Islam for Muslims
- THE FAITH OF MUSLIMS
- GOOD DEEDS IN PERSONAL LIFE
- GOOD DEEDS IN SOCIAL LIFE
The Essentials of Marriage & Divorce
30: THE ESSENTIALS OF MARRIAGE AND DIVORCE
Introduction: Marriage in the Muslim society means legal partnership between men and women and thereby closing door to undesirable adultery and homosexuality. The importance of marriage has, however, different levels for different types of candidates. For example, marriage is near compulsory (wajib) for a Muslim who is both willing and able to marry. This urgency for marriage becomes less pronounced (sunnah) for those who can afford it but do not strongly feel for it. Marriage is optional or even discouraged for those who want to marry but do not have money to keep a wife. This third group faces advice to wait patiently for marriage “keeping themselves chaste until God gracefully gives them means out of His Grace” (24:33). The Prophet urged this group to keep on fasting, if needed to keep their sexual desire in control. By and large, 20’s is the preferred age group for marriage compared to 30’s or 40’s.
Three Grounds for Marriage Prohibitions: Blood, Breastfeeding and Marriage (but Not Adoption or Verbal Address): Islam has ‘0’ tolerance for marriage with your nearest relatives like mothers, daughters etc. The purpose is to (a) maintain civility by preventing incest through marrying them while (b) keeping off divine punishment in the form of birth defects that the scientists often link to such wedlock. Islam gives highest priority to family bonding based on blood relations and accordingly, its marriage prohibitions apply to vast network of blood relations involving ascendants, descendants, siblings and many other close relatives (described below). Selected relations based on breastfeeding also count for marriage prohibitions such as between children and the mom who breastfeed them and between the siblings and some other relations based on this. Limited marriage prohibitions also apply between relations of in-laws created through marriage. For example, marriage is forever prohibited between father-in-law and daughter-in-law as well as between son-in-law and mother-in-law. However, such prohibitions do not extent to marriage between brother-in-law and sister-in-law relations.
Islam does not recognize the relations based on adoption and verbal address and therefore such relations are not any grounds for marriage prohibitions. For example, a young girl can marry someone whom she used to verbally call ‘father’ for long (conforming to godfather tradition in parts of South America) as God downplays this practice by saying “Such is your speech by mouths (only)” (33:4). Likewise, if an adult man adopted an orphan baby girl from overseas but years later when she becomes a beautiful woman, he can marry her without any objection from Islamic sharia. “He has not made your adopted sons (or daughters) your (own) sons (or daughters)” (33:4).
List of 14 Relatives Prohibited for Marriage:
Islam brands it “shameful and overly unpleasant, - an abominable custom indeed” to marry close relatives like “women whom your fathers married”, as one example (4:22). Now follows a list of 14 categories of relatives with whom marriage is totally prohibited (4:23/24):
(1) “mothers” including grandmother (through father or mother), great grandmother and step mother.
(2) “daughters” including grand-daughter (through son or daughter), great granddaughter.
(3) “sisters” including full sisters (having same parents) and half sisters (with one parent common).
(4) “father’s sisters” including his full sister and half sister, grandfather’s sisters etc.
(5) “mother’s sisters” including her full and half sisters, grandmother’s sisters etc.
(6) “brother’s daughters” including the daughters of both full and half brothers, brother’s granddaughters and so on.
(7) “sister’s daughters” including daughters of both full and half sisters, sister’s grand daughters etc.
(8) “foster mothers” (who sucked you) and all foster sisters.
(9) “wife’s mothers” including wife’s grandmother through her mother or father.
(10) “step daughters” (daughters born by wife through her prior husband).
(11) “wife of sons” including wife of grandsons.
(12) “wife’s sister” cannot be married until and unless wife is dead or divorced. (Such prohibition of simultaneous marriage applies to aunt and niece as well).
(13) mother or daughter of a woman with whom some sort of sex relation did take place will disqualify for marriage. Under this rule, a legal wife will turn illegal through sex relation with her mom.
(14) “women already married” to someone else are prohibited for marriage and therefore “marry only those among you who are single” (4:24; 24:32). This also establishes that a woman cannot have multiple husbands (known as polyandry) apparently due to fatherhood identification problem in case of her pregnancy.
