Untying the Knot: Divorce and Women’s Rights in Islam

Many religions have their own guidelines regarding marriage and what it entails. This information, found in religious texts and documents, tends to cover a wide range of marriage-related topics.

Such topics might include dowries, treatment of spouses, the roles of husbands and wives, polygamy, and even divorce. Islam, the second largest religion in the world, covers the concept of marriage and its dissolution in detail. Under Islamic law, otherwise known as sharia law, divorce is permitted, but there are separate rules regarding divorce for men and women. For a man, the manner of obtaining a divorce from his wife can be as simple as a phrase and a waiting period. For a woman, divorce from her husband is a far more complicated ordeal that tends to involve reimbursement to her husband, or sacrificing child custody and financial support. The infringement on women’s rights regarding divorce has been an issue in recent years, particularly as a result of modernization in Muslim countries and the backlash from conservative members of the public who are trying to maintain tradition. In several of the more conservative Muslim countries, there have been cases of women facing discrimination in the divorce process in the form of outrageous requirements or outright denial of divorce. This paper will discuss the subject of women’s rights regarding divorce within the context of Islamic tradition and modern society, as well as explain the current threat to women’s rights that arises from discriminatory divorce practices. This is an important issue in the Caspian region, as fully four of the five littoral nations are Islamic, with a diverse range in terms of secularism.

Divorce existed long before Islam, but according to Jaafar-Mohammad and Lehmann (2011), “The advent of Islam made the divorce process much more favorable to women” (np). This is because Islamic law allowed women to retain their property and earnings, as well as entitled a woman to support and maintenance from her former husband if she required it. Islam recognizes marriage as a contract and because marriage is a contract it can be dissolved through certain procedures. Islamic law recognizes three types of divorce: ta laaq, khula, and tafriq. Mohammed, edited by Greenberg (2008), explains the differences between the three. The first, ta laaq, is a form of divorce that can only be initiated by the husband. To invoke a divorce, the husband can use a verbal pronouncement to state his intention of divorce. However, the husband must undergo a waiting period based off of his wife’s menstrual cycles – typically three cycles – before the divorce can be considered finalized. The second form of divorce, khula (also spelled khul’), is also known as no-fault divorce. A khula divorce can be initiated by the wife, or by mutual consent of the husband and wife. No-fault divorce means that the person asking for a divorce does not need to prove martial misconduct in order to receive the divorce. Merely being unhappy with the marriage is sufficient grounds for ending the marriage. Through the process of khula, the wife “secures the divorce by paying an agreed sum of money, or by repayment of the dowry or part thereof.” The third form of divorce recognized by Islamic law is tafriq. Tafriq relies on the court to order the divorce “either in the absence of the husband, or upon his refusal to consider the wife’s petition.” Only ta laaq and tafriq entitle the woman to any sort of compensation or maintenance from her former husband.

Khula is referenced in both the Quran and Hadith. One of the famous cases in Islam regarding khula was the story of the wife of Thabit bin Qais. The wife of Thabit bin Oais told the Prophet that she did not like her husband and the Prophet asked her if she would return the garden that he gave her as a dowry. When she replied yes, the Prophet had Thabit take back the garden and divorce his wife (Sahih Bukhari Volume 7, Book 063, Hadith 197). This example of khula revealed that women did not need to show any obvious fault or reason for wanting a divorce. The woman only had to compensate her husband for what he had given her. However, as with most religious teachings, modern interpretations of what khula entails and how it is carried out tend to vary by region and state.

In more traditional societies, khula is viewed as having a negative impact and there are several members of these societies that would prefer to see khula laws repealed. Ghalwash (2011) explains the stance of opposition to khula in Egyptian society, writing, “Islamists particularly single out the khul’ law….They argue that this law does not reflect the values and customs of Egypt’s very traditional society….they agree on the fact that the khul’ law is bad for society and must be repealed” (np). Khula tends to be a woman’s last resort for divorce and societies attempting to repeal khula will undoubtedly create dangerous infringements on women’s rights.

Another reason cited as to why academics believe that women face inequality in the divorce process stems from the financial situation of women. Many women in Muslim countries cannot rely on the court for a tafriq divorce, which would grant them financial compensation from their husband. The reason women cannot rely on tafriq divorce can result from any number of factors, such as they do not meet the criteria for obtaining a divorce, they do not wish to wait the lengthy period it takes to obtain the court-based divorce, or they are unfairly denied a divorce based on a conservative or discriminatory ruling from the judge. Women who cannot obtain a tafriq divorce through the court have the option of filing for a no-fault khula divorce in order to end an unhappy marriage.

Khula divorce requires the relinquishment or compensation of funds from the woman and this can oftentimes serve as a deterrent for women wishing to obtain a divorce. In a study of divorced women in Pakistan, Critelli (2012) found “loss of valuable assets was a frequent consequence for the women, leaving them more vulnerable and with few resources to support themselves…. Several respondents lost inheritances of land and other property from their marriages. Others were embroiled in protracted legal challenges because of their husband’s efforts to deny them child support and maintenance.” Women in Muslim countries are oftentimes financially dependent on their husband and therefore do not have the necessary funds to pay back their dowries as required by the khula process. Furthermore, women who are unable to financially support themselves after a divorce because they have relinquished financial support from their husband through khula must instead rely on their family members for financial support. Many women are reluctant or unable to rely on family members because they do not want to be a burden or they do not have their family’s support after going against the social norm in the first place.

Islamic law is often criticized as being too backwards where women’s rights are concerned. In the case of divorce, Islamic law is actually much more liberal in some regards than the Western audience gives it credit for. Divorce is both allowed and acceptable under Islamic law and either the husband or wife can individually initiate the separation. What is far less liberal is the modern-day interpretation regarding divorce found in a number of conservative Muslim societies. But even then there are non-Muslim countries that are just as bad – if not worse – in matters regarding unfair divorce policies. While no divorce system in the world could be considered a perfect system, it is important to alter policies that are unfair against a certain population group. Ignoring the problem not only undermines the institution of marriage, but can also infringe on aspects of human rights. Ultimately, this may be one of the fundamental social issues that four of the five Caspian states need to make improvement on as they all integrate deeper into modern global society.

Alyssa Benoist
Alyssa Benoist
Alyssa Benoist is the America’s Region Intelligence Analyst for a Silicon Valley Fortune 500 tech company. She graduated with her Master's degree in International Security and Intelligence Studies from Bellevue University in Omaha, Nebraska, USA.