Saturday, July 9, 2011

-123- Divorce: Revisited


DIVORCE: REVISITED
by Shaikh Abdullah Faisal

(evening dars: 7.8.11)






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DEFINITION OF TALAQ (divorce)
-there’s 2 meanings: linguistic and technological

TALAQ means:
“IMMEDIATE AND FUTURE ANNULMENT OF A MARRIAGE CONTRACT”


People quote the fabricated hadith that Allah's Arsh shakes when you get divorced
-let the person who intentionally lies on the Rasool take a seat in hellfire

If things are not working out, get a divorce and separate in kindness
-not permitted to slander each other

"Do not tell a LIE AGAINST me for whoever tells a LIE AGAINST me then he will surely enter the Hell-fire." Bukhari Vol 1, Book 3 Knowledge. Hadith 106.

-or giving details about your divorce
-the hadith [worst halal in the sight of Allah 'tala] is a weak hadith
-but Shaikh can use it to encourage acts of righteousness

Man who divorces his wife should be
-an adult, sane and not forced
-if you're forced to divorce, it's not a divorce
-a marriage or divorce that is forced is bautil

"The most hateful permissible thing (al-Halal) in the sight of Allah is divorce." (Abu Dawud, Hadith 1863, Ibn Majah, Hadith 2008).

O ye who believe! It is not lawful for you forcibly to inherit the women (of your deceased kinsmen), nor (that) ye should put constraint upon them that ye may take away a part of that which ye have given unless they be guilty of flagrant lewdness. But consort with them in kindness, for if ye hate them it may happen that ye hate a thing wherein Allah hath placed much good. (4:19)

“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 divorce of a 10 year old boy is permitted

If a woman has an affair, her iddah is 3 months
-she is not permitted to observe the iddah in her husband's home
-she goes to her parent’s home

O Prophet (SAW)! 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. And those are the set limits of Allah. And whosoever transgresses the set limits of Allah, then indeed he has wronged himself. You (the one who divorces his wife) know not, it may be that Allah will afterward bring some new thing to pass (i.e. to return her back to you if that was the first or second divorce). 65:1

-if she didn't have an affair, she observes iddah in the home of her husband

IF IT IS THE 3RD DIVORCE
-she is not entitled to maintenance and accommodation
-this is an IRREVOCABLE divorce (can't get back together unless…)
-she marries another, consummates, divorces (of their own free will)
-The Rasool (saws) told Fatima bint Qays to go to ibn Umm Maktoom

Fatima bint Qais reported that her husband al-Makhzulmi divorced her and refused to pay her maintenance allowance. So she came to Allah's Messenger (may peace he upon him) and informed him, whereupon he said: There is no maintenance allowance for you, and you better go to the house of Ibn Umm Maktum and live with him for he is a blind man and you can put off your clothes in his house (i. e. you shall not face much difficulty in observing purdah there). Muslim, book 9, No 3514.

REVOCABLE DIVORCE

-she is entitled to maintenance and accommodation

A MAN WHO IS FORCED BY PARENTS TO GET A DIVORCE
-Ibn Taymiyyah says he is not to obey his parents UNLESS hiss wife is evil

"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]

-this is prevalent in the Asian community where parents put pressure on spouses
-Ibrahim told his son to keep his 2nd wife because she was very grateful

RIBA
-if a husband dabbles in this, the sin is not on the wife or kids
-since men are maintainers of women

Men are in charge of women, because Allah hath made the one of them to excel the other and because they spend of their property (for the support of women).(4:34)

EX-HUSBAND

-she can't talk to her husband in a romantic way, if the iddah has elapsed
-some men want to use the kids to get back to the wife
-no flirting w/ ex husbands .. these men are strangers for you

WHAT ARE THE REASONS FOR DIVORCE?

1. SPOUSES DISRESPECT EACH OTHER: LACK OF RESPECT, TRUST AND LOYALTY

2. MEN DO NOT SHOULDER THEIR RESPONSIBILITY
TO MAINTAIN / PROVIDE FOR THEIR WIVE
S

Men are in charge of women, because Allah hath made the one of them to excel the other, and because they spend of their property (for the support of women). (4:34)

-some men live off their wives like parasites
-if wife did not obey you, she loses her financial rights
-if you do not provide for your wife, you lose your conjugal (intimate) rights

3. SPOUSES ARE UNGRATEFUL TOWARD EACH OTHER

4. WOMEN DISOBEYING THEIR HUSBAND RE: DOs and DONTs of ISLAM


"if a woman prays her 5 daily prayers, fasts her month (Ramadan), obeys her husband and guards her chastity, then it will be said to her; ‘enter paradise through whichever of its gates you wish'" reported by Ahmed and Tibraani