The above prohibitions must be taken into consideration while choosing your partner for marriage. Except for the above listed 14 relations, marriages between “all others are lawful” (4:24), even if in some cases that might seem unpleasant. For example, the Prophet brokered his daughter Fatima’s marriage with his first cousin Ali ibn Talib (related as her uncle) which was very much legal.
Other Marriage Related Conditions: Some other restrictions for marriage are stated below:
(1) The law of perpetual prohibition applies to stepmother, step daughter, mother-in-law, daughter-in-law who can never me married regardless of spousal death or divorce.
(2) It is very much legal to marry the “daughters of your paternal uncles and aunts, and daughters of your maternal uncles and aunts” (33:50).
(3) A Muslim man “cannot marry an unbelieving (idolater) woman” from other religions like Hinduism or Buddhism “until (she) believes” or converts to Islam, even though her beauty might “allure you” because the “unbelievers invite you to the Fire” (2:221).
(4) A Muslim man, however, can marry “chaste women among the People of the Book (Christian or Jew)” (5:5) without their conversion provided they have perfect faith in one God. This concession is, however, is only a second choice to marrying a believing Muslim woman who is likely to be better partner from religious standpoint.
(5) By contrast, a Muslim woman can marry neither an “unbeliever” man of polytheism nor monotheistic Christian or Jewish man “until they believe” through formal conversion (2:221). This higher restriction for Muslim woman compared to man apparently aims to protect her from potential risk of losing Muslim identity to non-Muslim husband’s powerful influence.
(6) Islam rules against having more than 4 wives at the same time.
Essentials for Marriage: The following are the essential conditions of a valid marriage:
(1) Proposal and Consent: The female candidate will propose about marriage (usually through her representative carrying the proposal) to the male candidate and the latter will consent to that. This conforms to the tradition the Prophet’s consent to the marriage proposal coming from his first wife Khadija. The proposal and consent can also be the other way around: from would-be husband to wife. This event needs to take place at the same time and same place. Any future intention or promise like ‘engagement’ will not fulfill this condition. In essence, the mutual consent of both the partners stands out as an important condition for their future happiness.
Now the question remains: between matrimonial partners and their parents: whose consent is more valuable? In fact, parents raised their children and therefore it will be best if both groups can get along. The advice of experienced parents may be practically helpful for their children making a right matrimonial decision and their wholehearted consent may bring blessings for the children. However, if any parents are too choosy against their marriage (for dowry or other issues) and therefore without marriage if their children slip into adultery, then their own consent will prove more significant than their parental consent. That is why parental consent is ideal but not unavoidable. In particular, if parents force their adult daughter to marry someone she continues to reject as her husband, that marriage stands invalid for violation of God’s prohibition against “inheriting women against their will” (4:19).
(2) Witness: The mutual consent occasion of marriage should be based on “(open) offer”, instead of “taking (illicit) lovers” through “secret contract” (4:25; 2:235). If you want to marry someone, there is nothing wrong with proposing to the candidate directly or indirectly. This mutual consent event should be witnessed by a minimum of two adult male Muslims or one adult male and two females (who may be their relatives or not). Public knowledge about your marriage event is considered important as a stamp of legitimacy to your conjugal living and preventive of any undue suspicion about that.
(3) Aim: It is also important that the principal purpose behind marriage is “desiring chastity (with your legal wife), not lust (or having illegal sex outside marriage)” (4:24). This means marriage is much more than having short term sexual pleasure like through prostitution or temporary ‘muta’ marriage that existed in early Arabian society but later banned by the Prophet. In fact, marriage is comparable to a fortress where the husband and wife get protection from aimless, adulterous life under shelter of their legitimate sex relations through lifelong, responsible partnership. Thus marriage aims at higher purpose of building a durable family bond under the umbrella of love, trust, mutual help and care, producing and raising children in a responsible setting and so on.
