Islamic Divorce in the Twenty-First Century: A Global Perspective

By Elisa Giunchi, Nathalie Bernard-Maugiron, Fatima Essop and 7 more

Islamic Divorce in the 21st Century shows the wide range of Muslim experiences in marital disputes and in seeking Islamic divorces. For Muslims, having the ability to divorce in accordance with Islamic law is of paramount importance. However, Muslim experiences of divorce practice differ tremendously. The chapters in this volume discuss Islamic divorce from West Africa to Southeast Asia, and each story explores aspects of the everyday realities of disputing and divorcing Muslim couples face in the twenty-first century. The book’s cross-cultural and comparative look at Islamic divorce indicates that Muslim divorces are impacted by global religious discourses on Islamic authority, authenticity, and gender; by global patterns of and approaches to secularity; and by global economic inequalities and attendant patterns of urbanization and migration. Studying divorce as a mode of Islamic law in practice shows us that the Islamic legal tradition is flexible, malleable, and context-dependent.

• Language: English
• Publisher: Rutgers University Press
• Release date: Sep 16, 2022
• ISBN: 9781978829084

Book preview

Introduction

Muslim Marital Disputes and Islamic Divorce Law in Twenty-First-Century Practice

ERIN E. STILES AND AYANG UTRIZA YAKIN

In a state religious court in Central Java, Indonesia, a young Muslim woman filed for divorce because her husband could not satisfy her sexually. She explained that she and her husband had never had proper sexual relations due to his premature ejaculation. Her husband denied this, but a witness testified to their ongoing marital problems and claimed that the young woman’s husband sent a text message to his wife inviting her to use a cucumber if she was not happy with their sexual relationship. The three-judge panel granted the wife the divorce she requested.

A Muslim woman in Accra, Ghana, approached a community Islamic authority figure known as a malam to ask for his help in saving her marriage. She explained that her husband had divorced her unilaterally out-of-court through the Islamic procedure known as ṭalāq, but she did not know why he had done so and she did not want the divorce. The malam tried to reconcile the couple by asking the husband to rescind his repudiation but he refused. As a malam plays only an advisory role and does not have any official capacity to rule on divorce, the repudiation became binding.

In Patna, India, a Muslim woman twice found herself negotiating her marriage in a nonstate shariʿa court, dar ul-qaza. The first time, her husband sued for her return to the marital home after she had temporarily migrated to the Gulf for employment. In her view, the first court session resulted in a successful negotiation of household economics, and so she later returned with her own suit for divorce, hoping to renegotiate household roles. The young woman was shocked when the qazi, the Islamic judge, granted her the divorce.

A Muslim man in Beirut, Lebanon, argued with his wife on the phone and then told her not to come home because he was going to divorce her. This prompted the wife to file a claim for maintenance against her husband in a state Shiʿa court. He retaliated by refusing to divorce her unless she compensated him with a large sum. She refused. After many months in court, the Shiʿa judged gently urged the couple toward an Islamic divorce known as khulʿ, in which a wife compensates her husband for the divorce.

In Cape Town, South Africa, a professional Muslim woman requested a divorce from a nongovernmental Muslim Judicial Council (MJC) on the grounds of emotional abuse. South African law does not recognize Islamic marriages contracted only through religious ceremonies, so she could not apply for divorce in a state court. The woman’s husband failed to show up for the many scheduled hearings at the MJC. After a year of waiting and a great deal of frustration, the imams leading the council finally granted her a religious divorce through faskh, an Islamic dissolution of marriage in which little or no property changes hands.

THESE FIVE VIGNETTES, which are drawn from this volume, show the wide range of Muslim experience in marital disputing and in seeking Islamic divorces. The chapters span the globe from Ghana to Indonesia, and each chapter explores aspects of the everyday realities of disputing and divorcing Muslim couples in the twenty-first century. Most of the chapters focus on Muslims who are seeking an Islamic divorce of one kind or another. When we use the term Islamic divorce, we refer to situations in which Muslims seek to end their marriages in accordance with Islamic law, regardless of whether the state issues or recognizes the divorce.¹ Today, many Muslims around the world marry and divorce with reference to Islamic law, a dynamic and flexible legal tradition that covers every aspect of Muslim life, including matters of personal status. For many Muslims, the ability to marry and divorce in accordance with Islamic law is of paramount importance. However, as we see from these brief snapshots of divorce practice, their experiences differ tremendously. Together, the chapters consider variations in the lived practice of Muslim marriage and divorce in light of twenty-first-century challenges and developments. The chapters take a close look at the ways in which Muslims around the world—both lay people and legal professionals—engage with and navigate Islamic law and other relevant norms in times of marital breakdown.

