ISLAMIC MARRIAGE CONTRACTS - Peaceful Families Project

Law, Religion & Cultural Practices | Muslim Marriages / Islamic Jurisprudence
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Each imam differs in his approach to approval of
a religious divorce in terms of perceived necessity
and method.
public resources (Magid 2007). In cases with or without abuse, the issue sometimes becomes
complicated as imams and the couple seeking divorce try to determine how an Islamic marriage
contract based within traditional Islamic jurisprudence should be handled in a non-Muslim
country. 76
Each imam differs in his approach to approval of a religious divorce in terms of perceived
necessity and method. Some state that a religious divorce is unnecessary, and that since the
Islamic marriage contract functions as a civil contract under traditional Islamic jurisprudence,
the American civil divorce is sufficient. Other imams favor the husband’s choice on the grounds
that talaq is the right of the husband. Some imams even argue that a civil divorce filed by a wife
is insufficient to finalize an Islamic divorce because the wife would, in effect, be forcing her
husband into agreeing to the divorce; a practice also known as talaq al-mukrah.
Too often, when a wife has grounds for divorce but the husband does not want to divorce her,
imams mistakenly rule the divorce to be a khul’ (wife initiated) divorce, requiring her to return
her mahr (marital gift). Yet in traditional Islamic jurisprudence, khul’ is only implemented when
a wife chooses to leave her husband without grounds. If there are any grounds at all for leaving
the marriage, any type of darar (harm), whether emotional, verbal, physical, sexual, or otherwise,
it should be ruled as a tafriq (judicial) divorce. Even in cases of khul’, some imams, believing
that Islamic jurisprudence requires the husband’s approval, still will not approve the divorce
unless they receive the husband’s consent. 77 In an interview with Imam Mohamed Magid, he
emphasized that khul’ has been the most abused form of divorce, that it puts women at a disadvantage,
and that a civil divorce sufficiently dissolves the Islamic marriage contract. 78 Similarly,
in 2010, Dr. Muzammil Siddiqi, former President of the Fiqh Council of North America, ruled
that an American civil divorce was a valid means of dissolving an Islamic marriage, and that
imams should honor that decision.
Still, due to differences of opinion, special circumstances, and community pressure, many
women feel obligated to obtain an Islamic divorce directly through an imam. Community
approval can be a powerful motivator, and has driven some women to “shop” around for a
divorce from various imams until it is granted (Macfarlane 2010b). Some women who married
outside the U.S. may need the Islamic divorce to be documented as “proof” when returning to
that country, as it may affect her ability to enter or exit the country. 79
76. Issues of concern include whether alimony should be pursued or just the mahr, whether they are double-dipping if they take both, whether the
wife would be violating shar’iah if she takes alimony or half of the property, and whether it is better for custody to be determined in court or
based upon the Islamic school of law that they follow.
77. In cases of abuse, in addition to other reasons, husbands sometimes refuse to consent to the divorce as a means of extending the suffering of
their wives, and to continue maintaining some semblance of control.
78. Imam Mohamed Magid, phone interview, November 2011.
79. In Saudi Arabia, for example, women must have the permission of a male family member to travel. If the Saudi government still believes her to
be married to her ex-husband, he has the power to prevent her from exiting the country.