The right of a woman to divorce

Although divorce is established in Islam as a despised solution, due to the nature of the marital bond between men and women, the way is not closed, and the law should not force men and women to remain together if they cannot continue living together.

Divorce under Iran's law system

The legal definition of divorce is the dissolution of a permanent marriage contract with a concubine and the fulfillment of certain formalities that are at the discretion of the husband and are meaningless without his consent or power of attorney. A woman may seek divorce in the following situations:

• In the marital contract, it is stated that the wife has the power of attorney to file for divorce on the husband's behalf. As a result, if the man travels or does not make payments for six months, he will have power of attorney to file for divorce. If her spouse fails to pay alimony for six months or leaves for six months, she can file for divorce.
• When the husband disappears: A woman whose husband is absent and whose alimony has not been paid may petition the Sharia Ruler for a divorce if her husband's alimony has not been paid for up to four years. If the husband is not located, the Sharia Ruler or the official of his side divorces the woman, and the divorce is invalid if it occurs before four years.
• In cases where the husband refuses to pay alimony and the obligatory rights.

According to Article 1133 of the Civil Code, A man can divorce his wife at any time, while according to Articles 1029, 1130, 1190, and 1146, a woman can request a divorce from the court under certain conditions. Statutorily, the husband possesses the right to divorce. In other words, a man may divorce his wife whenever he chooses, and he is not obligated to provide a justification for his choice. Obviously, if a man wants to divorce his wife, he must go to court, and the court, in an effort to negotiate a settlement and deter the man from divorce, refers the matter to arbitration and delays the execution of his decision.

Additionally, it appears that if a man intends to divorce his wife informally and without going to court, taking into account the substantive requirements of validity of divorce according to Civil Law, his divorce is correct and valid. This conclusion is supported by the interpretation of the single article approved in 1992 and side negotiations during review and approval.

But if a woman requests a divorce, she must also appear in court and state her case under one of the civil law's special circumstances, such as failure to pay alimony or extreme hardship and give evidence of that circumstance. Or, the woman has stipulated in the contract or obtained a power of attorney that if the conditions are violated, she will divorce herself and prove in court that she has obtained the power of attorney and that the conditions have been violated in order to obtain a certificate of the impossibility of compromise. In addition, a woman can obtain her husband's approval for divorce by giving him dowry or other property; and in this case, they can collaboratively request a divorce from the court.

A husband can grant a woman the right to divorce through an absolute power of attorney or in specific circumstances on his behalf. And in order for the man not to relinquish this right and to give power of attorney to the woman, i.e., to become an irrevocable power of attorney, this power of attorney is placed as a necessary contract condition, and according to this condition, the woman can divorce herself either unconditionally or in special cases (such as male addiction, moral corruption, etc.). Therefore, the right to divorce is not an inherent right for women, but it might exist contractually and by delegation.

Divorce in Islam

In Islam, divorce is a man's natural right, provided that the relationship between a man and a woman develops naturally. This means that a man should respect the woman's rights and maintain a positive relationship with her, and if he does not want to remain married to her, he should divorce her amicably and without refusing. He should terminate the marriage contract by paying the woman's required rights plus an additional sum in appreciation.

However, if a marriage does not proceed according to plan, meaning the man does not intend to treat the woman well and lead a happy life, nor does he leave her to start a new life, neither does he fulfill the obligations of marriage, nor does he agree to a divorce, then this is the situation in which a woman should get a divorce. In certain situations, the guy cannot harass and hang the woman. In this case, Islam permits the judge to order the guy to get a divorce; if the man refuses, the ruler will get a divorce. Holy Qur'anic verses also make reference to this subject: ‘’ And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms and do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself. (Al-Baqarah: 231)’’

The reasoning behind giving men the right to divorce

Some claim that men have the right to divorce because of the psychological and biological differences between men and women, while others have attributed it to the emotional character of women and the financial repercussions of divorce for men. The majority of intellectuals and jurists have not discussed why men are granted the right to divorce.

Due to the psychological and biological differences between men and women, some have claimed that men should have the legal right to divorce. According to Shahid Motahhari, who wrote "The System of Women's Rights in Islam," women's ability to love and be loved is dependent on men's love and affection. So, the end of married life occurs when a man is disloyal and indifferent to a woman;

However, if the woman is distant and uninterested, the guy might regain her interest by displaying love and affection.  For a woman, a man's love and support are so priceless that living without them is intolerable. The harshest insult and humiliation for a woman, based on her nature, is when a man tries to push her to continue living despite her disinterest or disdain. Accordingly, the man has been granted the right to divorce. Therefore, the justification for granting a man the right to divorce is the unique function of a man in marriage, not his ownership over a woman.

Some Sunni scholars have cited two additional justifications for granting divorce rights to men: First, women are typically more emotional and more affected than men. If a woman has the right to divorce, she may terminate her marriage with a little annoyance and difficulty.

Second, divorce has financial repercussions for men, including the payment of dowry and alimony. These financial duties cause the man to ponder divorce more and delay a divorce decision. However, because the woman has no such financial obligations. However, as such financial duties do not apply to the woman, she is not subject to such repercussions and may choose to separate before the man. In order to ensure justice as well as the continuity and stability of the marriage, it is crucial that the man possess the right to divorce.

Problems and solutions

Assigning the right to get a divorce from a man, it has been stated, may result in two issues: first, some men may misuse the privilege and divorce their wives without good cause, and second, other men may refuse to divorce their wives even though they are unhappy with their marriage in order to irritate them.

The first issue can be resolved by preventing and combating male libido and unfaithfulness and the second problem can be solved by consulting the ruler of Sharia. In the second situation, when the woman refers to Sharia's ruler, the man is first required to divorce, and if he does not, the ruler divorces the woman himself. In a narrative, Imam Baqir (AS) is recorded as saying, "If a husband does not care for his wife, does not dress her appropriately, and does not give her alimony, the ruler must divorce them."

Based on the words of the Quran, according to Shahid Motahari, every man in a family must either properly perform all of his rights and responsibilities or get a divorce. There is no middle ground in Islam. Some contend that if a man abuses his right to divorce, the judge may declare him incompetent, award the woman custody of the children and demand payment for her support, and refuse to grant the man's divorce until the full dowry has been paid. In the civil law of Shiite countries such as Iran and Afghanistan, only men have the right to divorce. In Iraq, a man or a woman seeking a divorce must visit a Sharia court to obtain a divorce decree. In accordance with the civil law of Iran and Afghanistan, a woman can get the power of attorney and divorce based on the contract conditions. In accordance with Shiite countries' legal systems, a woman can seek a divorce from a Sharia judge and a court in situations such as her husband's refusal or inability to pay alimony, his absence, and hardship (such as when he leaves her for at least six months, develops an addiction, or engages in misconduct). If the judge and the court find that there is cause for divorce, they require the husband to get a divorce; if he doesn't, the wife gets a divorce.