A longish excerpt but interesting none the less.
‘Much litigation about property related to lapsed divorce payments and inheritance settlements. In either case, the common presence of women in court, mostly as plaintiffs, attested to the relatively advantageous positions in which they stood. Divorce, as the jurists understood very well, and as legal practice testifies, was a very costly financial enterprise for the husband, let alone that in many cases it was effectively ruinous (a fact which may also explain the rarity of polygamy). Upon divorce, the ex-wife was entitled to maintenance for at least three months, delayed dower, children’s maintenance, any debts the husband incurred to her during the marriage (a relatively frequent occurrence), and if the children were young, a fee for nursing. And if the husband had not been consistent in paying for marital obligations (also a relatively frequent occurrence), he would owe the total sum due upon the initiation of divorce.
In this context, it must be clear that when women entered marriage, they frequently did so with a fair amount of capital, which explains why they were a source of lending for many husbands and why so many of them engaged in the business of money-lending in the first place. In addition to the immediate dower and the financial and material guarantees for her livelihood, the wife secured a postponed payment, but one that she could retrieve at any time she wished (unless otherwise stipulated in the con- tract). But equally significant was the trousseau that she received from her parents, customarily consisting of her share of her natal family’s inheritance paid in the form of furniture, clothing, jewellery and at times cash.
Many women, before or during marriage, were also endowed with a waqf portion, giving them further income. Whatever the form of the trousseau and the total wealth they could accumulate, women were entirely aware of their exclusive right to this wealth, and understood well that they were under no obligation to spend any portion of it on others or even on themselves. They apparently spent their own money on themselves only if they chose to do so, since such expenses as pertained to sustenance, shelter and clothing (in the expansive meaning of these terms if the husband was prosperous) were entirely his responsibility, not hers. In other words, unlike that of husbands, the property of wives was not subject to the chipping effect of expenditure, but could instead be saved, invested and augmented.
Considering the unassailability over the centuries of these rights – which on balance availed women of property accumulation – it is not surprising that, in the historical record, unilateral divorce by the husband appears to be less common than KHULʿ, the contractual dissolution of marriage (where the wife surrenders some of her financial rights in exchange for divorce). The relative frequency of khulʿ in Istanbul, Anatolia, Syria, Muslim Cyprus, Egypt and Palestine has been duly noted by historians. It is a phenomenon that explains – in this context – three significant features of Muslim dissolution of marriage. First, while the husband could divorce unilaterally, there was also a “price” that he paid for this prerogative. In other words, the average husband was constrained by hefty financial deterrents, coupled with legal and moral deterrents installed by the law as well. Second, the husband’s unilateral divorce in effect also amounted to a one-way transfer of property from the husband to the wife, beyond and above all that he was – for the duration of the marriage – obliged to provide his wife by default. In fact, an important effect of this transfer was the fact that many repudiated women purchased the husband’s share in the matrimonial house, funneling the divorce payment due to them toward such a purchase. Third, khulʿ, within the economic equation of Muslim marriages, was in a sense less of a depletion of the woman’s property because the payment by the wife was usually the delayed dower her husband owed her, plus her waiting period allowance. This was so typical that the juristic manuals reflected this practice as a normative doctrine. The point, however, remains that it was the very financial promise made by the groom that was used as the bargaining chip for khulʿ.
Khulʿ, a means by which a woman could exit an unhappy marriage, provides an excellent context to assess domestic violence against women and other causes of their marital discord. Because they had fairly easy access to the courts, unhappy wives had the option of addressing them- selves to the qadi, who would assign officials of the court to investigate the abuse or other harm that made these women’s marriage unbearable. If abuse was proven, the court had the power to dissolve the marriage, as it often did. The law also allowed the woman the right to self-defense, including, under certain circumstances, the killing of an abusive husband. But if the husband was not at fault, a wife who found her marriage unbearable could at least dissolve it by khulʿ.
The formal legal aspect of such situations might well be augmented by another social aspect. Obviously, the ties of the wife/woman with her original family were not, upon marriage, severed, and her parents, brothers and sisters continued to watch closely as the marriage of their daughter/ sister unfolded. It was, after all, the parents of the wife who had usually arranged the marriage, and who were at least to some extent responsible for it as well as for the well-being of their daughter. If the marriage failed, they not only had to deal with such a failure in the public space, but also had to “take back” their daughter, with all the economic and other con- sequences this “taking back” might entail. Their interest in the success of their daughter’s marriage explains the close scrutiny many families exercised (and still do) to prevent abuse by the husband of their daughter (including such measures as the beating of the abusive husband by the wife’s brothers). Unlike the present situation of many women who, in the nuclear family of today, must fend for themselves, women in earlier Islamic societies continued to have the psychological and social – and when necessary economic – backing of their original families. This obviously did not prevent abuse in all cases, but it did contribute significantly to its reduction. However, when all attempts had failed, the wife’s original family, often with the collaboration of the husband’s own family, would exercise the necessary pressures to bring the marriage to an end, before the qadi or not.’
Wael B. Hallaq, 66-8, An Introduction to Islamic Law, 2009.