Marriage and Divorce

One must be exceptionally cautious in verifying the conditions and integrals of the marriage contract for fear of what will result if any of these are not satisfied.

Explanation: Knowing the rules of the marriage contract is more important than knowing the rules of many other contracts. The one who does not learn the rules of marriage may think an invalid marriage contact to be a valid one, which consequently generates much harm. For example, sexual intercourse becomes adultery or fornication, and the resulting children are unlawful. Hence, the marriage contract deserves more attention.

Protecting the lineage (nasab) is one of the five general rules that were revealed to all the messengers. Abstaining from having prohibited sexual relations (which may result in having unlawful children) is the way to protect the lineage. These five general rules are:

1. Preserving life
2. Preserving property
3. Preserving sanity
4. Preserving lineage
5. Preserving honor (^ird).

There are conditions and integrals for the validity of the marriage contract. The integrals are five: a guardian (waliyy), two witnesses, a groom, a bride, and the contract statement. According to the school of Imam ash-Shafi^iyy, a woman cannot give herself in marriage. Her guardian (waliyy) does it. Moreover, the marriage is invalid without the presence of two upright (^adl) Muslim male witnesses. A statement must be uttered that establishes the contract instantaneously. In the presence of the two witnesses, the waliyy may say to the man, ‘I now give you my daughter in marriage’, or ‘I now marry you my daughter’, or a similar statement. The man responds by saying, ‘I now accept marrying her’ or any similar statement signifying his accepting to marry the women.

It is a condition that the marriage contract is not limited to a certain period of time. So, if the waliyy tells the man, ‘I now give you my daughter in marriage for a year’, this invalidates the contract. However, if the man intends to end the marriage after a year, but he does not establish it as part of the contract, the contract is valid.

Once the valid marriage contract is conducted, a mahr is involved, whether or not it was mentioned during the contract.

However, it is a sunnah to mention it. A “mahr” is something that the husband is obligated to give to the wife. If it was specified in the contract (i.e., uttered within the marriage contract), then the mentioned amount should be confirmed as her mahr. However, if it was not mentioned during the contract, then she should be entitled a mahr equivalent to what is paid usually to her female paternal relatives, and if not applicable other female relatives and peers, taking in consideration her age, beauty, education, etc.

It is also important to learn the rules of divorce. Many people divorce their wives, without knowing that they have done it. As a result of their ignorance, they continue to live with them in a forbidden manner.

Divorce is of two kinds: Explicit and implicit.

The explicit divorce is achieved through an explicit statement of divorce that has the sole meaning of establishing divorce. Examples are when the man tells his wife, ‘I now divorce you’, or if he is asked, ‘do you establish divorcing your wife now?’ and, to this, he answers “yes”. In this case, there is no need to check one’s intention.

The implicit divorce is achieved through an implicit statement with the intention of divorcing. An implicit statement of divorce bears the meaning of divorce as well as other meanings. If the intention is not of divorce, divorce is not materialized. Examples of implicit divorce statements are, when a man says to his wife, ‘start observing your ^iddah (post-marital waiting period)’, or ‘cover your ^awrah in my presence’, or ‘you are on your own’, or to say after a quarrel, ‘salamun ^alayki’ (I wish you safety, a statement habitually said when one departs from another person). In such instances, only if the person intends to establish the divorce, do those cases constitute cases of divorce.

Moreover, if a man divorces his wife once or twice, then he is entitled to take her back within her ^iddah without needing a new marriage contract. However, if the ^iddah expires, a new marriage contract is needed for them to live together. However, after a man divorces his wife three times, they cannot join again together in marriage unless-after the expiration of her divorce ^iddah-firstly, she consummates her marriage to another man, and secondly, her divorce or widow ^iddah from the second man expires.

Statements of divorce ensue in three divorces when all (three) are uttered at once (at the same moment), unless the second and third divorce statements are uttered to emphasize the first one, then one divorce is in effect. Similarly, if the three divorce statements are uttered separately at one or more occasions, then three divorces are in effect.

The Honorable  Qur’an referred  to this by the saying of Allah in Surat at-Tahrim, ayah 6:

يَا أَيُّهَا الَّذِينَ آمَنُوا قُوا أَنفُسَكُمْ وَأَهْلِيكُمْ نَارًا وَقُودُهَا النَّاسُ وَالْحِجَارَةُ

It means: [O you, who believed, protect yourselves and your families from Hellfire which is fueled by people and stones.] ^Ata’ Ibn Abi Rabah, may Allah raise his rank, explained this ayah as: [To learn how to perform the prayer and fasting, how to sell and buy, and how to marry and divorce.]

Explanation: This verse entails that the one who neglects acquiring the Obligatory Knowledge of the Religion, and neglects teaching that Knowledge to his family, then he has lead himself and his family to destruction. Such a person has not protected himself and his family from hellfire.

Explaining this verse, Imam ^Aliyy said, “Teach yourselves and your families, what is good.” The Tabi^iyy Imam ^Ata’ Ibn Abi Rabah gave a similar interpretation which is mentioned in the text. He became among the most prominent followers of the Companions. He took his knowledge from ^Abdullah Ibn Mas^ud, Ibn ^Abbas and other knowledgeable Companions of the Prophet. He was the teacher of Imam Abu Hanifah. The father of ^Ata’ was a slave, from Africa either Nubia or Abyssinia.