Divorce, Muslim-style
October 16, 2005 | 12:00am
I’m free! Time to move on... with a divorce!" Moro women may say. This is a statement her Tagalog, Ilocano, Visayan and other Filipino ethnic sisters wish they could utter to find liberation in a less complicated process, unlike what Catholics have to go through.
When a woman enters a marriage, the decision is based on love, fidelity, companionship, financial security, and the parent’s compliance. As time and life go on, a growing relationship reveals painful truths that may lead to separation. For the womenfolk of Islam, there are several ways to ease out of a marriage by divorce. Let me show you the different divorce proceedings according to Islamic law, with the guidance of Atty. Suharto Ambolodto, whose help I sought during a break in classes at the National Defense College.
Divorce is the formal dissolution of the marriage bond in accordance with the Philippine Muslim Code, to be granted only after all possible means of reconciliation have been exhausted between the spouses. It may be effected by: repudiation of the wife by the husband (talaq); a vow of continence by the husband (ila); injurious assimilation of the wife by the husband (zihar); acts of imprecation (li’an); redemption by the wife (khul’); exercise by the wife of the delegated right to repudiate (tafwid); or judicial decree (faskh).
Divorce by talaq may be effected by the husband in a single repudiation of his wife during her non-menstrual period (tuhr) while abstaining from carnal relations with her. Any number of repudiations made during one tuhr shall constitute only one repudiation.
After the first or second repudiation, the husband maintains the right to take her back (ruju’) within the prescribed ‘idda by resumption of cohabitation without need of a new marriage. Should he fail to do so, the repudiation shall become irrevocable (talaq bain sugra).
Divorce by faskh is granted by the court, upon petition of the wife, due to: neglect of the husband for six consecutive months; conviction of the husband by final judgment to imprisonment for at least one year; failure of the husband to perform for six months his marital obligation in accordance with the Philippine Muslim Law; impotence of the husband; affliction of the husband with an incurable disease, which would make the marriage injurious to the family; unusual cruelty of the husband in the form of cruel conduct and physical injury, living an infamous life or forcing his wife to live an immoral life, compelling her to dispose of her property or preventing her from exercising her legal rights over it, obstructing her in the observance of her religious practice, not treating her justly and equitably as enjoined by Islamic law; any other cause recognized under Muslim law for the dissolution of marriage by faskh either at the instance of the wife or the proper guardian of marriage.
A talaq or faskh, as it becomes irrevocable, shall have these effects: the spouses may contact another marriage in accordance with the Philippine Muslim Law. The spouses shall lose their mutual rights of inheritance. The custody of children shall be in accordance with law. The wife shall be entitled to recover from the husband her whole dower after the consummation of the marriage, or one-half if effected before its consummation. The husband shall not be discharged from his obligation to give support, and the conjugal partnership dissolved.
Divorce by ila is where a husband makes a vow to abstain from any carnal relation (ila) with his wife for not less than four months, she may be granted divorce by the court after due notice.
Divorce by zihar means the husband has injuriously assimilated (zihar) his wife to any of his relatives within the prohibited degrees of marriage. They shall mutually refrain from having carnal relations until he shall have performed the prescribed expiation.
The wife may ask the court to require her husband to perform the expiation. Should he refuse, she can exercise her right to seek other appropriate remedies.
Injurious assimilation refers to finding similarities of parts of her body with women with whom he is prohibited to marry: his aunt, mother, sister, daughter or nieces, for instance. The spouses shall then be forbidden from any sexual interaction until the husband atones. The expiations may partake of the freeing of a slave, the fasting for 60 days successively, or the feeding of 60 persons. Should the husband refuse to do any of these, the wife may go to court and petition the court to proclaim their divorce.
Where the husband accuses his wife in court of adultery and fails to prove it, a degree of perpetual divorce, divorce by li’an, may be granted by the court after due hearing. In lian, the husband proclaims his accusations of his wife committing adultery four times, with the wife denying it each time. On the fifth time, he will accuse her and invoke the curse of God should the accusation be false. The wife shall then deny the accusation one more time and invoke the curse of God if the denial is false.
The wife may, after having offered to return her dowry or to pay for her release (khul’) from the marriage, petition the court for divorce. The court shall, in meritorious cases and after fixing the consideration, issue the corresponding decree. Such is divorce by khul’.
Should the husband refuse to grant her release (khul’) and is not amenable to releasing her or finds that the dower not sufficient, the wife may bring him to court. The husband may prove the renunciation of dower is not sufficient. He may seek to claim the amount spent for the wedding ceremonies and expenses ancillary thereto. The court shall determine whether the offer is sufficient. After the wife satisfies the amount determined, the court shall issue a divorce.
If the husband has delegated (tafwid) to the wife the right to effect a talaq at the time of the celebration of the marriage, she may repudiate the marriage and it would have the same effect as if it were pronounced by the husband himself. That is divorce by tafwid.
Idda is the period of waiting prescribed for a woman whose marriage has been dissolved by death or by divorce, the completion of which shall enable her to contract a new marriage. Every wife-divorcee is obliged to observe ‘idda as follows: in case of the dissolution of marriage by death, four months and 10 days counted from the death of her husband; in case of termination of marriage by divorce, for three monthly courses; and in the case of a pregnant woman, for a period extending until her delivery. Should the husband die while the wife is observing ‘idda for divorce, another ‘idda for death shall be observed as described earlier.
We may fault our Muslim brothers for apparently having an almost unbridled license to divorce, to forsake and repudiate his marriage with his wife. But this right is also available to the wife. As we have seen, when the wife is already unhappy with the marriage, she can offer to return or renounce her dowry. Should he refuse, she can go to court and ask for a divorce. Should the husband be cruel to her, she can go to court and ask for a divorce.
