I’ve never really looked into this matter but since it was commented on at Sonia’s blog, it got me curious with the question why is there discrepancies in terms of who has the upper hand in a divorce?

Islamically, why can a man give his wife a divorce, but the wife cannot? Why does she need to ask for a divorce? (and even then has to faff about with courts etc)

Whats the wisdom behind this kind of a system (refrain from blaming it on “women’s emotional nature” – because thats as nonsensical as saying men aren’t inclined to divorce their wife when in a state of anger). This article states the reasons for men having the upper hand in divorce is tied in into his role of “maintainer” which is further supported by hadith

It is mentioned in a Hadith that the Prophet (Allah bless him and give him peace) said, ‘Divorce (the authority to) is given to the one who hold the branch.’ From the Islamic viewpoint, the right of divorce rest with an adult and sane Muslim male. It is mentioned in Durr el-Mukhtar (Chosen Pearls) and many books of sacred law, as follows, ‘the one who has the right to divorce is the adult and sane husband..’ (vol.2 pg.431). For this reason, a man has either the right to divorce his wife or make someone his representative.

For specific reasons, the Shari’ah has not given this right to women. Hence, a woman cannot divorce her husband, nor make anyone her representative. If a woman divorces her husband or makes the judge her representative or files a petition to divorce him, then the Shari’ah does not recognise nor approve this. The women still remains in the marriage of her husband.

And of course, the woman often depicted as a walking bag of raging hormones is a common “reason” for this apparent skew in control over divorce

The differences in the constitution of a man and woman are manifest. The head takes first place in the man’s decisions and the heart in the woman’s. Reason and emotion are the gifts given to each respectively in their creation……..It is for these reasons that Islam’s Feqh lays down: “Divorce is in the hand of the man.” And it is in consideration of the woman’s delicacy of spirit that the power of ending a shared life is not granted to her.

Womans right of dissolving the marriage is granted and seen to be acceptable in certain situations (usually those that include some level or form of distress)

There are cases in which resort to the court by the wife is statutory. There are also cases in which she can divorce her husband without legal aid, as in cases of certain grave chronic diseases like leprosy or elephantiasis; or because of the onset of lunacy, or of physical defects which prevent marital intercourse, like impotence or castration of the husband. For these Feqh gives the wife haqq-i-faskh – the right to the rescinding or annulment of the marriage, which “faskh” is not the same as the khul’ divorce, and does not involve the same financial renunciations by the wife as khul’ does.

1. the wife can insert a clause in the marriage contract ensuring that

(a) incompatibility of temperament
(b) maltreatment
(c) refusal of maintenance
(d) unannounced journeys
(e) the taking of another wife without consultation

are so provided against that if any of the above five conditions is broken she can approach a lawyer to obtain a divorce for her through the courts.

Note in the above haqq-i-faskh is only applicable if the conditions such as the above are broken. And only then. But depending on the school of thought, women are able to delegate the control (joint, but not sole control) over initiation of divorce

Under traditional jurisprudence, there are other strategies women can use to obtain access to divorce. These include conditional or delegated divorce, where the wife includes a condition in her marriage contract that allows her the right to divorce on her own initiative under certain specific circumstances, or states that she will be automatically divorced if a particular event occurs (such as the husband taking another wife)………..One important reason the issue of fair divorce laws is so difficult to address is that the structure of the Islamic marriage contract presumes the husband’s unilateral control over the right to divorce.

Laying down conditions pertaining to divorce amongst other issues (such as polygyny, maintenance – even concerning employment and emigrating) is recommended in the form of a prenup. Prenup’s however have no Islamic weight to them and are considered extra to the Islamic marriage contract (nikah). However, Islamically since marriage is seen as a contract, the prenup and conditions stated in them if agreed to by both parties becomes legally binding and is thus treated as any other contract.

In Islam the husband may unilaterally divorce his wife at any time, without specifying any reason, and a woman may do the same as long as she acquires this right when contracting her marriage. She can do this by negotiating and demanding that the prospective husband delegate to herself (or her nominated agent) the right to divorce herself at any time without assigning any reason.(5) It should be borne in mind that the procedure relating to the pronouncement of divorce can vary depending upon which school of law is followed by the husband and wife.(6)

It is imperative that women be made aware of the possibilities open to them as part of the marriage contract and of their rights in relation to this. This includes thinking about divorce (as distasteful it may be, it is a real possibility therefore being prepared as opposed to ignoring it is better). It is only via securing these rights and making the most of the opportunities available (if one so wishes) will the message be sent out to men who view their women as pawns in a game of chess, the view that women aren’t easily dispensable and dance at the tunes of men. Perhaps then they, the men and those women who adopt on the role of victim in the name of “sabr” wouldn’t play the “Islam” card as often as they do.

For further information on the various divorce terms, refer to here (because I can’t be bothered to do a proper search for glossary! Please excuse my laziness). Additional information on the types of divorces can be found here

The topic of divorce (divorce rates) is also being discussed here and here

However, why the woman needs to explictly state the right to be able to divorce as opposed to it being her right by default (as it is the man’s) is unclear. I for one haven’t come across anything that explains this, instead praises are sung for women being able to lay this down as one of her conditions as part of the marriage contract. No-one really addresses why its not her right by default, and why full and complete control of anulling marriage is the husbands.

Any one know why this is the case?

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