Can a Woman Initiate Divorce From Her Husband?
In Islam, a woman has the right to terminate her marriage, so that she can divorce her husband if she wants. This is perfectly acceptable according to the majority of scholars, of both olden and contemporary times.
Can a Woman Initiate Divorce From Her Husband?
· Control of the marriage bond left to the wife.
· Women divorcing their husbands.
· The man relinquishes the right to divorce to his wife.
· When a woman hates to stay married to her husband.
In modern times, women are competing with men in authority and in meeting the family expenses. Some women are demanding to have the right to terminate the marriage, so that a wife can divorce her husband if she wants. Is it permissible for a woman to include in the marriage contract a condition giving her the right to divorce or to demand this after the contract has been made?
This is perfectly acceptable according to the majority of scholars, of both olden and contemporary times. Contemporary scholars who subscribe to this view include:
The European Council for Fatwa and Research discussed this question in depth and concluded with a decision that states: In the first place, Islam gives the right to divorce to the man. A woman may initiate divorce if she stipulates this as a condition in the marriage contract, or if her husband gives her this right after the contract has been made.
The late Shaikh Hasan Mamoon, the former Mufti of Egypt, issued a fatwa on 13 November 1955 that said: What Islam stipulates is that if a man marries a woman on condition that she has control over herself whenever she wants, then she has the right to choose whatever she wants, in the same session or at a later time, until she has had her third and final divorce. The use of ‘whenever’ in the condition makes it generally applicable. She may choose to ask for a divorce time after time until she has had three divorces and their separation becomes final, even though her husband might not have re-married her after the first divorce. A clear and unambiguous divorce may follow a similarly clear and unambiguous one while she is still in her waiting period.
Shaikh Mamoon based his fatwa on what is mentioned in major works of past scholars, such Al-Tanwir, Radd al-Muhtar, al-Durr al-Mukhtar, Ghayat al-Bayan, etc.
The Permanent Committee for Research and Fatwa gave the following ruling in answer to a question: ‘If the situation is as you have described and your wife has initiated divorce herself, the validity of divorce depends on whether she may do so or not. If you have not given her the right to divorce and you have not given her power of attorney on the question of divorce, then what she did does not constitute a divorce and you do not need to remarry her. The right to divorce belongs to the husband, not to the wife. However, if you have given her the right to divorce or you have given her power of attorney concerning her divorce, then her action is valid. You may reinstate the marriage while she is in her waiting period, calling in two witnesses to the reinstatement of the marriage, unless the divorce was the last of three divorces. If it is the third divorce, then you cannot reinstate the marriage. She must first marry another man. If she gets divorced after this other marriage, then you may remarry her if she agrees, but you must have a new marriage contract and give her a new dowry. The waiting period for a pregnant woman lasts until she has given birth, and for a woman who is not pregnant three menstrual cycles. A woman who does not have the period, because she is too young or too old, observes a waiting period of three months.
In another fatwa the Committee says: The normal practice is that divorce is under the husband’s authority.
Prophet! When  you divorce women, divorce them with a view to their prescribed waiting period
However, if the husband gives his wife power of attorney so that she may initiate divorce, and she acts on this, the divorce is valid.
To give a wife control over her divorce or to assign it to a person of her choice means that she or the person she has chosen has the power to initiate her divorce as agreed.
Sayyid Sabiq said: ‘The right to divorce belongs to the husband. He may divorce her and he may give her the right to divorce. He may also give power of attorney to someone else to initiate the divorce. Neither assigning the right to divorce to her nor giving power of attorney deprives him of the right to divorce, nor prevents him from using this right when he wishes. The Zahiri school takes a different view, stating that a husband may not assign the right to divorce to his wife, nor give power of attorney to anyone to divorce her because God has given the right to divorce to men not to women.
Scholars have different views on the case of a man who says to his wife: ‘You have control over yourself.’ Does this mean that she has such control forever or only on that occasion? In the latter case, she may initiate divorce while they are together on a certain occasion. If she does not and the occasion is over, her right to divorce is considered to have lapsed.
Ibn Qudamah said: ‘Once the husband gives his wife control over herself, then she may exercise this right any time, not merely at that time.’ This is attributed to 'Ali, and it is the view of Abu Thawr, Ibn al-Mundhir and al-Hakam. On the other hand, Maliki, Shafi[i and Hanafi scholars consider it applicable to the one time only. Once it is over she has no right to divorce, because this is a question of giving her a choice, and the choice is limited to the time when it is offered. It is just like the husband saying to his wife: ‘You make your choice.
Ibn Qudamah prefers the first view, because 'Ali ruled about a man who assigned to his wife the right to divorce, saying: ‘This is up to her until she relinquishes it.’ Ibn Qudamah said: ‘We do not know that anyone among the Prophet’s companions differed with him, which means that this ruling has acquired unanimity. Moreover, it is like appointing an attorney to enforce divorce and it is not limited to a particular time, just like the attorney being someone else.
An important point needs to be stated: If the husband reneges on giving his wife the right to divorce: is it acceptable or not? The weightier view is that he has the right to undo and withdraw what he has given her. In this case, the right to divorce belongs to him. If he has sexual intercourse with her after such a divorce, it is considered as going back. Giving her the right to divorce is a kind of giving her power of attorney. Taking action with regard to something in which one has given power of attorney to someone else cancels this power. If the woman gives back what has been assigned to her the assignment is over, just like a rejected or withdrawn power of attorney.
Our advice is that the power to divorce should not be assigned to the wife, because women are by nature more emotional and this could influence her action and make her initiate a divorce for the flimsiest of reasons.
Ibn Rushd said: ‘The reason for giving the right of divorce to men, not to women, is that women are less rational and more likely to be driven by an immediate desire in a situation of ill-treatment.
The Kuwait Fiqh Encyclopaedia says: ‘Divorce is a legal action initiated verbally and as we have already noted it belongs by right to the husband. He has this right and the right to assign it to someone else, like all his other rights that are initiated verbally such as selling, leasing, etc. If a man says to another: I give you power of attorney to divorce my wife, naming her, and this man actually divorces her from him, the divorce is valid. If he says to his wife: I give you power of attorney to divorce yourself and she does so, the divorce is valid. She is not less than anyone else.
Important note: If a man says to his wife: ‘you have control over yourself, can he still divorce her? The answer is that he can. What he says to her is that she may initiate the divorce, but this does not stop him from initiating it himself.
· The European Council for Fatwa and Research.
· Fatawa by the Egyptian Dar al-Ifta, Shaikh Hasan Mamoon, former Mufti of Egypt.
· Fatawa by The Permanent Committee for Research and Fatwa.
· Home page for IslamWeb.net website: www.islamweb.net.
· The Kuwait Fiqh Encyclopaedia.
- The European Council for Fatwa and Research, Decision 2/5.
- Fatawa by The Permanent Committee for Research and Fatwa, fatwa No. 563, vol. 20, p. 209.
- The plural form is used here indicating that the address is to the Muslim community as a whole.
- S. Sabiq, Fiqh al-Sunnah, vol. 2, p. 241.
- Ibn Rushd, Bidayat al-Mujtahid, vol. 3, p. 1,065.
- The Kuwait Fiqh Encyclopaedia, vol. 30, p. 140.