(Arab. Talaq, Khul, Faskh, Turk. Boşanma)
Divorce is the dissolution of a marriage contract that exists between married partners, for whatever reason the dissolution occurs. The assumption in principle is that marriage lasts a lifetime, that the partners work together to face the adversities of life, that they stay together in good times and in bad, share one another’s joys and sorrows and establish a family as a place offering protection and emotional warmth. From this point of view, divorce represents a special case. This is why God and the Prophet Muhammad do not approve of the termination of a marriage for no compelling reason, and out of sheer arbitrariness.
The Qur’an proclaims that men and women have different rights in their relationship with one another (2:228). It calls upon the faithful: ‘And live with them in kindness. For if you dislike them – perhaps you dislike a thing and Allah makes therein much good.’ (4:19). This Qur’anic verse calls for patience in difficult times, and not to set out immediately down the path to divorce. Another verse contains the recommendation, in the event of difficulties, to send an arbitrator from each of the families of the married couple to resolve the problem (4:35). Muhammad also expressed his disapproval with arbitrary divorces, saying that “Among all the permitted acts, divorce is the most hateful to God’ (cf. Abu Dawud). In the case of intolerable circumstances such as insurmountable differences of opinion, unfaithfulness or misdeeds, a divorce may prove unavoidable.
In Islamic jurisprudence, the terminology and practices relating to divorce are still largely based on customary, pre-Islamic, Arabic law. Under the customary practice in effect at the time the husband possessed the right to divorce and, through three enunciations of a verbal repudiation (talaq), could bring about a final separation from his wife. Also customary was that a wife was ordinarily not permitted to re-marry her former husband. She was required to marry another man first. Only after this second marriage had been dissolved as well was it possible for her to remarry her former husband.
The Qur’an brought forth new regulations to prevent wrongful practices and cases of exploitation in this connection; for instance, it curbed the right, common in pre-Islamic society, under which a husband could arbitrarily divorce his wife but then re-marry the same woman later on (2:231). The Qur’an proclaims that a man has the right to no more than two divorces and two new marriages (2:229). Islamic jurisprudence holds that the husband is responsible for providing leadership, support and protection for the family. This is why he is also regarded as the individual in possession of the power to divorce. It cannot be claimed, however, that this is an approach that must be observed at all times. The Qur’an also requires two just witnesses, for instance, to effectuate a divorce (65:2). In this connection, Islamic scholars have been of the point of view that a divorce does not absolutely require witnesses.
A divorce does not involve just one single procedure. As the above-cited Qur’anic verses and the statement by Muhammad on divorce make clear, however, justice is to prevail over arbitrariness, and the rights of both parties are to be protected in the best way possible. If changes in familial and social structures are taken into account, it is appropriate, and more in keeping with views of law and justice in Islam, to relinquish traditional approaches of Islamic jurisprudence relating to divorce, and to introduce new provisions that provide the best possible protections of the rights of both partners.
İsmail Hakkı Ünal