SAEDNEWS: Divorce, as we all know, refers to the religious and legal separation of a married couple. Interestingly, the rules and procedures of divorce differ between Shia and Sunni Islam.
According to Saednews, Personal status issues, including marriage, divorce, inheritance, and related matters, are governed according to the laws applicable to each person’s religious denomination. Therefore, examining the rules and regulations concerning divorce in Sunni and Shi’a Islam is important. There are undoubtedly differences between Ja’fari (Imami) jurisprudence and Sunni jurisprudence, and in some cases, differences also exist among the various Sunni schools of law.
Since Sunni Islam is among the officially recognized religious denominations in the country, this section examines the differences between the two major Islamic traditions regarding divorce and considers the relevant rulings found in the Qur’an as the primary source of Islamic law.
Both Sunni and Shi’a Muslims, based on the Qur’anic rulings, believe that divorce is subject to certain formal requirements. However, significant differences exist between the two traditions regarding the interpretation and application of these rules.
“If he divorces her again, she shall not be lawful for him thereafter unless she marries another husband. Then, if the latter divorces her, there is no blame upon either of them if they return to one another…”
Although both traditions accept the Qur’an and recognize numerous Qur’anic verses concerning divorce, differences have emerged because of variations in their hadith traditions and jurisprudential sources. The most significant differences include the following.
According to Shi’a Muslims, the principal sources of jurisprudence are the Qur’an, the Sunnah of the Prophet, and the traditions of the infallible Imams. In Sunni jurisprudence, the Qur’an, the Prophet’s Sunnah, and the practices and traditions associated with the four rightly guided caliphs form important foundations of legal interpretation.
Witnesses to Divorce:
One of the first differences between Shi’a and Sunni jurisprudence concerns witnesses to divorce. In Shi’a jurisprudence, witnesses are recommended for marriage but mandatory for divorce. In Sunni jurisprudence, witnesses are required for marriage in some schools but are not generally considered a mandatory condition for the validity of divorce.
Divorce During Menstruation:
A second difference concerns divorce during a woman’s menstrual period. Sunni jurisprudence generally regards divorce during menstruation as prohibited or irregular, although its legal effect may nevertheless be recognized under certain Sunni schools and circumstances.
Divorce During a Period of Purity Following Sexual Intercourse:
According to Ja’fari jurisprudence, divorce should not take place during a period of ritual purity (tuhr) in which sexual intercourse has occurred. A valid divorce must generally take place during a period of purity in which intercourse has not occurred. Sunni schools generally do not treat this condition in the same manner. Consequently, if a Sunni man divorces his wife during such a period, the divorce may be regarded as legally effective according to Sunni jurisprudence, allowing the parties to remarry after the completion of the waiting period where other requirements are satisfied.
Thus, another important difference is that Shi’a jurisprudence generally requires divorce to occur outside menstruation and during a period of purity in which no sexual intercourse has taken place, whereas Sunni jurisprudence does not uniformly impose the same validity requirement.
Triple Divorce:
Another major difference concerns triple divorce. Triple divorce refers to a man divorcing his wife three times. According to the majority of Shi’a jurists, a husband cannot validly divorce his wife three times at once, and such a divorce is considered invalid. By contrast, many Sunni jurists recognize the legal effect of pronouncing divorce three times in a single sitting, although they may consider the practice sinful or contrary to the Sunnah.
Triple divorce in a single pronouncement refers to a husband saying three times in succession, for example, “I divorce you, I divorce you, I divorce you.”
Divorce While Intoxicated:
According to a number of Sunni jurists, a divorce pronounced by an intoxicated man may be considered valid. This position is rejected in Shi’a jurisprudence, where such a divorce is generally regarded as invalid when intoxication prevents genuine intention and understanding of the act.
Divorce Under Duress or Coercion:
According to Sunni jurisprudence, opinions differ concerning divorce pronounced under coercion, but some Sunni schools may recognize its validity under particular circumstances. In Shi’a jurisprudence, divorce under genuine coercion is generally considered invalid because the husband lacks the necessary free intention.
Under Ja’fari jurisprudence, divorce is subject to specific formal requirements and must be performed in the presence of two qualified and upright witnesses.
