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By: Khalid Iqbal, Founder Rahmaa Institute
www.Rahmaa.org
When I was approached by Prof. Forrest Mosten and Rabbi Jeff Marx to coauthor I was humbled by the offer but also excited to be on the team to write about this topic from a Muslim clergy perspective for two main reasons:
1. I have witnessed a number of divorces that have devastated not only the divorcing couple, but also had a long lasting negative effect on their children, grandparents, family and the community. Mostly however the children.
2. There seems to be an emphasis on reconciliation within the Muslim community from the Imams, and Muslim social service counselors, however when the couple decide to call it quits, they are left on their own to hash it out through the court systems. I strongly believe that, that is the most critical time when the couple and their families need most guidance and support. This may be due to the reason that we live in a secular society where separation of state and religion is paramount even when the religious community can partner with the state to make things go better especially during the stressful divorce period.
I remember clearly in 1985 it was a cold afternoon in Winnipeg, Canada in mid-December. A couple approached me as a clergy asking for divorce, they were very angry at each other. They had three beautiful children. The eldest of them was an eight year old girl who asked me “What happens when mom and dad divorce? What will happen to us? Who will take care of my youngest sister?” I really had no answer to her questions.
The Muslim community in North America is extremely diverse coming from all parts of the world. Many bring with them strong cultural traditions and tribal rituals in different aspects of life including marriage and divorce. Therefore when dealing with divorcing couples the mediator or arbitrator also need to be conscious and sensitive about the cultural issues that the couple may be facing. In this paper I will be concentrating on the Islamic religious aspect only.
I have used a number of Arabic terms that our readers may not be familiar with therefore I am providing a glossary of the foreign language term used with their meanings and explanations at the end.
God’s Creation in pairs
Marriage is the oldest institution known to mankind. Allah (God) created a mate Eve (Arabic Hawa) for Adam immediately after his creation. It is mentioned in the Qur’an that Allah created all living creatures in pairs.
وَمِنْ كُلِّ شَيْءٍ خَلَقْنَا زَوْجَيْنِ لَعَلَّكُمْ تَذَكَّرُونَ
[Sura Adh-Dhurriat 51:49] And of everything We have created pairs: That ye may receive instruction.
As a human it is natural to be attracted to the opposite sex. That is why the institution of marriage is considered the most sacred and loved act in the sight of Allah (God). Islam asks both the husband and the wife to keep and respect this bond. Thus, each partner in this sacred relationship must treat the other kindly and properly. A couple must not divorce his/her spouse to bring harm upon him/her, as this constitutes an act that demolishes this noble establishment, breaks the man’s/woman’s heart, and possibly separates one parent from their children without any just reason. Thus, the separation between a man and his wife (without just reasons) was considered one of the major and grave sins, and one of the most beloved actions of Satan, as was narrated in a number of hadiths. This is, of course, a form of oppression which is forbidden in Islam.
The concept of Libas (Translation: Garment) in Islam
Libas is an Arabic term for Garment. Allah says in the Quran
They (Your spouse) is your garments and ye are a garments to your spouse (Surah Al-Baqara 2:186)
Garment is the closest thing to your body, it not only covers you but protects you from external threats and stresses like heat and cold. It also beautifies you and at the same time hides your faults or unwanted marks on your body. Allah gives this as a parable of husband and wife who not only support each other but highlight each other’s strengths and hides each other’s faults and weaknesses.
Allah then gave the recipe of love in a verse in chapter Rome Chapter 30:21
وَمِنْ آيَاتِهِ أَنْ خَلَقَ لَكُمْ مِنْ أَنْفُسِكُمْ أَزْوَاجًا لِتَسْكُنُوا إِلَيْهَا وَجَعَلَ بَيْنَكُمْ مَوَدَّةً وَرَحْمَةً ۚ إِنَّ فِي ذَٰلِكَ لَآيَاتٍ لِقَوْمٍ يَتَفَكَّرُونَ
[Yusufali 30:21] And among His Signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquility with them, and He has put love and mercy between your (hearts): verily in that are Signs for those who reflect.
The recipe for a husband and wife is to love each other without any expectation in return and even when you disagree and argue do it with mercy and kindness in your heart. The concept of libas (garment) as commanded by Allah is a central theme for couples deciding to divorce to keep it civil agreeing to disagree with love and mercy for each other and their children.
