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some information about Divorce ,Khula', Iddah, and the third divorce

Posted by (Group Owner) on Jan. 25, 2010 at 11:05 PM
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Assalamu alaikum sisters,

it is with a sad heart that I start up this thread again. we have talked about divorce before. and though it is discouraged in Islam. it still happens. and sometimes it needs to  happen. and so we need to keep ourselves educated, so we know our rights. and we know insha' Allah the laws and rules that govern it.

((((((HUGS)))))))) to all my sisters who are in need of this post. may Allah reward you, and grant you what is best for you.. Ameen.

Love and salaam (peace)

 (proud2bmom3 Muslim Moms-- Owner. 

by on Jan. 25, 2010 at 11:05 PM
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proud2bmom3 Group Owner
by on Jan. 25, 2010 at 11:07 PM

Where Does a woman that has been divorced for the THIRD time, spend her Iddah? ( waiting period)

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Where should the woman who has been thrice divorced spend her ‘iddah?
1- A woman who has been divorced three times has sons and daughters. Where should she spent her 'iddah? In her family's house or in the marital home with her sons and daughters? Please note that she wants to spend her 'iddah with her sons and daughters. 
2- There was a wife who was divorced three times, and during her 'iddah she became sad, and when she met her husband (during the ‘iddah), she embraced him and things happened, but no kissing or intercourse took place. 
What is the way to expiate for this sin by both parties? Please note that no kissing or intercourse took place.

Praise be to Allaah.

Firstly:  

If a man has divorced his wife irrevocably, she is not entitled to any maintenance or accommodation during the ‘iddah, unless she is pregnant. Irrevocable divorce is of two types:  

1. Minor irrevocable divorce, which is when the woman is divorced before consummation of the marriage, and divorce in return for compensation (meaning: in return for money taken by the husband). 

2. Major irrevocable divorce, which means completion of three divorces (talaqaat). 

Ibn Qudaamah (may Allaah have mercy on him) said: If a man divorces his wife in such a way that has no right to take her back, then she is not entitled to accommodation or maintenance, unless she is pregnant. 

In general, if a man divorces his wife irrevocably, either by a third divorce (talaaq), or khula’, or an annulment, and she is pregnant, then she is entitled to maintenance and accommodation, according to scholarly consensus, because Allaah says (interpretation of the meaning):

“Lodge them (the divorced women) where you dwell, according to your means, and do not harm them so as to straiten them (that they be obliged to leave your house). And if they are pregnant, then spend on them till they lay down their burden”

[al-Talaaq 65:6].

According to some reports of Faatimah bint Qays, “You are not entitled to any maintenance unless you are pregnant.” and because the pregnancy is his child, so he is obliged to spend on it, and he cannot spend on him (the fetus) except by spending on her, so it is obligatory, just as it is obligatory to pay for the costs of breastfeeding. 

But if she is not pregnant, then there is no maintenance for her. 

With regard to accommodation, there are two reports, one of which is that she is entitled to that. This is the view of ‘Umar and his son, and Ibn Mas’ood, 'Aa'ishah, the seven fuqaha’ of Madeenah, Maalik and al-Shaafa’i, because of the verse quoted above. 

The second report says that she is not entitled to accommodation or maintenance, and this is the prevalent view of the madhhab, and it is the view of ‘Ali, Ibn ‘Abbaas, Jaabir, ‘Ata’, Tawoos, al-Hasan, Ikrimah, Maymoon ibn Mahraan, Ishaaq, Abu Thawr and Dawood. 

Most of the Iraqi fuqaha’ said that she has the right to accommodation and maintenance. This is the view of Ibn Shubrumah, Ibn Abi Layla, al-Thawri, al-Hasan ibn Saalih, Abu Haneefah and his companions, al-Batti and al-‘Anbari. End quote from al-Mughni (8/185). 

The evidence that the irrevocably divorced woman is not entitled to maintenance or accommodation is the report narrated by Muslim (1480) from al-Sha’bi who said: I entered upon Faatimah bint Qays and asked her about the judgement that the Messenger of Allaah (blessings and peace of Allaah be upon him) passed concerning her, and she said that her husband divorced her irrevocably, and she said: I referred my dispute with him concerning accommodation and maintenance to the Messenger of Allaah (blessings and peace of Allaah be upon him), and he did not give me any accommodation or maintenance, and he told me to observe my 'iddah in the house of Ibn Umm Maktoom. 

