Talaq

In Islamic law

Talaq is the husband's repudiation of the marriage. The Qur'anic structure is set out at 2:229 — 'Divorce is twice. Then [after that], either keep [her] in an acceptable manner or release [her] with good treatment' — and at 2:228, which fixes the waiting period at three cycles and gives the husband the right to take her back within it if reconciliation is intended. That is the revocable, raj'i, divorce. Surah at-Talaq 65:1 requires that divorce be timed to the commencement of the waiting period and that she not be turned out of the home during it. Where breakdown is feared, 4:35 directs that an arbiter be sent from his family and one from hers before matters go further. The wife's corresponding route out is khul'.

In Canadian law

A talaq pronounced in Canada has no legal effect. A Canadian marriage ends only on death or by a divorce order under the federal Divorce Act, and nothing said at home or at a mosque changes that. A divorce obtained abroad may be recognised under s. 22(1) where either former spouse was habitually resident in that country for at least a year before proceedings began — but a bare talaq, unilateral and with no court or state involvement, was held not recognisable and contrary to public policy in Amin v. Canada (MCI), 2008 FC 168, and recognition can also be refused for fraud, want of natural justice or public policy (Kadri v. Kadri, 2015 ONSC 321). Section 21.1 of the Divorce Act cuts the other way and is worth knowing: a spouse can file an affidavit setting out barriers to religious remarriage within the other spouse's control, and if those barriers are not removed within 15 days the court may dismiss that spouse's application under the Act and strike out their pleadings.

Across the madhahib

The Qur'anic architecture — a revocable divorce during the waiting period, becoming final after the third pronouncement — is common ground. Whether three pronouncements made in a single sitting count as three or as one is a genuine and long-running dispute among jurists, and a glossary is the wrong place to settle it: it turns on facts about the couple and needs a scholar who knows them. None of that dispute affects the Canadian position, where only a court order ends a marriage.

Canadian legal detail

Treadstone Law, an Ontario firm with a wills and estates practice, covers the Canadian side of this in more depth:

• Ontario will marriage divorce effect revocation
• When uncontested divorce turns contested ontario
• How to file uncontested divorce ontario courthouse