Wednesday, July 6, 2011

-119- The Rules of Divorce


THE RULES OF DIVORCE
by Shaikh Abdullah Faisal

(evening dars: 7.6.11)






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Arabic word for divorce is 'talaq' and it has 2 meanings
--linguistic is TO SET FREE
--technical is immediate and future annulment of a marriage contract

MARRIAGE is a contract like every other contract
--you're permitted to divorce
--don't believe any fabricated hadith that says it's not permitted
--we can divorce and "move on"
--look at the Sahabahs, even Umar got divorced
--if things are not working out, you can divorce
--sometimes it's better to divorce to relieve stress

DIVORCE IS SOMETIMES NECESSARY
--you may have irreconcilable differences
--to divorce sometimes is like removing a bone from your throat (a relief)

WHAT ARE THE REASONS FOR DIVORCE?

1. LACK OF RESPECT, TRUST AND LOYALTY FOR EACH OTHER

2. MEN DO NOT SHOULDER THEIR RESPONSIBILITY TO MAINTAIN
and PROVIDE FOR THEIR WIVES


Men are the protectors and maintainers of women, because Allah has made one of them to excel the other, and because they spend (to support them) from their means. 4:34

3. SPOUSES ARE UNGRATEFUL TOWARD EACH OTHER

--do not acknowledge each others' efforts
--men and women (spouses) were ungrateful (both parties)

4. WOMEN DISOBEYING THEIR HUSBAND RE: DOs and DONTs of ISLAM
--when she is disobedient to her husband, her salah is not accepted
--until the husband is pleased w/ her
--if you know you're not obedient, sisters, don't get married

“There are three people whose prayers will not be accepted by Allah, nor do any good deed of theirs risen up to heaven: a fleeing slave until he returns to his master and helps him, a woman whose husband is angry with her until he is pleased with her, and a drunkard until he becomes conscious.” (Ibn Hibban)

I was shown the Hell-fire and that the majority of its dwellers were women who were ungrateful." It was asked, "Do they disbelieve in Allah?" (or are they ungrateful to Allah?) He replied, "They are ungrateful to their husbands and are ungrateful for the favors and the good (charitable deeds) done to them. If you have always been good (benevolent) to one of them and then she sees something in you (not of her liking), she will say, 'I have never received any good from you." (Sahih Bukhari 1.28, Sahih Bukhari 2.541)

5. THE PARENTS INTERFERE IN THE MARRIAGE

--ie living w/ in-laws
--when SH tries to find a sister for a brother but the brother says they will live w/ his parents
--the sisters tell SH they are NOT interested
--sisters say this because they see many examples of interference

6. THE SPOUSES TRANSGRESS BEYOND THE LIMITS OF ALLAH TALA
--alcohol, taking drugs, haraam activities

7. A SISTER SEEKING DIVORCE FROM A HUSBAND WHO DOES NOT PRAY
--salah is one of the key reasons for divorce
--because she became enlightened as a man who doesn’t pray is a kaafir

8. IMPOTENCE
--man is unable to have erection

9. MANHOOD OF HUSBAND IS TOO SMALL

10. HUSBAND IS VIOLENT

--abuses her verbally and physically

11. BREAKING OF CONTRACT WITHIN THE MARRIAGE
--such as he tells the sister I will provide your own space
--but after nikah, he breaks that promises
--when they divorce, she keeps the dowry, because the husband broke the promise

12. BAD HYGIENE
--don't brush teeth or shower is a reason for divorce

13. THE PERSON IS A SELFISH LOVER
--he cares about his orgasm but not the orgasm of his wife

Narrated 'Uqba: The Prophet said: "The stipulations most entitled to be abided by are those with which you are given the right to enjoy the (women's) private parts (i.e. the stipulations of the marriage contract)." Bukhari 7.62.81

--bring URL for LORENA BOBBIT cutting off her husband's private parts

14. ABANDONMENT
--the sisters are abandonment (food, clothing, shelter, conjugal rights)
--Shariah says to go to bed w/ wife once every 4 days
--not permitted to leave them as 'hanging wives'