The prescribed formula traditionally includes expressions such as “Anti taliq” (“You are divorced”), “Fulana taliq” (“So-and-so is divorced”), or “Hiya taliq” (“She is divorced”). The formula is ordinarily required to be pronounced verbally rather than merely written or communicated through a gesture. An exception is generally made for a man who is unable to speak, who may communicate the divorce through an appropriate gesture.
Shi’a jurists therefore recommend that a man who is unable to pronounce the divorce formula correctly, for example because he is not proficient in Arabic, appoint a qualified representative to pronounce the divorce on his behalf.
In contrast, Sunni jurists generally hold that divorce can be effected through any expression or formula that clearly indicates an intention to divorce. In some circumstances, even an indirect or metaphorical expression may constitute divorce if accompanied by the requisite intention.
Consequently, Sunni jurisprudence generally does not impose the same formal requirements for the pronouncement of divorce as Ja’fari jurisprudence.
According to Ja’fari jurisprudence, a valid divorce generally requires the presence of two witnesses, and the woman must be in a state of ritual purity rather than menstruation. Sunni scholars likewise generally consider divorce during menstruation prohibited, although they differ regarding whether such a divorce nevertheless takes legal effect.
Regarding triple divorce, Sunni schools have differing positions. In particular, the Hanafi, Maliki, and Hanbali traditions have historically recognized the legal effect of triple divorce pronounced in a single sitting, while considering the practice contrary to the preferred Sunnah in many formulations. Other Sunni interpretations have taken different positions on its legal consequences.
The Qur’an prescribes a waiting period associated with three quru’, but Muslim jurists disagree over the meaning of the term quru’. The Ja’fari, Shafi’i, and Maliki schools generally interpret it as periods of ritual purity, whereas the Hanafi and Hanbali schools traditionally interpret it as periods of menstruation.
It should also be noted that the Islamic schools generally agree that the waiting period of a widow is four months and ten days. A woman who has not consummated her marriage generally has no waiting period following divorce. Ja’fari jurisprudence also holds that a prepubescent girl and a woman who has reached menopause generally have no waiting period following divorce.
According to Sunni jurisprudence, the waiting period of a pregnant woman continues until childbirth. A postmenopausal woman and, according to many Sunni jurists, a prepubescent girl may have a waiting period of three lunar months. The Hanbali school, however, has held that a prepubescent girl does not have a waiting period in certain circumstances.
Sunni Divorce (Talaq al-Sunnah):
A divorce performed in accordance with the Sunnah of the Prophet is commonly referred to as Talaq al-Sunnah. Under this approach, the wife should be divorced during a period of purity in which sexual intercourse has not taken place. If divorce is necessary to prevent continuing harm to either spouse and divorce is considered the appropriate solution, the husband should wait until his wife is in a state of purity and has not had intercourse with him during that period before pronouncing the divorce.
Innovative or Irregular Divorce (Talaq al-Bid’ah):
This refers to divorce performed in a manner contrary to the prescribed Sunnah. Examples include divorcing a woman while she is menstruating or divorcing her during a period of purity in which sexual intercourse has occurred.
Similarly, pronouncing divorce three times during a single period of purity, such as saying, “I divorce you, I divorce you, I divorce you,” is commonly classified as Talaq al-Bid’ah. Sunni scholars generally regard this form of divorce as prohibited and consider the person who performs it sinful, while differing over whether the divorce nevertheless takes legal effect.
An important distinction is that Talaq al-Sunnah does not simply mean “divorce according to Sunni Islam.” Rather, it is a category of divorce contrasted with Talaq al-Bid’ah. By contrast, “Sunni divorce” refers broadly to the rules governing divorce in Sunni jurisprudence, which differ in several respects from Ja’fari divorce law.
As explained above, Talaq al-Bid’ah refers to a form of divorce that does not comply with the prescribed religious rules and is therefore regarded as an innovation and prohibited practice. Traditionally cited examples include divorcing a consummated wife during menstruation, divorcing during a period of purity in which intercourse has occurred, and pronouncing three divorces in a single sitting or through a single declaration.
Hanafi jurists have historically regarded these forms, despite considering them contrary to the Sunnah, as legally effective under their jurisprudential framework. In Ja’fari jurisprudence, these forms of divorce do not satisfy the required conditions and are therefore considered invalid.
In summary, Sunni jurisprudence generally distinguishes between Talaq al-Sunnah, which follows the prescribed Islamic rules concerning divorce, and Talaq al-Bid’ah, which violates those rules and is consequently regarded as prohibited.
