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Last Updated: 2012/01/11
Summary of question
What are the conditions of divorce?
question
I am a 23 years old girl living in Melbourne, Australia. I am living here with my family ever since I was five years old. About fourteen months ago, I contracted permanent marriage with my fiancé. After sometimes, I noticed the interference of some of my in-laws and I realized a change in my fiancé's behavior towards me. The change in his behavior affected our relations awfully. Several months have passed since we have not had any communication and relation with each other. My parents have been trying to help solve our problem and bring us together with the help of my fiancé's family.
Two months ago, my family's fiancé referred to the man (Aalim) who had read the formula of marriage in the presence of more than two hundred guests. They had asked him to carry out divorce but he had refrained to do so telling them that he should speak directly to both the boy and girl. That was why the man (he who had recited the formula of marriage) contacted my father and asked him to take the boy and girl to him. My father agreed to take us to him and he contacted my fiancé's father and informed him that the Aalim wanted to see the boy and girl from close. But my fiancé's father had asked if he himself had to go and visit the cleric and my father had told him that they would not go but would let the boy and girl to meet the Aalim in person. When my father took me to the cleric's house where I had to meet my fiancé, I noticed that my fiancé had come along with his father and maternal uncle but my father had left me there alone and he had asked the man's father to let us speak with the Aalim but they did not pay heed and entered the cleric's house. So they started meddling and passing judgments about me. I was then compelled to call my father and ask him to come to the meeting because they had also come. After a few minutes, my father also arrived there and talks went on for a while. The cleric said that there was adequate reason for divorce; he asked my parents and my fiancé's to give us time and help us solve our problem. He asked my fiancé's uncle to speak to my fiancé's family and mediate between us so that the problem might be solved. Unfortunately, they made no effort toward resolving the issue nor did they contact us until two nights ago when my fiancé's father called my father and said that his daughter was free. He told my father that they had gone to the same cleric and conducted the divorce. My father was surprised hearing this. He objected to the arbitrary divorce and asked if I did not have any rights to be given and fulfilled. He stressed that he should have been informed before the divorce. He asked as to who had carried out the divorce and who the witnesses were. My fiancé's father refused to give their names and accused my father of doing business with his daughter!! Now I am requesting you to guide me in this regard. I need you to help me come of this worrying situation. My questions are: 1- Did they have the right to carry out the divorce without my permission and against the consent of my family? 2- Was it not necessary for the Aalim who conducted the divorce to seek my permission or my father's? 3- Is it not one of the conditions of divorce that the girl should not be in her monthly menses whereas, in fact, I was in my period and had a valid excuse? 4- Do I not have any rights on my husband? Am I not entitled to my dower? When the permanent marriage contract was concluded between us in front of almost 200 guests, he agreed to give me a copy of the Holy Qur'an with Uthman Taha script, fourteen branches of Muhammadi flower in the name of the fourteen Infallibles and one hundred full carat Bahar Azadi gold coins. Also, on the request of my fiancé's mother, he agreed to take me for a Hajj journey as a part of the dower. Am I deprived of having all these rights due to not having conjugal relationship with my husband? In fact, we were in the engagement period, and when my father told them that despite going twice to the House of God, my husband had not given me my right, they said that since the marriage had not been consummated and we had not had sexual intercourse, therefore, I was not entitled to anything! I await your scholarly advice in this regard. Thank you in advance.
Concise answer

If you were interested in living with your husband, you should have made every effort to save the marriage. In fact, you could have done something to draw your in-laws' attention and make your husband love you. If you think you made every necessary effort, you should never think that your life will come to an end with such a divorce which you had no alternative but to accept. Do not despair of God's mercy and favor and try to overcome, with self-confidence, the difficulties and hardship which you may face as a result of the divorce. Be sure that God helps the oppressed and He will certainly redeem this loss in your life.

You must note that divorce is a one-sided contract and it is carried out by the husband unilaterally even though the woman may not consent to it. Also, there is no problem in the divorce of a woman with whom her husband has not had sexual intercourse or when she is in her monthly menses. However, if the husband has never had any sexual intercourse with his wife, he must give his wife half of his mahr (dower).

Detailed Answer

Islam considers marriage to be very important and valuable; it has encouraged Muslims in one way or the other to marry. On the other hand, divorce is the most hated and most detested permissible act in God's sight; one can take action for divorce only when there is no other alternative or solution left. Love is the most important asset that a husband and a wife can have in a marriage. God forbid, if a husband and his wife do not love each other, they will live a bitter life together. The man and his wife and all those close to them are duty-bound to help create love between the couple. However, if it becomes extremely unbearable for the couple to live together, they can take action for divorce. If you were interested in living with your husband, you should have made every effort to save the marriage. In fact, you could have done something to draw your in-laws' attention and make your husband love you. If you think you made every necessary effort, you should never think that your life will come to an end with such a divorce which you had no alternative but to accept. Perhaps, there might a better life awaiting you. Therefore, do not despair of God's mercy and favor and try to overcome, with self-confidence, the difficulties and hardship which you may face as a result of the divorce. Always do what is good and be sure that God will assist you. If this had been a failed marriage for you, God will help you succeed in your marriage next time provided that you go back and see what the causes of your failure and difficulties had been in the past. You should try to remove the hindrances and obstacles you were facing in the past.

When it comes to religious and Islamic rules of divorce, we must say that "divorce is a one-sided contract and it is carried out by the husband unilaterally even though the woman may not consent to it." Therefore, a man can divorce his wife one-sidedly in accordance with the rules prescribed by the religion. Late Imam Khomeini (may his soul rest in peace) while explaining the conditions of divorce says: "A man who divorces his wife must be sane, and as an obligatory precaution, he must also be adult, and he should divorce her of his own free will. Hence, if someone compels him to divorce his wife, the divorce will be void. It is also necessary that he seriously intends to divorce. If, therefore, he pronounces the formula of divorce jokingly, the divorce will not be valid."[1]

Also, one of the conditions of divorce is that the woman should not be in her menses but this condition is not applicable to a woman with whom her husband has had no sexual intercourse. Late Imam Khomeini (r.a.) says: "It is valid to divorce a woman even if she is in Hayz or Nifas in the following three circumstances:

1- If the husband has not had sexual intercourse with her at all after marriage.

2- If it is known that she is pregnant. If it is not known whether or not she is pregnant and the husband divorces her in the state of Hayz and later it transpires that she had been pregnant at the time of divorce, there is no problem in the divorce [The divorce is valid.].

3- If the husband is absent, and he is unable or it is difficult for him to ascertain whether or not she is pure from Hayz or Nifas."[2]

If a man divorces his wife before he has sexual intercourse with her, he should give half of the fixed dower to her.[3]

Therefore, if your husband divorces you of free will in the presence of two just (Adil) witnesses, the divorce is valid. Since you have not had sexual intercourse, he must give you half of the dower.

For further information in this regard, you should contact Imam Hussein (a.s) Islamic Center.

 



[1] - Tawzih al-Masail (with annotations by Imam Khomeini), vol.2, pg. 517, issue No.2498.

[2] - Tawzih al-Masail (with annotations by Imam Khomeini), vol.2, pg. 518, issue No.2500

[3] - Nejat al-'Ebad, Imam Khomeini, pg. 378, issue No.7.

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