DIVORCE

Nor Nida Jannatul Ma’wa, Nur Lailis Sa’adah, Nurul Qomariah

[email protected], [email protected],
[email protected],
Prodi studi perbandingan madzab fakultas syariah dan hukum
Universitas islam Negeri Sunan Ampel Surabaya

Abstrac

Divorce is one of the causes and ways of ending a marriage that occurs at the initiative of
the husband. according to the meaning of language, talak means to let go. Meanwhile, according
to the term talak means breaking the ties of marriage, or eliminating the marriage bonds at the
same time (through talak ba‟in) or in the future after iddah (through talak raji) with certain
words. Among them there are those who forbid talak unless it is accompanied by justified
reasons (shari'ah). Divorce is part of the denial of Allah's favor SWT, because marriage is one of
the blessings of Allah SWT, while denying the favor of Allah SWT is haram. Therefore, divorce
is haram except in an emergency. Divorce or talak in Islamic law is permissible in principle but
is hated by Allah, but divorce is the last alternative that can be taken when domestic life can no
longer be maintained. Marriage is the most sacred and solid bond.

Islam gives divorce rights only to the husband, because the husband's desire is stronger to
continue the marriage rope which has sacrificed a lot of wealth. Based on these considerations,
besides the husband having reason and a more patient nature in dealing with the attitude and
behavior of his wife who is not liked, a husband will not be in a hurry to decide to divorce just
because of feelings of anger or his wife's bad nature which tends to make it difficult for him.

A. DEFINITION OF TALAK

Etymologically "Talak" (ُ‫ )اَطاَل ق‬means to decide, to let go, and to leave. Meanwhile,
according to the understanding of Syarak is the name for a release of marriage between husband
and wife. break the relationship between husband and wife from the legal marriage bond
according to religious law.
B. TALAK LAW

In Islam, divorce is permissible (mubah) as a last resort when domestic life is deadlocked,
divorce can only be done if the marital relationship can no longer be maintained. Regarding this
divorce, the Messenger of Allah said:

ُ َ‫اَ ْبغَضُ ْال َحالَ ِل اِ ٰلى هللاِ الطال‬

‫ق‬

It means :

"The most hated lawful act by Allah is divorce." (Narrated by Abu Dawud and Ibn Majah and
considered authentic by Imam Al-Hakim)

Based on this Hadith, according to Jumhur Ulama, the law of divorce is permissible but it is
better to avoid it. If you look at the background of the divorce, the divorce law can be changed
to:

1. Mandatory

Divorce becomes obligatory if the judge finds no other way, except divorce, which can be taken
to defuse the dispute between husband and wife.

2. Haram

It is forbidden for a man to divorce his wife if he does not have a clear purpose. Because this will
have a negative impact on women. Divorce is also forbidden when the wife is in a state of
menstruation or in a state of purity that has been in intercourse.

3. Mubah

The law of divorce can be permissible if a wife has bad morals, has bad character in muamalah,
neglects her husband's rights, and so on. So that the desired goal of marriage is not achieved at
all.

4. Sunnah
The law of divorce will become sunnah if the household condition is difficult to maintain, and if
it is maintained there will be more dangers, for example a wife does not want or is negligent in
carrying out the rights of Allah SWT, such as praying, fasting, and so on.

After several times being ordered not to neglect Allah's commands, but a wife still
ignores it, it is sunnah for the husband to divorce her. Because, it will harm their religious life,
which is the essence of true happiness.

C. KINDS OF TALAK

In terms of the condition of the wife being divorced, divorce is divided into 2 types,
namely:

1. Sunni divorce

That is divorce which is applied by a husband to his wife in a holy state and not having
intercourse in that holy period.

2. Divorce Bid'ah

That is divorce that will be applied by the husband to his wife in a state of menstruation
(menstruation) or in a state of purity but has intercourse when the divorce is to be applied.

Jumhur Ulama have said that Sunni divorce is divorce which is considered lawful. While the
divorce of bid'ah is unlawful, but the divorce is legal.

Judging from whether or not her husband refers or returns to his wife, divorce is divided
into 2 types, namely:

1) Divorce Roj'i

That is the divorce that the husband drops to his wife the first or second divorce at the initiative
of the husband. This divorce gives the husband the right to refer or return to his wife who has
been divorced by or simply saying "I have referred you back" without going through a new
marriage contract, if the wife is in the iddah period, and it is sunnah at the time of the
reconciliation to present two fair witnesses. If her iddah period has ended and the husband has
not referred her, then divorce has taken place against her.

