Is it valid for a woman to put as a stipulation in a written Islamic contract that she will have the open right to divorce, as opposed to her naming the specific conditions under which this right will be carried out?
Also the woman’s father is representing the bride at the nikah ceremony, she will not actually be present during the nikah; how will this contract be signed and presented in her absence?
According to Shariah, the right to divorce belongs primarily to the husband and not the wife. There are many reasons and wisdoms behind this ruling, which have been explained in detail in an earlier post.
However, although the power to issue a divorce belongs in principle to the husband, he may delegate this power to his wife or a third party, with or without stipulating conditions. Once this power is delegated, it can not be revoked or withdrawn. This is known in the Fiqh terminology as “Tafwid”.
This is based upon the incident where the Messenger of Allah (Allah bless him & give him peace) gave his wives the option to remain in his marriage or be divorced. Allah Most High said to the Messenger of Allah (Allah bless him & give him peace):
“O Prophet! Say to your wives: “If it be that you desire the life of this world, and its glitter, then come! I will provide for your enjoyment and set you free in a handsome manner. But if you seek Allah and His Messenger, and the Home of the Hereafter, verily Allah has prepared for the well-doers amongst you a great reward.” (Surah al-Ahzab, 28)
The Messenger of Allah (Allah bless him & give him peace) deserted his wives for a period of around one month, after which the above verse was revealed.
Sayyida A’isha (Allah be pleased with her) narrates: “When the Messenger of Allah (Allah bless him & give him peace) was commanded to give an option (of divorce) to his wives, he started with me saying: “I am going to mention to you a matter in which you should not (decide) hastily until you have consulted your parents.” She (A’isha) said that he already knew that my parents would never instruct me to seek separation from him. She said: “Then he said: Allah, the Exalted and Glorious, said: “O Prophet, say to your wives: If it be that you desire the life of this World, and its glitter, then come! I will provide for your enjoyment and set you free in a handsome manner. But if you seek Allah and His Messenger, and the Home of the Hereafter, verily Allah has prepared for the well-doers amongst you a great reward.” Sayyida A’isha (Allah be pleased with her) says that I said to the Messenger of Allah (Allah bless him & give him peace): “About this should I consult my parents, for I desire Allah and His Messenger and the abode of the Hereafter?” She (A’isha) said: “Then all the wives of the Messenger of Allah (Allah bless him & give him peace) did as I had done.” (Sahih Muslim, no. 1475)
Sayyida A’isha (Allah be pleased with her) also narrates that the Messenger of Allah (Allah bless him & give him peace) gave us the option (m: to remain with him or to be divorced), so we chose (and preferred) Allah and His Messenger. Giving us that option was not regarded as a divorce.” (Sahih al-Bukhari, no. 4962)
Imam al-Sarakhsi (Allah have mercy on him) states:
“If a man delegates the right to divorce to his wife, then this is similar to giving an option (khiyar) in trade, except that this is completely valid and logical, for the husband is the owner of issuing the divorce, thus he is in a position of delegating something that he owns. Hence, it will be binding, in that the husband will not have the right to revoke this delegation.” (al-Mabsut, 7/221)
The Companions (Sahaba, Allah be pleased with them all) also unanimously agreed upon the validity of delegating the right to divorce to the wife. (See: al-Mawsili, al-Ikhtiyar li ta’lil al-Mukhtar, 2/166 & Zaylai’i, Nab al-Raya, 3/229)
Rules concerning the delegation of the right to divorce (tafwid)
There are certain rules and regulations with regards to this delegation that need to be understood properly:
1) When the husband delegates the right to divorce to the wife, she will only have this right in the session (majlis) that she is in. If she did not exercise her right, then this right will go in vain. However, if the husband delegates this right for a specific period (e.g. 5 years) or permanently, then she will have this right accordingly. (Radd al-Muhtar & al-Ikhtiyar)
2) The wife will only have a right to divorce herself according to what was delegated to her. If the husband delegated to her the right to divorce herself once (and not two or three times), or he delegated the right to divorce herself irrevocably, then she will have this right accordingly. She will only be allowed to utilize this right in a manner it was delegated to her. (Radd al-Muhtar)
3) If the husband gave his wife the right to divorce herself a specific number of divorces, then she will not have a right to divorce herself more than the number of divorces that were delegated to her.
4) Once the husband delegates this right to his wife, he can not overturn or revoke it. (Durr al-Mukhtar)
5) If the right to divorce was delegated for a specific period of time and the wife did not utilize this right in that period, then upon the termination of this period, the right will also no longer remain. (al-Ikhtiyar)
6) By delegating the right to divorce, the husband still has a right to divorce his wife. Delegation of this right does not imply that the husband no longer has a right to issue a divorce. (al-Ikhtiyar)
7) If the wife rejects accepting this right of divorcing herself, then if the delegation was permanent, her rejection will be of no consequence, in that she will still have this right permanently despite rejecting the offer. However, if this delegation was not permanent, then by rejection, the right to divorce will terminate. (al-Ikhtiyar)
Different stages of delegation
There are different stages and times when the man delegates the right to divorce to the woman. In summary, there are three situations here:
a) If the delegation (tafwid) took place after the spouses had entered into wedlock, then this, without doubt, can be done. However, the husband here will be free to accept this, as he is already in the marriage.
b) The second situation is when this delegation (tafwid) takes place at the time of contracting the marriage.
This is also permissible and valid, provided one condition is met, which is that the offer of marriage is initiated by the woman coupled with the demand for Tafwid, and the man accepts this. If the opposite takes place, it will be void.
Imam al-Haskafi (Allah have mercy on him) states:
“If the man married her on condition that she will have the right to divorce herself, then this will be valid.”
Allama Ibn Abidin (Allah have mercy no him) commentates on this by saying:
“(Imam al-Haskafi’s statement “this will be valid”), this is subject to the condition that the woman initiates the contract of marriage with her offer by saying: “I marry myself to you on the condition that I will have the right to divorce myself whenever I wish” and the husband says: “I accept this”. However, if the husband initiated the contract of marriage, she will not have a right to divorce herself, as mentioned in al-Bahr.” (Radd al-Muhtar ala al-Durr, 3/329)
Thus, if the woman (or her representative) initiated the marriage contract by the offer (ijab) and asked for the right to divorce, then she will be entitled to this right, and whenever she divorces herself, it will be valid.
c) The third stage of Tafwid is when it takes place before the actual contract of marriage. In other words, the woman demands the right to divorce herself if they are to get married.
This is also permissible and valid, but also subject to one condition, that the husband attributes the Tafwid to the marriage. Meaning he says: “If I marry you, then you have the right to issue one irrevocable divorce upon yourself.” However, if the man did not attribute this to the marriage, it will be void.
It is stated in Durr al-Mukhtar:
“The condition of its validity is having ownership (m: by actual marriage) or referring it to the marriage…such as he says: “If I marry you, then you are divorced (m: or you have the right to divorce yourself).” (See: Radd al-Muhtar ala al-Durr al-Mukhtar, 3/344 & al-Ikhtiyar, 2/ 170)
As far as your second question is concerned, the woman can appoint her father as her representative (wakil) to contract the marriage on her behalf. It is not necessary for the woman to be present in the session of the marriage contract. Her representative will have the same authority as she herself has.
And Allah knows best
[Mufti] Muhammad ibn Adam
Leicester , UK