ABSTRACT
According to Islamic law, Muslim men enjoy a unilateral right to divorce their wives on any grounds by uttering a simple divorce formula. In this type of divorce, which is broadly called talak, the husband pays his wife her deferred dowry, which the couple had agreed upon at the time of their marriage contract. Muslim women, however, do not retain the right to divorce their husbands through talak. If they wish to initiate a divorce, they renounce part or all of their deferred dowry, sometimes with additional compensation. In this hul´/muhala divorce, women must receive their husbands’ approval for the divorce. The only type of divorce that grants the divorcing parties a legal annulment is fesih, which can become effective, according to the Hanafi school, the preferred legal school of the Ottoman Empire, only in cases of the husband’s impotence and apostasy. The Ottoman State considered marriage and divorce private arrangements between spouses and did not require formal registration until it introduced the reforms on family law in 1917. Therefore, divorce was substantially an oral act, which led to complicated consequences.
Using various court cases from late-17th-century Istanbul, this study demonstrates that the very nature of divorce laws and the orality of marriage and divorce turned marital status into an ambiguous position. Cases in which men and women disagreed as to whether they were still married or divorced and sought judicial intervention to settle such a dispute were not infrequent. In addition, because Ottoman subjects did not have to register their divorces officially, one of the parties could easily bring a false claim upon the other party, being motivated by a simple reason: Talak and hul´ lead to different consequences in terms of the dowry arrangements. While it is the wife who attains a financially favorable position in the former, it would be the husband in the latter, since his dowry debt is waived in the hul´ divorce. The study shows that both men and women derived an advantage from this prevailing ambiguous and obscure atmosphere and tried to change the situation in their own favor.
