Effective Divorce Mediation
Do those who sign the certificate as well as the witnesses know that they are obliged to help the couple during their difficulties? BY KHALID IQBAL
A
li and Sadia (not their real names) had a difficult 18-year marriage. Ali, a carefree personality, made a good living and enjoyed spending on family and friends. Sadia, serious and controlling, also had a successful career but never felt the need to contribute to the household expenses, as is her right according to the Sharia. Ali, who lost his job in the economic downturn, had little savings and expected Sadia to help. She refused. After struggling for months, they decided to separate and arrange shared custody for their three children. Being smart and knowledgeable, they agreed to what they felt were equitable and fair child custody and financial arrangements. Things changed when they filed for divorce (talaq). The Sharia defines this term as untying the matrimonial knot. Uttering this term inaugurates a compulsory waiting period of three menstrual cycles during which the husband must provide her with all the amenities he did during their married
life. This also serves as a cooling-off period to rethink and reconcile. Sadia, uninterested in reconciling, moved out. Since divorce in the North American context falls under state laws, most imams and scholars opt for performing religious divorce after completing the court process. This post-divorce often prevents the couple from receiving guidance as to the spiritual, emotional and sometimes financial assistance involved during the process. They often find themselves isolated from the community, extended family and their social circles. In many cultures, the attached stigma prevents couples from seeking help when they need it the most. Family and friends, who may be unaware of the couple’s marital issues until they announce their divorce, obviously cannot provide any pre-divorce support. Social media, with its ease of broadcasting rumors and gossip, can also have a negative pre-divorce impact. It is important for such couples to interact with an imam who can guide them through the relevant religious injunctions, “A divorce
is only permissible twice: after that, the parties should either hold together on equitable terms, or separate with kindness. It is not lawful for you to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by God. If you (judges) do indeed fear that they would be unable to keep these limits, there is no blame on either of them if she gives something for her freedom” (2:229). When I counsel and mediate a divorce, I remind both spouses, “They are your garments and you are their garments” (2:187), alerting them to the fact that a divorce case is like stripping off their garments. As they don’t want to broadcast their nakedness, they should not air each other’s shortcomings and deficiencies. Although doing so may benefit a party in the short term, it brings life-long hurt and guilt. I specifically guide them through this verse, to ensure that the discussion and terms are equitable and beneficial, especially when children are involved.
COUNSELING, MEDIATION AND ARBITRATION
In most cases, the decision to divorce is due to long-simmering issues. In some cultures, its unacceptability causes the couple and their children to keep it a secret during a time that is most stressful and disturbing. Marriage is a community affair that brings the families and community together in happiness. Those who sign the certificate as well as the witnesses are obliged to help the couple during their difficulties. Thus, the decision of a possible divorce affects the children as well as the extended family and friends. Before such a decision is made, family elders and religious leaders should be allowed to attempt reconciliation or reach an equitable separation agreement. Family members know them and would, hopefully, have their best interests at heart. If they are sincere, a mediator might help them resolve their issues by explaining the
MAY/JUNE 2021 ISLAMIC HORIZONS 27
