Talāq (Divorce) and its rulings: Shaikh Al-Fawzān’s explanation (Bulūgh al-Marām)

“Kitāb at-Talāq” (The Book of Divorce)

Under this chapter heading the noble great Scholar, Shaikh Sālih al-Fawzān stated:

Separation of marriage is of types: there is separation by way of Khula’ (dissolution of the marriage); there is is separation by way of talāq (divorce); separation by way of death of a spouse; separation due to the apostasy of a spouse. So the types of separation of many. Much has been authored in explanation of each of the categories.

Talāq (divorce) linguistically refers to the untying of something that is tied.

In the Sharee’ah it refers to the untying of the knot of marriage completely or partially. Divorce in Islam is from the virtues of this Religion. That is because if the intended goal of marriage to a particular person is not attained – i.e. that goal for which the marriage is legislated is not attained, then the divorce is a solution to the difficulty. Allah stated in the Quran:

Talāq in Islam, when used at a time of need, is a sound solution just like medicine which when used in the correct manner, benefits with Allah’s permission. But if it is used wrongly, it harms. In divorce, there is a removal of harm from both the husband and wife. It is legislated in Islam and in it there is tremendous wisdom. It is from the virtues of Islam. You find with the Christians that they prevent and forbid divorce except in the case of adultery of the woman – so if she does not commit adultery, then divorce is forbidden for them. So this pushes them into fornication and taking other partners out of wedlock. So if the woman falls short and is deficient with respect to her husband, and he no longer wishes to remain with her, then the Christians forbid him from divorcing her, so he falls into adultery – and Allah’s refuge is sought from that. So they refer to this relationship with another woman as a partner, or girlfriend (or mistress). So, in reality, they have no problem when a husband associates or partners himself with any woman he wants and fornicates with her! Yet he is forbidden from divorce. So they forbid what Allah has permitted and they permit what He has forbidden of fornication and adultery. It may even be the case that a Christian husband is pushed to murder his own wife so as to free himself from marriage! So forbidding divorce leads to two great crimes: adultery so as to satisfy lusts, or the murder of his wife to free himself from marriage so he can marry another. However, if they permitted divorce just as Allah (God) has permitted it, it would free them from these difficulties and problems. Allah stated:

“But if they separate [by divorce], Allah will enrich each [of them] from His abundance. And ever is Allah Encompassing and Wise.” (An-Nisā 130)

So divorce in Islam revolves around the five well-known regulations: Allowable, disliked, forbidden, obligatory, and recommended. So divorce is connected to the five regulations that people are bound by.

There is a divorce that is allowed when there is a need such that there is no desire from either side to continue the marriage and there is no benefit that is attained in continuing the relationship, so in this case divorce is permitted because it provides a solution to their dilemma.

There is a divorce that is disliked in Islam when the marriage is sound, and the relationship is harmonious; then divorce is disliked in this case because it results in the destruction of a household, breaking apart the family and children without a need. So in this case it is disliked. And concerning this, we shall discuss the hadeeth which is the first in this chapter: “The most hated of the permissible matters to Allah is the divorce.”

There is a divorce that is forbidden when it takes an innovated form (forbidden in Islam). Innovated due to the number of pronouncements of divorce or innovated to the time when it was pronounced. This also we shall explain in due course, inshā’Allah.

There is a divorce that is obligatory when the husband takes an oath or a pledge that he will not have sexual relations with his wife. So he waits until four months have expired in this state – so if he expiates for this oath and has relations with his wife, then all is well and good. And if he completes four months and still has no sexual relationship and does not expiate for his oath, then the judge may prevent him if the wife requests that. So then judge would say to him: ‘Either you divorce her or return to her.’ If he refuses then the judge divorces him from her to prevent harm. Allah stated:

As for the wisdom of divorce in Islam then we have seen that is to remove harm and hurt when there is no longer any benefit in remaining married. And for each of the parties Allah will enrich them from his expansive provision:

End.

See: Tas-heelul-Ilmām bi Fiqhil-Ahādīth min Bulooghil-Marām of Al-Allāmah Shaikh Sālih al-Fawzān, Volume 6, pp 5-7. Slightly adapted for ease of reading.