Marriage and Divorce in Islam
by Mehdi ben Aribi
I. Marriage in Islam
Creation and mating
Mating between male and female is the natural way; it is general and clear in the creation and in the universe. Allah said: "And of everything, We have created pairs, that you may remember (the Grace of Allah)."
Marriage is the way that Allah has chosen for all human beings, to create new life and to perpetuate the human race in a way for men and women to play their roles in life in a positive and fulfilling way. Allah said: "O mankind! We have created you from a male and a female, and made you into nations and tribes, that you may know one another. Verily, the most honourable of you with Allah is the pious Allah-fearing one. Verily, Allah is All-Knowing, All-Aware."
Allah reminds us of his bounty and grace when he says: "O mankind! Be dutiful to your Lord, Who created you from a single person (Adam), and from him, He created his spouse[(Eve)], and from them both He created many men and women."
There is no celibacy in Islam. Islam considers sexuality to be a natural part of life, which is to be channelled into a healthy marriage life. Furthermore, Allah, based on His wisdom and knowledge, did not let the human being indulge in pleasure without limit or boundaries, as is the case for other creatures, but rather made the relationship between men and women honourable and safe based upon mutual consent. Sinful fulfilment of the sexual urge is utterly forbidden including sexual interaction with an individual of the same sex.
How marriage was in pre-Islamic times
In other nations
To appreciate the divine doctrine of marriage, its benefits and wisdom, I will start to draw a small picture of the relationship that existed between men and women during the pre-Islamic period. In the Greco-Roman empire, adultery and fornication was considered the norm. Men could fulfill their sexual desire with any woman without any sort of commitment. If the man happened to be married, it was common for him to have one or many mistresses. As for the relationship between a man and his wife, Professor. Will Durant, in his book entitled Caesar and Christ says, “In Rome, only the man had any rights before the law in the early Republic. He alone could buy, hold, or sell property, or make contracts. Even his wife’s dowry in this period belonged to him. If his wife was accused of a crime, she was remanded to him for judgement, and he could punish her by condemning her to death for infidelity or even for stealing the keys to his wine cellar.
It was common practice among the Greeks for a man to kill his wife if she gave birth to a deformed child.
In the Persian empire, shortly before the appearance of Islam, it was common to practice incest which was regarded as an honourable act when done by kings and individuals of high Persian society.
As we can see in these examples, men were commonly using unlawful and immoral means to satisfy their sexual desires, and the relationship that existed between the wife and the husband in different pre-Islamic civilizations was one of domination and total and unconditional power of the man over his wife.
In the Arabian Peninsula
At the same time, in the Arabian Peninsula, the situation was not better but worse.
The wife of the prophet (Peace be upon him)Note:1 Aicha, reported that in the pre-Islamic period, people married and had sexual intercourse in four categories: 1) The man would send his wife to sleep with another man so she would get pregnant and have an intelligent and “good quality” boy. 2) If a group of ten men or less slept with the same women and she got pregnant, she could send the child with whichever one of them she chose and the man could not refuse. 3) The third category was sex with a prostitute. She could not refuse anyone, and if she got pregnant, she would call a special person who, based on the appearance of the child, would decide which man the child most looked like and would send the child with him. The man could not refuse. 4) The last category is marriage. A man would ask the woman’s family for permission to marry their daughter, and based on their acceptance and the woman’s acceptance, he would give her a dowry and they would then become husband and wife.
Islam kept marriage as the perfect system for the human race to live in peace and harmony with each other and to demolish all other kinds of relations between men and women.
Encouraging marriage
Islam encourages marriage in different ways. In some instances, Allah, in the Qur'anNote: 2, reminds us that marriage is the way of the prophets and messengers: "And indeed We sent Messengers before you (O Muhammad SAW), and made for them wives and offspring. And it was not for a Messenger to bring a sign except by Allah's Leave." Other times, Allah describes marriage as a grace and bounties: "And Allah has made for you wives of your own kind, and has made for you from your wives, sons and grandsons, and has bestowed on you good provision. Do they then believe in false deities and deny the Favour of Allah (by not worshipping Allah Alone)." Finally, as a sign for us to ponder upon: "And among His Signs is this, that He created for you spouses from among yourselves, that you may find repose in them, and He has put between you affection and mercy. Verily, in that are indeed signs for a people who reflect."
