Until Death Do Us Part?

Divorce parties among Bidan communities across north-west Africa stoke intrigue in Muslims from other parts of the world where divorce is shunned. These events, even at times arranged by a suitor interested in a divorced woman, celebrate a woman’s “return to marriageability.”[1] Sometimes as lavish as weddings, this tradition understands divorce not as the end of the world but rather an opportunity for a fresh start (or at least a nice way to announce that a woman is now available). 

On the other hand, Konstantina Isidoros offers a telling note in her book, Nomads and Nation-Building in the Western Sahara: Gender, Politics and the Sahrawi

Although data on family history indicates that divorce was common in the past, one of the romantic, foreign ‘solidarity’ discourses about the Sahrawi is the ease in which they divorce today, and of women’s celebratory ‘divorce parties.’ The Sahrawi co-opts and simulates such commentaries to showcase their ‘civilized modernizing’ society for the obvious political reasons. However, I did not see such an essentialized divorce party during fieldwork, and the womenfolk spoke of it more indifferently.[2] 

These divorce parties are often framed to exemplify a liberal quality of Bidan culture, removed from mainstream, supposedly restrictive Islamic postures. But is there anything theological about the way the female divorcee is looked down on by certain cultures in the Muslim world? 

An article published by Yaqeen Institute outlines certain norms that were present during the age of pre-Islamic ignorance, 

Prior to Islam wives had no recourse to divorce. In contrast, husbands could divorce at will, and marry as many women as they wanted without limit. A woman could hence be kept in limbo, without physical or emotional maintenance, and unable to leave her unfortunate situation through divorce.[3]

Yet, according to Egyptian-Arab feminist Leila Ahmed, 

Islam, with its merchant economy, transformed women who had lived relatively unfettered during the jahiliyya period (period preceding the coming of Islam) into the property of their families and husbands.[4] 

Progressive theory has largely been the reason why “scholars continue to search the ‘past’ for explanations for the present subjugation of women” [4] and “the role of Islam in this subjugation remains central to Middle Eastern women’s studies.” [4] 

The accepted notion that divorce seldom arose in medieval times because women were under crippling male authority is faulted for multiple reasons. Amira El-Azhary Sonbol responds to this misconception by saying, 

It is a mistake to believe that the sharia code applied by nation-states in the modern period is simply a vestige of the past and hence to regard traditional laws as the cause of subjugation are located in the modern reforms and the handling of personal laws.[4] 

If Ahmed were to compare court records in Egypt circa 1857 versus ones that date back to 1959, her assumption that “modern legal reforms, with the introduction of nationally applied secular and “rational” laws modeled after European ones, brought about positive changes” [4] would be shattered. On the contrary, violence has increased significantly within the household and women have become less educated on their rights and therefore less equipped to confidently navigate the legal system. The question remains: If the right to divorce was established by Islamic revelation, then why do Muslim women today still struggle with the process, and even their image after the fact?

As eloquently said by Sonbol in her book Women, the Family, and Divorce Laws in Islamic History

Nothing exemplifies more the contradictions of modern state patriarchy than the fact today Muslim women can aspire to becoming the heads of governments, yet they face often insurmountable difficulties in divorcing their husbands.[4] 

It is true that women continue to be left in limbo despite the guidelines sent down by Allah that are designed in the interest and well-being of both spouses. While Islam seeks to avoid divorce in valuing the strong covenant (al-mithaq al-ghaliz) made between two people, it does not encourage that which is harmful. Much less does it equate divorce to adultery as is the case in traditional Christianity. “The words of the Prophet ﷺ serve to emphasize the significance of healthy marriages; that said, once a marriage is threatened by any number of factors (e.g., impotence, domestic abuse), Islamic law provides recourse for either spouse to seek a divorce.”[8] In Ottoman times for instance, under Ḥanafī jurisdiction, if husbands ‘broke their vows’, this would easily result in divorce. 

Even in a place like Mauritania, for example, where these sometimes romanticized or envied divorce parties take place, “Divorce rights, variable by case, are not necessarily reciprocal. In some cases recounted, women requesting divorce were obliged to reimburse their bride price. In cases where women requested divorce, children of all ages became the responsibility of men. Through divorce, a woman risks losing her children, her land, housings, and savings. Finally, she risks social stigma.”[6] 

This goes entirely against fiqh, that positsupon divorce, for example, women are not only entitled to financial maintenance until the end of their waiting period (which can last up to a few years if they are pregnant and/or breastfeeding), but also their stipulated deferred dowry as well as a suitable gift (mutʿah).”[8]

The Quran also states (4:20 Sūrat l-Nisāa) strong disapproval of slandering one’s wife to divorce and take back the great amount of presents (qintar or ‘treasure’) handed to her, explicitly calling it an act of injustice and manifest sin.