The volume takes a truly global approach, and the chapters discuss Islamic divorce in nine different countries in Africa, the Middle East, and Asia. Some of the countries have large Muslim majorities, such as Indonesia and Pakistan, and others have small Muslim minorities, such as South Africa and China. Some countries make provisions for state-supported Islamic courts, such as Lebanon; some recognize different marriage and divorce laws for different communities, such as India; and still others do not recognize the legitimacy of any religious marriage or divorce, such as China. Despite these differences, we see that Muslim men and women in all these countries actively seek out religiously appropriate ways to end marriages. As we will see, there is great variation in how Muslims access Islamic legal options in divorce. In states that incorporate Islamic personal-status law into the state legal system, Muslims may have the option of taking their marital disputes to state-supported courts that apply Islamic law or may be required to do so. Elsewhere, Muslims who desire a religiously valid divorce must seek authorization outside the state legal system.

All the chapters consider divorce as a mode of Islamic law in practice, and together, the chapters show us that the Islamic legal tradition is flexible, malleable, and context-dependent. What is often referred to as classical Islamic law of personal status establishes several types of divorce, most of which are widely recognized by Muslim scholars and lay people. However, as numerous works of scholarship from the last two decades have shown, Islamic law in practice—including practices of divorce—is not and has never been static or monolithic, and institutions like Islamic courts and judiciaries do not exist in a vacuum (Tucker 1998; Haeri 1989; Bowen 1998, 2003; Peirce 2003; Zubaida 2005; Dupret 2007b; Osanloo 2009; Stiles 2009; Otto 2010; Mehdi, Menski, and Nielsen 2012; Giunchi 2014; Clarke 2018; Peletz 2020). Rather, the Islamic legal tradition is flexible and the ways in which divorce laws are interpreted, implemented, and utilized vary significantly over time and across cultures. In practice, people engage with Islamic legal principles in conjunction with other legal rules, local norms, and legally relevant ideas (Bowen 1998). As a result, most socio-legal scholars today argue that Islamic law should be studied as it is practiced in the household, in the community, and in the courtroom.

The chapters in this volume consider divorce in two primary ways. First, many chapters examine processes of disputing to understand why and how divorces happen in particular Muslim communities. These chapters examine changing expectations in marriage involving aspects such as household roles, economic arrangements, labor migration, sexual relationships, and affinal relationships and how the failure to meet these expectations may lead to divorce. Second, many of the chapters consider resolution, arbitration, and adjudication processes in divorce with particular attention to how religious leaders, elders, and judges and other authority figures handle divorce disputes. Although a number of these chapters engage with state-level legislation on divorce, they do not take a strictly law-on-the-books approach to understanding divorce but rather turn an eye to the ways in which legal practitioners like judges understand, interpret, and utilize these laws vis-à-vis their interactions with lay people.²

