Full Right To Divorce? « Inner Reflections Transcribed

Full Right To Divorce?

January 2, 2008 at 2:27 pm | In Gender Issues, Islam, Learning, Men, Muslims, Research, Society, Women | 18 Comments

Following on from Organic’s topic of divorce where recommendations for compiling a pre-nup is being encouraged a set of issues have also arisen. Pre nups are definitely good – they are a means of noting down expectations and general agreements/disagreements which are best being stated and argued over at the beginning than ending up with nasty surprises later down the line.

One issue being discussed is for the woman to stipulate her full right to divorce herself from her husband. Which means without 3rd party intervention (through a judge/qadi), without asking him for divorce or initiating it via someone else (where her father/brother states it). I’ve read about this a lot over the past year, but there are some aspects of it which I find confusing. They are as follows:

If a woman stipulates this condition of divorce then does that mean she strips the man of it? Or does she gain the same right as he does (divorcing her w/o going through a 3rd person). I was under the assumption only one person has the full and complete right
Would she also do it in the same manner as him – as in uttering it thrice. Or would she just state it once and it’d be implemented? Or does it simply mean she can begin divorce proceedings without gaining approval from a 3rd person?
A woman cannot divorce her husband, but can divorce herself from him. Whats the difference? Is there a difference between the two? Because they seem similar to me.
I personally have only come across the deference of right when conditions/promises are broken – such as if the man stated from the outset he would not take on another wife, or he would not emigrate from the city for example, then she has the right to divorce him on that basis. This is known as “tafweed” (I think – correct me if im wrong please).
She can nominate the right to divorce herself from the husband to another agent (usually her brother/father or uncle)
This full right to divorce is termed “mashiat” Info on the above two last points can be read about here

I can’t find any link, article or source that addresses the above issue. I can’t find something that addresses this issue of the woman’s full right to divorce at all – so expecting articles addressing all the above points is pushing it I suppose! None of the Q/A sites address this full right either – they only ever speak about tafweed.

Does anyone have any further into on this? With proper references to texts etc.

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It’s a common practice in Egypt for a woman to stipulate in the marriage contract the right to divorce herself. Usually that means, legally she can go to court and file for divorce and it’s done. She is in a sense, divorcing her husband. According to the local sheikh in my area, he said just uttering the words (like the man does) is enough for the first talaq to take place. And both spouses can have the right to divorce themselves.

In the matter of conditions broken, if a man doesn’t respect the contract, the woman can seek Khlu’ and most likely get it because she put the conditions in her contract and her husband agreed to them.

You have to understand, with Khlu, you must have a valid reason for divorce, otherwise, many Sheikhs will be hesitant to provide it. Although, the Islamic tradition is different. A woman in the time of the prophet divorced her husband because she wasn’t attracted to him or simply didn’t want to be married anymore.

I will have to do some research on the matter. Maybe tonight.

Comment by Organic Muslimah — January 2, 2008 #

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I’ve never come across it before, its certainly not something people I’ve known have done so it seems interesting to know its common in Egypt.

People i’ve spoken to (even those who are learned) haven’t come across it either. So I wonder where/who/what the source of all this is.

Comment by Sumera — January 2, 2008 #

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[...] Read the rest of this great post here [...]

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Also in Egypt, Khulu requires that she gives up her right to mahr and has to often return all of it.

Divorce rate is rising steadily in the Muslim countries (http://achelois.wordpress.com/2007/06/10/the-sharp-rise-in-divorce-rates-in-muslim-countries/)

Comment by Achelois — January 3, 2008 #

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Anisa posted this article on my blog:

“Al-Hibri:The concept of ’ismah, or the wife’s right to it, in a marriage, is a right that a woman negotiates with her groom at the time of the marriage.It is a condition of the marriage contract, which he may accept or reject.If the groom is not willing to accept it, then the woman may not wish to proceed with that marriage.If the groom accepts the condition, then it should be recorded in the contract as a condition of the marriage.Once the condition becomes part of the contract, then the woman does not need the permission of the husband to exercise it.Permission of the husband is no longer relevant.

Q.:In the marriage contract you can pretty much negotiate everything including the fact that you do not want him to get married to other women.”

http://www.minaret.org/azizah.htm

Comment by Organic Muslimah — January 3, 2008 #

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Interesting. At least for those who were clueless before, they now are more knowledgeable re marriage contract.

Comment by Sumera — January 3, 2008 #

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“In the marriage contract you can pretty much negotiate everything including the fact that you do not want him to get married to other women.”