Modern Law and Divorce

Many people are pessimistic about divorce in Muslim societies, and they can’t be entirely faulted. Taboos and incidences of injustice, whether interpersonal or legal, make it hard for many women to gain access to a right otherwise guaranteed by Islam. But the discourse surrounding the topic has largely put a vague notion of “sharia law” to blame. Sonbol writes, 

The sharia that came into being after the modernization of law and the reform of courts differed from the previous one in that it was designed to favor the new hegemonic order coming to power as part of the nation-state structure.[4] 

It is thus necessary to examine unethical approaches and sour attitudes regarding divorce among Muslim societies or nations not under the presumption that they are an extension of centuries-old Islamic practice, themselves a sequel to so-called “controversial Quranic passages,” but rather as a direct result of mixing laundry.

It is thus the case that, for some places, the implementation of modern civil law has played a part in establishing hurdles. With the introduction of new Moroccan family law, “Sahrawi women who want to divorce are now obliged to face court rather than simply obtain a letter of repudiation from an Islamic official. While Sahrawi women preferred to arrange the divorce within the couple, Moroccan women’s rights became more regulated under the new system.”[7] 

State transformation meant standardizing, codifying, reforming, and modernizing family and personal laws. This process was more or less slow and steady; the pre-modern state first extended its authority “by creating the position of certified notary public (ma’dhun) to officiate in marriages and divorces and to ensure that government-issued standardized documents and procedures are followed and transactions are recorded with the state. These responsibilities had earlier been the province of local shuyukh who followed the contractual traditions of their various communities, while at the same time assuring that contracts and divorces were legally recorded.”[4] Wael Hallaq argues that the preservation of qadi court ledgers is thanks to the discontinuation of a privately-owned loose folio system and storing them in centralized locations instead.[5] In creating the nation-state, however, especially at the onset of independence for many Muslim countries, control rapidly took new shape.

Early twentieth century reforms on family law also had major bearings on marriage and divorce in Muslim lands under colonial rule, thereby affecting how these aspects of law evolved. Suddenly “switching back” to an Islamic paradigm as a new kind of polity runs into some problems. In the past, Muslim states were not as involved in private matters like divorce, in contrast to English law that strictly limited access to divorce. The rigid apparatus halted any prospects for legal pluralism fit to accommodate Islamic law in England. One of the anxieties behind opening the door to this proposition was the perceived slippery slope toward accepting polygamy. The imperial dimension of English law and governance in the kingdom’s former colonies “created channels that conveyed challenges homeward, imperiling the legal foundations of Christian marriage in the metropole.”[9] 

This didn’t only affect women; the case of a man named Anwaruddin from India gives us an idea of the level of reluctance shown to recognize Islamic judicial options for divorce. Anwaruddin faced a major dilemma trying to marry a second time as a single man, and it didn’t actually matter whether or not his previous wife was on board with the divorce that was carried out, because “English courts recognized the powers of another “Court of competent jurisdiction” to terminate a marriage…but not “the power to dissolve at the will of the husband or by mutual consent.” [9] Surprisingly, Anwaruddin devalued the Islamic legal tradition in hopes of getting a pass; “Anwaruddin’s rhetorical stance incorporated the English definition of marriage into his arguments as he over and over again defensively took upon himself the description of laws of marriage outside the English tradition as uncivilized.”[9] He was afraid his children would have illegitimate status had he not complied. 

Ironically, non-Muslim minorities actually actually chose to be under Islamic legal footing on issues of divorce throughout the course of history. Eugenia Kermeli notes that under the Ottoman Empire,

“by the mid-17th century, the legally educated non-Muslim subject was able to obtain the opinion of Muslim jurisconsults even on family affairs. Thus, we encounter a number of legal opinion, fatwa (Turkish fetva), collections of ottoman jurisconsults including chapters on marriage and divorce of infidels.”[10]

While it could be argued that the only legal choice Cretans were left with was the Muslim judge’s court due to certain developments, it doesn’t “explain the insistence of Christians to marry and divorce in the Muslim court.”[10] The real reason this was the case was the relative ease in which couples could facilitate a divorce, which Christianity could rarely see as even a last resort.

