Dissolution Of The Family PDF

# 6 DISSOLUTION OF THE FAMILY ## A. An Overview As a human historical phenomenon family dissolution or marriage termination is, like marriage contraction, pervasive, persistent, and variegated. In Pitt’s words, “every society has structural means for ending a marriage which cannot fulfill its func...

# 6 DISSOLUTION OF THE FAMILY ## A. An Overview As a human historical phenomenon family dissolution or marriage termination is, like marriage contraction, pervasive, persistent, and variegated. In Pitt’s words, “every society has structural means for ending a marriage which cannot fulfill its function…”¹ Yet as some other contemporaries have summarily put it, “in virtually every society divorce is subject to some social disapproval.”² These observations apply to human society in general, irrespective of time, place, or level of civilization. There are probably as many reasons for marriage dissolution as there are for marriage contraction. These reasons spread over a very wide range, stretching from the unavoidable death of a spouse or involuntary barrenness to the trivial cooking mistake of burning the husband’s food or putting too much salt in it, not to mention the man’s arbitrary dislike of his spouse or capricious preference for another woman who seems more pleasing to him.³ Voluntary dissolution of the family through divorce or similar procedures appears so “natural” or inevitable that almost every normative system, past or present, has made some specific provisions for it. A system that is not adequately responsive in this regard will not prevent the dissolution of the family. Rather, it most likely will be either ignored, abused, modified, or defied. When there is a lack of correspondence between the normative law of the books and the law in action, people engulfed in family crises may be compelled to bypass the written law or commit perjury and enter into collusion in order to obtain a release. Frequently, "spouses seek a divorce because they find it very difficult to continue living with each other, and not, or not primarily, because of any gross wrong-doing on the part of either spouse." Perjury and collusion may become implicitly recognized and even socially sanctioned as devices for terminating a marriage at least *de facto* if not *de jure*. When a code of norms prohibits or severely restricts (a) the absolute divorce, the parties involved can, and they do, resort to (b) the limited divorce, which accords legal recognition to the separate households, but denies the principals the opportunity for legal remarriage, or to (c) the annulment which asserts that, owing to some condition existing at the time of contraction, no valid marriage could have been concluded and therefore the parties are free to marry.” The method of annulment has been widely used, especially by Christians of former centuries. Except for a few, the early Church Fathers condemned absolute *divorce.* But, as Bardis put it, “despite the 'Church’s opposition, a special form of divorce became quite common during the Middle Ages. This was the dissolution of marriage by asserting that a previous clandestine union had been contracted.” The rules covering that special form of divorce were, in Lord Bryce’s words, “so numerous and so intricate that it was easy, given sufficient motive, whether political or pecuniary, to discover some ground for declaring almost any marriage invalid.” ## B. Islam and Marriage Dissolution; Divorce Although marriage dissolution through divorce is *universal* and hence inevitable in principle, the frequency of its occurrence, the reasons for it, and the reactions thereto vary in time and space. In the region where Islām was first preached, marriage dissolution was practiced by the people among whom early Muslims grew up and with whom they made external contacts. Jews, Christians, Arab pagans, and Persian Zoroastrians more or less resorted to the practice, with either the explicit, the implicit, or the mutilated sanction of their respective system. With regard to Hebrew law, in particular, a remark has been made which applies in a general way to the case of Islām. According to Driver, “Hebrew law does not institute divorce, but tolerates it, in view of the imperfections of human nature (... Mt. 19:8), and lays down regulations tending to limit it and preclude its abuse." The phenomenon of marriage dissolution had existed before Islām and has persisted ever since. Indeed, if the contemporary world situation is indicative of any trend, it appears to foretell a continuing increase in divorce rates; the gradual decline in some societies is offset by the continuing rise in others. However, Islām has taken a position between categorical proscription and unqualified liberalization of divorce. It neither instituted the practice nor ignored its reality and occurrence. An outright prohibition would probably remain an “ideal” or merely a state of mind, but hardly a pattern of actual behavior, because absolute self-control is not always attainable. Such a