You will never be able to do perfect justice between wives even if it is your ardent desire, so do not incline too much to one of them (by giving her more of your time and provision) so as to leave the other hanging (i.e. neither divorced nor married). 4:129

15. INCARCERATION OF A MUSLIM BROTHER

16. THE LOVE DIES

--if you didn't water a plant, it would die
--love is like a plant
--do not take love of wife for granted

A person who divorces should be an adult but
--if he reaches the age of 10 (consent) it is permissible
--they must have tamyeez (common sense)

A person who divorces should be willing not forced

Prophet (peace and blessings of Allaah be upon him) said: “There is no divorce and no freeing of slaves when it is done by force or in a state of intense anger.” (Narrated by Ibn Maajah, 2046; classed as Sahih by al-Albaani in al-Irwa’, 2047)

A man divorces his wife because she had an affair,

--she can't observe iddah in their home; she goes to her parents home

A forced marriage or divorce are not permitted

Iddah = 3 mos waiting period
Iddah The divorced women shall wait concerning themselves for three monthly periods. [Bukhari Book 43 # 649]
Iddah for a girl BEFORE puberty is 3 months [Bukhari Book 62 No. 63]


O you who believe! You are forbidden to inherit women against their will; and you should not treat them with harshness 4:19

O Prophet (saws)! When you divorce women, divorce them at their 'Iddah (prescribed periods) and count (accurately) their 'Iddah (periods ). And fear Allah your Lord (O Muslims). And turn them not out of their (husband's) homes nor shall they (themselves) leave, except in case they are guilty of some open illegal sexual intercourse. 65:1

If it is the 3rd divorce, it is called "irrevocable divorce"


2 TYPES OF DIVORCE: Revocable and irrevocable
--1st or twice is revocable
--3rd is irrevocable

IRREVOCABLE
--this divorce does not permit the wife

--any accommodation AND maintenance
--go and observe your iddah in the home of your parents
--The Rasool (saws) told Fatima bint Qays to go to ibn Umm Maktoom
--however, if the woman is pregnant, she is entitled to accommodation AND maintenance
--even if it is the 3rd divorce
--only time she is not entitled to these two things is if she is no pregnant

REVOCABLE:
--this is a 1st or 2nd divorce, she should observe the iddah in his home
--and she can wear make-up and dress up
--why is she permitted? because the divorce is revocable
--this divorce is called baynoona sughraa ( a minor separation )

Bayoona Kubraa is a major separation
--how can we tell the difference?
--a 1st or 2nd divorce is a MINOR
--a 3rd divorce is a MAJOR (so no accommodations
--and she can't uncover in front of him)
--add that w/ a 1st /2nd divorce, she can still have jimaa w/ her husband
--there are laws governing both of these topics
--a 3rd divorce does NOT let to take her back
--until she marries another and then she divorces him naturally

WHEN THE PARENTS ASK YOU TO DIVORCE YOUR WIFE
--if the wife is pious, he does not need to divorce her

It is not permissible for him to divorce her because of what his mother says, rather he should honour his mother, but divorcing his wife is not part of honouring his mother. And Allah knows best." (al-Fatawa al-Kubra, 3/331)

--you obey your parents, if your wife is not pious; if she is evil

WHEN A MAN DABBLES IN RIBA AND HE USES THE MONEY TO FEED HIS WIFE
--she did not do anything wrong
--the sin is not on the wife

"It is not permissible for him to divorce her because of what his mother says, rather he should honour his mother, but divorcing his wife is not part of honouring his mother. And Allaah knows best. [Al-Fataawa al-Kubra, 3/331]

Men are the protectors and maintainers of women, because Allah has made one of them to excel the other, and because they spend (to support them) from their means. 4:34

IF A WOMAN HAS AN EX-HUSBAND DUE TO DIVORCE


--she is not permitted to be alone w/him because he is now a stranger to her
--some men use the kids to be alone w/ the sister
--after the iddah, she can NOT be alone w/ him
--the moment you say I ACCEPT / I DO ... you are married

A DIVORCE IS VALID VIA...
--TEXT, SMS, PHONE and EMAIL

The Prophet (saw) said: There are three matters in which it is not permissible to joke: marriage, divorce and emancipation (of slave). 3. Sunan At-Tirmidhi