(4) Dowry (Mahr): God made lawful your wives “whom you have paid their dowers. Since you derive benefits from them, give them their dowers (at least) as prescribed” (33:50; 4:24). In fact, it is a condition for validating a marriage that you sincerely pay off dowers. For easier compliance, dowry should not be pompously set at higher than the husband’s ability to pay. Instead you should set dowers “according to what is reasonable” (4:25), taking two factors into consideration: one is husband’s economic condition and wife’s social status. Once dower is decided upon, you cannot exert any corrupt influence on your wife to forgive, reduce or delay such payment despite your solvency. You are warned against “taking back least bit of it” (4:20). However, only in extra-ordinary circumstances, you can “mutually agree (to vary it)” (4:24). In this matter, the sincerity of your intention about payment of dowry will be under the microscope of God.
(5) Choice of a Right Partner: Islam emphasizes upon marrying a “virtuous” partner: male or female (24:32). The word “virtuous” on the scale of priority suggests that the partner must be a believer and chaste. The virtue of belief is so important that even “a believing slave woman (equivalent of present day maid servant)” is rated “better than an unbelieving (free) woman (however beautiful she might be)” because unbelieving partner will act like a slow poison toward your spiritual death (2:221). Likewise, a believing chaste male or female is “forbidden” from marrying a partner who was “guilty of adultery or fornication” (24:3) or engages in prostitution. This means “pure women are for pure men and vice versa” (24:26). Other features like age, beauty, education, temperament, family status etc. are secondary but important for matching partnership conducive to lasting relationship.
Most of the above conditions carry compulsive force for validating your marriage. Other formalities like Quranic recitations, blessing the partners with ‘dua’, feeding the guests, etc. are simply social or religious cultures that fall short of obligation. Registration with any public authority is not a condition for the legality of marriage.
Promoting Marriage: As a preventive of sexual crimes, measures should be taken to turn marriage into a popular culture. The guardians should encourage and “arrange the marriage of spouse-less” dependents (24:32) and provide them financial help, if needed. Marriage formalities should be made simplified and expenses be minimized to make it more doable. Wealthy Muslims should come forward with a program of financing the wedding of poor girls, using their ‘zakat’ fund, if necessary. Indirect or face to face contact between matrimonial partners may be arranged through professional marriage organizations, web networks etc. One hindrance to marriage may be removed by reversing the flawed system of dowry (‘mahr’) from bride to bridegroom through social movement. Likewise, wedding expenses may be fairly shared by both the parties, reflecting their economic conditions. Widow marriage should be awarded a place of pride drawing inspiration from the Prophet’s example (Sunnah) of widow marriages. Thus, you should bolster the role of marriage in order to cleanse the society from adultery.
(B) Divorce (Talaq): Islam basically dislikes and discourages divorce “as the most hateful to God among all the legal things” in the words of the Prophet. Nevertheless, it is permissible in exceptional but necessary circumstances such as continued adjustment problems in a loveless marriage or wife’s persistence in major sins like adultery or infidelity etc. Divorce paves the way to changing matrimonial partnership through which God may “bring about some new (better) situation” resolving the above problems (65:1).
Last Resort: Divorce can be applied only as a last resort when all successive attempts at repairing marriage ties bear no fruits. These attempts include “convincing” advice, “refusing to share bed (temporarily)”, light “beating” without “injury”, sparing her face (in extreme cases like being caught in adultery and there is no other way of saving marriage) (4:34; 2:231). Finally a session may be held with “arbiters (relatives): one from his and the other from her family” for negotiation toward “peace” and “reconciliation” (4:35). Divorce is not a one-way traffic from husband since wife also has right to divorce if “cruelty or desertion is feared from husband” and “amicable settlement” fails (4:128).
Proper Method: The right road to divorce is, intending divorce in a calm mind, pronouncing the word ‘talaq’ (divorce) once in each monthly menstruation free (clean) period and doing the same 3 times in 3 successive months will make the divorce conclusive. Prior to this, remarriage between the same couples is possible if you take her back even after second ‘talaq’ as allowed by the ruling “a divorce is permissible only twice” (2:229). After that, if your good sense leads you to take her back, it must be based on “on equitable terms” but not for “inflicting injury” or “taking undue advantage” from her (2:231). Otherwise, if you stick to the divorce through 3 ‘talaqs’ in 3 months or with your inaction in 2nd and 3rd months after your 1st ‘talaq’ , your divorce will be decisive. Then you will formally divorce her “with kindness”, taking “two witnesses from among you” as “evidence before God” (2:229; 65:2). After such decisive divorce, you have no right to “prevent (her) from marrying” someone else (2:232).
