Is It Possible To Transfer The Authority To Divorce To One’s Spouse Or Another Person?
Is it possible to transfer the authority to divorce to one’s spouse or another person?
Principally, Islam vests husbands with the authority to divorce. A husband may opt for transferring such power to either his wife or a third party during nikah ceremony or in the course of marriage. This is called as “tafwid al-talaq (delegation of the right to divorce)”. One may perform tafwid at any time. Tawfid may be performed during nikah contract and in a time when marriage continues. If the right to divorce will be transferred (tawfid) during the solemnization of nikah contract, it is necessary for the woman to lay the condition that she would also have the same right. Woman acquires this right when she states that, for example, “I possess the right to divorce, and I am getting married on condition that I may divorce myself whenever I would like to,” and it is accepted by the husband. That is to say, the offer of transfer of talaq should be made by woman and then be accepted by man. A woman who has the authority to divorce in this way may get divorced whenever she wants (Fatawa al-Hindiyyah, I, 423 et al; Ibn Abidin, Radd al-Muhtar, IV, 551, 552, 573).
Tawfid al-talaq is also possible during the marriage. Man may transfer the right to divorce to his wife by uttering, for example, “You have the right of option. You may either prefer me or getting divorced. You are allowed to divorce yourself if you would like to. It is up to you to decide either the continuation or the termination of this marriage.” Unless the woman uses this right to divorce at the time she was given the right, she would lose her such right. However, if the authority to divorce is given with a common expression, such as “You may divorce yourself whenever you want”, woman may exercise this right at any time without being limited to the time it is uttered (Ibn al-Humam, Fath, IV, 68-71). Woman does not have to exercise the authority to divorce given to her either in nikah or during marriage. Not only a woman may reject this right given by her husband at the beginning, she may also return it later by her own will. A woman who returns this right to her husband loses the right given to her by tafwid (Bilman, Qamus, II, 259).
Imam Shafiʽi considers tawfid as an appointment of an agent. As long as a woman does not divorce herself, her husband may withdraw this agency whenever he would like to (Ramli, Nihayat al-Muhtaj, VI, 440).
Source: Presidency Of Religious Affairs The Turkey, High Board of Religious Affairs FATWA
