Talaq, khulʿ, fasakh and forms of divorce

1The pillars of talaq and its wording

Talaq is releasing the marriage bond with specific words. Allah permits it as a last resort, not a first choice: "Divorce (that can be revoked) is twice; after that, either take her back in a good manner or release her in a good manner" (Surah al-Baqarah 2:229).

According to the Shafi'i school, talaq has five pillars:

1. The husband pronouncing it — adult, of sound mind and acting of his own will (not coerced).
2. Wife — who are still within the marriage bond, including one in the ʿiddah of a revocable talaq (raj'i).
3. Sighah (wording) — speech, writing, or the understood sign language of a mute person.
4. Intention (qasad) — deliberately uttering the words (not a slip of the tongue or saying someone else's name).
5. Province — the husband has authority over that wife.

2Sunni talaq and bid'i talaq

In terms of timing, scholars divide talaq into:

• Sunni talaq — pronounced while the wife is in a state of purity in which relations have not taken place, one talaq only. This is the way that accords with Allah's words: "divorce them at a time when they can begin their ʿiddah" (Surah at-Talaq 65:1).
• Talaq bid'i — pronounced while the wife is menstruating or in post-natal bleeding, or in a state of purity in which relations have taken place. It is forbidden and sinful.
• Neither sunni nor bid'i — for a wife with whom the marriage has not been consummated, who is pregnant, who has not yet menstruated, or who has reached menopause.

In the hadith of Ibn Umar, who divorced his wife while she was menstruating, the Messenger of Allah ﷺ told him to take her back (Sahih al-Bukhari 5251; Sahih Muslim, Kitab at-Talaq). The majority of scholars of the four schools hold that a bid'i talaq still takes effect although it is sinful; Ibn Taymiyyah and Ibn al-Qayyim held that it does not take effect.

3Revocable (raj'i) and irrevocable (ba'in) talaq

In terms of its effect, talaq is divided into two:

4Triple talaq in a single pronouncement

If a husband says "I divorce you with three talaqs" in one sitting, there are two main views:

5Talaq by message, by phone and in anger

Messages, e-mail and phone. A written talaq counts as indirect (kinayah) in the Shafi'i school — it takes effect if the husband intends talaq. A talaq by phone call with explicit (sarih) wording is the same as one pronounced face to face. The Muzakarah of the Fatwa Committee of the National Council for Islamic Religious Affairs Malaysia has decided that talaq by SMS is valid if it can be proven in the Syariah Court. The usual issue is proof: who actually sent the message and what was intended.

In anger. The hadith "There is no talaq and no freeing of a slave in a state of ighlaq" (narrated by Abu Dawud 2193 and Ibn Majah; graded hasan by some scholars) is the basis of the discussion. A summary of scholarly views:

• Ordinary anger in which he is still aware of what he is saying — the talaq takes effect according to all four schools. Almost every talaq happens in anger.
• Extreme anger to the point of losing awareness and not knowing what he is saying — the talaq does not take effect, as with an insane person.
• Intermediate stage — aware but unable to control himself: Ibn al-Qayyim held that it does not take effect; many other scholars hold that it does. The court will assess the evidence.

6Khulʿ (divorce by redemption)

Khulʿ is a divorce at the wife's request with a payment (iwad) to the husband, usually returning the mahr. Its proof is Surah al-Baqarah 2:229: "then there is no blame on either of them for what she gives to free herself", and the hadith of the wife of Thabit bin Qais, who was told to return his orchard, after which the Messenger of Allah ﷺ told Thabit to divorce her (Sahih al-Bukhari 5273).

• In the Shafi'i school (qaul jadid, that is, Imam Shafi'i's later opinion), khulʿ is a irrevocable talaq (ba'in) and is counted in the number of talaqs. The well-known view of the Hanbali school (and the qaul qadim, Imam Shafi'i's earlier opinion) regards it as a fasakh that does not reduce the number of talaqs, as long as it is not done with the wording or intention of talaq.
• The husband cannot revoke; remarriage requires a new contract.
• The husband is forbidden to make things hard for his wife so that she is forced to buy her release (Surah al-Nisa' 4:19).

In Malaysia, if the husband agrees, the court records the divorce and assesses the amount of the redemption payment; if he does not agree, the court appoints a conciliatory committee, and if conciliation fails the case may be referred to hakam (Act 303 s.49(4), s.47 and s.48, and the equivalent provisions in the state enactments).

7Judicial dissolution (fasakh) — dissolution by the court

Judicial dissolution (fasakh) is the dissolution of a marriage by a judge on the application of the wife (or husband) for a reason permitted by the Shariah. It is not counted in the number of talaqs. Among the grounds provided in Act 303 s.52 and the state enactments:

• The husband's whereabouts have been unknown for more than one year.
• The husband has neglected or failed to provide maintenance for three months.
• The husband has been imprisoned for three years or more.
• The husband has failed to fulfil his marital obligations (conjugal relations) without reasonable cause for one year.
• The husband is impotent, insane, or suffering from a harmful disease.
• The husband mistreats his wife — including physical harm, insults, forcing her into an immoral life, or disposing of her property.
• If the husband has more than one wife, he does not treat her fairly in accordance with Islamic law.
• Any other ground recognised by Islamic law.

8Li'an, zihar and ila'

These three forms are discussed specifically in the Qur'an:

9Divorce procedure in Malaysia

Islamic family law in Malaysia is a state matter. The Islamic Family Law (Federal Territories) Act 1984 (Act 303) and the state enactments have almost the same structure:

1. Divorce application filed at the Syariah Court (Act 303 s.47).
2. The court summons the other party. If both agree, the court may allow the husband to pronounce talaq before the court.
3. If he does not agree, the case is referred to the Conciliatory Committee; if that still fails, the court may appoint arbitrators (hakam) from the families of both parties (Surah al-Nisa' 4:35; Act 303 s.48).
4. The divorce is registered and a divorce certificate is issued.
5. Ancillary claims: ʿiddah maintenance, mutʿah, jointly acquired matrimonial property, custody (hadhanah) and child maintenance.

10Reconciliation (sulh), arbitrators (hakam) and rights after divorce

Before divorce — reconciliation (sulh) and arbitrators (hakam). The Qur'an sets reconciliation before separation: appoint two arbitrators, one from the husband's family and one from the wife's (Surah an-Nisa' 4:35). In Malaysia, the Syariah Court carries this out through sulh officers and, if necessary, hakam. Both are free.

"Divorce is twice. After that — either keep her on in a good manner, or release her with kindness." (Surah al-Baqarah 2:229) The Qur'an does not permit a marriage to be kept going in order to torment.

Rights after divorce — in Malaysia, the details and amounts follow state Islamic family law:

Sources & references