Decisive 3rd Divorce: However, after finalization of divorce the above way, reconnection of marriage ties is impossible until (i) “she has married another husband (leading up to sexual union with him)” and (ii) “he has divorced her (voluntarily)” (2:230). This closes any loophole that a repentant first husband finds a reliable man who agrees to a surreal marriage with her on condition of divorcing her untouched the next day, paving way for her remarriage with the first husband.
Irrational Divorce: Islam does not support pronouncements of all 3 ‘talaq’s at the same time in a fit of anger or emotion. Therefore during lifetime of the Prophet, such triple ‘talaqs’ did count as one, in recognition of the importance of giving 3 talaqs separately in 3 (three) menstruation free months in a thoughtful manner. Following his death, however, combined uses of irrational triple ‘talaqs’ became so rampant (defying God’s warning not to treat His rules “as a jest”: 2:231) that the second Caliph ruled it to be a decisive ‘talaq’. This was an intended punishment for playful misapplication of divorce by the husband who cannot retake her without going through tough formalities as described above.
Now the Muslim jurists are divided on this issue. Some see legality in the 2nd Caliph’s ruling of simultaneous triple ‘talaq’ as decisive divorce. Others view three consecutive monthly ‘talaq’ system under the Prophet’s governance as a practicable standard. However, the matter that both the groups totally agree on is that irrational use of combined triple ‘talaqs’ is both wrong and sinful.
Clearing off Dower at Divorce: You must pay off dower if you did not do so at marriage. If you divorce your wife before touching her or fixing her dower, you are expected to give her a “gift of a reasonable amount” according to your means (rich or poor) if you want to be one of those who “do the right thing” in the eye of God (2:236). If you divorce her before sexual union but after fixation of dower, then “half of the dower” will be payable (2:237). There is no waiting period (‘iddat’) if she is divorced untouched (33:49).
Waiting Periods: (i) Divorce: When a wife is divorced by her husband, she cannot remarry without waiting for a period (‘iddat’) required for determination of pregnancy. For divorce, she has to wait up to “3 monthly (menstruation) periods” (or 3 months after menopause) (2:228). During this 3 months’ waiting period, you (husband) will fairly maintain her fairly without “turning them out of their houses” and without “annoying” or “restricting” them (65:1; 65:6). If your divorced wife is found pregnant during this period, then her waiting period extends until her delivery. After the baby is born, she may give suck to it for two years if you do not choose a foster-mother. During this period, you will bear expenses for “food and clothes on equitable terms” for both of them, you shall not “treat her unfairly due to her child” (2:233) and also you must stay away from using her as wife. In case of any problems, “let another woman suckle (the child) on the (father’s) behalf” (65:6).
Zihar (Special Divorce): There is no waiting for different kind of divorce that takes effect from viciously addressing your wife as your mother, as God says “nobody can be (your) mothers except those who gave (you) birth” (58:2). However, such divorced wives can be taken back through any of the 3 types of compensation: (i) “freeing a slave”; or (ii) “fasting for 2 consecutive months” or by default (iii) “feeding 60 poor people” 2 times for a day (58:3/4).
(ii) Death: In case of death of the husband, the waiting period is higher for the widow, enduring up to “4 months and 10 days” (2:234). During this period, if she is found pregnant, the wait will extend “until (she) delivers her burdens” (65:4). Otherwise, after the waiting period, she will be free to be remarried at will. The widow will not only have a definite share in inheritance from husband but he is also advised to “leave a will for one year’s maintenance and residence for (would-be) widow” (2:240).
Reduction of Divorce: The provision of divorce is sometimes improperly applied by the male persons mostly without having necessary knowledge and/or religious piety. As a measure against this, a condition may be legally included in the marriage bond that divorce cannot be given without a good reason to be evaluated by a judicial authority. An enhanced amount of dower payable to wife combined with its legal enforcement backup can work as a deterrent to needless divorce. Promotion of female education is likely to have damping effect on the rate of their unfair divorce by the husband.
Conclusion: It appears that Islam makes it easier to marry for better quality of your life and allows rational divorce for ending unhappy marriage for making life livable.