I am assuming while (he) is married. Not after he is divorced . . . right?

Otherwise, he would be one happy bachelor for the rest of his life . . . at his x-wife’s insistence . . .

LOL!

Oh well . . . I am still looking for that future x-wife of mine . . .

Comment by Metin — January 3, 2008 #

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you know sumera I had never heard of thise until organic mentioned this , I never heard that a woman can do this . I just knew she gives back the mahr , if he refuses to divorce her .

Comment by amal — January 4, 2008 #

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metin what on earth did you mean by that !? , I dont agree a woman can put that in the marriage contract , its a weak opinion .

Comment by amal — January 4, 2008 #

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Funny@ Metin!

I think opening the door to this has made me realize how much freedom Islam has granted a woman, and how much pleasure some men enjoy by keeping the fact unknown to them.

Yes, you must enter a marriage with an amount of trust. No matter how many background checks and years you are engaged, you don’t know a person until you are married and living together.

I think including this condition is helpful for many women living in Middle Eastern countries where they are left to hang, even with the option of khlu’!

Anyhow, I’ve linked to this post on my blog.

Comment by Organic Muslimah — January 4, 2008 #

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amal,

I was only quoting from ‘Organic Muslimah’s’ earlier comment, and commenting . . .

Organic M,

“you don’t know a person until you are married and living together’ . . .

If the outcome is divorce upon finding out that the two cannot get along, then does it make sense to live together prior to marriage??

And which is worse? Divorcing after marriage? or Living together prior to?

Maybe the best outcome is for men to admit women rule! . . . and then allow the women to do so . . . even though women make men think that they need men to allow women to do so, when they do so all along . . .

Is everyone confused??

I think I’m just going to have an affair . . . it’s less complicated . . . but I need to be married first, don’t I?

Comment by Metin — January 4, 2008 #

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You definitely confused me Metin!

Comment by Sumera — January 4, 2008 #

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I think kind of conditions aren’t needed in western countries. There is this right for both sides.

But i think it is very personal choice. Depends to this fact that how much that girl knows her future man. How long they were engaged. How much they could be close to each other and be with each other before marriage.

For example i dont put any condition on my marriage. Even i have some problem with mahr. But it is still my personal choice.. I just dont want to make my married life such a deal.. And even using the word of “divorce” at the first day of starting married life gives negative feeling. Like since first am thinking about divorce!!

Comment by Shahrzad — January 4, 2008 #

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Metin:

Quite frankly, having a secret affair in our culture is quite better than having the horrible divorce label you are left with after the fact.

On a more serious note, some people are luckier than others in the marriage department. Some people will just have crappy marriages. I am sure God gives them something better in another aspect of their life.

Pertaining to your earlier comment, the contract is only valid for the length of the marriage, just in case you are confused

Good luck finding your future ex-wife!

Comment by Organic Muslimah — January 5, 2008 #

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OM: Thank you for the clarification. Maybe I was oversimplifying things a bit . . .

And does the affair have to be secret for it to be called an affair?

As for Shahrzad’s comment about starting a marriage with a negative . . . I still think it’s a smart thing to do to sign a pre-nup. Similar to a living will . . . I know death is not really a negative . . . but we just don’t want to think about leaving our earthly possessions . . . and the stress of who to leave what and where and how . . . oh my . . .

oh btw, OM: you seem to think finding a future ex-wife is a ‘lucky’ thing? what are the odds?

I know I know . . . stay away from predictions . . .

Comment by Metin — January 5, 2008 #

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I learnt about a pre-nup in Islamic marriages when I started doing some readings and also from many blogs I read. I think it is the way to go. It does not necessarily mean that you are expecting that to happen, but how many women have been left *stranded* by their so-called husbands(and yes, many of them knew each other before marriage occurred only to change once married). I think it shows the husband that the woman is protected and he shouldn’t *mess* around, hehehehe. I pray that all marriages work and may Allah bless the married couple with love and understanding.

Comment by sf — January 5, 2008 #

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[...] is binding upon utterance. Sure they can include it in their marriage contract but why is it not a basic full right, in that they have it without necessarily stating/requesting it (which is the current way of doing [...]

Pingback by Divorce Clearance « Inner Reflections Transcribed — February 10, 2008 #

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[...] Muslim woman cannot divorce her husband. On the other hand, a man can utter “I divorce you” thrice and by proclaiming so he can be [...]

Pingback by I don’t believe in Muslim/Islamic feminism- Part 1 « Achelois: a retired goddess — April 9, 2009 #

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