Islamic Fiqh > Marriage and family > Judicial divorce (tafriq): breaking through the judge
When the wife can obtain neither talak nor khul': the judge's dissolution cases (harm, nafqa default, absence, hidden defect).
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Updated on 31 August 2026 at 3:55 AM
The four schools agree: a grave defect in one spouse gives the other the faculty to have the marriage dissolved. The lists vary: for the Hanafis, the wife may seek dissolution if the husband is impotent (a one-year delay granted by the judge for attempts), castrated, or affected by a flaw preventing intimacy; Malikis and Shafi'is add madness, leprosy, vitiligo under their own conditions; each school details its criteria. A general condition among the jurists: the sound spouse no longer holds the faculty if he knew of the defect at the contract or consented to it afterwards; Malikis and Hanbalis make an exception for impotence, which she may pursue even after a long silence.
The scholars agree on one point: a husband who was wealthy then fell into hardship does not see his marriage dissolved, the wife then waiting for the maintenance of the hard-pressed. Views split if he can pay nothing: Hanafis and Shafi'is in the apparent view refuse dissolution and direct the wife to patience and lending to her husband, based on "if the debtor is in hardship, grant him delay" (al-Baqara 280); Malikis and Hanbalis allow the judge to dissolve when maintenance becomes impossible. On the other hand, a husband who refuses to pay while able does not dissolve the marriage either: the wife brings the case, the authority compels him, imprisons him upon refusal, and has his assets sold.
Take what suffices you and your child, in kindness.al-Bukhari 5049 ; Muslim 1714
This hadith addressed to Hind, the miserly Abu Sufyan's wife, grounds the path of forced payment: the Prophet ordered her to take, without opening divorce.
For Malikis, Shafi'is and Hanbalis, dissolution pronounced for insolvency or defect takes place only by the judge's ruling; lacking a judge, a body of trustworthy Muslims may stand in his place for the Malikis. It occurs only upon the wife's request, for it is her right. Among the Hanafis, two views exist on the woman's own power to choose dissolution for the major defects.
The nature of this breakup divides the schools: Hanafis and Malikis count it as a single final repudiation; Shafi'is and Hanbalis see it as an annulment that counts no divorce. For the breakup tied to maintenance, Shafi'is, Hanbalis and Ibn al-Mundhir hold it an annulment with no return; Malikis count it as a revocable repudiation, yet the return becomes possible only after the husband regains the means to honor his duty.
The tafriq is no easy exit: it assumes a right trampled, a case before the authority, and no other way to obtain justice. Families and scholars first seek reconciliation; the breakup comes as a last resort.