A Critical Comparison between the Classical Divorce Types of Ḥanbalī and Ja‘farī Schools

What is it about?

Islamic law seeks the harmonious continuation of families and family structure, setting out detailed principles of family life in the main sources of sharī‘a, the Qur‘an and Sunna. That said, the termination of marriage is considered an acceptable solution by Islamic jurists, if the spouses do not fulfil their obligations toward each other due to inharmonious relationship or existing dissention and where there is no hope of reconciliation. This paper seeks to compare the types of divorce within the Ḥanbalī and Ja‘farī schools in order to shed light on the classical period divorce practices and the methodologies of these two schools. Successful divorces are categorised into wājib, mubāh, makrūh, or ḥaram according to their legal validity. In addition to this, divorce practices are also divided into four main types which extend from their implementation and procedural methods; ṭalāq, khulʿ, ṭāliq or tafwīḍ, and tafrīq. The research aims to compare the unilateral divorce right of the man (ṭalāq), woman-initiated divorce (khulʿ), conditional divorce (ṭāliq or tafwīḍ) and judicial termination (tafrīq) by focusing on the opinions of authoritative Ḥanbalī and Ja‘farī scholars. Applying textual comparative methodology and legal perceptual analysis, the study aims to uncover the existent connection between Islamic legal methodologies and different schools when the scholars address any problems and issues related to divorce practice. Although both schools use different methodologies and sources, the similarity of rulings prevail over the differences due to the fact that the marital issues concerning divorce are mainly solved with the main sources (aslī) rather than secondary sources (fer‘ī). This comparative research, therefore, aims to shed lights on the similarities between these schools and to clarify the differences regarding the interpretation of legal sources. At the same time, the paper seeks to identify the convergences and divergences between the divorce practices of the two schools. Comparative analysis of divorce types in Ḥanbalī and Ja‘farī schools intents to offer a broad perspective to explore the contemporary divorce practices in Muslim countries whose citizens are the followers of these schools. Instead of making a general comparison between the Sunnī and Shi‘ī traditions, the research aims to compare the classical Ḥanbalī school which forms the basis of family law in contemporary Saudi jurisprudence with the classical Ja‘farī school which forms the basis of family law in the contemporary Iranian jurisprudence. This comparison brings out the influence of the classical schools upon the modern jurisprudences of Saudi Arabia and Iran.

Featured Image

Why is it important?

The practice of divorce types and their regulations in accordance with classical Ḥanbalī and Ja‘farī schools will be examined in order to engage the question of to what extent they are similar or different from each other. The paper compares the divorce types within the Ḥanbalī and Ja‘farī schools to shed light on the divorce practices of classical period and methodologies of these schools. The comparative conclusion intends to clarify that the similarities of rulings during the implementation procedure prevail over the differences concerning divorce issues in the two schools despite their application to different methodologies. Although there are notional disparities related to the interpretative methods which are espoused within the Ḥanbalī and Ja‘farī schools, the original source-texts for the divorce rulings (the Qur‘an and Sunna) result in a degree of discrepancy minimizing in practical implementation procedure.