5. THE PARENTS INTERFERE IN THE MARRIAGE

6. THE SPOUSES TRANSGRESS BEYOND THE LIMITS OF ALLAH TALA

-maybe alcohol or smoking drugs

7. A SISTER OR HUSBAND SEEKING DIVORCE FROM A SPOUSE WHO DOES NOT PRAY
-if you go to bed w/ a man who doesn't pray, sister, you're committing zina
-because anyone who does not pray is a kaafir and women are not permitted to marry kaafirs

8. IMPOTENCE
-man is unable to have an erection
-husband should seek medical attention for this

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. POOR HYGIENE
-don't brush teeth or shower: these are reasons 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

14. ABANDONMENT

-the sisters are abandoned (food, clothing, shelter, conjugal rights)
-if 6 months passes, she can go to Shariah and get a FASKH
-not permitted to leave wives as 'hanging wives'

Ye will not be able to deal equally between (your) wives, however much ye wish (to do so). But turn not altogether away (from one), leaving her as in suspense. If ye do good and keep from evil, lo! Allah is ever Forgiving, Merciful. (4:129)

15. INCARCERATION OF A MUSLIM BROTHER

-Shaikh met many brothers in prison w/o any charges ...
-a sister w/ conjugal needs is permitted to annul the marriage in this case
-better to annul and move on than commit zina (s-x outside marriage)

16. THE LOVE DIES
-it is like a plant (love is) and you must water it
-and give it plant food or it will die
-Muslimahs are the same – they need to be looked after
-it's best to marry someone who was raised in a home that was not broken
-marrying someone from broken, well, your home [might] be broken

VALIDITY OF DIVORCE
-you can divorce 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). Sunan At-Tirmidhi

PROCEDURE OF TAKING YOUR WIFE BACK: WHAT IS THE PROCEDURE

1) you can take her back if it is the 1st or 2nd divorce
-this divorce is called Baynoona sughraa (a minor separation)

2) if it is the 3rd divorce, this is Baynoona Kubraa (major separation)
-you can't remarry her until she marries another, consummates, then divorces him
-this can't be arranged by the husband
-the man can't take her back until these conditions are met

3) Halaala = when you arrange a friend to marry her, consummate and
-then divorce so your friend gives her back to you

'Ali said, The 'Messenger of Allah, peace and blessings of Allah be on him, cursed the man who committed halalah and the one for whom halalah was committed.' (At-Tirmidhi 9:25)

-a 3rd divorce is MAJOR separation (so no accommodations and she can't uncover in front of him)

YOU CAN TAKE HER BACK: verbally
-baynoona sughraa
-physically by kissing her or making jimaa
-Imam Malik said if you cuddle her or hold her hand w/ intention to take her back: -you took her back!!
-you can do it SMS, text message or email

DIVORCE PAPERS that are signed ...
-regardless if they come from civil or Shariah courts, as long as person is mature,
-and not mad (insane) and not forced to sign them ..
-this is counted as 1 divorce

IF A MAN HAS 4 WIVES and he divorces one ...
-he must wait for the iddah of one wife to pass
-if he marries before the 3 menses elapses of one of the 4 wives:
-he’s committed adultery

HINTING AT A DIVORCE
-if a man says, “wallahi, if you leave the house, I’ll divorce you”
-and she leaves....
-even if he did not say wallahi,
-if the intention was to scare his wife, he must be questioned
-if he said, I didn't want to do talaq just scare her,”
-it is not a divorce but he pays expatiation $

But whosoever cannot afford (that), then he should fast for three days. (Al-Ma'idah 5:89)

HOW TO PAY EXPATIATION
1) he must feed 10 poor people or
2) cloth 10 poor people or
3) free a slave or
4) fast 3 days


**if he said, “I meant it,” it is held as 1 divorce against him
**if he said, “I was just scaring her”
- it is not a divorce but he pays expatiation

A SISTER WHOSE EX-HUSBAND IS A KAAFIR and they have children
-if the ex-husband is antagonistic towards Islam and she fears
-he will feed pork behind her back or ridicule Islam
-then it's haraam for her kids to interact w/ the husband
-if he is a sympathizer toward Islam and doesn't make them miss salah,
-then there is no harm in allowing kids to mix w/ him
-if the ex is a fanatical church-goer,
-it is haraam for you to let your children associate w/ their father
-because their father is fervent in his religion

HOW TO DIVORCE A WOMAN
-wait for a woman to finish menses and make ghusl and then say I DIVORCE YOU
-you are not permitted to have jimaa w/ her and then say I DIVORCE YOU
-you're not permitted usury (to use your wife in this manner)

Ibn Umar reported, He divorced his wife while she was menstruating. 'Umar mentioned this to the Messenger of Allah, so the Messenger of Allah became displeased on account of this and said: "He should take her back, then keep her until she is clean, then menstruates and (again) becomes clean, if it then appears to him that he should divorce her, he should divorce her while she is in a clean condition before he approaches her. This is the 'iddah as Allah has commanded it." (BUKHARI 65:65)

If you are divorced from a wife
and she is in iddah,
-you're permitted jimaa w/ her
-1st or 2nd divorce: she can uncover and wear perfume and make-up
-if your intention is to take her back, your jimaa is halal
-if you intended not to take her back, the jimaa is haraam
-intention is the key

