L of the Book Archaeologist asked: I have a question for you, and it may fall a bit outside the purview of your blog but I’m curious. Recently I was having lunch and eavesdropped on a (very loud) conversation about marriage, divorce, and Islam. The two people talking were girls, and neither of them was obviously a Muslim (and I know appearances can be deceiving, but by this I mean neither was wearing a head scarf or anything). One was very forcibly asserting that Islam was the first religion to allow and embrace the concept of divorce. Is that true? I have to admit, I’m a bit skeptical about her claims, so I thought I would ask!
Wow it’s been a while since I posted. Sorry about that. I was in Britain two weeks ago, and then have taken on more responsibilities with a couple of volunteer/internship positions, and have found myself absolutely swamped. I’m hoping things will calm down in a few weeks, and I can get back to a normal posting schedule. Or my brain will explode. One or the other.
So divorce . . . I think it’s important to stress first that the term ‘divorce’ can refer to a couple of different situations. The most important point to consider in terms of legal history are 1.) who is allowed to request the divorce and 2.) what grounds, if any, are required for divorce to be considered.
The most common forms of divorce are those that are the result of particular breeches in the marriage contract, such as impotence, or those that result from the marriage itself violating the terms of a marriage (such as incestuous marriages). These are definitely common throughout Abrahamic tradition – Christianity probably has the least clear divorce law, as the New Testament says very little about marriage (except for Paul, who is against it in most cases), but even here, we find a reference in the first letter to the Corinthians to a son who had married his mother (or, more likely, his mother-in-law or step-mother) – although Paul doesn’t say the two should be divorced, he declares the marriage unlawful, which is more or less the same thing.
Divorce instigated by the man is also pretty common in the Late Antique world – we hear accounts in Byzantine chronicles of emperors and leaders divorcing their wives and taking others. Although technically, these divorces were not legal under contemporary Christian law, this rarely seems to be an issue – we have occasional accounts that specify that the marriage was dissolved or annulled, apparently trying to stress that the marriage was ended in a Christian way, but the overall execution and outcome is the same as what we would call divorce.
What they were probably talking about (I’m guessing) was either divorce without grounds or divorce instigated by the woman, which are the two rarer forms of divorce. Indeed, the former – where a couple can divorce without giving reason or a failing to the union – only came about fairly recently in the US. Divorce without grounds certainly existed in Islam (called the right of talaq), probably from its inception, or if not, from before the period of the codification of Islamic law in the ninth century, when it is already taken for granted as the norm. A man can divorce his wife by thrice announcing his rejection of her, at which point the couple is divorced and free to remarry (some of the Islamic jurists insist on either a cooling-off period between the first and third repudiations, or a mourning period after the divorce before either party can remarry, but in generally, three ‘GTFO’s and you’re divorced).
Personally, I wouldn’t quite agree that Islam was the first community to allow divorce without grounds, but I’d be willing to believe they were the first community to codify it – from the historical records, it seems to have happened in the Byzantine world, as well, but it wasn’t written as law there.
As for divorce by a woman, this is where it gets a bit more complicated. Women had the right under Islamic law to request a divorce within a year if their husband was impotent. As for divorce without grounds for women, there are stories going back to the lifetime of the Prophet (peace be upon him) of a custom called khul, in which the couple could agree to a divorce in exchange for the wife returning part or all of her dowry (mahr). This right was normally requested by the woman, since the man had the right of talaq. In Islamic law, the dowry was the sole property of the wife, and so she could do as she wished with it (including returning it to annul the marriage). However, over time, the right of khul appears to have been reduced, so that the wife was expected to provide grounds for the divorce (indeed, this still arises today in cases in Britain, the Middle East and India). Unfortunately, because of the limited nature of early Islamic source material, it’s difficult for us as scholars to know if the right of khul was really practiced in the early Islamic period, and was reduced over time, or if it was always restricted, but that these restrictions were codified over time (although for myself, I see no reason to think it wasn’t practiced as described in the lifetime of the Prophet (s’lm)).
If I was going to point to an element of Islamic divorce law that Islam probably invented, it would be the right of khul, and even the wider concept that the dowry should rightly belong to the wife. Although this is how dowry is often defined in other traditions, more often it was paid to the wife’s family (or sometimes even the husband), and served as, effectively, a bride price. The right to own property, even in marriage, is fairly unusual, even well into the early modern period in the West, so Islam was definitely ahead of the curve on that one.
 I admit, I’ve studied Paul, and taught Paul, but when I read his descriptions of marriage and celibacy, all I can think of is the Groucho Marx routine about ‘Whatever it is, I’m against it!’