Divorce And Remarriage In Islam And Judaism

Within some religions there are a range of procedures and traditions regarding marriage that are set in place for adherents to uphold as well as follow. Both Jewish and Islamic traditions celebrate marriage as a special union in which procreation derives. Judaism along with Islam are greatly concerned with the upbringing of children to be of high religious involvement and advocates for their faith. Thus, Abrahamic belief systems are shown to be sensitive to issues revolving around divorce and re-marriage, for the greater benefit of the household and in order to preserve the union’s sacredness before God.

Divorce in Judaism and Islam

Jewish law regards marriage as a holy contract whose dissolution is considered as an unholy doing. This is taken from the teachings of the book of Micah the prophet stating, “the Lord has been witness between you and your wife whom you have dealt treacherously, though she is your companion, the wife of your covenant” (Micah 2:4). Jews have a high responsibility to uphold their covenant with God and therefore take serious measures to protect this covenant between them and God as well as them and other. In this case, it would be ensuring that the husband retains the covenant between him and his wife “let none of you be faithless to the wife of your youth” (Malachi 2:15). Jewish oral law further emphasizes its opposition towards divorce through the Talmudic saying “even God shares a tear when anyone divorces his wife” (Sanhedrin 22a). As depicted by sacred texts, Jewish tradition does not favor divorce it, however, does recognise the reality of the termination of a marriage. Thus, to some extent, it encourages for a husband and wife to divorce in order to remove any resentment that may occur [Rich, 2011].

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Within Judaism, a woman is unable to initiate divorce, whereas, Jewish scripture explains that a man is permitted to initiate divorce given that his spouse “does not please him because he finds something objectionable about her” (Deuteronomy 24:1). It may seem as though Judaism takes divorce lightly but in fact there are numerous protocols that must be carried out with divorce proceedings. Normally, a man who divorces his wife is obliged to pay her a significant amount of money as specified and previously agreed upon in the ketubah [Rich, 2011], that is the marriage contract. Additionally, a man is unable to re – marry his former spouse provided that she entered another marriage following their divorce [Rich, 2011], taking precaution of their serious obligation to not committing adultery.

The process of divorce by Jewish law is derived from the Torah requiring the husband to construct a bill before handing it to his wife and “sending her away” as outlined in the book of Deuteronomy. As time went on, Jewish rabbis constructed a number of grounds under which one is able to appeal for a divorce certificate, previously referred to in the Talmud as a sefer k’ritut [Rich, 2011], but now known as a “get”. These set grounds were put in place with the aim of preventing irresponsible and hasty divorce initiation by husbands as well as allowing the wife to be able to seek rabbinical court assistance in the case that her husband denies her a divorce certificate upon request.

Traditionally, the get does not comprise details about the divorce or the reasons leading to it but instead it is a document authorising the woman’s eligibility to marry another man within a Jewish ceremony.

Additionally, irrespective of the vast differences in rituals and beliefs, Judaism and Islam are quite similar in the way that they view divorce. As Judaism, Islam also recognises the complications that may arise in a marriage and the possibility of its destruction, hence, permitting the divorce between two married people despite its belief that it is “The most detestable of lawful things before Allah” (Hadith).

The hadith depicts divorce as detestable and disgraceful in the verse expressing “Verily, Allah loves a house in which a wedding is held and hates a house in which a divorce is conducted and there is nothing more hateful than divorce”. Therefore, Islamic law endorses divorce as a last resort given that serious attempts have been made between the couple to resolve their issues and reconcile together.

Similar to Judaism, within Islam divorce initiation is more easily and commonly accessible to men. In the case that divorce is proposed by the husband, it is named talaq. Talaq is known as the most common form of divorce within Islamic tradition and only requires the husband to communicate his intention of divorce to the wife on three separate occasions [BBC Bitesize, 2019]. Islamic tradition, advises “iddah” which is a designated period of a month or three in-between each of the three incidents “talaq” is declared by the husband in aims to remove unwise decisions resulting from intense disputes [Huda Dodge, 2019]. Other than the suggested waiting period (iddah), talaq requires no other grounds or protocols to be followed.

In carrying out divorce procedures, Shi’a tradition requires two witnesses to be present when a husband declares his desire to divorce his wife, in addition to iddah [BBC Bitesize, 2019]. While on the other hand, Sunni tradition does not necessitate the presence of witnesses, recognising the husbands three declarations on separate occasions as sufficient engagement to the divorce progression [BBC Bitesize, 2019].

The second form of divorce established by Islamic law is known as “fasakh” and enables the wife to seek and initiate divorce. Similarly, to Judaism, unlike the husband, the wife is required to provide grounds as well as present them to an Islamic marriage tribunal disclosing and justifying her request to divorce.

In addition to the imposed waiting period ensuring that the woman is not pregnant [BBC Bitesize, 2019], the woman must propose valid grounds qualifying for fasakh, which is comprised of injustices and mistreatments. A few of the grounds considered valid and qualifying for divorce, include abuse, lack of maintenance and desertion.