IDDAH
1) a young woman who has menses, the iddah is 3 menses
2) old woman who reached menopause, the iddah is 3 mos

Iddah for a girl BEFORE puberty [which means they can marry then] is 3 months. (Bukhari Book 62 No. 63)

3) iddah of a pregnant woman - the iddah is until
-she delivers or miscarries her baby

The divorced women shall wait concerning themselves for three monthly periods. (Bukhari Book 43 # 649)

4) if she divorces husband w/ khula, iddah is 1 menses
-some scholars say 3 menses but this is the WRONG opinion

5) iddah of widow - hers is 4 mos + 10 days

6) iddah for woman who was divorced 3x and is in iddah
-she is not entitled to maintenance or accommodation

7) iddah for woman who was divorced 1st or 2nd
-she is entitled to maintenance and accommodation

8) iddah for woman who had an affair
-she can't spend iddah in home of husband (go to parents)
-it is haraam for man to take her back

9) a man divorces his wife w/o consummating the marriage = there is NO iddah
-the hukm .. she does not observe even 1 day (she can go get married)!

3 DIVORCES IN 1 SITTING
--if he says I DIVORCE YOU and he says it 3x in 1 sitting = this is ONE divorce

Narrated Abdullah ibn Abbas: Tawus said: Abu Sahba' 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 Abu Bakr and in the early days of the caliphate of Umar? He replied: Yes. (Sunan Abu Dawood 2194)

DIVORCE WHEN A MAN IS 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
-people would drink and divorce too easily

DIVORCE DURING 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 TYPES OF ANGER


1) so angry he doesn't know what he is saying
-his divorce did not take place

2) he is very angry but he knows what he is saying
-his divorce did not take place, either

3) he is angry and his anger is mild
-his divorce has taken place

NOTIONS ABOUT DIVORCE

1) you're not permitted to divorce a pregnant woman:

-not true
-it is halal to divorce a pregnant woman
-those who say it's not allowed are using their aql
-our deen is by hujjah not aql

2) when you divorce, the throne of Allah tala shakes:
-not true
-this is fabricated

“Get marry and do not divorce! The Throne of Allah is shaken by divorce.” (Muhtar al-Ahadith al-Nabawiyya,228) - FABRICATED !!!

3) if you divorce during menses, the divorce is not valid

-not true

When Rabi bint Masood obtained Khula from Thabit (RA), the Prophet (SAW) asked her to wait until one menstruation period before she could go her home. (An-Nissai, Abu Daud, Tirmizi)

4) I DIVORCE YOU 3X said in one sitting is 3 divorces

-not true
-it is counted as 1 divorce

5) if divorced for 3rd time
-she is entitled to maintenance and accommodation
-not true
-she is NOT entitled to maintenance and accommodation

6) iddah for khula is 3 menses
-not true
-correct opinion is 1 menses (to find out if she is pregnant)

Narrated Abdullah ibn Abbas: Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what Allah hath created in their wombs. This means that if a man divorced his wife he had the right to take her back in marriage though he had divorced her by three pronouncements. This was then repealed (by a Qur'anic verse). Divorce is only permissible twice. (Sunan Abu Dawood)

KHULA = literally means to take off your clothes

-so you free yourself from your husband by divorcing and giving back dowry

12 REASONS WHY WOMEN DIVORCE [KHULA] THEIR HUSBANDS

1) GENERAL DISLIKE

2) HE'S TOO HOT-TEMPERED

3) HE IS TOO STRICT (overly)

4) HE CRITICIZES HER FOR SLIGHTEST SHORTCOMING

5) SHE DISLIKES HIS PHYSICAL APPEARANCE / no chemistry

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

***jimaa means s-x

9. HE HAS 2 WIVES BUT TREATS 1 BETTER THAN THE OTHER (not equitably)

10. HANGING WIVES, SHE IS LEFT HANGING

11. HE IS NOT HYGIENIC (teeth, showers, etc)

12. MANHOOD IS TO SHORT

13. REASONS FOR KHULA IS IMPOTENCE

WHENEVER A WOMAN SEEKS KHULA

-she must return the dowry
-but if it is talaq, she keeps it

QUESTION: CAN WOMAN TAKE HER HUSBAND BACK AFTER KHULA?

ANSWER: YES, SHE CAN

-maybe he made amends and changed his ways; they need a new contract
-a common notion is to have 2 witnesses in order to take her back
-but no witnesses are needed
-because the Prophet (saws) divorced Hafsa and took her back w/o witnesses

IF YOU DID NOT HAVE JIMAA FOR 3 MENSES, YOU CAN STILL TAKE HER BACK
-but w/ a new marriage contract
-you can do this verbally or intimately but new marriage contract is needed
-however, if you broke the iddah by having jimaa w/ her,
-you have officially taken her back so no new contract is needed