INTRODUCTION
As one of the big religion which has many followers in the world, nothing unregulated in Islam. It regulates everything, one of the regulation is about marriage. The relationship between wife and husband, what are the rights and duties of both parties, what is the prohibition for both parties, and other regulations regulated in Islam. However, not every marriage ends happily until death separates them. In reality, it is very often that marriage ended by divorce for various reasons. Divorce or thalaq in Arabic term is the last solution if the couple which has problems had tried to rebuild their marriage, it is allowed (halal) but Allah SWT very hates that conduct. Divorce is the rights of the husband. After the divorce, ex-husband and ex-wife still have duties, especially in raising their child. And also about separation of wealth after they divorce. In this paper, the writers will explain some things regarding divorce (thalaq) in Islam.
PROBLEM STATEMENTS
1. How is the procedure of divorce?
ANALYSIS
A. Definition of Thalaq
According to Oxford dictionary, divorce in form of a noun means “the legal dissolution of a marriage by a court or other competent body” while in form of the verb means “legally dissolve one's marriage with (someone)”.[1] In Islam, divorce known as thalaq which derived from Arabic term means release. According to Imam Nawawi, thalaq means an action conducted by the husband to dissolve the marriage.[2]
A long time ago, people used thalaq without limitation of the amount which means the husband could hurt his wife again and again. It made Allah SWT revealed verse 229 of Surah Al-Baqarah
الطَّلَاقُ مَرَّتَانِ ۖ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ ۗ وَلَا يَحِلُّ لَكُمْ أَن تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلَّا أَن يَخَافَا أَلَّا يُقِيمَا حُدُودَ اللَّهِ ۖ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ ۗ تِلْكَ حُدُودُ اللَّهِ فَلَا تَعْتَدُوهَا ۚ وَمَن يَتَعَدَّ حُدُودَ اللَّهِ فَأُولَٰئِكَ هُمُ الظَّالِمُونَ
which stated that if the husband divorced his wife two times then he still allowed to return to his wife.[3] It is forbidden for the husband to return to his wife if divorce already done three times.
B. Supporting Verse of Divorce
In Surah Al-Baqarah verse 229 said “Thalaq (can be reconciled) two times. it is allowed to reconcile or divorce in good deeds.”[4] In Surah Ath-Thalaq verse 1
يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا الْعِدَّةَ ۖ وَاتَّقُوا اللَّهَ رَبَّكُمْ ۖ لَا تُخْرِجُوهُنَّ مِن بُيُوتِهِنَّ وَلَا يَخْرُجْنَ إِلَّا أَن يَأْتِينَ بِفَاحِشَةٍ مُّبَيِّنَةٍ ۚ وَتِلْكَ حُدُودُ اللَّهِ ۚ وَمَن يَتَعَدَّ حُدُودَ اللَّهِ فَقَدْ ظَلَمَ نَفْسَهُ ۚ لَا تَدْرِي لَعَلَّ اللَّهَ يُحْدِثُ بَعْدَ ذَٰلِكَ أَمْرًا
“O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period, and fear Allah, your Lord. Do not turn them out of their [husbands'] houses, nor should they [themselves] leave [during that period] unless they are committing a clear immorality. And those are the limits [set by] Allah. And whoever transgresses the limits of Allah has certainly wronged himself. You know not; perhaps Allah will bring about after that a [different] matter.”[5]
C. The Position of Thalaq
Sometimes, divorce is needed in some cases. Even though thalaq is classified as makruh[6], but if the willingness of both parties are distracted then thalaq is permitted. For example, if a couple has been married for a long time but they did not have a child since the wife is sterile, it is permitted for the husband to divorce her wife or asking her to remarried with another.[7] Either the wife, she is allowed to ask divorce. Another example is, if a couple has different characteristics that create chaos every time so the harmony in their family is not achieved, it is permitted to divorce.[8] Islam will not limit the interests of both parties, thus it eases its followers in some matters.
