Previously Asked Questions
Divorce Questions:

Most of your questions about this subject will be answered by reviewing the Explanatory Notes for Song 39

> The question i would like to ask you is concerning the the section
> on divorce.

Before we begin, we would like to say that we had expected many
people to be taken aback by the sections on Divorce since this knowledge
in our din has slowly eroded away as the Muslims have adopted foreign
methods for conducting divorce in their lives.

> Footnote #2348 states "...Additionally if the divorcer uses another
> language (such as english or french)for the divorce phrase,the divorce
> is not enacted according to the view that we are narrating in the
> guiding helper.) Can you please ,if Allah permits, send me the proof for
> this view.  I would greatly appreciate it.  This seems to be a topic of
> conversation for some of the brothers here.

For clarification purposes, the view in question is:

   The agreed upon third essential for divorce, which is the
   divorce phrase, must be uttered in Arabic.  And may not
   be uttered in a different non-Arabic language.

For clarification purposes, the view does not claim:

   That other clear *Arabic* phrases are unacceptable.
   The reasons we have confined ourselves to listing
   Arabic phrases that contain Ta, Lam, and Qaf in that
   order are:

         i) There is *absolute* agreement among all
             traditional scholars that phrases with these
             three letters uttered with intention to divorce
             enact a full divorce pronouncement, whereas
             there is disagreement about other Arabic
             phrases used for divorce.

        ii) The main audience of the Guiding Helper
             is a non-Arabic speaking population and
             there is not much use teaching them a list
             of ten or more possible Arabic divorce
             phrases whose subtleties of meanings they
             are unaware of.

Now, we will present the proof for this view from four
different vantage points:

Vantage Point 1)   The view narrated by Sheikh `Ali Filali:

Sheikh `Ali Filali who is been studying Maliki Jurisprudence
for over thirty-five years, has a shahadah `ilmiyyah (i.e. Ijazah)
from Qarawayeen University in Shari`ah, and has multiple connected
chains of transmission to the Prophet (May Allah bless him and
give him peace), including that of his own family lineage
(e.g, his father and grandfathers are all well-known fuqaha'
of Maghrib).  Thus, his words have some weight in the madh-hab
in and by themselves.

The view narrated in the Guiding Helper is taken directly
from Sheikh `Ali Filali who considers it necessary for the
divorce phrase to be uttered in `Arabic.

When we were studying with him, we explained to him that
many people in the West do not know `Arabic and suggested
that it might be better if they could use another language.
However, he refused to budge from his view saying that it is
very sad that people are present that are unwilling to learn a
simple phrase in another language [especially if it is in the
language of their Prophet (May Allah bless him and give
him peace) and the language of the Qur'an.]

Vantage Point 2) The view of the Maliki scholars:

Ibn Juzayy al-Kalbi summarizes (in Qawaneen al-Fiqhiyyah,
Book of Divorce, Chapter 2, second derivative ruling,
the words for Talaq) the view of the Maliki scholars
about this subject:

  Divorce phrases are of four types:

  Type 1) What is very clear and this is the phrase
   that contains a word that is [derived from the root of]
   Talaq.  Such as a husband's statement, "[Anti] Taliq",
    "[Anti] Taliqah, "[Anti] Mutallaqah", "Qad Tallaqtuki",
   or, "Tulliqti minni".  For such phrases, the divorce is
   enacted and this does not even need an explicit intention
   behind it.

   [We are narrating the view that an explicit intention is
     needed for all divorce phrases since an Arab would
     understand the words (so an intention is implied) whereas
     a non-Arab would not understand the words, thus he
     he needs to intend what he desires].

Ibn Juzayy continues:

   .... Now Imam al-Shafi`i (unlike Imam Malik) has counted
   among the "very clear words" [words with] the root tasreeh
   and firaq.

   [From this excerpt and similar excerpts, it is clear that
    the Maliki scholars were clearly taking it for granted
    that the divorcer would be pronouncing the phrase in
    Arabic with the explicit letters, Ta, Lam, Qaf in this
    order; otherwise, they would not have excluded tasreeh
    and firaq which when translated into another language
    are similar in meaning to "letting go" which is the
    same as the common-language meaning of talaq.]

  [The next three types of divorce phrases that Ibn Juzayy
   al-Kalbi notes are less clear Arabic phrases and there is
   difference of opinion about them, but the popular view is
   that if such a phrase is recognized in Arabic by custom
   as denoting divorce, the divorce is enacted.]