2) Divorce Ba'in
That is divorce which is not the right of the husband to refer or give to his wife except through a
new marriage contract. Talak Ba'in is divided into 2 types, namely:

a) Talak Ba'in Sughro

For example, the first or second divorce preceded by a ransom (iwadl) from the wife, or divorce
from a wife who has never been collected. The husband who drops the divorce ba'in sughro may
not refer or return to his wife except with a new marriage contract.

b) Talak Ba'in Kubro

That is the third divorce. This divorce causes the husband not to refer his wife, unless the wife
who is divorced has married another man after they had sex and then divorced with talak ba'in
kubro and her iddah period had expired.

In terms of pronunciation, divorce is divided into two, namely:

1. Shaykh's divorce

That is the divorce spoken by the husband using clear and firm words that do not contain any
other meaning except the divorce itself. His expression is enough to deliberately say no intention
is needed. Like by saying "I'm divorced", or "I have divorced you".

2. Divorce Kinayah

That is talak which is pronounced using the word talak satire, a word like this requires the
intention of the one who pronounces it. Because, the words spoken do not show the meaning of
divorce. Like saying "Go home to your parents".

The other types of divorce, namely:

1. Divorce Munjaz and Mu'allaq

Munjaz divorce is a divorce that is applied to the wife without any suspension. For example a
husband says to his wife "You have been divorced". So the wife is emphasized by what her
husband says. Meanwhile, mu'allaq divorce is divorce that is hung by the husband with an act
that will be carried out by his wife in the future. Like a husband saying to his wife "If you go to
work, it means you have been divorced". Then the divorce is valid with the departure of his wife
to work
2. Talak Takhyir and Tamlik

Talak Takhyir are two options proposed by the husband to his wife, namely continuing
the household or divorce. If the wife chooses to divorce, it means that she has been divorced.
While Tamlik divorce is divorce where a husband tells his wife "I leave your business" or "Your
business is in your own hands". If his wife says "It means that I have been divorced", it means
that he has been divorced by one Raj'i. Imam Malik and some other scholars are of the opinion
that if the wife who has been entrusted with answers "I choose three divorces", then she has been
divorced by Ba'in by her husband. With this triple divorce, the husband cannot reconcile or
return to his wife, except after the ex-wife is married to another man.

3. Divorce of Wakalah and Kitabah

That is, if a husband represents someone to divorce his wife or by writing a letter to his
wife binding the divorce, and his wife accepts it, then he has been divorced.

4. Divorce Haram

That is, if the husband and wife in one sentence or mentalak in three sentences, but in one
assembly. Like if a husband says to his wife "you have been divorced three times". Or say "You I
divorce, divorce and divorce". According to Ijma 'Ulama, this kind of divorce is forbidden.

The evidence that underlies it is the Hadith of the Prophet Muhammad regarding a man
who stabbed three of his wives in one sentence. Then he stood up and got angry saying "Is the
Book of Allah to be played with, while I am still in the midst of you?" Until someone stood up
and said, "O Messenger of Allah, let me kill him" (HR. Nasa'i)

D. PILLARS OF TALAK

1. Husband

The right of divorce is only owned by men because they are better able to control their emotions,
and bear more of the burdens of life. Thus, a man is not in a hurry when he has to give divorce to
his wife. He can prioritize reason over feelings. As Rasulullah SAW said:

ُ ‫ا الطَّاَل‬
ِ ‫ق لِ َم ْن اس‬
‫َّاق‬

It means :
"Talak is only for those who have power (husbands)." (HR. Ibn Majah and Daruquthni)

2. Wife

The wife is subject to talaq if she is in four conditions. First, there really is a marital relationship
between the two (husband and wife). Second, a wife is still in the period of iddah talak raj'i or
bainunah sughra. Third, a wife is in the iddah period of divorce which is recognized by the
Shari'ah. Fourth, a wife is in the phase of iddah which is recognized by the Shari'ah.

3. Sighat Talaq

Sighat talaq is a pronunciation that causes the termination of the marriage relationship, both
clearly (sharih) and satire (kinayah) on the condition that it must be accompanied by an intention.
However, it is not enough just with the intention, as the Prophet SAW said:

‫ت ا َمالَ ْم لَّ ُموا لُوابِ ِه‬

ْ َ‫هللَ ا َو َزلُِئا َّمتِي ا َح َّدث‬.

