Rules of divorce

2643. A man who divorces his wife must be sane, and, as an obligatory precaution, Baligh. Similarly, a man should divorce of his own free will, therefore, if someone compels him to divorce his wife, that divorce will be void. It is also necessary that a man seriously intends to divorce; therefore, if he pronounces the formula of divorce jokingly, the divorce will not be valid.

2644. It is necessary that at the time of divorce, wife is Pak from Hayz and Nifas, and that the husband should not have had sexual intercourse with her during that period. Otherwise, she must become Haez and then Pak, before divorce. This will be explained in 2 following articles.

2645. It is valid to divorce a woman, even if she is in Hayz or Nifas in the following 3 circumstances:

I. If the husband has not had sexual intercourse with her after marriage.

II. If it is known that she is pregnant. And if this fact is not known and the husband divorces her during Hayz, and he comes to know later that she was pregnant, that divorce will be valid.

III. If due to the husband’s absence or imprisonment, he is not able to ascertain whether or not she is Pak from Hayz or Nifas.

2646. If a man thinks that his wife is Pak from Hayz and divorces her, but it transpires later that at the time of divorce she was in the state of Hayz, the divorce is void. And if he thinks that she is in the state of Hayz and divorces her, and it is later known that she was Pak, the divorce is in order.

2647. If a person who knows that his wife is in Hayz or Nifas, is separated from her, like when he proceeds on a journey, and wishes to divorce her, he should wait till such time when he becomes sure that his wife must have become Pak from her Hayz or Nifas.

2648. If a man who is separated from his wife wishes to divorce her and can acquire information as to whether or not she is in the state of Hayz or Nifas, even if that information is based on her habit, or any other signs known in Shariah; but if this is not possible, he must wait ordinary time or, as an obligatory precaution, one month.

2649. If a man has sexual intercourse with his wife during her Pak period, and then wishes to divorce her, he should wait till she enters into Hayz again and becomes Pak. But if the wife has not completed her ninth year, or if she is pregnant, she can be divorced after the sexual intercourse. The same rule applies to a wife in menopause. The meaning of menopause has been explained before. Menopause age is 60 years for a Sayyedah and 50 years for others.

2650. If a person has sexual intercourse with a woman during her Pak period and divorces her during the same period, and if it transpires later that she was pregnant at the time of divorce, the divorce will be valid.

2651. If a person had sexual intercourse with his wife during her Pak period, and then separated from her, like, if he proceeded on journey and wishes to divorce her then, not knowing whether she is Pak or not, he should wait till such time when the wife enters into the state of Hayz and becomes Pak once again. And, as an obligatory precaution, his period should not be less than one month.

2652. If a man wishes to divorce his wife who does see blood of Hayz at all by habit, or because of some disease, while other women of her age habitually see Hayz, he should refrain from having sexual intercourse with her for three months from the time he has had the intercourse, and then divorce her.

2653. It is necessary that the formula of divorce is pronounced in correct Arabic, using the word “Taliq,” and two just (Adil) persons should hear it. If the husband wishes to pronounce the formula of divorce himself and his wife’s name is, for example, Fatima, he should say: Zawjati Fatima taliq (i.e. my wife Fatima is divorced), and if he appoints another person as his Wakil to pronounce the formula of divorce, the Wakil should say: Zawjatu muwakkili Fatima taliq (i.e. Fatima, the wife of my client, is divorced).

2654. There is no question of divorce in the case of a woman with whom temporary marriage is contracted, for example, for one month or one year. She become free when the period of her marriage expires or when the man forgoes the period of her marriage by saying: “I hereby exempt you from the remaining time of marriage,” and it is not necessary to have a witness nor that the woman should be Pak from her Hayz.