Talak (divorce): definition and forms

Lawful, yet detested

All scholars agree: the talaq is legislated, by the Book, the Sunna and the Ummah's agreement: "When you divorce women, divorce them for their period" (at-Talaq 1), "Divorce is twice; then either keep her in kindness or release her with goodness" (al-Baqara 229). Abdullah ibn Umar had divorced his wife during menses; the Prophet obliged him to take her back. And the Sunna weighs the regret: "The thing Allah hates most among the lawful is divorce" (Abu Dawud), and: "Every divorce is lawful except that of the restrained man and the one overpowered by loss of mind".

The five rulings of talaq

• obligatory: for the Hanafis, when the wife inflicts harm the marriage can no longer mend; for the Malikis, when keeping her leads to the unlawful;
• recommended: when the wife disobeys, neglects prayer, or when discord threatens the limits of Allah, according to the schools;
• permitted: outside these cases, when a real need demands it;
• disliked: without any need, per Shafi'is and Hanbalis; Ibn Qudama reports two views, forbidden or simply lawful;
• forbidden: the innovated divorce, pronounced during menses or in a purity period where the husband consummated the marriage, before a pregnancy becomes known: forbidden by consensus, yet it still takes effect.

Wording: explicit and allusive

The words of talaq split in two. The explicit talaq: "you are divorced", "I divorce you": it takes effect without intention, by the scholars' agreement, whether spoken seriously or in jest. The allusive talaq: any word that may mean divorce or something else: it takes effect only with intention, equally by consensus. Divorce is uttered by the tongue: the heart's intent alone does not bring it down, by the jurists' agreement.

Revocable and final

Divorce is by principle revocable: the husband may take his wife back within her waiting period. It turns final in three cases: with the third repudiation, with the khul', and before consummation. After three repudiations, she becomes lawful to him again only after she has married another husband in a real marriage: "if he divorces her, she is not lawful to him after that until she marries another husband" (al-Baqara 230). The Hanafis distinguish a light separation (a new contract possible after the period) and a heavy one (requiring an intervening consummated marriage); Ibn Taymiyya speaks of major and minor separation. If the husband says "you are divorced three times" in one wording to a woman he has not consummated with, the four schools count three repudiations, and she becomes lawful again only after another marriage.

Practical note

The talaq is an exit, not a weapon: pronounced in purity without consummation, spaced out, it keeps the couple a chance of return. Never in anger, never during menses, never to wound. Before uttering a single word, consult a scholar.