According to another report also narrated by Muslim, she said: I mentioned that to the Messenger of Allaah (blessings and peace of Allaah be upon him) and he said: “There is no maintenance or accommodation for you.” 

According to a report narrated by Abu Dawood, “There is no maintenance for you unless you are pregnant.” 

Ibn ‘Abd al-Barr (may Allaah have mercy on him) said: But with regard to evidence and what is binding thereof, the view of Ahmad bin Hanbal and those who followed him is more sound and more correct, because if it were obligatory for her to stay in her husband’s house and was something ordained by Allaah, then Messenger of Allaah (blessings and peace of Allaah be upon him) would have obliged her to do that and would not have made her leave her husband's house to go to the house of Umm Shareek, or to the house of Ibn Umm Maktoom. As it is proven that the Prophet (blessings and peace of Allaah be upon him) said to Faatimah bint Qays, who had been irrevocably divorced: “There is no accommodation or maintenance for you; rather accommodation and maintenance are for the one who may be taken back,” then what can contradict that? Can it be contradicted except by a similar report from the Prophet (blessings and peace of Allaah be upon him), who was the one who explained what Allaah meant in His Book? And nothing of that nature has been reported from him (blessings and peace of Allaah be upon him). It is well known that he knew better than anyone else about the interpretation of the words of Allaah (interpretation of the meaning): “Lodge them (the divorced women) where you dwell”. End quote from al-Tamheed (19/151). 

If the husband allows her to stay in his house during the ‘iddah, then there is nothing wrong with her staying there, on condition that she observe hijab before him, because by virtue of the irrevocable divorce he has become a stranger to her. But it is better for her to observe the ‘iddah in her family's house, so as to close the door to fitnah, as mentioned in the question, because the shaytaan may make her appear attractive to him, and make him appear attractive to her, until they do a haraam action, when before that the shaytaan strove hard to make them unattractive to one another until the  threefold divorce took place: “Then take admonition, O you with eyes (to see)” [al-Hashr 59:2]. 

Secondly: 

For an irrevocably divorced woman to embrace her former husband is a haraam action, as was what happened after that of touching him and so on. What they must do is repent to Allaah and regret this evil action. It is no secret that with the third divorce, they became strangers(non-mahrams) to one another, so it is not permissible to look or touch, let alone the embracing and what you mentioned. It is not permissible for him to go back to her until she has married another husband, in a genuine marriage, and not a marriage of convenience aimed at making her permissible for the first husband, then he (the second husband) dies or leaves her. 

And Allaah knows best.

Islam Q&A

proud2bmom3 Group Owner
by on Jan. 25, 2010 at 11:12 PM

Explain to me the rules of marrying another man after the third divorce, before her first husband is allowed to marry her again?

in a nutshell. if he divorces her three times. he CANNOT marry her unless she marries another man ( consummates the marriage) and then that man divorces her or dies ( and she waits for her iddah to be over)

the marriage of the other man  SHOULD NOT BE PLANNED.. it is haram to have a temporary marriage for the purpose of making her halal to him again:

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Tahleel marriage is haraam and invalid
My friend has divorced his wife the third and final divorce. Is it permissible that I marry her then divorce her so that she can return to her first husband?.

Praise be to Allaah.

If a man divorces his wife for the third time, then she is not permissible for him to marry until she has married another man, because Allaah says (interpretation of the meaning): “And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband” [al-Baqarah 2:230].

It is stipulated that this marriage which will make her permissible for her first husband should be a valid marriage. Temporary marriage (mut’ah marriage) or marriage for the purpose of making her permissible for her  first husband then divorcing her (tahleel marriage) are both haraam and invalid according to the vast majority of scholars, and it does not make the woman permissible for her first husband.  

See: al-Mughni (10/49-55). 

There are saheeh ahaadeeth from the Prophet (peace and blessings of Allaah be upon him) which show that tahleel marriage is haraam. 

Abu Dawood (2076) narrated that the Prophet (peace and blessings of Allaah be upon him) said: “Allaah has cursed the muhallil and the muhallal lahu.” This was classed as saheeh by al-Albaani in Sunan Abi Dawood. 

The muhallil is the one who marries a woman and divorces her so that she can go back to her first husband, and the muhallal lahu is the first husband. 