In sixteenth century Jerusalem, Jewish women actively sought out Muslim courts to obtain divorce, as they did in Damascus alongside Christians, and to the same degree as their Muslim neighbors. Sonbol writes, 

Copts preferred to adopt the Muslim contract so as to avail themselves of the access to divorce.[4] 

Spiritual Gaslighting

A recycled myth is that men in Islam are the ultimate and sole decision-makers for divorce. On the contrary, tafrīq or faskh (dissolution of the marriage through a judicial process)[8] gives a wife or her relatives the option to complain to a judge, giving way to divorce without the consent of the husband, comparable to unilateral divorce in Swiss law. Despite the fact that Malikis list the following valid reasons to split: a husband’s cruelty, refusal or inability to maintain the wife, desertion, or serious disease or ailment that would make a continuance of the marriage harmful to the wife[8], women are often unaware of their Islamic rights and feel that they have to wait for their husband to profess the divorce formula three times (ṭalāq) to make it official. This non-judicial method has also been used against women as a threat to keep them at bay. 

Out of fear, and unsure of their financial security were they to report their circumstances, victims of domestic violence are not inclined to tell authorities of their husbands’ abusive ways. Scholars like Maliki Ibn Ishaq warned against situations in which men could find loopholes to avoid keeping up with payments and demand their ex-wives repay the mahr (dower).[8] This can come about by men pushing their wives to seek divorce through khul’ as to make renouncement of responsibility legally valid. In Pakistan, courts can even be the ones to impose this, rather than it coming from the woman in question, which likely puts her at a disadvantage. The past wasn’t perfect in this regard, as Sonbol explains,

Although in almost all cases khul’ the qadi granted the wife’s wish, in talaq (divorce) the wife had to prove darar (harm) before talaq was granted.[4] 

Nonetheless, men’s so-called ‘unlimited authority’ was regulated by Islamic courts, making it not so unlimited.[8] In fact, there were times women had the “upper hand.” Kermeli writes in “Marriage and Divorce of Christians and New Muslims in Early Modern Ottoman Empire: Crete 1645-1670,” 

The formula for the conclusion of a marriage is not fixed, but must consist of two parts; an offer from the bride’s party and an acceptance from the bridegroom’s.[10]

And then you have Jamilah bint Abdallah, the wife of Thabit ibn Qays, who “approached the Messenger seeking to be divorced from her husband on grounds not related to his morality or religiosity; on the contrary, she was concerned for her own morality if she remained in her marriage, perhaps since she may not have found her husband attractive and would therefore be tempted by impermissible means to fulfill her desires.”[8] 

Men were also not inclined to use their triple ṭalāq card in one sitting (talaqi thalatha fi majlisin wahidin), because if they did, “the couple cannot remarry until the ex-wife has contracted, consummated and been divorced from an intermediate marriage (taḥlīl). Undoubtedly the function of the intermediate marriage was to deter husbands from carelessly pronouncing the triple divorce since he would have to endure the shame of knowing that his wife had intercourse with another man, if he wished to remarry her.”[10] There have also been debates among scholars arguing the validity or invalidity of such a divorce method, Imam ibn Hazm and Ibn al-Qayyim coming from opposite poles of that discussion. Tunisia outright banned Islamic repudiation in 1956, while Morocco and Algeria have continued to regulate it instead, as was done in the past. 

In 2004, Moroccan legislation made it so that the husband would have to ask for authorization from the court and provide two private notaries (‘udūl) beforehand, stipulated in Article 79 of Moroccan family law. Iman Masmoudi explains in her dissertation “The Notaries of Late Ottoman Tunisia,”

The branch of fiqh which directly deals with the work of notaries isʿilm al-wathāʾiq wa-l-shurūṭ or the science of documents and conditions.[11]

While these notaries played an important role in resolving disputes in Ottoman Tunisia, and were highly revered by Tunisians at the time,[11] the ‘ādil’s authority was rendered null after modernization and secularization efforts. The effects of Bourguiba’s presidency and subsequent divergence from other Maghribi countries in certain legal reformations can be seen with the devaluation of ‘ūdul.

Article 83 in Moroccan family law also specifies that if the reconciliation of the marriage proves impossible, the court fixes an amount that the spouse consigns to the office-registry within a period not exceeding thirty days in order to pay the rights due to the wife and the children of whom he is obligated to support. Article 86 states that as soon as the required amount is deposited by the husband, the court allows him to have the divorce. 

In 2005, Algeria also made changes to regulate repudiation. Article 52 specifies that if the husband has abused this right, he must pay financial compensation to his wife, dissuading him from thinking about dangling it over her head. This goes against Western standards of gender equity since it requires men to provide women with monetary relief irregardless of her ability to survive herself. Historically, if a husband initiated a divorce, he would have to pay “the mua’khkhar, as well as any muqaddam designated for payment in installments.”[4] Thus, not all Muslim countries struggle with divorce and its aftermath because of certain legal frameworks, since ones such as these are built upon protecting and providing for the female divorcee. The issue can have more to do with spiritual gaslighting at the societal and individual level, which nonetheless results in grave consequences.

