want to get married again, halala applies.

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