The chapters thus highlight how lay people and legal professionals navigate complex legal landscapes in pursuing and arbitrating divorce and how lay and professional legal reasoning can be understood in part as a product of their interactions. Together, the chapters show that despite widely varying cultural contexts and differences in the formal status of shariʿa, in everyday practice at the ground level, Muslims—both lay people and legal professionals—develop similarly pragmatic strategies for navigating plural legal landscapes to achieve favorable outcomes in marital dissolution. The construct of legal pluralism was formulated by John Griffiths (1986), who defined it as the legal organization of society which is congruent with its social organization. In other words, it is the presence in social field of more than one legal order, or normative heterogeneity. In their book Legal Pluralism in the Arab World, Dupret, Berger, and al-Zwaini (1999) describe legal pluralism from two different perspectives. From the lawyerly perspective, legal pluralism is the state’s recognition of the existence of various legal sources (religious law, customary law, international treaties, etc.) in legislation or secondary sources in the case of legal absence or uncertainty. From the socio-legal scholar’s point of view, legal pluralism is the parallel existence of a plurality of interacting legal norms that are produced by different and autonomous social fields (see also Moore 1973). Many African and Asian states—including those discussed in this volume—recognize a plurality of personal-status laws, and Muslims also draw on various normative and legal resources that are not recognized by the state. The literature on legal pluralism in Islamic contexts is growing (Benda-Beckmann 1981; Caplan 1995; Bowen 2003; Dupret 2007a; Shahar 2008, 2015; Stiles 2018), and nearly all the contexts described in this book are examples of legal pluralism in that different legal orders and sets of rules are in play. Many of the chapters explore pluralism from the point of view of everyday people in their focus on strategies that men and women pursue when seeking divorce. What is notable about this volume is that we get a sense of how Muslims in various contexts perceive of, understand, and navigate plural legal landscapes from the ground up (Stiles 2018: 106). A number of chapters also explore pluralism from the institutional side by investigating how judges and other legal authorities utilize different kinds of legal sources and norms in adjudicating or arbitrating disputes.

Furthermore, the book’s cross-cultural, comparative look at Islamic divorce indicates that local-level Muslim practices must always be considered in the global context. The chapters discuss Muslims seeking Islamic divorce from Ghana to China, thus moving far beyond the well-studied Middle East and North Africa region. The chapters show that from Mali to Indonesia, Muslim marriages and divorces are impacted by global discourses on Islamic authority and authenticity, global discourses on human rights and gender equity, global patterns of and approaches to secularity, and global economic inequalities and attendant patterns of urbanization and migration. The chapters indicate that their influence is particularly evident in debates over authority in divorce processing and in changing expectations of marital relationships.

Certainly, as Peletz recently argued, Islamic judiciaries might be thought of as global assemblages in that they draw on various global resources (2020). In his examination of the Malaysian shariʿa judiciary over the last three decades, Peletz conceptualized the sharia judiciary as global assemblage—or a creative human agency in the process of assembling, constructing, and creating a heterogeneous repertoire as it is forged in relationship with a wide array of global discourses, practices, incentives, and constraints (2020). We find this application of the concept of global assemblage useful in that it provides a shorthand for the way in which Islamic judicial practice has drawn, and continues to draw, on global influences. While Peletz looks particularly at the rebranding of the shariʿa judiciary and its incorporation of procedural elements of the civil courts (drawing on common law due to its colonial history) and Japanese auditing procedures, the chapters in this volume consider this idea from the perspective of disputants.

The topics of the chapters vary significantly in focus, yet each takes a socio-legal approach in that the law is studied in context and in practice and most chapters draw on ethnographic research to some extent. We view socio-legal studies as a way of seeing and recognizing the mutually constitutive relationship between law and society, which emphasizes the importance of understanding the context of the law and the exploration of social context (Creutzfeldt, Mason, and McConnachie 2019, 3–4). As Baudouin Dupret argued, socio-legal studies seeks to explain law in terms of relationships of force, power, and domination; in terms of modernity and rationalization; or as a symbolic translation of an internalized culture (Dupret 2006, 97). The socio-legal approach is used to study, research, describe, analyze, and evaluate real law—or law in practice—based on either quantitative or qualitative social sciences. The approach focuses on understanding not only what law is, but what it can and cannot do (Menkel-Meadow, 2020, 35–44). In short, socio-legal studies is a generic term that covers all approaches to the law that considers its social dimension.

Types of Islamic Divorce

Nearly all the chapters in this volume look at how Muslims understand and use different forms of Islamic divorce. The essential regulations and principles of marriage dissolution in Islam are laid down in the shariʿa; namely, in the Qurʾan and the hadith. What is often referred to as the classical Islamic legal tradition refers to the development of legal scholarship over a few centuries after the death of the Prophet Muhammad, which led to the emergence of several legal schools of thought, known in Arabic as madhhabs. The Qurʾan authorizes a couple who legally contracted an Islamic marriage to end their marriage if necessary (2:227, 2:231), although this is not encouraged. Indeed, according to the Prophetic tradition, Abū Dāwūd reported a hadith in which the Prophet Muhammad declared that the most detestable of all permitted matter to Allah the Exalted is divorce (Sunan Abu Dawud no. 2178, 2008, 1:20). Although the dissolution of the marriage is permitted, according to the classical tradition it should be exercised only under strict circumstances. The guidelines of the separation between the spouses are explained thoroughly in fiqh (Islamic jurisprudence), including a wide variety of opinions from the different madhhabs across time and place. In Islamic law, the separation between the spouses can be done in many ways; here we address three primary ways: ṭalāq, khulʿ, and faskh.