[Now again please note that we have not claimed in the
Guiding Helper texts that there are not valid Maliki views
that allow a translated phrase, but such is *not* the apparent
view narrated in the Arabic Maliki books and is not the
view of the scholar behind the Guiding Helper, Sheikh
`Ali Filali. ]

Vantage Point 3) History of Maliki school:

The centers for Maliki learning up until recently have
been in Arabic-speaking areas.  For example, Egypt,
North Africa, and the Maghrib's academic language
has been Arabic without a doubt.  Even Berbers and
other non-Arabic people living in the area have cursory
knowledge of Arabic and are familiar with Arabic
terms such as adhan, salah, zakat, nikah, and talaq.

Additionally, even in Muslim Andulus, the
predominant language was Arabic so much so
that the Spaniards themselves often excelled
the Eastern Arabs in their eloquence and Arabic
fluency.  (Refer, to T. B. Irving's "Falcon of Spain"
for verification).

Additionally, even the languages of the Sub-Saharan
African Muslims (e.g., Swahili) have Arabic influences.

All *major* works in the Maliki school until recently
had been written in Arabic (e.g., Mudawwanah, Risalah,
Mukhtasar Khalil, Murshid al-Mu`in, Tuhfah al-Hukkam,
bidayatul mujtahid, muqaddimah ibn rushd, and the
list goes on...)  In these written works that deal with
divorce, all of them make very clear that the first and
foremost divorce phrase is that which contains the letters
Ta, Lam, and Qaf.), which makes it clear that it is
being taken for granted that Arabic is the language in
use.

Vantage Point 4)  Proofs from primary texts.

a)  It is known without a doubt that the Qur'an uses
     the explicit Arabic word Talaq to indicate divorce in all
     major places where divorce is mentioned.  For example,
     And if they resolve on talaq, then indeed Allah is Hearing
     and Knowing.   [2:227]

    [Notice here how at the end of the verse, Allah says, that
     he is "Hearing".  The exegetes say, that He hears all divorce
     pronouncements uttered and knows of them (even if written).]

   Words with the talaq root to indicate divorce are used in
   many other places in the Qur'an such as, [2:227], [2:228],
   [2:230], [2:231], [2:232], [2:236], [2:237], [2:241], and in
   surah Talaq.

   Actually, we find very few places in the Qur'an where the
   word talaq is not used when referring to divorce.

   Thus, it is clear that Ta, Lam, Qaf in this order definitely
   indicate divorce.

b) Proofs from hadith:  It is provable that the Companions
    of the Prophet (May Allah bless him and give him peace) used
    Arabic phrases to utter divorce as most of them were Arab and
    the Prophet acceded to such as valid.

    In the hadith of Ibn `Umar in which he divorced his wife during
    her menstrual bleeding, he explicitly states that he performed
    "talaq". [AM: volume 1: page(s) 554: line(s) 16-17: {Bukhari,
    divorce, volume 9, page 258; Muslim, divorce, volume 2,
    page 1093}]

    The Prophet (May Allah bless him and give him peace) approved
    the following explicit divorce phrase when a Companion asked
    him about it "Tallaqtu imra'ti al-Battah".  [{Tirmidhi, Talaq, what
    has come about a man divorcing his wife irrevocably, hadith #1097}]

    Thus, it is clear from the Qur'an and ahadith that the Prophet
    (May Allah bless him and give him peace) *sanctioned* Arabic phrases
    for enacting divorce much in the same way that he sanctioned *Arabic*
    words for the words of the formal prayer, adhan, iqamah, and other verbal
    acts that have a standard form.

    Whether or not non-Arabic phrases are acceptable is a matter of
    ijtihad, but what is clear is that neither the Qur'an nor the Prophet
    (May Allah bless him and give him peace) *sanctioned* non-Arabic phrases.
    Thus, the base ruling is that these phrases should be in Arabic.

    The scholars of Jurisprudence, such as Imam Malik (May Allah have mercy
    on him), undertook extensive research of the primary texts to divide
    up the Arabic phrases used for divorce into levels of effectiveness.
    For examples, some phrases are so strong that they have an effect in
    themselves, other phrases require an explicit intention, other phrases
    require some supporting surrounding circumstances,
    others do not have any effect at all, etc.  Now when we translate these
    phrases into another language (e.g., English) how can we really
    maintain that link to the primary texts that determines their strength?
    For example, tasreeh and firaq are explicitly mentioned in the Qur'an as
    pertaining to divorce ([2:229] and [4:130]).