Ibn Majaah (1936) narrated from ‘Uqbah ibn ‘Aamir (may Allaah be pleased with him) that the Prophet (peace and blessings of Allaah be upon him) said: “Shall I not tell you of a borrowed billy-goat.” They said, Yes, O Messenger of Allaah. He said, “He is al-muhallil. May Allaah curse al-muhallil and al-muhallal lahu.” Classed as hasan by al-Albaani in Saheeh Sunan Ibn Maajah. 

‘Abd al-Razzaaq (6/2650 narrated that ‘Umar ibn al-Khattaab (may Allaah be pleased with him) said whilst addressing the people: “By Allaah, no muhallil or muhallal lahu will be brought to me but I will stone them.” 

This applies whether he states his intention clearly when doing the marriage contract and they stipulate that when he has made her permissible for her first husband he will divorce her, or they do not stipulate that and he intends it to himself only. 

Al-Haakim narrated from Naafi’ that a man said to Ibn ‘Umar: I married a woman and made her permissible for her first husband, and he did not tell me to do that and he did not know. He said: No, marriage should be based on genuine intentions; if you like her then keep her, and if you do not like her then leave her. He said: At the time of the Messenger of Allaah (peace and blessings of Allaah be upon him) we would regard that as zina. And he said: They will still be adulterers, even if they remain for twenty years. 

Imam Ahmad was asked about a man who married a woman intending thereby in his heart to make her permissible for her first husband, but the woman did not know about that. He said: He is a muhallil, and if he intends thereby to make her permissible for her first husband, then he is cursed. 

Based on that, it is not permissible for you to marry this woman if you intend thereby to make her permissible for her first husband. Doing that is a major sin, and the marriage will not be valid, rather it is zina – Allaah forbid.

Islam Q&A

proud2bmom3 Group Owner
by on Jan. 25, 2010 at 11:20 PM

What is the difference between a revocable and an irrevocable marriage? and is uttering the work talaq ( divorce) three times count as one, or three divorces?

the general opinion is that even if the man says it a hundred times, in one situation, then it is considered ONE divorce.

the revocable divorce is that when a man is allowed to return his wife to him during the waiting period, without having to go through a new contract, proposal, or dowry, and that is the first and second divorces. if however, the waiting period is done. then it becomes irrevocable and he needs to propose, set up a new contract..etc.

the third divorce however, means she is Haram for him to see, or sit with , or live with, and he Cannot marry her except like we said, if she marries another...etc ( look at the previous fatwa- scroll up)

insha 'Allah this excerpt for this fatwa will explain it better: 

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Revocable divorce is that in which the husband has the right to take the wife back, without a new marriage contract, dowry or consent of the wife. The divorce in which the husband has the right to take the wife back is the first or second divorce, before the ‘iddah ends. But if the ‘iddah of a first or second divorce ends, it becomes irrevocable in a minor sense, and she cannot go back to her husband unless she agrees and there is a new marriage contract and a new dowry. There is no difference of opinion concerning this among the scholars, and the evidence for it is the verse in which Allaah says (interpretation of the meaning): “The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness” [al-Baqarah 2:229]. If a third divorce takes place, she is not permissible for him except after she marries another husband in a genuine marriage, then he divorces her or dies after consummating the marriage with her -- and this is the irrevocable divorce in the major sense. The evidence for that is the following verse in which Allaah says (interpretation of the meaning): “And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband. Then, if the other 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 Allaah. These are the limits of Allaah, which He makes plain for the people who have knowledge” [al-Baqarah 2: 230]. 

Thirdly, 

If we think positively of the person who said that, and assume that he thinks that a thrice-uttered divorce counts as three, then there is no validity in his saying that it is irrevocable divorce in the minor sense, because the thrice-uttered divorce, according to those who say that it counts as three, means that the wife is irrevocable divorced in the major sense. So how can it be permissible for him to say that it is irrevocable divorce in the minor sense and that she may go back to him with a new marriage contract and a new dowry? 

The correct view is that the thrice-uttered divorce counts as one divorce. We have explained that in the answer to question number 96194. It was narrated from Ibn ‘Abbaas (may Allaah be pleased with him) that he said: At the time of the Messenger of Allaah (blessings and peace of Allaah be upon him), Abu Bakr and the first two years of ‘Umar’s caliphate, a threefold divorce was counted as one. Narrated by Muslim (1472).  