prohibition, then, would seem incompatible with Islamic ideology which, as a matter of principle, prescribes only what is humanly attainable.” On the other hand, any unregulated liberalization of divorce is socially inconceivable and would almost certainly result in chaos, peril, and such traits that are destructive as well as intolerable. Instead of demanding the impossible or catering to the intolerable, Islām adopted a position which has been variously characterized as “lax” and loose by some observers, “rigid” and inflexible, or moderate and perfect by others. Such characterizations, however, seem to be oversimplifications. Divorce or repudiation in Islam is distributed along a continuum encompassing all the religio-legal categories from the one extreme of prescription through the other of proscription. It is obligatory, e.g., where there is no conceivable way of reconciliation or hope for peace between the parties. It is highly recommended or nearly obligatory if the wife is unfaithful or defiantly inattentive to her religious duties. It is forbidden legally and/or religiously during the wife’s monthly course and also during the interim in which an intercourse has taken place. It is strongly undesirable or nearly forbidden where there is no good reason for it, because it would be harmful and Muslims are forbidden by their religion to initiate harm or inflict injury upon one another. Finally, it is lawful when there is a valid ground for it, like recurrent inconsiderateness or failure to realize the objectives of marriage. Even then, it is designated by the Prophet as the most repugnant, in the sight of God, of all lawful things; it is an act which shakes the throne of God as it were. 12 The permissibility of divorce in Islām is thus only one of several religio-legal categories and represents an alternative course of action, which is admissible in response to certain basic human needs. But beyond this general response, there are some peculiar factors bearing on the position of Islām. One of these is that, in Islām, things as such are lawful in principle. They become forbidden or undesirable, obligatory or commendable according to other elements of the situation. Another factor is that the marriage contract in Islām is neither a civil act nor a sacramental vow, but a synthesis of both. Its dissolution therefore is admissible; it is not unrestricted like some civil liberties, and it is not indissoluble like some sacramental vows. Finally, Islām has been characterized as the religion of the middle but straight and well-balanced course. 13 Marriage dissolution through divorce or repudiation is recognized as both real and lawful in principle, however undesirable or repugnant. This recognition has elicited different reactions from different scholars. For some, divorce in Islām is a mechanism of discipline and compassion, a necessary and sensible corollary of the freedom given to men and women to choose their marital partners. 14 For others, Islām’s position has been an object of strong and varied criticisms. In Jeffery’s representative words, “The lightness with which the marriage tie was regarded in early Arabia has carried over into Islām, as evidenced by the facility with which a man may divorce his wives and by the high frequency of divorce which has always characterized Muslim society. The Qur’an grants man complete liberty of divorce and demands of him no justification for divorcing his wife. Thus he can divorce her at his own caprice, but no such facility exists for her.” 15 Criticisms have also been voiced with concern by some Muslims, who unlike their Western colleagues, usually hasten to point out the perfection of the revealed law and attribute any abuse thereof to the individual’s negligence or lack of integrity. As far back as the second decade of Islām, the first half of the seventh century C.E., some people began to misuse their right of divorce. Until then, it had been accepted that if a man told his wife that she was “divorced thrice” the word thrice counted only as one revocable divorce. When some people used this thrice formula carelessly, ‘Umar, the Second Caliph, reacted with indignation. He consulted with his companions and it was decided to consider such a formula as a triple irrevocable divorce. The interesting fact here is that this new provision was conceived as a punitive measure to discipline the divorcing men and protect the divorced women.16 A few centuries later, Ibn Taymiyyah observed that many people were using divorce formulas like ordinary casual forms of oath. But he realized that the breaking of an oath was easily expiable by feeding or clothing ten poor people or by freeing a slave, whereas the breaking of a “divorce oath” meant the breaking of a marriage and a home. So he ruled that such divorce oaths were void and inconsequential as far as the marriage bond was concerned. He also opposed the earlier decision of ‘Umar and other leading schools of law with respect to the “thrice formula,” counting it as one revocable divorce, not three. What Umar had considered disciplinary measures against irresponsible men turned out, with the change of time and conditions, to be harmful to innocent women. Ibn Taymiyyah sought, by his rulings, to redress this situation. 