It means :

"Verily Allah forgives my Ummah whatever is in their hearts, as long as they do or do it."
(Muttafaqun 'Alaih)

E. TERMS OF DIVORCE

A husband who divorces his wife is required:

- Has grown up.

- Common sense.

- On their own conscience and will.

- Saying the divorce that he put forward was based on awareness and intentional.

F. UNAUTHORIZED DIVORCE

1. Divorce due to coercion

In the previous section it was explained that one of the conditions for the validity of a divorce is
that it must come from the husband's own desire. In the shari'a stipulations, if a person is forced
to kufr, and he really cannot avoid it, then he is allowed to do so and does not sin. This is in
accordance with the word of Allah SWT:

‫اَّل َم ْن ْلبُهُ ااْل ْي َم ِن‬

It means :

"...except, the person who is forced to disbelieve, even though his heart remains calm in briman
(he is not sinful)..." (Surat an-Nahl [16]: 106).

Jumhur scholars say that the law of divorce pronounced by a husband who is forced to do
it is invalid, and does not result in divorce. The Shafi'i schools are included in this group, it's just
that they distinguish between the presence or absence of intentions in it. Divorce that is forced
and based on intention is legal. On the other hand, if the forced divorce does not contain an
element of intention, then the divorce is invalid.

2. Divorce pronounced by a drunk person

Scholars have different opinions regarding the law of divorce pronounced by a drunk
person. The majority of scholars say that the divorce pronounced by a drunk person is valid. The
reason is that the drunkenness he experienced was his own actions and desires.

Imam ash-Syaukani Rahimakumullah said, "People who are drunk and can't use their minds then
the divorce is invalid, because there is no illat which causes the divorce to be valid. Shari'a has
determined the law of divorce for people who are drunk. So, our mind should not overstep it by
saying that the divorce law of the person is valid."

3. Divorce spoken by an angry person

Based on in-depth research, there are three types or levels of assessment:

A. First, the person who is angry until his mind does not work, then he drops the divorce on his
wife, then the divorce is not valid and does not cause a divorce between the two. Usually, people
who are angry do not realize what is being said, because they are controlled by emotions and
passions.
B. Second, anger is controlled so that the mind of someone who experiences it is still working
well. The scholars say that the person who pronounces divorce in a state of anger like this, the
law is valid and must be separated.

C. Third, anger that is between the two, namely between excess and uncontrollable. The scholars
say that the person who renders the divorce in a state of anger like this, the law is valid and the
two partners must be separated.

4. Divorce spoken without intention (deliberate)

Scholars have different opinions regarding the law of divorce which is pronounced by
someone without realizing it or not being sure. Many scholars are of the opinion that the divorce
that is pronounced is valid, and the two must be separated. This is in accordance with the words
of the Prophet Muhammad:

"Three serious matters are serious, and the joke is serious, namely marriage, divorce, and
reconciliation." (Narrated by Ahmad, Ibn Majah, and Tirmidhi).

Meanwhile, according to Muhammad Ba'far Sadiq, as well as one of the Imams Ahmad and
Imam Malik bin Anas asserted that the divorce is pronounced without any intentional element
then the law is not valid, and both are still in the marriage rope. Therefore, divorce that does not
contain an element of intent is only a game that is not subject to legal sanctions. This opinion is
based on the Word of Allah SWT which explains the importance of Azam (desire/intention).
Following:

َ ‫اطَّ ٰل‬
‫ق هللاَ لِ ْي ٌم‬

It means :

"And if they are determined to divorce, then verily Allah is All-Hearing, All-Knowing." (Surat
al-Baqarah [2]: 227)

Included in this category are divorces that will be handed down by someone who forgot or was
negligent. Rasulullah SAW also said, "The practice depends on the intention".

5. Divorce spoken by a surprised person

In everyday life we often meet talkative people. So, it is easy for him to say something
unconsciously, and it happens spontaneously. Under these circumstances, the divorce he
pronounced was invalid, and the two were in a marriage.

6. Divorce spoken by a child

Imam Malik is of the opinion that the divorce pronounced by a child does not take effect until he
reaches the age of puberty. Imam Ahmad bin Hanbal said that the divorce pronounced by a child
does not take effect until he reaches the age of twelve.

REFERENCES

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