A BRIEF EXPLANATION OF THE ISSUES OF TALAQ
بسم الله الرحمن الرحيم
الحمد لله رب العالمين والصلاة والسلام على رسوله الأمين و على آله وصحبه أجمعين و من تعبه بإحسان إلى يوم الدين، أما بعد
May this brief writing serve as an explanation for ourselves and for the ummah concerning the issue of talaq and matters related to divorce. We see that many Muslims are still confused about this issue, especially regarding the related terms. Thus, we took the initiative to compile explanations in this chapter so that they can be better understood. We also hope this will be a source of good deeds for us in the Hereafter.
1. The Meaning of Talaq, Ruju', and Iddah.
- Linguistically, talaq comes from the word Tho-la-qo, which means to release from a bond, as one would release livestock from a tether.
In Shari'ah terminology, Talaq is defined as:
حل قيد النكاح أو بعضه
[ابن عثيمين ,فتح ذي الجلال والإكرام بشرح بلوغ المرام ط المكتبة الإسلامية ,5/3]
"Annulment of the marriage bond or part of it." (Fathul dziljalali wal ikrom, AlUtsaimin 3/5)
- Ruju' is the husband's resumption of the marriage bond with his wife after having issued a talaq during her iddah period.
- Iddah refers to the waiting period a wife must observe after being divorced by her husband until the marriage bond is fully dissolved, allowing her to remarry.
2. The Differences Between Talaq, Khulu', Faskh, and Li'an.
- Talaq happens based on the husband's desire since talaq is the husband's right to divorce his wife. The wife does not have the right to talaq her husband.
- Khulu', linguistically means severance. In Shari'ah, khulu' is the dissolution of the marriage bond due to the wife returning her mahr (dowry). Khulu' occurs based on the wife's desire to separate from her husband by returning her mahr, with no right for the husband to object.
- Faskh, linguistically means corruption. In Shari'ah, faskh is the annulment of the marriage bond due to a specific reason such as apostasy by either spouse, or other reasons like discovering that they were breastfed by the same woman. Faskh can happen regardless of the husband's and wife's wishes, meaning even if they wish to remain together, they cannot continue the marriage.
- Li'an occurs due to an accusation of adultery. Li'an, linguistically means curse, and in Shari'ah, it means mutual cursing between the husband and wife due to the husband's accusation of adultery.
3. Types of Talaq
There are three types of talaq: Talaq Raji'i, Talaq Bain, and Talaq Muharramah.
1. Talaq Raji'i is a talaq where the husband can still return to his wife without a new contract during the iddah period.
Talaq Raji'i is divided into two: first talaq and second talaq.
- The first talaq happens when a husband divorces his wife for the first time after the marriage contract.
When does the first talaq occur?
The first talaq occurs if the husband intentionally says talaq or its equivalent to his wife without coercion, while she is in a state of purity and has not been cohabited during that period. Talaq does not apply if the husband did not intend to say it or if it was not intentional. It also does not apply if pronounced during the wife's menstruation or during a period of purity after cohabitation. If the husband pronounces talaq during menstruation, it is not counted and must be repeated when the wife is pure and not cohabited.
Sheikh Ibn Baz said:
الطلاق السني هو الذي يقع في حال الحمل، أو في حال كون المرأة طاهرًا لم يجامعها زوجها. [ابن باز ,فتاوى نور على الدرب لابن باز بعناية الشويعر ,22/7]
"Sunnah-compliant talaq occurs when the woman is pregnant or pure and not cohabited by her husband during her purity." (Fatawa nur Aladdarb: 7/22).
- The second talaq occurs after the first talaq and the husband has returned to his wife from the first talaq.
Some scholars do not require the husband to return to his wife before issuing the second talaq, but the stronger opinion is that return must occur first. The evidence is the Quranic verse:
وَٱلْمُطَلَّقَٰتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَٰثَةَ قُرُوٓءٍ ۚ وَلَا يَحِلُّ لَهُنَّ أَن يَكْتُمْنَ مَا خَلَقَ ٱللَّهُ فِىٓ أَرْحَامِهِنَّ إِن كُنَّ يُؤْمِنَّ بِٱللَّهِ وَٱلْيَوْمِ ٱلْءَاخِرِ ۚ وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِى ذَٰلِكَ إِنْ أَرَادُوٓا۟ إِصْلَٰحًا ۚ وَلَهُنَّ مِثْلُ ٱلَّذِى عَلَيْهِنَّ بِٱلْمَعْرُوفِ ۚ وَلِلرِّجَالِ عَلَيْهِنَّ دَرَجَةٌ ۗ وَٱللَّهُ عَزِيزٌ حَكِيمٌ
ٱلطَّلَٰقُ مَرَّتَانِ ۖ فَإِمْسَاكٌۢ بِمَعْرُوفٍ أَوْ تَسْرِيحٌۢ بِإِحْسَٰنٍ ۗ وَلَا يَحِلُّ لَكُمْ أَن تَأْخُذُوا۟ مِمَّآ ءَاتَيْتُمُوهُنَّ شَيْـًٔا إِلَّآ أَن يَخَافَآ أَلَّا يُقِيمَا حُدُودَ ٱللَّهِ ۖ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ ٱللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا ٱفْتَدَتْ بِهِۦ ۗ تِلْكَ حُدُودُ ٱللَّهِ فَلَا تَعْتَدُوهَا ۚ وَمَن يَتَعَدَّ حُدُودَ ٱللَّهِ فَأُو۟لَٰٓئِكَ هُمُ ٱلظَّٰلِمُونَ