Fourthly:  

what happened in your case, namely your taking back your wife after the first and second divorce is valid, but by virtue of the third divorce, the wife has become haraam to you and is irrevocably divorced in the major sense; she is a stranger to you and you have to give her her rights in full, and it is not permissible for you to marry her until after she has married another man in a genuine marriage and he leaves her by death or divorce, after consummating the marriage with her. 

With regard to nikaah al-tahleel [a sham marriage aimed at making it permissible for the wife to go back to her first husband] which some people do, it is an invalid marriage which does not make it permissible for the woman to go back to her first husband. The Prophet (blessings and peace of Allaah be upon him) cursed those who do that. 

Weverly314
by on Jan. 26, 2010 at 7:14 AM

Wow!  

sisnur
by on Jan. 26, 2010 at 7:47 AM

Assalamualaikum sis,

Thanks for posting it, but I have question that hopefully you can look for the answer, InshAllah

It was written that no maintenance for women if she is not pregnant.

The women dedicate her life during the marriage for taking care of house, husband and family, so when she got divorce  she would totally no income or no source for her living as she didn't have a job for income while she is marriage also the family can't afford to help. In some country there would be no law for giving a wife right for the family wealthy ( husband share the stuff etc to his wife as that collected while they were marriage ) 

 I just thinking maybe a little apreciated ffrom husband to wife to maintenance her while she still not afford for living seem like is not fair just to leave it without concerning how she spent her life during the marriage.

what does Islam say about that ?

Since I believe Islam is the religion full of mercy. and those are only my big question about divorce wife right.

Other things as far as I know there is a hadits about giving the gift to divorce wife as an apreaciation I guess called mut'ah

and ayat about being kind to divorce women

2:241 For divorced women Maintenance (should be provided) on a reasonable (scale). This is a duty on Al-Muttaqun (the righteous).

what is that meaning behind that ayat ?

jazakallah khairan


sisnur
by on Jan. 26, 2010 at 8:45 AM

here i just found from :

Tafsir Ibn Kathir   

Select Surah

The Necessity of the Mut`ah (Gift) at the Time of Divorce

Allah said:

[وَلِلْمُطَلَّقَـتِ مَتَـعٌ بِالْمَعْرُوفِ حَقًّا عَلَى الْمُتَّقِينَ ]

(And for divorced women, maintenance (should be provided) on reasonable (scale). This is a duty on Al-Muttaqin (the pious).)

`Abdur-Rahman bin Zayd bin Aslam said that when Allah's statement:

[مَتَـعاً بِالْمَعْرُوفِ حَقًّا عَلَى الْمُحْسِنِينَ]

(...a gift of reasonable amount is a duty on the doers of good) (2:236) was revealed, a man said, "If I want, I will be excellent and if I do not, I will not.'' Thereafter, Allah revealed this Ayah:

[وَلِلْمُطَلَّقَـتِ مَتَـعٌ بِالْمَعْرُوفِ حَقًّا عَلَى الْمُتَّقِينَ ]

(And for divorced women, maintenance (should be provided) on reasonable (scale). This is a duty on Al-Muttaqin (the pious).)

The scholars who ruled that the Mut`ah (reasonable gift) at the time of divorce is required for every divorced woman, whether she had a bridal-money appointed for her or not, and whether the marriage was consummated or not, relied on this Ayah (2:241) when they issued their ruling. This is the view taken on this subject by Sa`id bin Jubayr and several others among the Salaf and also Ibn Jarir. Hence, Allah's statement:

[لاَّ جُنَاحَ عَلَيْكُمْ إِن طَلَّقْتُمُ النِّسَآءَ مَا لَمْ تَمَسُّوهُنَّ أَوْ تَفْرِضُواْ لَهُنَّ فَرِيضَةً وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُهُ وَعَلَى الْمُقْتِرِ قَدْرُهُ مَتَـعاً بِالْمَعْرُوفِ حَقًّا عَلَى الْمُحْسِنِينَ ]

(There is no sin on you, if you divorce women while yet you have not touched (had sexual relation with) them, nor appointed for them their due (dowry). But bestow on them (a suitable gift), the rich according to his means, and the poor according to his means, a gift of reasonable amount is a duty on the doers of good.) (2:236) only mentions some specifics of this general ruling.

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