Emerging Differences
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Divorce should not be the first resort when any difference between a couple
emerges. Different attitudes and views are natural, and any group – including the
family- should learn how to settle its differences peacefully. Islam teaches that
marriage should be maintained as long as the essential requirement of a peaceful
family life and mutual care and respect are there, even if emotions are romance
may not be as strong as they were before:
“And consort with your wives in a goodly manner; for if you may have a feeling
of dislike toward them, it may be that they have such a feeling toward someone
whom God might yet make a source of abundant good…And if then they respect
you (and the family relation), do not seek any way (to proceed) against them.
Behold, God is indeed the Most High; Great (above you all).” (4:19,34)
If differences and difficulties continue, the couple or their families have to seek
others’ mediation:
“And if you have reason to fear that a breach might occur between a (married)
couple, appoint an arbiter form among his people and an arbiter from among
her people; if both want to set things right, God will cause their reconciliation.
Behold, God is indeed All-knowing, Aware.” (4:35)
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When the situation deteriorates and no solution can be reached by arbitration,
divorce should follow a fair procedure. Shari’a says that women should not be
divorced during a momentary anger, nor during her menstruation when the
physical sensitivity may cause tension. A husband can initiate a divorce, since his
initiative implies his full responsibility for bearing the legal and financial
consequences of sustaining the divorced women and their children. Nevertheless,
the court may be necessary to settle differences between the two parties about
specifying these obligations.
When a woman wants to initiate the divorce, the husbands responsibility has to be
judged, since he may have nothing to be blamed for in causing the divorce, and
accordingly it is fair to let the court decide the due alimony that the ex-husband has
to pay and his other financial obligations and the children’s custody in such a case.
He does not initiate the divorce, therefore, his admission of full responsibility and
obligations cannot be implied and has to be discussed and assessed by the court. In
this way, deciding on a divorce on the husband’s initiative without going to the
court is not a privilege, but an admission of full financial obligations by the
husbands in general, though he may have to go to court in order to argue for the
specifies if he cannot agree on them with his wife. However, any contemporary
state can make it mandatory in it procedural legislation that divorce should be
formalized only in court according to the request of either spouse, so that it may be
known and become effective for everybody, while all the subsequent issues of
custody and alimony may be decided in the same time without a further delay.
A divorced woman must wait for a specified time before she can remarry, as the
broken marriage may have a chance of survival when every party thinks quietly
during the waiting period after the first or second divorce from the same spouse.
Besides, the ex-wife may be pregnant, and this may have its effect on the feeling
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and thinking of the ex-husband as well as a new possible marriage. Meanwhile,
the ex-husband is urges to restore the marriage during this waiting period.
“And the divorced women shall undergo, without remarrying, a waiting period of
three monthly courses, and it is not lawful for them to conceal what God may
have created in their wombs if they believe in God and the Last Day. During this
period, their husbands are entitled to take them back it they desire
reconciliation….” (2:228)
Even after the waiting period, the marriage can be restored for a second or third
time, if the woman is still unmarried and is willing to try again with the same
husband. A third divorce after having three periods of marriage experience means
that marriage is unlikely to survive. Therefore, no resumption of the marriage
between the same partners is allowed, unless the ex-wife tries a new marriage with
another husband, through which she may realize-as well as her ex-husband-that
what gathers the ex-spouses is stronger than all their differences. After a new
marriage with another husband for the women who was divorced three times from
her ex-husband, another marriage between the previous spouses can take place
again. In any case, maintain the marriage or resuming it should be a fair decisions
by mutual agreement, not something imposed on the women by any pressure or
injustice:
“A divorce may be (revoked) twice, upon which the marriage must either be
resumed in fairness or dissolved in good manner,”
“And so, when you divorce women and they are about to reach the end of the
waiting-term, then either retain them in a fair manner or let them go in a fair
manner. But do not retain them against their will to hurt them: for he who does
so sins indeed against himself…And when you divorce women, and they have
come to the end of their waiting-term, hinder them not from marrying other men
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if they have agreed with each other in a fair manner. This is an admonition unto
every one of you who believe in God and the Last Day…” (2:229,231-232)
