The Judgment and Legal Consequence of Abuse of Divorce Authority in Islamic Family Law

• Main Author: Mehmet Aziz
• Format: Article
• Language: Turkish
• Published: Amasya University 2021-06-01
• Series: Amasya İlahiyat Dergisi
• Subjects: i̇slamic law; family; divorce; wife; husband.
• Online Access: https://dergipark.org.tr/tr/pub/amailad/issue/62336/855823

Great importance is attached to marriage in Islam. Various measures have been taken to ensure the continuation of this establishment. However, in some cases, the relationship between spouses can be unbearable. At this point, divorce has been legitimized as a solution. Divorce right/authority is given to the husband in principle, especially to ensure the balance of blessing and burden, but this authority can also be shared with the woman under certain conditions. This authority should be applied as the last solution when the marital life turns into suffering for the spouses, but it may also be used by the spouses as a means of harming the other party. At this point, Islamic jurists examined both the religious and legal dimensions of such malevolent behaviors and tried to prevent this by specifying various provisions based on the relevant texts. In this framework, firstly, the concept of "et-ta‘assuf fi't-talak" used by contemporary Islamic jurists for this kind of divorce and the important specification and criteria sought in its realization were tried to be explained. Afterwards, the legal provision of this kind of divorce/separation was examined together with the different approaches of the fukahâ (a person who has advanced knowledge of fiqh in the science of fiqh enough to express opinions). In addition, the fact that what is essential in talaq, which is at the center of their different approaches, is permissibility or haram is also briefly discussed. Another important issue included in the study is the legal consequence of the divorce/separation performed by the spouses for the sole purpose of harming the other party without any sharia reason, which is called "abuse of right". In this context, firstly, the criteria that play a fundamental role in talking about the phenomenon of "abuse of right" were briefly mentioned. Then, the legal consequences of divorcing the wife or the separation of the woman from her husband, who suffered from the disease of death, referred to as in the literature "death disease or feared disease", was explained. The different views of the Fukahâ on this and the factors that affect the formation of these different views have been examined. In addition, in the study, the legal consequences of the husband divorcing his wife for an insignificant purpose such as the realization of another marriage without a justifiable reason considered as abuse of right, or the woman's separation from her husband with the rights granted to her were also discussed. In the examination, it is concluded that it is not permissible to divorce only to harm the other party or to gain an insignificant personal benefit. And that the husband or wife who committed this should be treated in violation of this bad purpose and that it would be more appropriate to make a deterrent decision. Accordingly, designating an heir to the wife who the death-sick husband divorced without a legitimate reason, -without restricting her inheritance to the end of the iddah or marrying another person; and designating an heir to the husband who the wife on her deathbed divorced without any reasonable grounds by the tefvîz method, without his right of inheritance is restricted by any reason would be more suitable. Likewise, giving the husband the least from the hul cost or the inheritance in the event that the woman who suffers death leaves her husband with this method by keeping the hul cost high in order to harm her other heirs; and in the event that the woman takes such a way to deprive her husband of the inheritance, it will be more appropriate to give her husband the most of the hul price or inheritance. Again, in the event that the other party suffers material or moral damage due to the divorce of the husband, who is in good health without a legitimate reason, or the divorce of the wife from her husband, it has come to the conclusion that it would be more beneficial in terms of the result to make the person who caused the damage pay the compensation.