17 Taken as a sociological index, such considerations seem to indicate (1) that Islamic law regards both marriage and divorce as highly sensitive and consequential matters; (2) that people’s reactions do not always correspond with the intent or spirit of the law; (3) that, in the early centuries of Islamic history, the simplicity of divorce was thought of as more harmful to men than women; but (4) that recent centuries have witnessed a general reversal of the effects of divorce. As many Muslims fail in their behavior to meet the moral expectations of their religion, so do some critics appear to fall short of a full appreciation of the logic of social legislation in Islām. It may be difficult for Muslim scholars to comprehend the scientific basis of such assertions as those made by Jeffery, Levy, or Roberts about what they have called the incredible simplicity or unjustifiable facility of divorce in Islām. It seems simplistic to attribute to Muslims, as Roberts does, a higher need for, and a higher frequency of, divorce because of the separation of the sexes and the women's wearing of the veil. The mixing of the sexes, even in modern enlightened times, and the discontinuity of the veil have neither prevented nor curtailed the frequency of divorce. If anything, they seem to have increased its frequency. On the other hand, the wearing of the veil over the face has little or nothing to do with Islām. Besides, it is strongly recommended by the Prophet that prospective marital partners should be enabled to know each other well enough to build their future relations on love and compassion but, of course, without undue familiarity, indulgence, exploitation, or illicit experimentation. 20 Moreover, the fact that women have had less freedom to divorce their husbands does not necessarily mean that it has led to an increase in divorce rates. Rather, it may be one of the effective restrictions on divorce, for it has been observed that, at least in Western societies, the long-run trend in divorce rates is upward and, partly, the increase “is tied to the emancipation and the egalitarian status of women..." 21 ## C. Dimensions of Divorce in Islām To understand divorce in Islām as most Muslims do or believe it should be understood, it is necessary to go beyond the face value of such simplistic misconceptions whether they originate with certain disoriented Muslims or mistaken outsiders. The problem must be examined in the full context of the family structure, the religious precepts, the human situation, and the historical circumstances. This will be our point of departure in the analysis of the various aspects of the problem. ### 1. A Misleading Analogy Divorce, the universally unavoidable phenomenon, which has been called by the Prophet of Islam the most repugnant of all things lawful and the act for which God’s throne shakes, as it were, will not ordinarily be taken lightly. Only those who are contented with superficial forms or simplistic analogies will probably so take it. Divorce in Islām may appear unbelievably easy to one who compares the early simple forms of contraction in Islām with the modern complex bureaucratic procedures, or who mistakes the ideal for the actual, or who makes a “cross cultural” analogy but between the professed moral values of one system and the behavioral practices of another. At any rate, divorce may have been relatively easy and simple, but so was marriage as well as revocation of divorce itself. Within a certain time limit, i.e., “a waiting period,” a divorce could be revoked by saying or doing, initiating or reciprocating, anything indicative of a desire for reconciliation such as a gesture of love, a look of compassion, an expression of regret, or a direct revocation. 22 ### 2. Divorce as a Moral Act Divorce, like marriage, is more than a simple legal bill. It is couched in a context of moral and human principles of a high order. Islām commands marital partners to consort with each other in kindness or to part with kindness. It calls upon them to do everything within their power to maximize the probability of marital success and to minimize the inconveniences of marriage dissolution. Outsiders are forbidden to do anything that may reduce this probability or harden reconciliation and sympathy. It warns against any hasty judgment, enjoins kindness and understanding, and reminds one of how it is possible to dislike something in which God may have placed much good. It assures the parties that if they mean well God will help them to achieve accord; but if they must part, and they separate in good faith without intent of injury or harm, God will enrich them out of His all-reaching bounty. Finally, it portrays the action situation as a stage closely watched by and expectedly oriented to God, whose omnipresence is an essential element of