Ṭalāq

Ṭalāq is a divorce through a husband’s unilateral repudiation of his wife. The term ṭalāq means dissolution. and etymologically it means an elimination or removal of the bond (al-ḥall wa rafʿ al-qayd). The classical Islamic jurists (fuqahāʾ) define ṭalāq as the removal or elimination the bond of the marriage (rafʿ al-qayd al-nikāḥ/izāla al-nikāḥ) that occurs immediately following specific words (such as I divorce you) or similar expressions (such as go to your parents’ home). Ṭalāq is the exclusive right of the man because, according to the fiqh, he paid the marriage gift (mahr, or dower) to his wife and provided her with accommodation and maintenance (nafaqa). Consequently, ṭalāq is often referred to as the man’s divorce. The Qurʾan permits a man to divorce his wife in verse 2:231 and Ibn Mājah reported the following hadith: Divorce belongs to the one who takes hold of the calf (i.e., her husband) (no. 2081, 1952, 672). Referencing the legal scale in the Islamic tradition that designates actions on a scale from obligatory (wājib) to prohibited (ḥarām), the majority of the classical jurists opined that divorce is allowed (jāʾiz) and permissible (ḥalāl). However, it could become obligatory (wājib) if the husband fears he cannot fulfil his duties as a husband or prohibited (ḥarām) if after a divorce his wife would face great trouble (such as committing adultery or living in misery). Accordingly, although ṭalāq is in the hands of a husband, the jurists agreed that this right could only be used under specific conditions.

The divorced wife must observe a waiting period (ʿidda) of three months (Q. 2:228, Q. 65:4). If the husband changes his mind during this period, he can return to the wife without a new marriage contract. The possibility of reuniting during the waiting period is what fiqh terms ṭalāq rajʿiy, a revocable divorce. When the waiting period expires, the ṭalāq becomes an irrevocable divorce (ṭalāq bāʾin baynūna shugrā). In this case, the ex-husband must give a mutʿa (amenity payment or consolation gift) to his ex-wife (Q. 2:241). If a man eventually wants to return to his wife, he must renew his marriage contract with a new mahr (dower). A husband can divorce his wife two times, and he has the right to remarry her (Q. 2:229). If the husband divorces his wife for the third time, the divorce become an irrevocable divorce (ṭalāq bāʾin baynūna kubrā) and the couple can remarry only if two conditions are met: the ex-wife must get married to another man and her new husband must then divorce her (Q. 2:230) (see Ibn ʾAbidīn 2003, 4:423–424; al-Mawsūʿa al-Fiqhiyya, 1414/1993, 29:5; al-Zuḥaylī 1985, 7:356–363; al-Jazīrī 1423/2003, 4:248–281; Encyclopaedia of Islam 2000, 10:151–155).

Ṭalāq is a right that is only available to the husband, and there is no similar unilateral repudiation available to women. Given this inequity in the law, many contemporary states have statutorily attenuated or circumscribed a man’s right to ṭalāq by banning it, requiring judicial approval, or limiting the circumstances under which it is permissible. In Tunisia, men and women have equal legal access to divorce. However in most states, the formal target of such legislation is not the husband’s power of talaq itself, but the arbitrary and unreflective use of this power (Welchman 2007, 109). For example, numerous contemporary states that were part of the Ottoman Empire limit a man’s abilities in ṭalāq by not recognizing the legality of a ṭalāq uttered in inebriation (Welchman 2007; Landry, this volume). Moreover, in many states, legal action has focused on limiting a man’s ability to enact a triple-ṭalāq, or three ṭalāqs pronounced at once, which is in essence an instant irrevocable divorce. In 2017 the Indian Supreme Court determined ṭalāq to be unconstitutional and even deemed pronouncing ṭalāq a criminal offense. Six of the chapters in this volume address practices of ṭalāq in the twenty-first