There are two forms of divorce under Islamic Law
1. Extra Judicial Divorces
2. Judicial Divorces.
Extra Judicial Divorce: There has been misconception about this form of divorce with some people feeling that it is very easy to divorce extra judicially under Islamic Law. however under Islamic Law divorce is discouraged and will only be allowed if the conditions are grave and weighty and even so divorce will be the last resort and reconciliation between the parties is encouraged. This reconciliation is provided for and where the conflict originates from the wife, her husband has the right to judge her, consider the wrong she has committed and make a decision. The husband is also supposed to guide her and show her that what she has done is wrong, and that she should not repeat it. If she repeats her actions, he may then resort to disciplinary action which is in 3 phases,
1. He may start by kind exhortations or reprimands where he denies her a few necessities;
2. He may then withdraw from the matrimonial bed however this should be of a temporary nature; and if this fails
3. He may undertake some symbolic beating but this should not be severe. At this stage he has the right to abstain from sex until the wife reforms.
When in conflict from the husband, the wife has to try and make peace with the husband and try to settle their differences. If all these fail two arbitrators from both sides are appointed to review the situation and to try and settle the dispute. It is only after this that the parties can then resort to divorce if the arbitration fails.
There are a number of extra judicial divorces that the parties can undertake
1. Talak which is dissolution of the marriage by the unilateral acts of the husband; there are certain conditions to be fulfilled in order to make this divorce complete and valid
a. The husband must be of age;
b. He must be seen conscious alert and should not be angry;
c. He should not be intoxicated;
d. He should be free from external pressures;
e. His intention to terminate the marriage must be clear.
On the part of the wife
a. She should be of age;
b. Must be in a healthy state of mind;
c. Must be in a state of purity by which is meant that she should not have had any sexual relations with her husband and should not be menstruating.
If these conditions are met, the husband may then pronounce the first talak, either in written or oral form and by talak he merely says I divorce thee’. He may revoke this pronouncement, forgive his wife and they may resume conjugal cohabitation. If however 40 days have passed and the husband has not revoked his pronouncement and the conditions the he stated still applied, he may then pronounce the second talak, he still has the option of revoking this pronouncement but if he does not and 40 days elapse and the conditions remaining constant he may then pronounce the 3rd talak. The effect of the 3rd talak is to make the divorce complete and valid and the wife has the option of remarrying. All the time that the talaks are being pronounced she is still in the matrimonial home.
Before the wife remarries she has to wait for the period of 4 months or Iddat period and she cannot remarry her ex husband until she has been married by another man or divorced or widowed. This condition is there so as to ensure that the husbands do not divorce their wives recklessly.
2. Ila Divorce: this is a form of constructive divorce which is effected by abstinence from sexual relations for a period of not less than 4 months. If reconciliation is impossible then the marriage is dissolved.
3. Zihar – this divorce arises where the husband continuously compares his wife with another female or his mother and the wife may refuse to have any sexual intercourse with him unless he changes and if this fails the marriage is deemed to have been dissolved.
4. Lian Divorce: this is where a husband suspects that his wife is committing adultery but does not have any evidence. He then testifies or swears that he is telling the truth and he does so four times and on the fifth times he swears that he be cursed if he is lying. The wife on the other hand swears four times that she is telling the truth and the fifth time that she be cursed if she is lying and after this the marriage is dissolved.
5. Khula: initiated by the wife if she feels that she is unhappy with the marriage, she then returns the mahil to the husband and any other marriage gifts that he had given her and the divorce will only be valid where the husband grants her the divorce although he may waive the need for her to return the compensation.
6. Mubarat; divorce by mutual agreement where both parties desire the divorce. It can be initiated by either party and the wife loses any right she had to her dowry but the husband remains liable to maintain the children.
7. Apostasy: where either spouse abandons the Islamic religion.
Section 3 of the Mohamedan Marriage and Divorce Act grants the High Court the jurisdiction to a hear and determine matrimonial causes under Islamic Law where the Petitioner is resident in Kenya. Kadhi’s courts can also hear and determine matrimonial causes where both parties are Muslims. Both Acts do not provide the grounds for divorce but refer to the principles of Islamic Law and under Islamic Law, according to scholars grounds for divorce include
a. Desertion by the husband for a period of 5 years;
b. Failure of the husband to provide maintenance for a period of two years;
c. Imprisonment of the husband for a period of 7 years.
d. Failure of either spouse to perform marital obligations.
e. Where the husband is either insane, cruel, impotent, suffering from leprosy or a venereal disease or where he is captured by war enemies.
f. In cases of extreme or severe poverty.
Under Judicial divorce, when the divorce has been pronounced by court, both spouses are required to register under the Mohamedan Marriage and Divorce Registration act and this should be done within 7 days of the pronouncement of the divorce. However failure to register will not invalidate a valid divorce or vice versa.