Although divorce has been widely practiced through Muslim history, it has been often discouraged by those quoting Muhammad’s declaration, found in the hadith compilation of Abu Dawud: “Of all things permitted, divorce is the most repugnant to God.” Although divorce may have been discouraged—one verse (4:35) recommends the appointment of arbiters from the spouses’ families to try to resolve disputes—it was nonetheless allowed. The Qur’an’s dictates and Muhammad’s rulings were solidifi ed by the schools of jurisprudence into three main types: male- initiated repudiation; female- initiated divorce for compensation; and judicial divorce, also usually female- initiated.
The primary form of divorce, talaq, is a unilateral repudiation by the husband. In pre- Islamic Arabia, talaq featured in those marriages where wives joined their husbands’ tribes and where any offspring were part of that tribe. The main Islamic reform was to limit the number of times a husband could pronounce such a form of divorce to three (or, though this was disputed, one “absolute” pronouncement). If a husband made his divorce pronouncement fi nal, the wife had to marry (and be divorced or widowed by) an intermediate husband before she could remarry her original husband. Since talaq was based on an oath—something carrying tremendous weight in Arab society of the time—this form of divorce could also be delegated to the wife herself or made to hinge on some action by the wife or the husband or a third party. Such oaths might be used to restrict wives’ behavior (“If you ever do such- and- such, you are divorced”) but have also been used to restrict husbands’ privileges (“If I ever strike you” or “If I ever take another wife you are divorced”).
Oaths might also be used to induce another to perform an act he or she is unwilling to do: “If you don’t sew my cloth into a new suit by tomorrow, my wife is divorced” might not actually be meant as divorce, but has been taken to actually incur that consequence by most jurists. This form of divorce, where the point of the statement is not the divorce but the intended persuasion or coercion of a third party, was rejected by some early authorities and has been declared null by a number of modern legislatures. In the second form of divorce, khul‘, the wife returns the dower she received at marriage or pays some other mutually agreed compensation in return for divorce. The vast majority of jurists have considered the husband’s consent required for khul‘, limiting its usefulness as a means for wives to get out of marriages. However, twentieth- century reforms in both Pakistan and Egypt have substituted judicial consent for the husband’s agreement. The story of Habiba bint Sahl, who approached the Prophet to obtain a divorce from Zayd bin Thabit, offering to return the orchard he had given her as dower, may be invoked to support khul‘ without the husband’s consent; some accounts show the Prophet accepting the divorce without consulting Zayd. Judicial dissolution has been practiced since the early years of Islam. Falling under various headings including faskh (annulment) or tatliq (divorce pronounced by a judge on the husband’s behalf), grounds on which a wife could obtain divorce from an unwilling husband varied dramatically across the classical doctrines of the legal schools. Modern legal reforms have again adapted and adopted grounds from the more liberal schools to make judicial divorce easier for women to obtain. Even in the premodern period, however, female- initiated divorce was commonplace. It is difficult to judge what percentage of divorces were sought by women, because these cases are overrepresented in court archives.
Talaq pronouncements by men were extrajudicial. Before modern laws requiring government registration of marriage and divorces, divorce would have only come to the court’s attention if there were issues such as unpaid support to resolve. In both khul‘ and judicial divorce, women’s possession of independent resources facilitated their getting out of marriages they did not want. In addition to limiting the number of times a man could divorce and then take back his wife, the Qur’an also instituted a three menstrual-cycle waiting period before a woman could remarry. The purpose of this ‘iddah, which existed in a slightly different form for widows, was to ascertain the paternity of any children resulting from the union. There was, therefore, no waiting period for women divorced before their marriages were consummated. In such a case, husbands only owed their wives half the agreed dower. Today, divorced women may be stigmatized or viewed as less desirable spouses in some areas—this is often the case in North American Muslim communities—but this is not universal. Remarriage has historically been the norm for divorced or widowed Muslim women. A medieval woman’s marital prospects (and dower amount) might be enhanced if she was a virgin, but her family pedigree and economic status were generally of greater import. With the exception of Aishah, married when she was quite young, all of Muhammad’s wives were either divorcees or widows.
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