Talaq (divorce)
Divorce (Arabic: Talaq) is the most hated permissible thing in the sight of Allah. It dissolves families and deprives children the family atmosphere. The Prophet (peace and blessings be upon him) said: “The most hateful permissible thing in the sight of Allah is divorce1”.
“Talak” is an Arabic word meaning “to release” or “to divorce”. Under Islamic Shariah law “talak” means to unite the matrimonial knot by saying a word denoting divorce. From the time of uttering these words there is compulsory waiting period of the wife’s three menstrual cycles during which husband is obligated to provide her with all amenities of life as before. This actually provides a natural cooling period for both to think of their actions and reconcile if they think it is in their own and the children best interest.
Since divorce from the Western and North American context falls under the jurisdiction of the law of the state, majority of Imams and religious leaders have taken the position of performing religious divorce after the couple has gone through the court system. This often prevent the divorcing Muslim couple from obtaining much needed guidance counseling including spiritual, emotional and sometimes financial assistance during and after divorce.
Divorcing couples often find themselves isolated from the community, extended family and social circle they belong to. In many cultures shame of going through divorce prevent them from seeking help at the time when it is most needed. Those well-wishers who were part of marriage ceremony and celebrations find about the marital problems when the water is under the bridge or even later.
Social media on the other hand often prove to be more harmful than good in spreading rumors and unnecessary gossip for the world to see.
It is paramount for the divorcing couples to have interaction with a Muslim clergy who could guide them through the religious injunctions as to what Quran teaches during separation and divorce period. Allah says in the Quran
الطَّلَاقُ مَرَّتَانِ ۖ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ ۗ وَلَا يَحِلُّ لَكُمْ أَنْ تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلَّا أَنْ يَخَافَا أَلَّا يُقِيمَا حُدُودَ اللَّهِ ۖ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ ۗ تِلْكَ حُدُودُ اللَّهِ فَلَا تَعْتَدُوهَا ۚ وَمَنْ يَتَعَدَّ حُدُودَ اللَّهِ فَأُولَٰئِكَ هُمُ الظَّالِمُونَ {229}
[Sura Al Baqara 2:229] A divorce is only permissible twice: after that, the parties should either hold Together on equitable terms, or separate with kindness. It is not lawful for you, (Men), to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom. These are the limits ordained by Allah; so do not transgress them if any do transgress the limits set by Allah, such person has wronged (Themselves as well as others).
When I counsel and mediate divorce between Muslim couples I remind them of the “garment” verse that it is just as you are taking your garments off from your body. You don’t want to display your naked body in public to the whole world, displaying your shortcomings and deficiencies. Opening dirty laundry to display may benefit one party or both short term but bring guilt and hurt for the rest of the life. I specifically guide them through this verse that the discussion and terms should be equitable and not harmful especially when children are involved.
Mediation / Arbitration process in Islam
The decision of divorce in most cases is not made in the heat of the moment (although I have seen it happen in one case) it is because of long simmering issues that lead to a couple to go their separate way. In some cultures men try to take advantage of the verse from Sura Nisa 4:34 that “Men are protectors (in charge) of women by [right of] what Allah has given one over the other and ………” as being in charge means they can take advantage of them and even to the extent of commanding them as their slave or have the right to do mental or physical violence. They neglect the hadeeth of our Prophet forbidding men to hit or conduct violence against their wife. I have seen this with newly immigrant spouse not knowing their human and civil rights being subjected to physical and mental violence till they reach a breaking point. Many divorcing couples reach a point of fight or flight mode when communication between them breaks down. This situation can be made even worse by the stress of attending court, especially where there are financial or childcare arrangements to sort out. This is a perfect time for other genuine stake holders like parents, grandparents and sincere level headed family members to get involved. Imams, community elders and especially trained mediators can and should play a guiding role in this critical juncture of the divorcing couple’s life
Quran says: “And if you fear a breach between the two, appoint an arbiter from his relatives and an arbiter from her relatives. If they both desire reconciliation Allah will affect harmony between them. Verily Allah has full knowledge, and is aware of everything.” (Surah An-Nisa 4:35)
Just like a marriage is a community affair that bring the families and community together in happiness a possible divorce, involves more than just the two spouses. It affects children, parents, grandparents and entire families. Before a decision is made about divorce, then, it is only fair to involve family elders in an attempt at reconciliation of reaching an equitable separation agreement. Family members know each party personally, including their strengths and weaknesses, and would hopefully have their best interests at heart. If they approach the task with sincerity, they may be successful in helping the couple work their issues out.