the situation. The actors are assumed to be conscientious and rational. The Qur’anic statements dealing with divorce begin and conclude with strong moral exhortations. The whole question of divorce is enveloped in emphatic moral teachings and thus seems to be regarded primarily as a moral act. 23 ### 3. The Grounds of Divorce The fact that Islām requires no publicity of the grounds of divorce does not necessarily mean that it views divorce lightly. Such grounds are probably entrusted to the individual’s conscience; publicity thereof may not be of any great positive consequence. They can be unspoken, unpronounced, but genuine; they can be pronounced and accepted, but actually false. Perjury and collusion cannot be ruled out completely. In Islām, however, with God being a necessary element in the definition of the action situation, the Qur’an seems to assume that the normal Muslim, man or woman, in most cases and most of the time will act responsibly, conscientiously, and God-mindedly. It assumes, further, that with dutiful authorities, sensitive publics, and sound characters divorce will be used as the very last resort. It is highly unlikely that rational, conscientious individuals will lightly take the separation from their loved or loveable ones, the breaking of their homes, and the inconveniences of divorce (which will be discussed later in this chapter). Man, whose behavior is taken by social science to be oriented to need gratification, will not ordinarily resort to this difficult course of action without some serious reasons. Moreover, as some contemporary Muslim scholars have remarked, disclosing the specific grounds of divorce is no more incumbent upon the wife than the husband where she is the party to seek a divorce. 24 Furthermore, if disputants were required by law to disclose their specific reasons for divorce, they might sometimes feel compelled to commit perjury, enter into collusion, engage in recrimination, reveal embarrassing or harmful facts, and possibly endanger the family institution. Insistence on disclosing the grounds of divorce is unlikely by itself to prevent the irreconcilable, determined parties from somehow terminating their marriages. Also it may well hinder their subsequent rehabilitation and lessen their chances of remarriage. It is probably because of these reasons, and not for the lack of grounds of or insensitivity to divorce, that Islām did not make crucial the publicity of the divorce grounds. As a contemporary scholar has noted, in marriage and divorce motives may be very personal or psychological and therefore difficult to evaluate. If there is evidence of abuse in this respect, the proper authorities must annul the action and redress any attendant harm. 25 While Islām takes for granted the continuity and permanence of marriage, 26 it does not entirely exclude the other possibility. People’s hearts and minds change in different ways for different reasons. The change may be so unavoidable and profound as to lead to estrangement or alienation among the parties involved and thus defeat the purpose of marriage or cause anxiety. It is here in this context that the Qur’an alludes to the general grounds of divorce. It declares that if the parties fear that they will not be able to observe God’s limits or implement His law of marriage, then a divorce may be negotiated. 27 When they must part for good reasons, not only will they be free from guilt, in the sight of good God, but also they will be enriched out of the encompassing bounty of God. 28 The general ground of divorce in the Qur’an is therefore the hopeless failure of one or both parties to discharge their marital duties and to consort with each other in kindness, peace, and compassion. Although this is a question which rests ultimately within the individual’s sense of morality and relationship to God, jurists have developed indices of that failure and specified the major situations which may be accepted in litigation as grounds for a divorce or annulment. Some of these relate to the husband alone; some to either party or to both. Apart from the differences concerning the detailed technicalities, jurists agree in principle that certain situations peculiar to the husband’s position justify the wife’s request for a divorce and the implementation of that request. Long absence without knowing the whereabouts of the husband, long imprisonment, capture by war enemies, refusal to provide for the wife, severe poverty, and impotence are the major circumstances under any of which a wife may, if she so desires, seek a legal release from her marriage bond by way of divorce or annulment, depending on the particular situation. There is another set of circumstances which may involve either party. These are: desertion, serious chronic diseases, insanity, deceptive misrepresentation at the conclusion of the marriage contract, incongruity, mistreatment, and debauchery or moral laxity. If one party is involved in any of these situations, the other may justifiably seek a divorce or annulment. There are also circumstances which necessitate the dissolution of marriage. Some of these are (a) the wife’s acceptance of Islām when her husband remains a non-Muslim, (b) apostasy of a Muslim party, particularly the husband, and (c) established invalidity of the initial marriage contract. 