Islamic scholars, Syafi’iyah and Hanabilah argued thalaq sometimes is an obligation, sometimes haram and sunnah. It categorized as an obligation if the husband makes an oath will not do sexual contact with his wife. Haram if thalaq conducted without any purpose that will destroy the benefits (maslahat) from the marriage and disadvantageous both parties. Sunnah if the husband no longer has the feeling to his wife since Allah SWT is the one who has authority towards his creations’ heart.[9]
D. Principles of Thalaq
There are two principles in accordance to do thalaq which are the divorcer (by the husband) and the way to tell thalaq.
1. The divorcer
The right to do thalaq is actually owned by the husband, however, it still possible if the wife asks thalaq to her husband. Thalaq will legal if the husband fulfill some requirements. First, the husband should be mukallaf. It means baligh (already experienced wet dream) and rational (not insane). Stupid and sick people’s thalaq are legal even it is a joke. Thalaq is not legal if conducted by children, drunker[10], insane person, and sleeping person. From prophet Muhammad SAW narrated by Abi Hurairah : “every thalaq is permitted except insane people’s thalaq.”[11]
Second, thalaq is not legal if the husband does that under the duress conducted by others.
2. Expression of Thalaq
There are some kinds of the expression of thalaq which are clearly (sharih), insinuation (kinayah), hint, and writing.
Thalaq stated clearly means the husband directly says “I divorce you” to his wife. If the husband says so to his wife whether he says it intentionally or not, the wife is divorced by her husband. As prophet Muhammad said: “there are three things, his/her seriousness turn into serious and his/her joke regarded as serious, which are thalaq, marry, and reconcile.[12]
Thalaq by insinuation (kinayah) means the husband says “divorce” in other terms. The most popular is “I return you to your family”, but thalaq by insinuation cannot happen if the husband does not have intention in his heart.
Thalaq by hint, for someone that cannot speak (mute), pointing his wife to end the relationship and everyone understand that hint then it is legal (sharih). If that hint cannot be understood by others, there are two opinions: sometimes sharih and sometimes kinayah. If he is able to write and read, it is better to propose thalaq in writing. If normal people use this kind of action (pointing) then it is not legal because it takes mute people’s rights and the position is not legal.[13]
Thalaq in written form, thalaq also possible in written form as well as directly or by the hint. Someone who is going to divorce his wife in written form shall write the letter clearly and refer to the wife and readable.[14]
E. Procedure of Thalaq
In Islam, divorce is known as thalaq and the procedure is simply by saying it, by insinuation and others as the writer has mentioned previously. The legal position only applies in religion. In Indonesia, besides divorce religiously, it also has to be registered in our constitution. By registering the divorce before the court, it will give legal force. If both parties are Islam then the process shall be in Religion Court but if not, then it will process in district court.
In the district court the procedure are[15] : first, the claim proposed by the plaintiff or his or her lawyer at the district court in defendant’s domicile. After the claim proposed, the judge will check it and he or she decides the decision of divorce. Then, the decision will register to the registrar. In religion court, the difference is, after the judge check the claim then he or she tries to reconcile both parties (mediation). In case the judge cannot reconcile both parties, then he or she makes a decision that the marriage is ending. The divorce decision will register to the registrar.
F. Ex-wife’s Rights
After the wife divorced by her husband, she still has rights that shall be fulfilled by her ex-husband. According to Islamic Law Compilation article 80 section (4) and article 149 letter (a) and (b), and article 150 letter (a) those rights are (nafkah) during ‘iddah, reminiscence (mut’ah), and child custody (hadhanah).
Nafkah only fulfilled by ex-husband during ‘iddah only. ‘Iddah is waiting time for ex-wife after divorce at certain times to marry. It is regarding biological reason, it prepares wife’s ovum to be ready before marrying another man. Nafkah must enough for a daily life of ex-wife. Ex-husband also required giving nafkah to his under 21-year-old son if his ex-wife holds the custody. Regarding the amount of nafkah should be given to his son, ex-wife could show the written form of her ex-husband salary. Usually, 1/3 of ex-husband salary but it could be more if the ex-husband wants to.
