Marriage and Divorce in Islam

During the seventh century A.D., Islam realized what the West learned hundreds of years later when it established that marriage was a pact and an alliance between the married couple; that is, a contract, like any other contract, between a man and a woman through which they express their mutual understanding and acceptance of each other. It is not conditional that this contract be concluded in a formal ceremony or in the presence of religious officials.

This contract is concluded in the presence of a Ma'zun  and two witnesses in the manner of what is being done today in most of the Christian countries of the West, with differences and details that do not really affect the essence of the enterprise.

In France, for example, a civil marriage is contracted in the presence of the head of the municipality, or one of his assistants, and two witnesses, in accordance with the terms of a contract acceptable to the couple and signed by the husband and the wife and the two witnesses, and authenticated by the civil servant officer mentioned earlier.

It is this kind of contract - civil marriage - that is acknowledged both legally and lawfully, and from which emanate all other legal acts.

Marriage in Islam, however, has its bases in religion - Quran and Sunna, whereas civil marriage in the West has its bases in positive law proper to each country, and which emanates from the competent legislative authorities.

In the West, marriage used to be contracted in the presence of a member of the clergy, or through him, on the basis of its being primarily a sacrament in its traditional sense.

In the Lebanon, marriage is still considered among Christian factions primarily as a sacrament that can be contracted only in the presence of clergymen. This was the case in Europe for many centuries.

One effect of the religious marriage, especially among Catholics and some Protestant sects, is that its bonds are severed by death only, because divorce is not allowed, for "that which God has joined together cannot be broken off by the human being".

Suffice it to mention that England broke up with the Roman Church and established in 1534 a church of its own, the Anglican Church, because Pope Clement VII  (1523-1534) had refused to ratify the divorce of Henry VIII from his Spanish wife, Catherine d'Aragon, from whom he wanted to separate so that he could marry the Irish Anne Boleyn.

But time, in its inevitable evolution, had made Europe shift from one legislation to another, thus permitting divorce which was initially forbidden in Catholic law, and which later became in civil legislation a routine, considering the easy conditions which must be met in seeking divorce by one spouse or both.

If Islamic Sharia permits the husband to divorce his wife, it also guarantees the wife material rights that protect her against the hardships of life and the slings and arrows of time.

Islam enjoins upon the husband paying the wife a dowry or a "dower," as the Holy Quran calls it : "And give the women (on marriage) their dower as a free gift, but if they, of their own good pleasure, remit any part of it to you, take and enjoy it with right good cheer", [Women : 4].

This dowry is the property of the wife, and neither a testamentary guardian nor the husband may make personal use of it, except with the wife's own accord.

Whatever the case, while Islam allows divorce, it does not encourage it; on the contrary, as the Prophet, who commanded husbands to be good to their wives in more than one Hadith, said, "Divorce is the most abhorrent lawful act to Allah". Likewise, the Quran, in more than one verse, urges the believers to treat their wives kindly and generously :

"Live with them on a footing of kindness and equality", [Women : 19].

"… either take them back on equitable terms or set them free on equitable terms", [The Cow : 231].

"Let the man of means spend according to his means, and the man whose resources are restricted, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what He has given him", [Divorce : 7].

The reality, however, is that divorce is not absolutely dependent on the will of the husband, as Westerners seem to think it is. Islam forbids the believer from behaving with his wife as if he were the master and she the servant. In fact, in Verse 35 of the chapter "Women", the Holy Quran has, in a particular circumstance, put the husband and the wife on an equal footing.

In Islam divorce is permissible, maybe even compulsory, when estrangement between the husband and the wife reaches a level where they can no longer live peacefully together as husband and wife, and when their married life is turned into hell when Allah had initially willed that it be a bliss.

When such a situation, which the Quran has called "Shiqaq" (breach), has been reached, divorce takes place but only after serious attempts have been made to remove that breach :

"If you fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation : for Allah hath full knowledge", [Women : 35].

Thus we see that, in this case, the Quran puts the man and the woman on an equal footing, as we have said earlier, and if the two "arbiters" make an effort to mend fences between the husband and the wife, Allah "causes their reconciliation". This means that what Allah can do, the human being cannot do.

If Islam has entrusted the husband, not the wife, with the right of divorce - that is, the decision to declare and request divorce rests with him - it has, on the other hand, allowed the wife to request divorce from the judge in special conditions and circumstances which, for lack of space, cannot be mentioned and discussed in detail here.

With regard to the husband's right to divorce,  Allah has warned him against hastening to divorce, and commanded him to be patient and judicious when He said : "Live with them on a footing of kindness and equality; if ye take a dislike to them it may be that ye dislike a thing, and Allah brings about through it a great deal of good", [Women : 19].

Likewise, Allah has decreed that  the husband produce the testimony of two people before acknowledging the divorce : "and take for witness two persons from among you, endued with justice, and establish the evidence (as) before Allah", [Divorce : 2].

The presence of two witness arbiters may make the husband want to reconsider, or at least give himself some time during which he can handle the situation properly and gently.

In conclusion, we say that Islam allows divorce with the consent of the couple : if it is divorce that they want, let them have it.

After more than one-thousand and two-hundred years, and only after having traveled a long and bumpy road, the West (Europe and America) has at last come to a conclusion which Islam reached in the seventh century.