--of course, verbally, too!
--likewise the proposals take place the same 5 ways

DIVORCE PAPERS that are signed ...
--regardless if they come from civil or Shariah courts, as long as person is mature,
--or not mad and not forced to sign them

HOW TO DIVORCE
--a man must wait till she takes a bath from menses,
--he says I DIVORCE YOU if in Arabic, he says anti taaliq
--he says it only 1x

Umar, the son of Umar ibn Al-Khataab , divorced his wife when she was menstruating. So Umar asked the Prophet (saw) about his sons actions, to which he replied: Command him to take her back, and keep her till she is purified, then has another period, then is purified. If he wishes he may keep her and if she wishes he may divorce her before having sexual intercourse, for that is the iddah (period of waiting) which Allah commanded for the divorce of a woman.

In the time of the Rasool (saws), Ibn Umar was divorcing his wife while she was menstruating, so he was told to take her back and then divorce her after menses and she takes a bath ...

2 TYPES OF DIVORCE: Sunnee and Bid'3ee

Sunnee took place in accordance w/ the Prophet (saws)
Bid'3ee is against the Sunnah


--Sunnee: after menstruation and shower but w/o sex ... say I DIVORCE YOU
--Bid'3ee (as Ibn Umar did) - he had to take her back, wait for her to make ghusl

IF A MAN PRONOUNCES HIS WIFE BY SAYING I DIVORCE YOU (3x) and this is bid'3ee
--if he says I DIVORCE YOU and eh says it 3x in 1 sitting = this is ONE divorce

Narrated Abdullah ibn Abbas: Tawus said: AbusSahba' said to Ibn Abbas: Do you know that a divorce by three pronouncements was made a single one during the time of the Prophet (PBUH), and of AbuBakr and in the early years (2 years) of the caliphate of Umar? He replied: Yes.

--there are some scholars who say if you said it 3x in 1 sitting.
--it was 3 divorces so she is haraam for you ... but
--this is called talaq bid'3ee and it is counted as 1 divorce

WHEN IBN UMAR DIVORCED HIS WIFE
--during her menstruation ...
--he was told to wait for her to make ghusl
--afterward, he could pronounce divorce but
--not permitted to have s-x and then divorce her
--even though he could take her back,
--this was counted AS ONE DIVORCE against him

THE IDDAH OF THE WOMAN
--if she is young and menstruating, the iddah is 3 menstruation
--if she has menopause, the iddah is 3 months
--if she is pregnant, the iddah is until she delivers her baby or miscarries
--if a man divorces before consummating, she has NO iddah
--not even 1 day, she can marry immediately
--if it is khula, the iddah is 1 menstruation
--if she is a widow, the iddah is 4 mos + 10 days

PROPOSING TO A WIDOW
--you can drop a hint but not a full blown proposal
--he can say 'there's something in the pipelines"

IF SHE IS ON HER 3rd DIVORCE...
--you can drop a hint but not a full blown proposal
--there's the same hukm for both of these women

A NOTION SAYS ITS HARAAM TO DIVORCE A PREGNANT... this is not true
--you can divorce a pregnant woman
--her iddah is until she delivers her baby or miscarries the baby

A MAN CAN'T REMEMBER DIVORCING HIS WIFE....
--the divorce did not take effect
--see Surah 10:36
--suspicion can not be used as hujjah

And most of them follow nothing but conjecture. Certainly, conjecture can be of no avail against the truth. Surely, Allah is All-Aware of what they do. 10:36

A MAN CAN'T REMEMBER DIVORCING HIS WIFE 1 or 2 x....