Mut’ah according to Imam Syafi’i is a name for patrimonial stuff given by ex-husband to his ex-wife.[16] According to syafi’iyah, mut’ah is an obligation for the ex-husband if he divorces his ex-wife himself (thalaq). If the wife that, proposed the divorce (faskh) then no mut’ah for her. If the husband thalaq his wife before they have sexual intercourse, if the husband has given half of her mahar then no mut’ah but if he has not given the half mahar then it is an obligation to give mut’ah.
In Islam, the one who more entitled to have custody is mom. The reason is, mom is the closest one to her kids rather than the father. The psychic of the mother is softer, more sensitive than father. The way a mother to treat her kid also be considered, a mother is more experienced than father. From ‘Abdullah bin ‘Amr, a lady came to Prophet Muhammad and asked “O Rasulullah, he is my son, I gave a birth to him, I am the one who breast-feeds him and hold him, now my ex-husband wants to take him from me.” And then Muhammad answered, “you are the one who has rights to take care of your son before you marry.”[17] If the kid has grown up, then he or she has rights to choose who they like the most. If he or she chooses his or her father, then he or she should stay with his or her father day and night to get protection and lessons. If he or she chooses his or her mother, then he or she should stay with his or her mother during the night only. On the afternoon, he or she stays with his or her father to be educated about life.
In positive law, under Islamic Law Compilation article 105 section (a) stated that the kid under 12 years old belongs to his or her mother. It is not absolute, the judge can decide if his or her mother is someone that evil, angry easily, torturing, drunker, and so on then the judge will decide to give the custody for the father.
G. Separation of wealth
In Islam, there is no specific regulation about separation of wealth. It depends on the deal between both parties. Regulates in Al-quran surah An-Nisa verse 128:
وَإِنِ امْرَأَةٌ خَافَتْ مِن بَعْلِهَا نُشُوزًا أَوْ إِعْرَاضًا فَلَا جُنَاحَ عَلَيْهِمَا أَن يُصْلِحَا بَيْنَهُمَا صُلْحًا ۚ وَالصُّلْحُ خَيْرٌ ۗ وَأُحْضِرَتِ الْأَنفُسُ الشُّحَّ ۚ وَإِن تُحْسِنُوا وَتَتَّقُوا فَإِنَّ اللَّهَ كَانَ بِمَا تَعْمَلُونَ خَبِيرًا
“And if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of settlement between them - and settlement is best. And present in [human] souls is stinginess. But if you do good and fear Allah - then indeed Allah is ever, with what you do, Acquainted.” From that verse, can be concluded that both parties should make a deal for their peace. In separation of power, they will decide the amount or the percentage of the wealth itself. In positive law, separation of power both parties will get half of the total amount of their wealth. It is regulated in Islamic Law Compilation article 97 stated that ex-wife and ex-husband will get half of the total of their wealth.
CONCLUSION
Islam regulates everything, in Islam marriage is very important. Marriage not always end up with happiness, disputes within a family is normal. Divorce, or thalaq in Arabic term is the last solution if the couple which have problems had tried to rebuild their marriage, it is allowed (halal) but Allah SWT very hate that conduct. There are some ways to deliver thalaq which are sharih, kinayah, by hint, and by writings. Procedure of divorce in district court are first, the claim proposed by the plaintiff or his or her lawyer at district court in defendant’s domicile. After the claim proposed, judge will check it and he or she decides the decision of divorce. Then, decision will register to the registrar. In religion court, the difference is, after the judge check the claim then he or she tries to reconcile both parties (mediation). In case the judge cannot reconcile both parties, then he or she makes decision that the marriage is end. The divorce decision will register to the registrar. Also ex-wife has rights after divorced which are nafkah, mut’ah, custody, and separation of wealth.