Some consider divorce protocols within Islam to be favourable towards the wife as they serve to protect her from being exploited [Jaafar-Mohammad and Lehmann, 2010]. As observed within some Muslim traditions, which enable the wife to return the mahr to her husband in order to acquire “khul”, that is equivalent to a “no fault” divorce. This is because the mahr can generally be used as a form of leverage in divorce proceedings. Thus, certain practices allow the husband to offer a share of the mahr at the time of the wedding, so that in the case that he divorces her, he would be obliged to provide her with the remaining portion of the mahr. This is in addition to, the wife’s property, wealth and given mahr not being devised amongst the spouses at the time of divorce, acting as a disincentive for the husband in further prevention of exploitation during the course of their marriage [Jaafar-Mohammad and Lehmann, 2010]. The Qu’ran is well aware of the probability of a husbands abuse of his wife’s wealth and thus ensures that the wife is protected through the instructive verse 'It is not lawful for you (men) to take back any of your gifts except when both parties fear that they would be unable to keep the limits ordained by Allah. There is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah so do not transgress them' (Quran 2:229).

This practice is also implicated in Jewish tradition, whereby the Ketubah serves to protect the wife’s property and wealth at the time of divorce. Avoiding any exploitation by the husband or unfair ruling regarding the wife’s possessions [Lamm, n.d].

Remarriage in Judaism and Islam

Remarriage within Judaism is permitted provided that an individual has obtained a get from their previous marriage. Aforementioned, the absence of an issued get becomes an obstacle for those attempting to remarry and in such cases individuals are unable to have their second marriage recognised by Jewish law.

As time and society progressed, Reform Judaism recognised that there is a bias inbuilt inequality within certain practises, such as in divorce, where the husband alone is able to issue a get. As a result, reform Judaism now overlooks the requirement of a Jew to obtain a get before joining two parties in a marital union.

On the other hand, due to the fact that Conservative and Orthodox Judaism follow tradition and sacred texts closely, a get is still required to be issued and is considered crucial in the process of one’s remarriage within Jewish ritual. In the case that this is not adhered to, and one chooses to remarry outside of a Jewish ceremony, not only will their new marriage not be accepted as legal but children born of that marriage will be deemed illegitimate (mamzer) [Rich, 2011] by Jewish law.

Furthermore, two separated parties without an issued get entering a new marriage, are considered to be involved in an illegal marriage under Jewish law. Under these circumstances, the woman would be considered an adulteress and would thus be significantly frowned upon which would essentially, degrade her status. Whereas, the man in this circumstance would only be viewed as a polygynist, which although is not encouraged, it is permitted and tolerated.

The two most common cases were a woman is unable to obtain a get from her husband, include lack of co-operation from the husband, whilst the second involves a sudden or prolonged absence of the husband whose death cannot be proven [Gordis, n.d]. Women who identify with these circumstances are named “agunot”, which translates to the “chained ones”, given that they are unable to proceed with their marriage or be disassociated from it.

In aims to assist and resolve concerns regarding agunot and their freedom, Conservative Judaism has placed a clause known as Lieberman clause within the ketubah (marriage contract) which allocates heavy penalties to the husband in the case that he refuses to issue his wife with a get upon her request. Meanwhile, Orthodox Judaism does not acknowledge this solution and countless Orthodox agunot remain in undetermined marriages as a result [Seltzer, n.d.].

With similar regulation, Islamic law not only permits remarriage but also deems it lawful and therefore permissible that a man take back his wife after divorce proceedings have been finalised [Huda Dodge, 2019]. However, 2:231 of the Qur’an directs adherents 'When you divorce women and they fulfil the term of their iddat, either take them back on equitable terms or set them free on equitable terms; but do not take them back to injure them, (or) to take undue advantage. If anyone does that, he wrongs his own soul...', discouraging indecisive behaviour but rather encouraging the divorced couple to remain on civil and respectful terms [Huda Dodge, 2019].

In the case that the two parties decide to reconcile after their divorce has been issued and finalised, they are obliged to enter their marriage with a new contract (nikah) and mahr [Huda Dodge, 2019]. Nonetheless, a couple are only permitted to remarry twice following a completed divorce, as supported by the qur’anic verse 'Divorce is to be given two times, and then (a woman) must be retained in good manner or released gracefully.” (Quran 2:229).

Islamic law only permits the couple to remarry for the third time, if the woman partakes in a different unsuccessful marriage prior to remarrying her former husband for the third time [Al-Islam.org, n.d.], as stated in the verse “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]. Of which, prevents the husband from initiating a third divorce in an irrational manner mindful that it would be irrevocable [Saalih al - Munajjid, 2019].

Consequently, it is clear that Abrahamic religions carry a wide range of similar customs and laws with slight differences due to ancient religious and cultural traditions. Sacred texts and guidance of religious leaders as well as traditions provide adherents with a clear understanding of the moral and accepted regulations regarding issues of divorce and remarriage. With both belief systems, recognising the possible need for a marriage to be terminated, and its acceptance of a second marriage evolving.