Appointing Two Arbitrators When the Possibility of Estrangement between Husband and Wife Occurs
Allah subhanahu wa ta’ala first mentioned the case of rebellion on the part of the wife. He then mentioned the case of estrangement and alienation between the two spouses. Allah said,
وَإِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فَابْعَثُواْ حَكَماً مِّنْ أَهْلِهِ وَحَكَماً مِّنْ أَهْلِهَآ
“If you fear a breach between the two, appoint (two) arbitrators, one from his family….”
The Fuqaha’ (scholars of Fiqh) say that when estrangement occurs between the husband and wife, the judge refers them to a trusted person who examines their case in order to stop any wrongs committed between them. If the matter continues or worsens, the judge sends a trustworthy person from the woman’s family and a trustworthy person from the man’s family to meet with them and examine their case to determine whether it is best for them to part or to remain together. Allah gives preference to staying together, and this is why Allah said,
إِن يُرِيدَآ إِصْلَـحاً يُوَفِّقِ اللَّهُ بَيْنَهُمَآ
“…if they both wish for peace, Allah will cause their reconciliation.”
Ali bin Abi Talhah reported that Ibn Abbas said, “Allah commands that a righteous man from the husband’s side of the family and the wife’s side of the family are appointed, so that they find out who among the spouses is in the wrong. If the man is in the wrong, they prevent him from his wife, and he pays some restitution. If the wife is in the wrong, she remains with her husband, and he does not pay any restitution. If the arbitrators decide that the marriage should remain intact or be dissolved, then their decision is upheld. If they decide that the marriage remains intact, but one of the spouses disagrees while the other agrees, and one of them dies, then the one who agreed inherits from the other, while the spouse who did not agree does not inherit from the spouse who agreed.” This was collected by Ibn Abi Hatim and Ibn Jarir.
Shaykh Abu Umar bin Abdul-Barr said, “The scholars agree that when the two arbitrators disagree, then the opinion that dissolves the marriage will not be adopted. They also agree that the decision of the arbitrators is binding, even if the two spouses did not appoint them as agents. This is the case if it is decided that they should stay together, but they disagree whether it is binding or not when they decide for separation.” Then he mentioned that the majority holds the view that the decision is still binding, even if they did not appoint them to make any decision.