Marriage is supposed to be a permanent contract. It is never entered into with a time limit. At the same time, it is a contract based upon affection and mutual understanding. Without these qualities, married life becomes impossible. For this reason, Islamic Law has taken great pains to preserve this affection and encourage treating one’s spouse kindly. It calls to gentleness and intimacy. It prescribes arbitration to deal with difficulties. In spite of all this, sometimes the hearts of people are incompatible with each other and foster no affection, so that a return of affection and mutual understanding becomes inconceivable.
In this situation, the only alternative to divorce is conflict and continuous quarreling. This can lead to mental illness, and it places the two people in a state of perpetual suffering. They merely maintain the outward appearance of a marriage in spite of the fact that they want to have nothing to do with each other.
The purposes of marriage and the wisdom behind it are not being realized under these circumstances, for the needed comfort, affection, and cooperation are just not there. The only logical solution in this situation is to terminate the marriage and give both people the opportunity to look for a better relationship elsewhere, so each can enjoy a happier and more peaceful family life.
This happens in two ways: a standard divorce or a khul` settlement where the wife pays compensation.
A. Divorce This is where the marriage contract is revoked either immediately or after a period of time. Thus there are two forms that it can take:
1. Irrevocablee divorce: This is where the husband does not have the right to take his wife back except with a new marriage contract, another dowry, and her consent.
2. Revocable divorce: This is a divorce where the husband has the right to take the wife back for a period of time without contracting with her a new marriage. The reason for this is that the marriage does not actually terminate until the waiting period is completed.
Islam has placed this form of divorce in the hands of the man, but it has taken many precautions with it and restricted it with a number of specific rules. Only one divorce should be given at a time. It must take place after she has completed a menstrual cycle and before he has resumed sexual relations with her, meaning it is not permissible for him to divorce her during her monthly period or if he has had sex with her afterwards. If he has had sexual relations with her after her last period, then he must wait for her to complete another monthly cycle before he can divorce her. This gives the husband a period of time to stay with his wife without divorcing her. Likewise, it gives him the right to take her back for a period of time, so if he regrets divorcing her, he still has the opportunity to resume his family life with her without having to go through any procedures or difficulties.
This period of time is three months for older women who have ceased to have their menstrual cycles as well as for those women who have never had monthly periods. For other women, the length of the waiting period is three menstrual cycles. However, the waiting period for a pregnant woman is up to the time that she has given birth.
The woman, according to many jurists, has the right to petition the courts for a separation during this time if she is suffering abuse from her husband, whether this abuse is physical or otherwise. The courts will offer her right to an immediate, irrevocable divorce at this time if she so wishes.
B. The Khul` Settlement: This is a divorce that occurs where the woman pays to her husband a compensation for being released from the marital bond.
This form of divorce is attested to by the following verse of the Qur’ân: “If they fear that they will not be able to keep to the limits set by Allah, then there is no sin on them for what she gives in payment for her freedom.”
The wisdom behind this option is that it gives the woman a way out if she cannot bear to remain with her husband. Sometimes a woman cannot stand to remain with her husband, but he has every desire to keep her. Thus, Allah has prescribed for her the khul` so that she can free herself from remaining with a man with whom she cannot hope to have a proper family life. Khul` is generally disliked – though not prohibited – unless the husband’s abusive behavior or ill treatment is the cause for her wanting to get away.
Likewise, the Qur’ân sternly forbids a man to mistreat his wife in hopes of taking her money. Allah says: “Do not treat them with harshness so you can take away part of what you have given them.”