The prophet (Peace be upon him) advised Muslims: “Whoever is able to marry should marry, for that will help him lower his gaze and guard his modesty.
The prophet’s (Peace be upon him) own conduct and sayings were the best in teaching his followers of the importance and blessings of marriage. It was reported that three people came to the house of the prophet and asked about his way of life and of worship, and when they had been answered they felt it was insufficient and unworthy. One of them then said, “I will pray all night forever.” The second one said, “I will fast forever”, and the third said, “I will abstain from women and will never marry.” When the prophet came back and was told of that matter, he asked them “Did you say so and so. . .? By Allah, I am the most conscious of God and the one who most fears God, but I pray and I sleep, I fast and I eat, and I marry women. So who ever rejects my way is not from me.”
In another saying, the prophet (PBUP) emphasized the importance of marriage when he described it as being half of the faith: “Whoever Allah gifted with a pious woman, indeed He helped him in half of his religious duties so let him be conscious of Allah in the remaining half.”
Benefits of marriage
Marriage has unlimited benefits and it provides a legitimate channel for sexual energy which will keep a person away from sin. Marriage provides comfort, security, solace, and companionship. It is much more than a means of satisfying sexual desires; it is a social contract of co-habitation through which both partners may find companionship and refuge from the trials and tribulations of life. It provides physical as well as psychological stability. Without marriage, the sexual impulse will lead the human race in a chaotic and unlawful way to fulfill their desires, all without the respect and love much needed. Marriage constitutes the lawful way to perpetuate the human race and to protect the lineage and ancestry, which Islam places in high importance.
Marriage allows the maternal and paternal instinct to grow and flourish with the start of a new family. It also serves as a bridge to consolidate and to enlarge the relationships between families, communities and nations. By bringing up children in the protected, safe, and peaceful environment that marriage creates, one increases the chances that children will grow into healthy and stable individuals who will benefit society in general. Furthermore, marriage offers good opportunities for the sharing of jobs and duties which ease stress and fatigue and makes it easier for both the man and the woman to live a pleasant and meaningful life.
Importance of choosing partners
The choice of a wife or a husband is very important for any successful marriage.
Allah set the conditions for choosing a wife or a husband and made piety the most important criteria. Allah brings it to our attention saying, "And do not marry an idolator until he believes and worships Allah Alone. And indeed a slave woman who believes is better than a free idolatress even though she pleases you. And give not your daughters in marriage to idolators till they believe in Allah Alone and verily, a believing slave is better than a free idolator even though he pleases you. Those are invited to the Fire, but Allah invites to Paradise and Forgiveness by His Leave, and makes His revelations, and proofs clear to mankind that they may remember."
Again Allah says "And marry those among you who are single and also marry the pious and capable ones of your male slaves and maid-servants female slaves. If they be poor, Allah will enrich them out of His Bounty. And Allah is All-Sufficient for His creatures' needs, All-Knowing (about the state of the people)."
Regarding the choice of a woman, the prophet (Peace be upon him) said: "A woman is chosen for marriage for four qualities: her lineage and social ranks, her beauty, her wealth, and her piety, but if you want to succeed, choose the pious one."
Regarding the choice of a man, it is the same thing. It was reported that a woman came to the prophet (Peace be upon him) when he was sitting with his companions and she offered herself publicly for the prophet (Peace be upon him) to marry her. When he did not reply to her, one of his companions said to the prophet of Allah, "Marry me to her." The prophet replied, "What do you have for her?" The companion said, "I have nothing," The prophet said, "Go and bring even a metal ring." He went and came back saying to the prophet of Allah, "I could not find anything, but here is my loin cloth (wrapper ). I will give her half." The prophet said, "What will she do with half, if you wear it, she can not take advantage of it, and if she wears it, you can not take advantage of it." The companion sat for a longtime and then got up to leave when the prophet saw him. He called him back and asked him, "What do you know from the Qur’an by heart?" The companion said such sourah and such sourah numerating them. The prophet told him. "Then go, I married you with what you have from the Qur’an."