REFERENCES
A. Hamid Sarong, Hukum Perkawinan Islam Di Indonesia Praktek dan Prospeknya, Global Education Institute, Banda Aceh, 2015, p. 174.
Abdul Aziz Muhammad Azzam and Abdul Wahhab Sayyed Hawwas, Fiqh Munakahat, trans. Abdul Majid Khon, AMZAH, Jakarta, 2009, p. 255.
Diana Kusumasari, Bagaimana Mengurus Perceraian Tanpa Advokat?, [website], 2011, http://www.hukumonline.com/klinik/detail/cl5021/bagaimana-cara-mengurus-perceraian-tanpa-melalui-pengacara--urus-sendiri, (accessed 23 september 2017)
From official website of oxford dictionary, https://en.oxforddictionaries.com/definition/divorce, (accessed 12 September 2017)
https://quran.com/65, (accessed 13 September 2017).
Mahbub Ma’afi Ramdlan, Hukum Memberikan Mut’ah Setelah Perceraian, [website], 2015, http://www.nu.or.id/post/read/58444/hukum-memberikan-mutrsquoah-setelah-perceraian, (accessed September 2017)
Syaikh Shalih bin Fauzan Al-Fauzan, Hak Pengasuhan Anak Dalam Islam, Demi Kebaikan Anak, [website], 2009, https://almanhaj.or.id/2556-hak-pengasuhan-anak-dalam-islam-demi-kebaikan-anak.html, (accessed 27 September 2017).
[1]From official website of oxford dictionary, https://en.oxforddictionaries.com/definition/divorce, (accessed 12 September 2017)
[2]Abdul Aziz Muhammad Azzam and Abdul Wahhab Sayyed Hawwas, Fiqh Munakahat, trans. Abdul Majid Khon, AMZAH, Jakarta, 2009, p. 255.
[3]A. Hamid Sarong, Hukum Perkawinan Islam Di Indonesia Praktek dan Prospeknya, Global Education Institute, Banda Aceh, 2015, p. 174.
[4]Abdul Aziz Muhammad Azzam and Abdul Wahhab Sayyed Hawwas, op. cit., p. 256.
[5]https://quran.com/65, (accessed 13 September 2017).
[6]In Islamic term, makruh means something that will be better not to be conducted. There is no benefit by doing something classify as makruh, only disadvantageous if someone do that.
[7]A. Hamid Sarong, op. cit., p. 153.
[8]Ibid.
[9]Abdul Aziz Muhammad Azzam and Abdul Wahhab Sayyed Hawwas, op. cit., p. 258.
[10]In this meaning, the drunker know that khamr (alcohol) will make him drunk. So he still has rational mind and every word and action are legal. Thalaq is not legal if someone is forced to drink khamr that make him drunk.
[11]Abdul Aziz Muhammad Azzam and Abdul Wahhab Sayyed Hawwas, op. cit., p. 262.
[12]Ibid.
[13]Ibid.
[14]Ibid.
[15]Diana Kusumasari, Bagaimana Mengurus Perceraian Tanpa Advokat?, [website], 2011, http://www.hukumonline.com/klinik/detail/cl5021/bagaimana-cara-mengurus-perceraian-tanpa-melalui-pengacara--urus-sendiri, (accessed 23 september 2017)
[16]Mahbub Ma’afi Ramdlan, Hukum Memberikan Mut’ah Setelah Perceraian, [website], 2015, http://www.nu.or.id/post/read/58444/hukum-memberikan-mutrsquoah-setelah-perceraian, (accessed September 2017)
[17]Syaikh Shalih bin Fauzan Al-Fauzan, Hak Pengasuhan Anak Dalam Islam, Demi Kebaikan Anak, [website], 2009, https://almanhaj.or.id/2556-hak-pengasuhan-anak-dalam-islam-demi-kebaikan-anak.html, (accessed 27 September 2017).