Some couples are reluctant to involve family members in their difficulties. Culture also plays a role in this reluctance. One must remember though, that a divorce would affect them as well in their relationships with grandchildren, nieces, nephews, etc. and in the responsibilities they would face in helping each spouse develop an independent life. So the family will be involved, one way or the other. For the most part, family members would prefer the opportunity to help while it is still possible.
I understand and recognize my short comings as a clergy and mediator that while I may have the knowledge and experience of Islam and mediation techniques I am naturally detached and lack personal involvement in the suffering and plight of the divorcing couple and their families. That however gives me a clear benefit of neutrality in each case as opposed to the two families. I often have to extend my mediation beyond the couple to the parents and other family members, realizing that they will still be a member of the community and congregation.
Our Imams and family members who are asked to mediate or arbitrate divorcing couple must realize that divorcing couple mediation or arbitration is not marriage counselling. I have seen in more than once that a mediation or arbitration session turn into counseling session that often result in the parties not to return to the table. At this juncture what is needed is to find practical solutions that help people make arrangements after they have decided to split up. It is less confrontational as we as clergy can provide them an environment of neutrality in a Mosque and reminder of Islamic values of conflict resolution that Islam teaches. It is also less of a financial burden than going to court and can reduce distress to children and family members.
As a Muslim mediator I may be more familiar with a wide range of cultural sensitivities surrounding separating Muslim couples and their families as compared to a secular court system. Muslim couples who have come to me for mediation welcome the opportunity to resolve their differences through mediation as this is expressly prescribed in the Qur’an, Chapter 4, verse 35, “If you, (who believe), fear that a couple may break up, appoint one arbitrator from his family and one from hers.” Essentially the reference to “arbitrator” suggests the appointment of two mediators: one appointed by each party. Early reconciliation is the primary objective but other Qur’anic verses expressly allow divorce to be petitioned by either spouse.
I find that the best time to start mediation for divorce is prior to going through the court system when a family is most in need of a non-judgmental, unbiased and sensitive intermediary. I try to involve family elders only on the condition that they will not add fuel to already simmering fire. If I find that family members have their own agenda I avoid their involvement going forward. Fairness and equitable treatment of both parties is the key. I involve the children at an appropriate time to get their views about contact arrangements, where to live and financial provision can also be included within the mediation process. I often meet with children, aged 6 -17, to talk about the impact of any of their parents’ proposals upon their lives. Clergy confidentiality rules apply.
My initial role is to help separating couples talk though the options for living separately in the same or different households. During the process majority of my time is then spent on helping the parties to really think about the demands they are making and rephrase them in a way that both can accept. As an experienced mediator, I can predict each person’s reaction to proposals and subtly guide couples away from blame, criticism and insults.
For Muslim couples mediation can help them reach agreement about repayments and custody of the children whilst minimizing the involvement of the parties’ respective family members which could fuel conflict between the separating couple. For the couple’s peace of mind, as well as their children’s well-being, mediation sessions can be convened swiftly and often achieve more lasting agreements than adversarial court procedures. Muslim couples in particular seem to welcome the strict confidentiality that mediation entails.
My goal as a mediator is to empower and provide both parties the opportunity to come up with their own solutions, often leading to agreements that are more likely to last, to keep the communication lines open even after the divorce to discuss important matters like children, special occasions in their future life like graduation, career and marriage. I sincerely believe that mediation can lead the couple, their families and the community going through a divorce that they can communicate effectively and amicably with one another – with the best interests of all especially their children. I firmly believe that the solution provided in the Quran for divorcing families is practical and work for the betterment of the couple, their families and the society at large. As our Imams, community leaders and social workers are first line of defense helping couple seeking divorce I would appeal to them to redirect them to qualified Muslim mediator or arbitrator with expertise in Muslim law that have good knowledge of Islam shairah, cultural understanding and sensitivity.
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