29 It is interesting to note, first, that the wife has **more** grounds for seeking a divorce and is accorded a greater justification than the husband. Perhaps this is a reflection of the religious dictum that women are entrusted by God to men and therefore should be treated with kindness. Also it may be due to the fact that a man with unfulfilled needs may resort to the alternative of polygyny, if he must, but she cannot do the same. He could maintain a “defective,” indisposed or impotent wife without running great moral or financial risks. In fact, attending to such a wife is a charitable virtuous deed. Secondly, when one or both parties are entitled to take the course of divorce, it does not necessarily mean that they must or will definitely use it. Divorce is the very last resort, and if it must take place, the parties are enjoined to be charitable and kind to each other as if the marriage bond were still intact. 30 ### 4. The Timing of Divorce and the Preceding Steps The timing, the preceding steps, and the consequences of divorce, as well as other related factors, already or to be considered, all seem to represent checking points and impose certain limitations on divorce. To begin with, before a divorce takes place as a final legal action, several conditions must obtain. * The husband who wishes to initiate a divorce must be of age and capable of “discrimination,” a state usually measured by reaching the age of puberty. * He must be sane, conscious, alert, and free from excessive anger. If he acts while under the influence of intoxication, his divorce pronouncement is void, according to some jurists; valid according to others, provided the intoxicant is of the prohibited kinds and is used voluntarily. Parenthetically, validation of a divorce pronouncement by an intoxicated, jesting, or thoughtless man is probably intended to discipline the man and awaken him to the seriousness of his action, something perhaps similar to what ‘Umar did with people who took the divorce formula lightly. * He must be free from external pressure. If he is forced to divorce his wife against his will and he, under pressure, so pronounces her, the pronouncement is void, according to all schools of law except the Hanafi, whose position in this respect is regarded by other jurists to be clearly incompatible with the statements of the Prophet. * There must be a clear intention on his part to terminate the marriage. Some schools, however, accept as valid the divorce pronouncements of a jesting and thoughtless or forgetful husband. * Finally, if a divorce is to take place according to the Prophet’s Sunnah, i.e., instructions, the wife must be of age and in a state of “fresh purity.” That is, she must be fully recovered from the menses of the regular menstruation and the usual postnatal fluxes, whose maximum time spans are about ten and forty days respectively. In addition, she must not have had an intercourse at any time during this period of fresh purity, which covers the whole interim between the monthly courses. If she is experiencing her period or the postnatal flux, or if there has been an intercourse after recovery and purity therefrom, the wife’s state is considered impure and there can be no Sunnah divorce. Under these circumstances, a divorce pronouncement is both religiously forbidden and legally void according to the Shi’i and Zahirī schools of law. Other jurists regard it religiously forbidden but legally valid. This difference of opinion is merely formal, for all jurists insist that the man should repeal his pronouncement and keep his wife until she has had a monthly period. After that, she enters a state of fresh purity, completes it without any intercourse and goes through a second monthly period to a second state of purity. At this stage, if no change of heart or mind has taken place, a divorce may be pronounced. 31 This so-called Sunnah divorce requires the wife to be in a state of fresh purity for the following reasons. First, menstruation is called by the Qur’an “hurt”; its term is a difficult time of fatigue, depression, irritability, tension, etc. Much of this is due to the wife’s physical condition, which makes her sexually both undesirous and undesirable, and also to the husband’s unfulfilled needs. Intercourse is forbidden during all such times of impurity. All these factors may lead some parties to act hastily or misjudge each other. It is required therefore that they wait for these periodical difficulties to pass and then act, if they must, under normal conditions. Secondly, when the wife enters her period of purity, she is usually fresh and pleasantly companionable, both desirous and desirable, more considerate and responsive. She has not only the capacity, but also the opportunity to strengthen the marriage tie and command the husband’s love, compassion, and devotion. If, in spite of this, there is a desire to dissolve the marriage it will be, presumably, for some serious reasons other than a passing fatigue, momentary depression, or casual unfulfillment. A divorce contemplated under these congenial circumstances is unlikely to be rash, thoughtless, or irresponsible. 