Here we note that Islam does encourage marriage, making it easy and discouraging any complication that may be caused when the basic requirements of marriage exist.
Process and rules of marriage
1/ Engagement ( khitba )
Islam encourages both men and women to investigate each other and to look to each other’s appearance and beauty, and to know each other's characteristics better if they intend for marriage. The presence of family members in their homes is the best way to do so, where modesty and safety is present. The prophet said “When one of you seeks to marry a woman, and he has the opportunity to look at her, let him do so". It is important to note here that in Islam, there is no such thing as dating and to be alone with the opposite sex is discouraged. As the prophet said: "Who ever believes in Allah and in the day of judgement, let him not get alone with a women without one of her gardians. Indeed if he does so, their third party is satan."
2/ Marriage contract
The only condition of marriage is that this union should be done with the consent of both partners; neither male nor female should be forced into a marriage. In particular, as a warning against the oppression of women, Islam clearly states that a marriage contracted without the free consent of the woman is null and void. The prophet said: “No widow should be married without consulting her, and no virgin should be married without her consent."
Above all, marriage in Islam is a contract between two equal parties. As an equal partner, the muslim woman may stipulate conditions in the marriage. Marriage in Islam has to satisfy two major conditions.
It has to be witnessed by two trusted witnesses and in the presence and the agreement of the woman’s guardian ( father, uncle, brother). As the prophet said: "There is no marriage except in presence of a guardian and two trusted witnesses."
The woman has to be not of the forbidden categories to marry which Allah described: "Forbidden to you (for marriage) are: your mothers, your daughters, your sisters, your father's sisters, your mother's sisters, your brother's daughters, your sister's daughters, your foster mother who gave you suck, your foster milk suckling sisters, your wives' mothers, your stepdaughters under your guardianship born of your wives to whom you have gone in - but there is no sin on you if you have not gone in them (to marry their daughters), the wives of your sons who (spring) from your own loins, and two sisters in wedlock at the same time, except for what has already passed; verily, Allah is OftForgiving, Most Merciful."
3/ Announcement and the banquet
The marriage has to be announced so everybody knows that a brother or a sister in Islam is getting married. The supplication of a brother or sister is of great importance in Islam. We often say what the prophet teaches us to say when we congratulate a husband and a wife: "May Allah bless your spouse, and may He bless you and join you in a happy union."
A banquet is recommended on the wedding day, as the prophet said to one companion when he heard that he got married: "What did you give her?" The companion said: Such and such weight in gold. The prophet told him to offer a banquet even with a lamb.
Relations between husband and wife
Allah said: "O you who believe! You are forbidden to inherit women against their will, and you should not treat them with harshness, that you may take away part of the Mahr you have given them, unless they commit open illegal sexual intercourse. And live with them honourably. If you dislike them, it may be that you dislike a thing and Allah brings through it a great deal of good."
The prophet enhanced this message of equality and fair treatment of women by setting the supreme example for mankind to observe and emulate. He demonstrated the importance of taking care of oneself and one’s daily needs, instead of imposing on one’s wife. He attended to his own personal needs, he helped his wives in the house, and he even stitched and mended his own clothes.
He demonstrated that a man is never too great to clean and look after himself, and he gave the following advice.
“ The best among you is the one who is best to his family, and I am the best among you to his family.”
“The most perfect believers are the best in conduct and the best of you are those who are the best to their wives.”
“By assisting your wives in their household duties, you will receive the rewards of charity.”
“A believer must not hate a believing woman; if he dislikes one of her characteristics, he should be pleased with another.”
Islamic teachings are very strict when it comes to the fair treatment of others, and in the case of physical strength, Islam clearly states the responsibilities of the stronger party. As women are physically weaker, they are entitled to protection, and men are answerable for any misuse of their physical strength against women. All types of physical abuse are forbidden in Islam, which also prohibits psychological abuse such as seclusion and unnecessary restriction of movement and travel.
