Islam which rejects and is free from all extremities occupies the middle ground between Christianity and Judaism with respect to divorce. It considers marriage a sanctified bond that should not be broken except for compelling reasons. Couples are instructed to pursue all possible remedies whenever their marriages are in danger. Divorce is not to be resorted to except when there is no other solution. In a nutshell. Islam recognizes divorce and yet it discourages it by all means. For example the Qur’an warns: And consort with them in kindness for if you dislike them it may be that you dislike something in which God has placed much good (4:19).
God’s Messenger emphasizes: “Let a believing man not dislike a believing woman. If something in her is displeasing to him another trait may be pleasing”; “Among all of the permitted acts divorce is the most hateful to God” (Abu Dawud. “Talaq.” 3); and: “The most perfect believers are the best in character and the best of you are the kindest to their families” (Canan ibid.. 17:212).
However. Islam recognizes that there can be circumstances in which a marriage will be on the verge of collapse. In such cases a mere advice of kindness or self-restraint is not a viable solution. So what should be done to save the marriage in such cases? The Qur’an offers some practical advice for the spouses takes some measures and gives the spouses the possibility to reconsider their decision.
No Divorce during Menstruation. A man cannot divorce his wife at any time; rather he must wait for a suitable time. According to the law the suitable time is when the wife had cleansed herself after her menstrual or post-childbirth bleeding periods and before they resume sexual relations or when she is not pregnant.
The reason for prohibiting divorce during menstruation or post-childbirth bleeding is that since sexual intercourse is forbidden during such periods a hus-band is given the time and opportunity to withdraw his decision by waiting until his wife is clean and there can be a new atmosphere of love understanding and reconciliation between them. Divorce is also forbidden between menstrual periods (i.e.. “the period of purity”) if the husband has had sexual intercourse with his wife after the end of her previous period.
Repeated Divorce. A man is given three chances on three different occasions to divorce his wife provided that each divorce is pronounced during the time when his wife is in “the period of purity” and he has not had intercourse with her.
He may divorce her once and let the ‘idda pass. During that time the divorced wife must stay in her home (i.e. her husband’s house). She cannot move somewhere else and her husband cannot evict her without a just cause. During ‘idda he must provide for her. This requirement leaves the way open for reconciliation. They have the option of reconciliation without having to remarry. If however this waiting period expires without reconciliation they are considered divorced and therefore each former spouse can marry someone else or remarry each other. If they decide to remarry a new marriage contract is required.
If they remarry the husband has one more chance to divorce his wife as in the first instance. But if he divorces his wife for a third time they can no longer turn to each other unless the woman marries another man and divorces or is divorced by him in normal conditions.
Appointing Arbitrators. The Qur’an advises that two arbitrators be appointed if dissension occurs between the two spouses and its source cannot be determined. One arbitrator should be from the husband’s family and the other from the wife’s family. If that is not possible other people may be appointed depending on what is in the best interest of those concerned. They also agree that when a possible resolution has been devised to reconcile the spouses it should be implemented. However if they disagree their opinions are not to be implemented.
Imam al-Shafi‘i records in his book al-Umm from Ubayda al-Salmani who said:
A man and a woman came to ‘Ali ibn Abi Talib each of them accompanied by a group of people. ‘Ali told them to appoint a male arbitrator from his family and one from her family. Then he said to the arbitrators: “Do you know what your responsibilities are? If you find that you can bring them back together do so. If you find that they should be separated do so.”
Reconciling Honorably or Separating with Kindness. If any reconciliation does not occur and the period of ‘idda ends they have two alternatives if only one or two instances of divorce have occurred: either to reconcile honorably (i.e. to remarry with the intention of living in peace and harmony) or to free the woman and part with her in kindness without argument and harsh words and without setting aside any of their mutual rights.
The Divorced Woman’s Freedom to Remarry. After a divorced woman’s ‘idda ends her ex-husband guardian or anyone else cannot prevent her from marrying anyone she chooses. As long as she and the man who proposes to her follow the procedure required by the law no one has the right to interfere.
The Woman’s Right to Demand Divorce. If the wife chooses to end the marriage she may return the marriage gifts to her husband. This is a fair compensation for the husband who is keen to keep his wife while she chooses to leave him. The Qur’an instructs the man not to take back any of the gifts he has given to his wife unless she chooses to end the marriage (2:229).
Once a woman came to the Prophet upon him be peace and blessings seeking to dissolve her marriage. She said that she had no complaint against her husband’s character or manners but that she honestly disliked him so much that she could no longer live with him. The Prophet asked her: “Would you give him his garden (his marriage gift to her) back?” she said: “Yes.” she replied. The Prophet then instructed the man to take back his garden and accept the dissolution of the marriage (Tajrid al-Sarih. HN: 1836).
In some cases a wife might want to keep her marriage but find herself forced to seek divorce for a compelling reason (e.g. cruelty desertion without a reason non-fulfillment of his conjugal responsibilities). In such cases the Muslim court dissolves the marriage.
As another case a husband can confer the power of divorce on the wife. This delegation of power can be general or limited to certain specified circumstances. To make it irrevocable it is included in the marriage contract as a binding clause that empowers the wife to dissolve the marriage based upon the agreed-upon specified circumstances.