SAEDNEWS: In matters of divorce, there is no significant disagreement among Islamic jurists. They all acknowledge that, as a general legal principle, the right to initiate divorce belongs exclusively to the husband, and a wife cannot independently pronounce or execute a divorce.
According to Saednews, Although many people may consider this practice contrary to Islamic law, since our legal system is based on Islamic Sharia, its legal provisions—including the right granted to women to hold power of attorney for divorce—can also be regarded as Sharia-compliant.
Dr. Seyyed Hassan Hosseini Safaei, a professor at the Faculty of Law at the University of Tehran, addresses whether granting power of attorney for divorce is permissible from a jurisprudential perspective. He states:
“The prevailing opinion among Imami Shi'a jurists is that appointing an attorney to carry out a divorce is permissible, regardless of whether the principal is present or absent at the divorce session (or in the same city).
This opinion is supported by the general wording of certain narrations and reports, including the authentic narration of Saeed al-A'raj. It is also argued that divorce is an act that can be performed through representation. In modern terminology, it is not an entirely personal act requiring direct involvement. Therefore, by consensus, a person may appoint an attorney to carry out a divorce, and there is no distinction in this regard between someone who is present and someone who is absent.”
He further explains that, within Imami Shi'a jurisprudence, there are three different positions regarding a wife's appointment as an attorney to exercise the right of divorce:
Permissibility: This is the prevailing opinion among Imami Shi'a jurists, who consider a wife’s appointment as an attorney for divorce permissible.
Impermissibility: Sheikh Tusi adopted this position, arguing that a woman, being the recipient of an action, cannot simultaneously be the one performing it.
Suspension of judgment: Some jurists have refrained from choosing between the two positions because they have been unable to establish the superiority of either argument.
The argument against the second position is that the distinction between the person performing an action and the person receiving it can be established through different legal capacities.
In this case, the woman acts as the initiator of the divorce in her capacity as her husband's appointed attorney, while in another legal capacity she is the recipient of the divorce.
Emphasizing that these discussions concern Imami Shi'a jurisprudence, the legal scholar notes that the majority of Sunni jurists consider the delegation of divorce authority valid, whether the appointed attorney is the wife or another person.
In Arab countries, following the position adopted by Islamic jurists, the wife's appointment as an attorney for divorce has also been recognized as valid. The Iranian Civil Code, likewise, follows the prevailing opinion among Imami Shi'a jurists regarding a woman's power of attorney for divorce.
Unlike marriage, which is contractual in nature and requires the agreement of two parties, divorce is an act of unilateral legal declaration (iqāʿ), meaning that it is formally initiated by one person.
There is little disagreement among Islamic jurists on the fundamental issue of divorce. They generally accept that, as an original legal rule, the right to pronounce divorce belongs exclusively to the husband, and that the wife cannot independently initiate it.
However, this does not mean that Islam has granted husbands absolute and unrestricted authority over divorce while leaving women without any rights or options.
One of the Islamic rulings that has faced criticism from some individuals, particularly women's rights advocates and supporters of gender equality, concerns the allocation of the right to divorce to men.
According to Islamic teachings, based on Quranic verses, Hadith, and the traditions of the Prophet Muhammad and the Imams, the right to pronounce divorce is assigned to men.
A review of the Quran, Hadith, and the traditions of the Prophet and the Imams indicates that, within the Islamic family structure, the authority to initiate divorce has been assigned to the husband.
Imam Khomeini's statements on women's power of attorney for divorce
In a speech delivered on March 4, 1979, at the Fayzieh Seminary in Qom, addressing a large gathering of women, Imam Khomeini stated:
“Women who wish to marry can, from the very beginning, establish certain rights and conditions for themselves, provided that these conditions are neither contrary to Islamic law nor inconsistent with their dignity.
They can stipulate from the outset that if the husband engages in immoral conduct, treats his wife badly, or behaves harshly toward her, she will have the authority to act as his attorney in initiating a divorce. Islam has granted women this right.
If Islam has imposed certain restrictions on men and women, all of them are intended for your own benefit. All Islamic laws, whether they grant greater freedom or impose limitations, are ultimately designed for your welfare and in your interest.
Just as Islam has assigned the right to divorce to the husband, it has also granted you the right to stipulate, at the time of marriage, that if he engages in certain conduct, you will be his attorney for divorce.
Once this condition has been included in the marriage contract, he can no longer revoke your authority. He cannot restrict this right or behave improperly toward you.
Furthermore, if a man mistreats his wife, the Islamic government will intervene and prohibit such conduct. If he refuses to comply, he will be subjected to disciplinary punishment and, where applicable, prescribed penalties. If he still refuses to comply, a qualified Islamic jurist (mujtahid) may issue the divorce.”
