Talak (divorce): definition and forms

Talak: 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.

The talak 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 talak and final talak

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 on talak (divorce)

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.