Divorce and Its Types

Divorce (al-talaq) is described in the Sunnah as the most disliked of the permitted things before Allah, reflecting the Islamic position that while it is legally allowed, it should be resorted to only when a marriage cannot be preserved. Ibn Uthaymin's chapter on talaq in al-Sharh al-Mumti' covers the legal conditions and types of divorce with careful attention to both the protective intent of Islamic law and the rights of both spouses. He opens by noting that the proper form of divorce is to pronounce it during the wife's period of purity (tuhr) in which she has not been sexually approached — this is the sunnah form of divorce that ensures the 'iddah period is properly counted.

The types of divorce are categorized along several axes. First, by revocability: a single or double divorce (talaq raj'i) is revocable — the husband may take the wife back during the 'iddah without a new contract. A triple divorce or a divorce following a second return becomes irrevocable (talaq ba'in), after which the couple cannot reunite without the woman completing her 'iddah, marrying another man, consummating that marriage, and then being divorced or widowed from him. Ibn Uthaymin explains the famous ruling of the triple divorce that is controversial in the contemporary period: if a man pronounces three divorces in one sitting, the Hanbali school and the majority of classical scholars consider this to constitute three separate divorces taking effect simultaneously, rendering the marriage irrevocably ended. He acknowledges the minority view held by some companions and later scholars that three pronouncements in one sitting count as only one, but affirms the relied-upon Hanbali position.

The 'iddah — the waiting period — is one of the most important protective mechanisms of Islamic family law. For a divorced woman whose marriage was consummated, the 'iddah is three menstrual cycles, which serves to establish whether she is pregnant (in which case the 'iddah extends until delivery). For a woman who does not menstruate — whether due to age or condition — the 'iddah is three months. For a pregnant woman, the 'iddah ends at delivery regardless of how soon after the divorce. For a widow, the 'iddah is four months and ten days, as specified in the Quran.

Khul' — divorce at the initiative of the wife through returning the mahr — is treated as a form of divorce in the Hanbali school (others treat it as a contract termination, not a divorce). The wife may request khul' if she dislikes her husband without him having done any wrong, returning whatever she received from him as mahr. The Quranic evidence is: "And it is not lawful for you to take back anything of what you have given them unless both fear that they will not be able to keep within the limits of Allah" (al-Baqarah 2:229). Ibn Uthaymin discusses the conditions under which the husband may refuse the khul' and the role of the judge in compelling it when the wife has valid grounds.

The financial consequences of divorce are also addressed: the right to the full mahr, the muta'ah (a gift of consolation prescribed for a divorce before consummation when no mahr was specified), child custody arrangements, and the obligation of maintenance (nafaqah) during the 'iddah. Ibn Uthaymin explains that maintaining the divorced wife during her 'iddah is obligatory regardless of who initiated the divorce — this is a right of the wife that cannot be waived — and that the father is obligated to provide for his children after divorce.