Those against “sharia law” in the United States will point out that the child support system offers prolonged financial aid for the mother, but there are other compensations made possible by sharia, like a one-year alimony and ‘idda support (three month waiting period following a divorce before a woman can get remarried).[4] Extended families, unlike the Western nuclear family, also make sure women are ideally never compromised financially. 

The Absorption of Christian Narratives by Muslims in the West

Alas, it is until life does us part. Marriage in Islam is both a sacred bond and a worldly contract dependent on the fulfillment of certain conditions. While Christians get married before the Church promising eternity to one another, Muslims have historically had little shame about divorce if it was the best decision, even due to simple reasons like “disagreements owing to incompatibility or the existence of ‘defects’ in either husband or wife.”[4] 

Today, Islamic tribunal arbitration of family law matters is not recognized by most Western countries that have unitary legal systems; when they are, it is very limited in scope. In fact, the state of Oklahoma in the U.S passed a constitutional amendment by voter ballot that explicitly mentions complete disregard for Sharia:

[State and Municipal courts,] when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law.[12]

With the aforementioned history of divorce in Muslims lands in mind, this is quite ironic. Among Protestant circles in early Japanese history, converted Japanese Christians would even try to persuade clergymen that Western opposition to divorce was the result of misinterpreting the New Testament. The preference for Muslim courts in the past testifies to the superior inner workings of Islamic law when the right societal factors are in play. There is something to be said, however, about the impact nation-state politics and a dominating Christian worldview has had on this. While divorce is disliked even in the Islamic tradition, it is – at worst – strongly disliked and not prohibited.

Works Cited:

  1. Wilson, Alice. “Refracting custom in Western Sahara’s quest for statehood.” Political and Legal Anthropology Review, vol. 38, no. 1, 2015, pp. 72-90.
  2. Isidoros, Konstantina. Nomads and Nation-Building in the Western Sahara: Gender, Politics and the Sahrawi. New York, I.B. Tauris, 2018.
  3. Tahir, Roohi, et al. “‘We Used to Have No Regard for Women’: Gender Equity and the Advent of Islam.” Yaqeen Institute for Islamic Research, 17 July 2020, https://yaqeeninstitute.org/roohi-tahir/we-used-to-have-no-regard-for-women-gender-equity-the-advent-of-islam/. Accessed 18 August 2020.
  4. Sonbol, Amira El-Azhary. Women, the Family, and Divorce Laws in Islamic History. Syracuse University Press, 1 June 1996.
  5. Hallaq, Wael. “The “Qāḍī’s Dīwān (Sijill)” before the Ottomans.” Bulletin of the School of Oriental and African Studies, University of London, vol. 61, no. 3, 1998, pg. 434.
  6. Smale, Melinda. Women in Mauritania: The Effects of Drought and Migration On Their Economic Status And Implications for Development Programs. Office of Women in Development, Agency for International Development, International Development Cooperation Agency, 1980.
  7. Rossetti, Sonia. “Saharawi women and their voices as political representatives abroad.” The Journal of North African Studies, vol. 17, no. 2, pp. 337-353.
  8. Khan, Nazir, et al. “Women in Islamic Law: Examining Five Prevalent Myths.” Yaqeen Institute for Islamic Research, 15 Nov. 2019, https://yaqeeninstitute.org/nazir-khan/women-in-islamic-law-examining-five-prevalent-myths/#.XffCPNZKhE4. Accessed 18 August 2020.
  9. Savage, Gail. “More than One Mrs. Mir Anwaruddin: Islamic Divorce and Christian Marriage in Early Twentieth-Century London.” Journal of British Studies, vol. 47, no. 2, Apr. 2008, pp. 348-374.
  10. Kermeli, Eugenia. “Marriage and Divorce of Christians and New Muslims in Early Modern Ottoman Empire: Crete 1645-1670.” Oriente Moderno, vol. 93, 2013, pp. 495-514.
  11. Masmoudi, Iman. “The Notaries of Late Ottoman Tunisia.” University of Cambridge, August 2020.
  12. McLaughlin, Julia Halloran. “Taking Religion Out of Divorce.” Rutgers Law Review vol. 65, no. 2, pp. 396-434.

About the Author: Sabrina Amrane is a journalism and political sciences student. Her interests include Maghribi history, literature, and philosophy. You can follow her on Twitter here.

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