A husband is also forbidden to disclose his wife’s secrets, as the prophet said: “The worst of all people is the one who approaches his wife, enjoys her company, then divulges her secrets.”
Marriage is in accordance with the teaching of Islam, so whatever permissible deeds are done within the context of marriage, including sex, are regarded as virtues. The prophet once said: “A man will be rewarded for his physical relations with his wife.” His listeners, surprised, asked: Will a person be rewarded for satisfying his passion? And we are doing this by nature.” The prophet replied: “ Do you not see that if he were to satisfy his passion in a forbidden fashion, he would be committing a sin? They replied, "Yes indeed, oh prophet of Allah." The prophet said, ”And so if he satisfies himself in a lawful manner, he will be rewarded."
The marriage duties
Islam regards men and women as different but equal partners who should cooperate in making the home, community and society at large harmonious, happy, and successful. The partners should be loyal, considerate, and dependent upon one another. They should work together to overcome any problems and obstacles. They should be jointly concerned with their children’s upbringing and education, and work together to overcome the shortcomings of each partner, and present a unified front to the outside world. They should also provide companionship and comfort to one another.
Men are the protectors and the guardian of women. They must ensure their security and provide for their needs either material, emotional, or physical. Allah said: "Men are the protectors and maintainers of women, because Allah has made one of them to excel over the other, and because they spend (to support them) from their means." Men in any circumstances should not take this devine favor as a right to abuse or to agress women; he rather has to think about this favor given to him by Allah as a duty and a burden which he will be asked about on the day of judgement. The prophet describes in several sayings the way that men should deal with women. In one example he said : "He does not honor them except the honorable generous one and he does not humiliate them except the wicked evil one."
Women must obey Allah first, and second, their husband. It must be understood that the obedience of a woman is total to Allah, she must never obey her husband if what he asks for goes against the teaching of Islam. As Allah said: ". . .Therefore the righteous women are devoutly obedient (to Allah and to their husbands), and guard in the husband's absence what Allah orders them to guard (e.g. their chastity, their husband's property, etc.)" Furthermore, as explained earlier, a man should not ask from his wife more than what she can endure, and as emphasized earlier, the best of men is the best with his wife. Therefore, a man would only ask from his wife what she can do without any suffering. In numerous sayings the prophet gave the glad tidings of Paradise to women as he said: If a woman prays her five obligatory prayers, fasts during the month of Ramadan, guards her chastity, and obeys her husband, it will be said to her: "Paradise is your reward. Come in from any gate you wish."
Misconceptions about marriage
Marriage with the people of the book
Islam forbids the marriage of polytheists both for men and women as they do not believe in any divine scriptures, worship false gods, reject the messengers and the prophets, and have no hope for any accountability on the day of judgement. Allah said that their religion barely forbids what Allah forbids which makes impossible any coexistence or harmony between a Muslim and polytheists: "Do not marry idolaters unless they believe; a believing woman is better than an idolaterprejudgment, even if you like her. Nor shall you give your daughters in marriage to idolatrous men, unless they believe. A believing man is better than an idolater, even if you like him. These are invited to Hell, while Allah invites to Paradise and to forgiveness as He wills. He clarifies His revelations for the people, that they may take heed."
On the other hand, Islam makes it permissible for men to marry women of the people of the book which are the Jews and the Christians as they have much in common. Allah said : "Made lawful to you this day are all kinds of foods, which Allah has made lawful. The food of the people of the Scripture is lawful to you, and yours is lawful to them. Lawful to you in marriage are chaste women from the believers and chaste women from those who were given the Scripture (Jews and Christians) before your time, when you have given their due marriage gifts, desiring chastity, not committing illegal sexual intercourse, nor taking them as girl-friends."
The people of the book have much in common with Muslims. For the wisdom of destroying any false barriers, prejudices, or prejudgment in order for them to consider Islam. Marriage with the people of the book may get the interfaith families closer and give them an excellent opportunity to look at Islam objectively and with an open heart. It is important to mention here that a Muslim woman has no right to marry any except a Muslim man.
