Is Marital Conflict A Justification For A Woman To Divorce?
Is marital conflict a justification for a woman to divorce?
The holy Qur’an explains the initial course of action in the events of maltreatment; such as spouses’ antipathy towards each other, unfair behaviors, acting against the requirements of marriage, husband’s battering wife or forcing her to commit haram, and marital conflict (nushuz and shiqaq) as follows: “... if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them...” (Nisa 4/35).
This verse orders to find a common ground by means of arbitrators in the events of marital conflict between spouses and exert effort to continue marriage . If the parties fail to settle the dispute arising from maltreatment and marital conflict between the spouses despite all efforts, Malikis suggest that the woman in question may file a lawsuit for a divorce, and the arbitrators commissioned for the rehabilitation of the relationship of the parties have the right to exercise tafriq in exchange for money or for free, without the need for a power of attorney given by the parties (Ibn Rushd, Bidayah, II, 99). Hanafis and Shafiʽis express that the judges’ authority to divorce is subject to authorization by the husband (Shafiʽi, al-Umm, V, 494-495; Jassas, Ahkam al-Qur‘an, III, 154; see. Shirbini, Mughni al-Muhtaj, III, 344-345).
The Ottoman Family Law, dated 1917, adopted the Maliki madhhab’s judicial opinion and made the following regulation: When a dispute arises between spouses and they file a lawsuit for a divorce, court assigns an arbitrator from each party . If arbitrators fail to settle dispute between spouses and husband is found guilty, judge divorces the couple. If the woman is found guilty, then the judge gives a verdict of paid divorce based on the mahr amount. In the event that judges fail to reach a consensus a new delegation of arbitrators is assigned. The judgment of the arbitrators is definitive judgment, and the divorce verdict they render is considered a bain talaq (Ottoman Family Law, art. 130).
Source: Presidency Of Religious Affairs The Turkey, High Board of Religious Affairs FATWA