"And divorced women shall wait by themselves for three periods, and it is not lawful for them to hide what Allah has created in their wombs if they believe in Allah and the Last Day. Their husbands have the better right to take them back in that period if they want reconciliation. Women have rights similar to those of men equitably, but men have a degree over them. And Allah is Exalted in Might and Wise. Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. It is not lawful for you to take anything from what you have given them unless both fear that they will not be able to keep [within] the limits of Allah. But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah, it is those who are the wrongdoers." (Al-Baqarah 228-229)
Allah does not mention the second talaq until discussing the issue of return in the previous verse, indicating that the second talaq occurs after returning from the first talaq, as the strongest opinion among scholars. This is supported by Sheikhul Islam Ibn Taymiyyah, who said:
وَقَوْلِ النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ {فِي مَجْلِسٍ وَاحِدٍ} مَفْهُومُهُ أَنَّهُ لَوْ لَمْ يَكُنْ فِي مَجْلِسٍ وَاحِدٍ لَمْ يَكُنْ الْأَمْرُ كَذَلِكَ؛ وَذَلِكَ لِأَنَّهَا لَوْ كَانَتْ فِي مَجَالِسَ لَأَمْكَنَ فِي الْعَادَةِ أَنْ يَكُونَ قَدْ ارْتَجَعَهَا
[ابن تيمية ,مجموع الفتاوى ,33/14]
And the words of the Prophet (peace be upon him): "in one sitting" are understood to mean that if it is not in one sitting, then the matter is not the same (not considered as one talaq only). This is because if the companion (of the Prophet) issued talaq in several sittings, it is assumed, according to custom, that he had returned to her previously. (Majmu Fatawa Ibn Taymiyyah 14/33).
Thus, the second talaq occurs after there has been a ruju' from the first talaq.
2. Talaq bain is a type of talaq where the husband cannot return to his wife except with a new marriage contract, as in the initial marriage.
Talaq bain is also divided into two types: minor talaq bain and major talaq bain.
Minor talaq bain occurs in two situations: after the iddah period of the first talaq and after the iddah period of the second talaq, meaning the husband must form a new bond or marriage contract with the wife he has divorced because the iddah period has passed.
As for major talaq bain, it is the talaq muharromah.
3. Thalaq muharromah or thalaq bain kubro is the third talaq, which makes it forbidden for the husband to return to his wife until she marries another man, consummates the marriage, and then gets divorced.
When does the third talaq occur?
The third talaq occurs after the second talaq has taken place and the husband has made ruju' from the second talaq. The evidence, as mentioned previously, is also supported by Allah's statement:
فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُۥ مِنۢ بَعْدُ حَتَّىٰ تَنكِحَ زَوْجًا غَيْرَهُۥ ۗ فَإِن طَلَّقَهَا فَلَا جُنَاحَ عَلَيْهِمَآ أَن يَتَرَاجَعَآ إِن ظَنَّآ أَن يُقِيمَا حُدُودَ ٱللَّهِ ۗ وَتِلْكَ حُدُودُ ٱللَّهِ يُبَيِّنُهَا لِقَوْمٍ يَعْلَمُونَ.
Then if he divorces her (the third time), she is not lawful unto him thereafter until she has married another husband. Then, if the latter husband divorces her, it is no sin on both of them that they reunite, provided they feel that they can keep the limits ordained by Allah. These are the limits of Allah, which He makes plain to the people who have knowledge.
(Al-Baqarah 2:230)
Shaykhul Islam Ibn Taymiyyah (may Allah have mercy on him) said:
والطَّلَاقُ الْمُحَرَّمُ لَهَا " لَا تَحِلُّ لَهُ حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُ وَهُوَ فِيمَا إذَا طَلَّقَهَا ثَلَاثَ تَطْلِيقَاتٍ كَمَا أَذِنَ اللَّهُ وَرَسُولُهُ وَهُوَ: أَنْ يُطَلِّقَهَا ثُمَّ يَرْتَجِعَهَا فِي الْعِدَّةِ. أَوْ يَتَزَوَّجَهَا ثُمَّ يُطَلِّقَهَا ثُمَّ يَرْتَجِعَهَا. أَوْ يَتَزَوَّجَهَا ثُمَّ يُطَلِّقَهَا الطَّلْقَةَ الثَّالِثَةَ. فَهَذَا الطَّلَاقُ الْمُحَرَّمُ لَهَا حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُ بِاتِّفَاقِ الْعُلَمَاءِ.
[ابن تيمية ,مجموع الفتاوى ,33/9]
"And the forbidden talaq for her is: 'She is not lawful unto him until she has married another husband,' which applies if he divorces her three times as Allah and His Messenger have prescribed: he divorces her, then takes her back during the iddah, or marries her again (after the iddah), then divorces her, then takes her back, or marries her again, then divorces her a third time. This is the talaq that makes her forbidden to him until she marries another husband, according to the consensus of the scholars." (Majmu Fatawa Ibn Taymiyyah: 9/33).
Thus, it is understood that after the third talaq, the husband cannot take his wife back even during the third iddah period, until she marries another man and consummates the marriage.
That is all. Allah knows best.
Abu Ibrohim Saiid AlMakaassary
22 Rajab 1444
Reviewed and corrected by
Abu Hanan Utsman As-Suhaily, may Allah protect him
23 Rajab 1444
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