Polygamy
One of the most persistent myths perpetuated in Western literature and media is to associate polygamy with Islam as if it were introduced by Islam, or is the norm in Islam according to its teachings. No text in the Qur’an or SunnahNote: 3 explicitly specifies either monogamy or polygamy as the norm. Demographic data indicates strongly that monogamy in Islam is the norm and polygamy the exception.
Islam did not outlaw polygamy, as did many other peoples and religious communities; rather it regulated and restricted it. Polygamy is neither required nor encouraged, but simply permitted.
Allah said: "And if you fear that you shall not be able to deal justly with orphan girls, then marry (other) women of your choice, two or three, or four, but if you fear that you shall not be able to deal justly (with them), then only one or (the captives and the slaves) that your right hands possess. That is nearer to prevent you from doing injustice." [An-nisa; 3]
This is the only passage in the Qur’an that explicitly addresses polygamy and restricts its practice in terms of the number of wives permitted. The requirement of justice between them on the part of the husband was revealed after the battle of uhud, in which dozens of Muslims were martyred, leaving behind widows and orphans. This seems to indicate that the intent of its continued permissibility, at least in part, is to deal with individual and collective contingencies that may arise from time to time. This provides a moral, practical, and humane solution to the problem of widows and orphans, who would otherwise surely be more vulnerable in the absence of a husband and father figure in terms of economics, companionship, proper child rearing and other needs.
II. Divorce in Islam
The prophet (Peace be upon him) said : "Divorce is the most hateful of all the lawful things in the sight of Allah." Although Islam emphasizes the importance of marriage, it is a humane and practical religion which recognizes the fact that there may be situations in which dissolving the marriage bond may be in the better interests of the individuals concerned and of society at large. Divorce is allowed as a last resort, rather as amputation or major surgery may be the unpleasant but necessary step needed to save a person’s life. If divorce were forbidden, then animosity and adultery may become rampant. To save individuals and society from the greater evils, divorce has been permitted. However, it is not a step to be taken lightly or hastily. Sincere attempts at reconciliation are to be made first, and as in the case of marriage, the rights and welfare of women are to be upheld.
Appointing an arbitrator
As the first step in a process of dispute or separation, Allah says: "If a couple fears separation, you shall appoint an arbitrator from his family and an arbitrator from her family; if they decide to reconcile, Allah will help them to come together. Allah is Omniscient, Cognizant.
Wait four months as a cooling off period before divorce
Allah says: "Those who intend to divorce their wives shall wait four months (cooling off); if they change their minds and reconcile, then Allah is Forgiving and Merciful. If they go through with the divorce, then Allah is Hearer, Knower.
If the estranged couple chooses separation, they must go through it equitably. There must be two equitable witnesses present to witness the divorce before Allah.
Divorced women are to observe an interim period
Allah said: The divorced woman shall wait three menstruations (before marrying another man). It is not lawful for them to conceal what Allah creates in their wombs if they believe in Allah and the Last Day. In case of pregnancy, the husband's wishes shall supersede the wife's wishes if he wants to remarry her. The women have rights, as well as obligationsin equal measure. Thus, the man's wishes prevail (in case of pregnancy). Allah is Almighty, Most Wise.
Allah also warned us not to consummate any marriage if the interim of the woman is not completed. After the fulfillment of the interim, the divorced woman is free to do whatever she wants, within the limits of Islam of course.
Exceptions for observing the interim period
Allah said, . . . If you marry a believing woman, and divorce her before having intercourse with her, she does not owe you any waiting interim (before marrying another man). You shall compensate her equitably, and let her go amicably.
Divorced women have to be provided for
Islam ensures a divorced woman’s welfare by clearly stating who should provide for her needs. Allah said: "The rich husband shall provide support in accordance with his means, and the poor shall provide according to the means that Allah bestowed upon him. . . . This is a duty upon the righteous".
If the marriage was not consummated before the divorce and the dowry was not yet set, the man is told: "You shall compensate her - the rich as he can afford and the poor as he can afford - an equitable compensation. This is a duty upon the righteous."
