Divorce is the dissolution of a marriage contract by the husband's pronouncement of divorce or by a court order. At the same time, khul' is the termination of a marriage contract at the wife's request in exchange for financial compensation from the husband.
The linguistic definition of divorce is freedom and release. A woman is divorced, meaning she is released from her marriage and is no longer under her husband's care.
The technical definition of divorce is: the annulment of the marriage contract using a specific expression, or any expression that indicates it. The marriage that constitutes divorce is a valid marriage, with all its conditions and pillars intact.
The principle is that it is solely in the husband's hands. Therefore, some definitions of divorce state that it is the termination of the marriage contract by the will of the husband. It is permissible for the husband to delegate or authorise someone else to divorce, or it is valid without delegation, and this is the sole prerogative of the judge.
Separation between spouses by khul' also occurs at the request of the wife or her guardian if she is unable to continue her relationship with her husband, given the specific and established criteria. Separation between spouses may also occur by the judge's discretion based on several conditions and considerations, resulting in rights for both parties.
Types of Divorce by Ruling:
Divorce is divided, based on its compliance with the rules established by Islam, into Sunni divorce and heretical divorce.
Sunni divorce:
A divorce that occurs according to the rules and conditions established by Islam. These conditions are: it must occur with a single divorce, and during a period of purity (i.e., a period of ritual purity) in which the husband has not had intercourse with his wife. The wisdom behind these conditions lies in allowing the husband to review his wife; he may divorce her once, followed by a return to her.
Heretical divorce:
A divorce that violates the rules and conditions established by Islamic law for divorce. This may include a man divorcing his wife three times with a single utterance, or divorcing her three times in separate instances but in the same session, or divorcing her during menstruation or postpartum bleeding, or during a period of ritual purity (i.e., a period of ritual purity in which he has had intercourse with her). Scholars have unanimously agreed that this type of divorce is prohibited.
Types of Divorce According to the Possibility of Reconciliation: Revocable Divorce:
A divorce in which the husband is permitted to take his wife back during the waiting period following the first and second divorces, without a new marriage contract.
Divorce in Islam
Irrevocable Divorce:
A divorce that immediately dissolves the marriage bond and carries the immediate effects of divorce. It is divided into:
Minor Irrevocable Divorce: This is a divorce that occurs after the end of the waiting period following the first or second divorce. Reconciliation after a minor irrevocable divorce is possible through a new marriage contract.
Major Irrevocable Divorce: This is a divorce that occurs after a third divorce. The husband is not permitted to take his wife back until the waiting period has passed, she has married another man, and she has separated from him through death or divorce.
Then, her waiting period has ended. If this happens, the first husband may take her back through a new marriage contract, as God Almighty says: (And if he has divorced her [for the third time], then she is not lawful to him afterwards until [after] she marries a husband other than him. And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of Allah. These are the limits of Allah, which He makes clear to a people who know.
Islam is keen to preserve and maintain the marital relationship. In the event of divorce, God has permitted a man to take his wife back and return her to his guardianship in certain cases. The divorce may be revocable or irrevocable.)
Divorce in Islam
Pillars of Divorce:
The Hanafi school holds that divorce has one pillar: the formula. The majority believe it has three pillars: the divorcer, the divorced woman, and the formula. Scholars have set specific conditions for each pillar. These pillars are:
The divorcer: The one who issues the divorce, usually the husband or his representative. The divorcer must be legally responsible. Divorce cannot be performed by someone other than a legally responsible person, such as a child, an insane person, or someone whose mind has lost its ability due to intoxication, such as someone who has fainted or is asleep.
The divorced woman: The wife. She must be married to a man in a valid marriage. Divorce cannot be performed by anyone other than the husband, nor by a woman married in an invalid or corrupt marriage. Due to the absence of guardianship.
The formula: This is the wording by which divorce occurs. Intention is not sufficient; rather, there must be wording indicating it.
The intention: This is the intention.
Cases of divorce:
1_It is forbidden if it occurs during menstruation or during a period of purity in which he touched her.
2_It is disliked if it occurs without a reason, even if the situation is sound. This is the category over which the dispute arose regarding whether it is essentially forbidden or disliked.
3_It is obligatory if the two arbitrators, from his family and hers, deem it appropriate.
4_It is recommended, however, if she is not chaste.
5_It is permissible if he does not want her and is not comfortable with bearing her expenses without achieving the purpose of pleasure. An-Nawawi denied this category because, in his view, divorce is not permissible on an equal footing with both parties.
6_A disliked divorce does not count because he did not intend divorce. Scholars have cited the Prophet's saying, "Actions are but by intentions."
7_Divorce due to incompatibility of lineage.