32 Among the factors bearing significantly upon divorce is the light in which Islām views the contraction and dissolution of marriage. Although, as previously shown, marriage is neither a civil act nor a sacramental vow, the Qur’an defines it as a solemn covenant, a God-given blessing, and a means of love and compassion. To maximize the probability of continued marital happiness, without unnecessarily hardening the lot of the marriageables, Islām gave unequivocal preference to piety and integrity as the most commendable criteria of mate selection. It also made the binding ordinance of kindness and compassion the supreme moral principle of marital relations. But since man falls short of complete control over the self and the environment, failures occur and shortcomings upset the marital unison, if only as exceptions to the rules. In response to such circumstances, Islām allows the grieved parties to seek a release from their unfulfilled and perhaps unfulfillable covenant of marriage. Under normal conditions, in a properly concluded and properly maintained marriage, estrangement is unlikely. But if it develops, as it sometimes does, it will be probably only symptomatic of far more serious failures which should be recognized and redressed. Divorce, however repugnant and loathsome in the sight of God, is one prescription which may be administered as the very last resort. It appears, therefore, that the Islamic definition of marriage and divorce was probably conceived as a moral check on the dissolution of marriage. 33 Divorce in Islām is designated as the very last and the most detestable recourse. Before the breaking-point is reached, certain phases in the marital cycle must pass. First, as soon as the marriage is concluded, the partners are enjoined to do their utmost to implement the teachings of Islām, so as to render their married life an abode of bliss and compassion. If this level of harmony is not attained because of some conflict, attention should be paid to the source of conflict. Secondly, should conflict, overt or covert, originate with the wife, the husband is directed to consider the whole situation carefully, to search his own soul, to judge his wife as a total person, to act patiently, responsibly, and charitably. Thirdly, if the conflict becomes chronical and the husband fears the wife's defiant recalcitrance, he is instructed to follow a phased disciplinary course of three steps. He should allow sufficient time intervals and move from one step to the next only after having tried in earnest the previous one and found it of no avail. This disciplinary course has three phases: (i) kind exhortation, (ii) temporary abandonment in bed or deliberate abstinence from the usual sexual intimacy, and (iii) symbolic beating without inflicting any physical harm or injury. Fourthly, in case recalcitrance and conflict persist, the husband may yet consider a severer course of abstention more indicative of his displeasure. This is the course of ‘īlā’ (vow of continence), which means that he may take an oath by God to abstain completely from intercourse with his wife. This was a pre-Islamic practice of indefinite suspense, and it may be likened to the contemporary form of “legal suspensive separation.” In Islām, however, after taking the oath of ‘īlā’, the husband is allowed a maximum period of four months to reconsider the situation and make up his mind. If there has been an improvement sufficient to encourage him to resume his full marital status, a reunion is highly commendable, and the parties are God-forgiven. Otherwise, if the period expires without any significant change, a divorce will be acceptable to God. Fifthly, if the conflict originates with the husband and the wife fears his cruelty, desertion, or aversion, it is their joint obligation to settle their differences together for, as the relevant Qur’anic statement has put it, “peace is best.” She may try in her own way to make peace, and he should respond to her initiative. The two together must cooperate to solve their internal problems between themselves. Sixthly, should these private measures, alternatives, and remedies fail to bring about a viable harmony, one final detour must be taken before the breaking-point of divorce. A family council of two arbitrators representing both sides shall be selected to look into the situation with a view to settling the dispute. If they see any possibility of reconciliation and so recommend, it should be attempted. But if they recommend a divorce as the only solution after the failure of arbitration, then a divorce may be entered into, unless the principals choose otherwise. ==End of OCR for page 1==