Laws of Religion

Laws of Islam Concerning Women and Men

 

Divorce

 

Marrying a Divorced Woman – Iddah/Waiting Period

 

From Islamic Jurisprudence (fiqh/sharia^§):  The Distinguished Jurist’s Primer of Ibn Rushd, the Risala of al-Shafi‛i and Reliance of the Traveller

 

 

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Marrying a divorced woman – iddah/waiting period (jurisprudence/fiqh/sharia).

 

The scholars^* agree that when a marriage has been consummated and a pronouncement of divorce is made, the woman begins her waiting period (iddah).[1] If the marriage has not been consummated, there is no waiting period following a divorce.[2]

 

It is forbidden to marry a woman during her waiting period (iddah) following divorce or the death of her husband.[3] According to Reliance of the Traveller, it is also forbidden to make a direct proposal of marriage to a woman during her waiting period following divorce or the death of her husband.[4] When the waiting period following a pronouncement of divorce is completed, the woman may marry another man.

 

If a woman is married during her waiting period and the marriage is consummated, the two people are to be separated. Al-Shafiʽi and Abu Hanifa say they may marry again after her waiting period is over but Malik says that she is forbidden to him forever.[5]

 

Abu Hanifa says that mourning is required of a woman in her waiting period (iddah) following divorce. Malik says mourning is not required. Al-Shafiʽi says it is preferred, but not required.[6] During mourning, a woman is forbidden from adorning herself in such a way as to attract men, such as by wearing jewelry or colorful clothing other than black. Using kohl to darken the eyes is prohibited when a woman is in mourning unless it is medically necessary.[7] As the Shafiʽi school recommends mourning during the waiting period after a pronouncement of divorce, Reliance of the Traveller explains that this includes not beautifying herself, wearing jewelry, using cosmetics, styling her hair or wearing solid colors such as blue, green, red or yellow, or adding spices to her food.[8]

 

During the waiting period the man and woman are to be separated and are not to have sexual intercourse.[9] Reliance of the Traveller says that the man may not physically enjoy or even look at the woman during her waiting period unless and until he takes her back.[10] A woman may not be alone with her husband during her waiting period and he may not stay in the same house unless the house has a separate wing.[11]

 

If a single pronouncement of divorce occurs in a marriage that was never consummated, or if the divorce is the result of payment by the woman to the man, then the man may not take the woman back.[12]

 

For a free woman, the waiting period following a pronouncement of divorce is three menstrual cycles if she is menstruating, until the end of pregnancy if she is pregnant, or three months if she is post-menopausal.[13] Reliance of the Traveller (Shafiʽi school) says that the waiting period after divorce is also three months if the divorced female is prepubescent.[14] For a menstruating slave woman the waiting period following the pronouncement of divorce is two menstrual cycles; if she is prepubescent or post-menopausal, the waiting period is three months according to Malik and 1½ months according to al-Shafiʽi and Abu Hanifa.[15]

 

During the waiting period following a revocable divorce, the man must provide the woman with maintenance and lodging.[16] Reliance of the Traveller says that during her waiting period following pronouncement of divorce, a woman is to stay in the same home in which the divorce took place except when there is a real necessity to move her elsewhere.[17]

 

According to Malik, after an irrevocable divorce, the woman is entitled to housing but is not entitled to maintenance if she is not pregnant.[18] Al-Shafiʽi and the Shafiʽi school agree that she is entitled to housing but they say that she is entitled to maintenance only if she is not pregnant.[19]

 

After an irrevocable divorce, the couple may not be remarried unless the woman first marries another man and has intercourse with him, followed either by divorce or death of the second husband.  (This reflects the verse of the Qur’an (2:230, cited above) that says that after a divorce is finalized, the couple cannot remarry until the woman has married another man. If she and this second husband are divorced, then she and the first husband may remarry.[20]) Most scholars agree that only intercourse (insertion of the head of his erect penis into her vagina) is required, not ejaculation. Malik says that remarriage to the first husband is permitted only if intercourse with the second husband is legally permitted (not during menstruation or at other prohibited time), the second husband is not a minor and the second husband is not marrying the woman for the purpose of permitting the first husband to remarry her.  Also, second marriage by a dhimmi^§§ woman to a dhimmi man does not permit remarriage of the woman to the first, Muslim husband. Al-Shafiʽi and Abu Hanafa do not impose such conditions on remarriage to the first husband.[21]

 

 

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^*Islamic scholars disagree on certain points of law based on different methodologies used in deriving the law from the Qur’an and the traditions (sunna) concerning the life of Muhammad and his closest companions, particularly as expressed in the compiled hadiths. There are four major schools of jurisprudence in Sunni Islam: the Maliki, the Hanafi, the Shafi‛i and the Hanbali. These names are derived from the individual scholars considered to have been the founders of each school: Malik, Abu Hanifa, al-Shafi‛i and Ahmad ibn Hanbal, respectively. The source texts we have used to prepare our summaries of Islamic jurisprudence contain the legal views of these different founders and schools, as described at Source Texts Used for Laws of Islam.

 

^§The specific derived laws of fiqh summarized here are often referred to by the more general term sharia law.

 

^§§A dhimmi is non-Muslim who agrees to follow certain rules of behavior,[22] wears distinctive clothing that Muslims do not wear,[23] pays a poll tax (jizya),[24] and is protected by the Muslim rulers.[25] For al-Shafi‛i[26]  and the Shafi‛i school[27] only Jews, Christians, and Zoroastrians (or Magians) may be dhimmis but Malik[28] and the Hanifi[29] say that even polytheists may be dhimmis.

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Abbreviations used in footnotes:

QR:   Qur’an, with surahs (chapters) and ayahs (verses) numbered as in most modern translations, including those found here, here and here.

DJP:  The Distinguished Jurist’s Primer, by Ibn Rushd, translated by Imran Ahsan Khan Nyazee, published by Garnet Publishing Ltd, Reading, UK. Volume 1, 1994. Volume 2, 1996. Full text online and download for Volume 1 are here and here and for Volume 2 are here and here.

RT:    Reliance of the Traveller: A Classic Manual of Islamic Sacred Law by Ahmad ibn Naqib al-Misri, translated by Nuh Ha Mim Keller, revised edition 1994, published by Amana Publications, Beltsville, Maryland, USA.  Reliance of the Traveller can be found here and here.

SR:    al-Shafi‛i’s Risala: Treatise on the Foundations of Islamic Jurisprudence, translated by Majid Khadduri, Second Edition, published by The Islamic Texts Society.

●  The sources cited are described on the page Source Texts Used for Laws of Islam.