--it is 1 divorce
--likewise, 2 or 3 times he forgets, it is 2 divorce (act on the lesser number)

DIVORCING YOUR WIFE WHILE INTOXICATED
--the scholars split down the middle
--the divorce is valid because he should not be drinking in the 1st place
--this is to prevent all types of drinking and trying to use it as an excuse

DIVORCING WHILE IN A STATE OF ANGER

Prophet (peace and blessings of Allaah be upon him) said: “There is no divorce and no freeing of slaves when it is done by force or in a state of intense anger.” (Narrated by Ibn Maajah, 2046; classed as Sahih by al-Albaani in al-Irwa’, 2047)


3 CATEGORIES OF ANGER
1) so angry he doesn't know what he is saying
--his divorce is void

2) very angry but he knows what he is saying
--his divorce is void; doesn't take effect

3) mild anger: this person's divorce takes effect

RAJ'AH=TAKING BACK A DIVORCED WIFE

--RAJ'AH ... taking back your divorced wife
--this can be done in 3 ways [verbally, I take you back]
--if you said I divorce you, she is in iddah
--you can take her back [raj'ah]
--or electronically by email or SMS (text)
--or physically taking her back ...
--if you kiss her w/ intention of taking her back: you have taken her back!
--or by having intercourse w/ her - you have taken her back
--if your wife is in iddah and you have s-x w/ her
--and you want her back, you have taken her back
--if you had jimaa w/o wanting to take her back, that is haraam

2 TYPES OF JIMMA DURING IDDAH ... haraam and halal
--Imam Malik said if you cover her, you don't have to have jimaa w/ her
--just to hold her hand or cuddle her, you took her back
--if she had the 3 menstruations [iddah]
--if you allowed them to elapse and did not take her back in the 3 ways
--you can still take her back but you need a new contract and proposal;
--however if you say I divorce and she has jimaa w/ you,
--that was you taking her back so no new contract needed
--this is for 1st or 2nd divorce
--but if on 3rd divorce, it is haraam to take her back
--until she marries another man,
--then divorces her after consummating
--the divorce must be willing

And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband. Then, if the other husband divorces her, it is no sin on both of them that they reunite, provided they feel that they can keep the limits ordained by Allah. 2:230

IT IS A COMMON NOTION ..
..
--you need witness to divorce or take her back but this is refuted but Muhammad (saws) divorced Hafsa
--he took her back w/o any witnesses

IT IS A COMMON NOTION....
--not to divorce a pregnant wife but na’am, you can do it

IT IS A COMMON NOTION ....
--that Allah's arsh shakes (this is fabricated hadith)

IT IS A COMMON NOTION...

--w/ khula she does not need to wait 3 menses
--Thaabit Ibn Qays ... was divorced khula
--she was told to observe one iddah
--did not need 3 menses

KHULA and TALAQ
--khula is when woman doesn't love her husband

12 REASONS WHY WOMEN DIVORCE [KHULA] THEIR HUSBANDS

--the word means to take off your clothes
--so she is removing her husband from her life by giving him back the dowry

1. SHE DISLIKES HER HUSBAND
2. THE HUSBAND IS HOT TEMPERED SO SHE FEARS FOR HER SAFETY
3. HE IS TOO STRICT
4. HE IS MISERABLE AND NAGS HER AND CRITICIZES HER FOR SLIGHT MISTAKES
5. SHE DISLIKES HIS PHYSICAL APPEARANCE {Thaabit's situation}
6. HE IS WEAK IN RELIGIOUS COMMITMENT
7. HE DOESN'T SPEND ON HER [MAINTAIN AND PROVIDE FOR HER]
8. HE DOESN'T FULFILL HER CONJUGAL / JIMAA RIGHTS
9. HE HAS 2 WIVES BUT TREATS 1 BETTER THAN THE OTHER
10. HANGING WIVES, SHE IS LEFT HANGING
11. HE WAS PHYSICALLY AND VERBALLY ABUSIVE
12. HE IS NOT HYGIENIC (teeth, showers, etc)


"Truly, Allah loves those who turn unto Him in repentance and loves those who purify themselves (by taking a bath and cleaning and washing thoroughly their private parts, bodies, for their prayers etc.).; (Al Baqarah 2:222)

--in this case, she returns dowry and divorces him
--however, the scholars agree you can reconcile during the iddah of a khula
--the iddah is 1 month
--if it elapses, you can remarry but with a NEW contract

FASKH (annulment)
--this is an annulment by a woman asking Shariah court
--because she doesn't want to be married to him anymore
--with faskh, she keeps the dowry
--she seeks faskh when he is evil in character
--because it is his fault, she keeps the dowry
--with khula, she gives back dowry because she initiates the divorce