The validity of verbal divorce, commonly known as talaq among Muslim couples, was tested at the Kadhi's Court in Mombasa after a woman sought intervention after being excluded from the list of beneficiaries of her late husband's estate.
The woman approached the Kadhi's Court seeking to know what makes a talaq valid, following allegations that she was not legally divorced from her previous husband.
The woman complained to the Kadhi's Court in Mombasa that she had been excluded from an ongoing inheritance case for her late husband's estate.
She insists that she was married to her late husband at the time of his death after being divorced from a previous marriage.
"It has been alleged that I did not have the capacity to marry the deceased as I was previously married to another husband," she said.
She informed the court that she had been divorced by her previous husband through three talaqs and therefore had the capacity to remarry, making her marriage with the deceased valid.
The woman sought the opinion of the Kadhi Court on the effect of the three oral talaqs and whether they were sufficient for an irrevocable divorce.
She also wanted to know whether the absence of a divorce certificate invalidates a divorce in Islam and what evidence is required if a woman states at the time of marriage that she agrees to marry on the basis that she has been divorced.
The widow also wanted to know what rights the wife of a deceased person has under succession law, the Islamic ruling on the rights of a widow in Islam and her entitlement to an inheritance.
According to Islamic law, the husband has the original authority to grant a divorce.
Exercise his inherent right
Chief Kadhi Abdulhalim Athman ruled that in Islam, a man does not need the permission of any court or organisation to exercise this inherent right.
He said that the divorce becomes effective upon the husband's pronouncement. However, by using symbolic words, the husband must have intended the divorce for it to take effect.
"It should be written, dated and witnessed to authenticate it," said Chief Kadhi.
The Muslim husband has two chances to take his wife back after a divorce, but after the third divorce, the marriage is irrevocable.
In Islam, repudiation or divorce is either revocable (raj'i) or irrevocable (ba'in).
In ahsan or best from, the only repudiation pronounced is revocable before the completion of iddat, after which it is irrevocable or irreversible; in other forms, the first and second are revocable with respect to an enjoyed wife, and the third is always irrevocable.
Iddat is an Islamic concept that refers to the waiting period after the termination of a Muslim marriage.
It is a compulsory period during which the woman is forbidden to marry again. The purpose of Iddat is to ensure that the woman is not pregnant before entering into another marriage.
Chief Kadhi stated that the duty of the court where the husband has exercised his right to divorce is to ensure that it meets the requirements of the law, but the court has no power to set it aside if it meets the requirements of the law.
He concluded that the divorce is therefore effective when it is pronounced and/or written by the husband and communicated to the divorced wife.
“It is the duty of the husband to register the divorce and be issued with a divorce certificate. The divorced wife could equally demand a divorce certificate as a matter of right and the court may issue one on application, if satisfied it was legal and valid,” said Chief Kadhi.
Chief Kadhi, however, noted that Muslim scholars have disagreed on whether three oral talaqs pronounced once should be counted as one or three.
He says that in cases where a husband pronounces talaq and after three menstrual cycles (about 90 days) or delivery of pregnancy, whichever is earlier, the marriage becomes irrevocable if it was the first or second divorce.
“This means the lady is legally free to be married to another husband upon satisfaction of the other requirements,” he says.
However, he added that if a marriage officer is conducting or registering the marriage of a divorced woman, he is obliged to be provided with evidence of the divorce to meet the requirements for registering the divorce.
He also noted that if there is no divorce certificate, a divorce note and/or an affidavit of divorce is required.
“The divorced wife could also approach the court on an application for confirmation of divorce supported with affidavits and or witnesses to the divorce. The court will, if satisfied, issue a divorce certificate. If none is issued, the divorced wife becomes a claimant on the issue whose evidence has to be tested under oath and cross[1] examination,” said Chief Kadhi.
With regard to entitlement to the estate, Chief Kadhi noted that a widow is entitled to a quarter (25 per cent) of the estate if the deceased had no children and was the only wife at the time of his death.
However, if the deceased was survived by a child, Chief Kadhi noted that the wife is entitled to one-eighth (12.5 per cent) of the estate if she is the only wife.
“If the deceased is survived by more than one wife, they all share one-eighth of the estate,” he noted.
But on the death of the propositus (the person from whom a line of descent is traced), he noted that the estate does not remain in abeyance, but automatically passes to the heirs in their respective shares.
“The heirs become joint proprietors or owners of the estate in specific but undivided shares. All heirs should be given funds for the sustenance from the estate requisite with their respective shares or the same be deducted from their shares during the final distribution of the estate,” he noted.
It was unclear from the woman's application whether she had received a divorce certificate or whether her divorce had been verbally pronounced three times.
However, based on Kadhi's observation, the woman may be entitled to the deceased's estate if it can be proved that she was legally divorced from her previous marriage before marrying the deceased.