It may well be good to remember that even when love is in its full bloom, a bride may ask the husband for tafwid from the delegated authority to enable her to declare divorce whenever she feels doing so.
"In closing, marriage is a social contract," quotes Atty. Suharto Ambolodto of Maguindanao. "It is a social contract in as much as it provides for the basic infrastructure of our society – the family – legitimizing the sexual and familial relationships of the membership by providing matrimonial, filial, and patrimonial duties, rights and obligations."
Often, love and mutual affection are the fundamental bases for marriage and the establishment of a family, with the hope of procreation. When love and happiness have dimmed, there is no point in continuing with the contract. It is the time for both parties to pursue separate directions, hoping to love, be loved and be happy elsewhere – an option denied us and allowed the Muslims.
But who said life was ever fair?
When a woman enters a marriage, the decision is based on love, fidelity, companionship, financial security, and the parent’s compliance. As time and life go on, a growing relationship reveals painful truths that may lead to separation. For the womenfolk of Islam, there are several ways to ease out of a marriage by divorce. Let me show you the different divorce proceedings according to Islamic law, with the guidance of Atty. Suharto Ambolodto, whose help I sought during a break in classes at the National Defense College.
Divorce is the formal dissolution of the marriage bond in accordance with the Philippine Muslim Code, to be granted only after all possible means of reconciliation have been exhausted between the spouses. It may be effected by: repudiation of the wife by the husband (talaq); a vow of continence by the husband (ila); injurious assimilation of the wife by the husband (zihar); acts of imprecation (li’an); redemption by the wife (khul’); exercise by the wife of the delegated right to repudiate (tafwid); or judicial decree (faskh).
After the first or second repudiation, the husband maintains the right to take her back (ruju’) within the prescribed ‘idda by resumption of cohabitation without need of a new marriage. Should he fail to do so, the repudiation shall become irrevocable (talaq bain sugra).
Divorce by faskh is granted by the court, upon petition of the wife, due to: neglect of the husband for six consecutive months; conviction of the husband by final judgment to imprisonment for at least one year; failure of the husband to perform for six months his marital obligation in accordance with the Philippine Muslim Law; impotence of the husband; affliction of the husband with an incurable disease, which would make the marriage injurious to the family; unusual cruelty of the husband in the form of cruel conduct and physical injury, living an infamous life or forcing his wife to live an immoral life, compelling her to dispose of her property or preventing her from exercising her legal rights over it, obstructing her in the observance of her religious practice, not treating her justly and equitably as enjoined by Islamic law; any other cause recognized under Muslim law for the dissolution of marriage by faskh either at the instance of the wife or the proper guardian of marriage.
A talaq or faskh, as it becomes irrevocable, shall have these effects: the spouses may contact another marriage in accordance with the Philippine Muslim Law. The spouses shall lose their mutual rights of inheritance. The custody of children shall be in accordance with law. The wife shall be entitled to recover from the husband her whole dower after the consummation of the marriage, or one-half if effected before its consummation. The husband shall not be discharged from his obligation to give support, and the conjugal partnership dissolved.
Divorce by zihar means the husband has injuriously assimilated (zihar) his wife to any of his relatives within the prohibited degrees of marriage. They shall mutually refrain from having carnal relations until he shall have performed the prescribed expiation.
The wife may ask the court to require her husband to perform the expiation. Should he refuse, she can exercise her right to seek other appropriate remedies.
Injurious assimilation refers to finding similarities of parts of her body with women with whom he is prohibited to marry: his aunt, mother, sister, daughter or nieces, for instance. The spouses shall then be forbidden from any sexual interaction until the husband atones. The expiations may partake of the freeing of a slave, the fasting for 60 days successively, or the feeding of 60 persons. Should the husband refuse to do any of these, the wife may go to court and petition the court to proclaim their divorce.
Where the husband accuses his wife in court of adultery and fails to prove it, a degree of perpetual divorce, divorce by li’an, may be granted by the court after due hearing. In lian, the husband proclaims his accusations of his wife committing adultery four times, with the wife denying it each time. On the fifth time, he will accuse her and invoke the curse of God should the accusation be false. The wife shall then deny the accusation one more time and invoke the curse of God if the denial is false.
The wife may, after having offered to return her dowry or to pay for her release (khul’) from the marriage, petition the court for divorce. The court shall, in meritorious cases and after fixing the consideration, issue the corresponding decree. Such is divorce by khul’.
Should the husband refuse to grant her release (khul’) and is not amenable to releasing her or finds that the dower not sufficient, the wife may bring him to court. The husband may prove the renunciation of dower is not sufficient. He may seek to claim the amount spent for the wedding ceremonies and expenses ancillary thereto. The court shall determine whether the offer is sufficient. After the wife satisfies the amount determined, the court shall issue a divorce.
If the husband has delegated (tafwid) to the wife the right to effect a talaq at the time of the celebration of the marriage, she may repudiate the marriage and it would have the same effect as if it were pronounced by the husband himself. That is divorce by tafwid.
It may well be good to remember that even when love is in its full bloom, a bride may ask the husband for tafwid from the delegated authority to enable her to declare divorce whenever she feels doing so.
"In closing, marriage is a social contract," quotes Atty. Suharto Ambolodto of Maguindanao. "It is a social contract in as much as it provides for the basic infrastructure of our society – the family – legitimizing the sexual and familial relationships of the membership by providing matrimonial, filial, and patrimonial duties, rights and obligations."
But who said life was ever fair?
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