However, if the divorce happens after the dowry was set, ". . .the compensation shall be half the dowry, unless they (women) voluntarily forfeit their rights, or the party responsible for causing the divorce chooses to forfeit the dowry. Forfeiture is closer to righteousness, and you shall maintain the amicable relations among you. . . ."
Divorced women are entitled to stay in the same house they stayed in before divorce
Islam also provides a solution to the difficulty for a newly divorced woman to find a decent place to stay and to the risk that the woman might end up in the street. Allah said: "You shall allow them to live in the same home in which they lived with you, and do not make life so miserable for them that they leave on their own."
Divorce can be retracted twice
Islam strongly encourages the reconciliation of a husband and wife even after a divorce. Allah said: "If you divorce the women, once they fulfill their interim, do not prevent them from remarrying their husbands if they reconcile amicably. . . . This is purer for you, and more righteous."
After the third divorce, Allah forbids them to remarry so as to avoid any abuse on their part: "If he divorces her (for the third time), it is unlawful for him to remarry her, unless she marries another man and he then divorces her. The first husband can then remarry her so long as they observe Allah's laws. . . ." This law serves as a deterrent for those who would want to divorce for the third time and forces them to carefully think about it this time as there is no coming back.
In case there is a baby during the interim
If, during the observation of the interim period, it is discovered that the divorced woman is pregnant, then as stated in 65:4 the interim ends upon giving birth. Allah has decreed the following law regarding the infant: "Divorced mothers shall nurse their infants two full years if the father so wishes. The father shall provide the mother's food and clothing equitably. No one shall be burdened beyond his ability. No mother shall be harmed on account of her infant, nor shall the father be harmed because of his infant. If the father dies, his inheritor shall assume these responsibilities. If the infant's parents mutually agree to part, after due consultation, they commit no error by doing so. You commit no error by hiring nursing mothers, so long as you pay them equitably. You shall observe Allah, and know that Allah is Seer of everything you do."
Under what conditions can a woman divorce her husband?
In case of divestiture
A women can ask for a separation or divestiture. It is an arrangement whereby the wife may offer some financial compensation to her husband (usually by returning his marital gift to him) in return for terminating the marital relationship. It is provided for in cases in which there is “no fault” (e.g. failure to support his wife, impotence, or abuse) on the part of the husband and the wife is the one who initiates marriage dissolution. In such cases, it is only fair that she should return to her husband whatever he gave or paid her with the view of permanent and lasting marital committment. In case of dispute over the amount of compensation, a judge may examine the case and determine the fair amount, which is normally the marital gift or dowry previously paid by the husband.
It was reported that a woman came to the prophet and said, "Oh messenger of Allah, I do not find fault in my husband’s Islam nor in his behavior but I do not want to take any chances of acting un-Islamically with him after accepting Islam. In the hadith she mentions that he was really ugly physically. The prophet asked her what he gave her. She replied, "A piece of land." He asked her if she agreed to give back his garden, and she said, "Yes." The husband also agreed, and the prophet then separated them.
In the case where the husband is committing great sins
The women can at any time ask the judge for a divorce if she fears for her faith and religion or fears to be misguided by the un-Islamic behavior of her husband. Typical examples of such situations would be if the husband does not observe the mandatory prayers, does not fast, drinks alcohol, dates other women, or in other words, any behavior that goes clearly against the teaching of Islam.
Conclusion
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In conclusion, by encouraging marriage and forbidding all other relations between men and women, Allah offers human beings the best way to found a family, to raise good children, and to create bridges and relationships between families, tribes, and nations. On the other hand, by allowing the divorce and encouraging the couple to try and resolve their issues, and in every possible way to save their marriage, clearly Islam works in natural and pragmatic ways to protects men and women and the society at large against much greater evils. Furthermore, by legalizing these principles, Islam ensures that the rights of both men and women will be respected.
Allah said in the last revealed ayats: "This day, I have perfected your religion for you, completed My Favor upon you, and have chosen for you Islam as your religion and way of life."