    How should these be translated?  Are there not multiple ways to
    translate each word?  And do not words in different languages have
    different sets of meanings in different contexts?  Thus, we would be
    complicating matters for ourselves a lot by accepting non-Arabic
    phrases and detaching ourselves from the primary texts
    which are in Arabic.

  [And those who are actually married and are
   practicing Muslims will find that the view in the Guiding
   Helper suits their situation and needs very well as it will
   require an explicit attempt to speak a foreign phrase (and
   perhaps even a look-up in a book) which is much less
   error-prone and less likely to be spontaneous.]

  [Another thing to note here is that West has experienced
    a great erosion of responsibility for verbal statements uttered
    due to its belief that the only way a significant
    transaction/contract can be enacted/broken is through written
    paperwork and an ensuing signature/confirmation.

    In other words, the average Western man feels less responsible
    for the words he utters than a man living in an oral-culture who
    knows that his spoken words have effect in themselves.

    If you don't believe this, try proving to your local municipal
    government that you are married to a person or divorced from
    a person without any legal paperwork..

    Because of this lack of sense of responsibility for verbal statements,
    we have tried to make it harder for non-serious divorce phrases.  Divorce
    is a very serious affair and one simple word such as "[Get] Out!" could
    enact it if the view in the Guiding Helper is not followed.]

 We appreciate your question and hope that this is sufficient.  We could
 give more detailed proofs, but what is the use when we ourselves know that
 multiple valid views exist on the subject you asked about?



> What kind of issues must a married woman face before she
> has grounds for a divorce?  I am asking about a woman who
> did not request to be granted power of divorce in her
> marriage contract.

If the husband is characterized by any of the following six
states, the woman has a valid grounds for divorce in the
Maliki School:

    (1) developing a mental illness
    (2) having an extreme (and contagious) physical illness
    (3) subjecting the woman to physical or verbal abuse
    (4) not providing for the woman or his children financially
    (5) deceiving the woman about major issues in his life
    (6) disappearing for an extended period without contact

In other than these six situations, the woman generally does not
have inherent right to a divorce - but, if she feels that she is
being wronged in another way, then she can still bring her case to
the local Islamic Judge (or local imam if no qualified judge has been
appointed or is found).  As a clarification, even after having
a valid grounds for a divorce, the woman without power of divorce
must go to the local Islamic Judge (or local imam) to enact a divorce
if her husband does not divorce her voluntarily.

[In the rare situation in which neither a local judge nor qualified
 understanding local imam (who is the implied judge) is present, we
 write in footnote 923 of the Notes of Sources for the Main Text:

     "We are narrating the opinion in these Guiding Helper texts that if
     the community has a recognized judge, the woman must bring her
     case to him and the judge can enact and finalize a divorce right
     there and then. If there is no recognized judge close by and the husband
     is abusive, the woman can divorce herself."
]


Reference(s):
  [QF: volume 1: page(s) 183-189: line(s) all: {Book 11, Chapters 6 and 7}]



> About a freind. His wife left the home angry with him with her positions
> demanding a divorce. Under pressure he thoufht she could do a divorce by
> abadonment by leaving for 4 months 10 days. During the 1st month he said
> they were in Iddah. We are now confused.He now does not want to divorce
> her but she refuses to come home.After 4 months and 10 days after her
> leaving the home are they Divorced? Or from the Time she said they were
> in Iddah (1 month later after she left)? Can the Woman get a divorce by
> abadoment if she abadones the home Angry with her husband for the time?
> If the woman ask for a Divorce does she owe the man 1/2 her dowry back?

Divorce is a man's right not a woman's unless she explicitly wrote this
stipulation in the marriage contract.

For abusive situations, she must refer to the local islamic
judge (or local imam if no judge is present).

As long as the husband did not utter the word for divorce in
Arabic in her presence (or wrote such an Arabic phrase addressed to
her in a verified and signed letter), then no divorce took place.

We would suggest he refer to the Explanatory Notes for
Song 39 of the Guiding Helper to understand the rulings for
Divorce in our din.

Reference(s):
  Associated entries in the Notes of Sources.-




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