VIII' Islamic and Middle Eastern Family Law Divorce

1
VIII. Islamic and Middle Eastern Family Law
Divorce

• Divorce in Islamic law
• Various forms of dissolution of a marriage, at
  the initiative of the husband, the wife, by
  mutual agreement, or by judicial process
• Concept of repudiation as exclusive power of the
  husband to dissolve the marriage at any time and
  without giving any reasons
• 2228-238 651-6 and numerous hadith aim at
  restricting the power of the husband and
  strengthening the position of the wife
• According to a often quoted hadith divorce is
  reprehensible (makruh)

2

• Talaq
• Unilateral repudiation right given to the
  husband, extra-judicial (no formalities, no
  witnesses, the wife need not even be present)
• Appears in different forms, revocable and
  non-revocable
• Talaq as-Sunna
• Most approved method of repudiation
• Two forms ahsan and hasan form.

3

• Talaq as-sunna ahsan
• Pronouncement of talaq, refrain from sexual
  intercourse during the idda-period of three
  menstrual cycles (pregnancy extends the waiting
  period) at the end of the idda period the
  marriage is dissolved. Revocation possible
• With third talaq divorce becomes irrevocable (to
  prevent man from repudiating and taking women
  back an indefinite number of times)
• 2228, 2229, 2232, 2230

4

• Talaq as-sunna hasan
• Leads to greater finality
• Husband repudiates his wife three times during
  three subsequent menstrual cycles
• After the pronouncement of the third talaq,
  divorce becomes irrevocable

5

• Talaq al-bida
• Disapproved by islamic scholars, but legaly valid
  (nowadays highly disputed because it contradicts
  the Quran)
• Triple pronouncement of talaq on the same
  occasion
• Immediate termination of the marriage
• Reconciliation not possible

6

• Delegated talaq (talaq-i-tafwid)
• Well-recognised by the schools of law
• The husband has delegated the power to pronounce
  a talaq to the wife, so she can free herself from
  the marital bond when a certain event occurs
  usually in marriage contract
• Consensual divorce (mubaraat)
• Mutual agreed divorce

7

• Egypt
• Unilateral divorce has been criticised in Egypt
  in principle permitted (no regulation)
• Some restrictions (reforms 1929, 1985 and 2000)
• Intention relevant (Art. 1 - 4 Personal Status
  Law 1929)
• Talaq al-bida abolished (Art. 3, 5 Law 1929)
• Minimal judicial involvement certificate
  necessary information of the wife (Art. 5bis Law
  1929) talaq in case of denial is considered
  valid only if certified (Art. 21 Law 2000) see
  in case of revocation of talaq Art. 22 Law 2000
• Maintenance in case of repudation (Art. 18b Law
  1929)

8

• The right to divorce of the wife
• Redemption (khul)
• 2229 4128
• Promise of the man to pronounce the divorce when
  he receives the agreed compensation from the wife
• Classical law Husbands consent still required

9

• Egypt
• Highly controversial in the year 2000
• Kuhl Redemption outside of an agreement
• Wife can attain a divorce against the will of the
  husband if she returns the dower and waives all
  the financial entitlements (Art. 20 Law 2000)
• Divorce is pronounced by the court irrevocably
  after unsuccessful reconciliation process
• SCC recognised constitutionality
• Facilitates divorce for women radical break
  with extant Islamic law of the four established
  schools, new interpretation of religious sources
  based primarily on a hadith

10

• Judicial divorce (faskh)
• Certain grounds on which a wife can obtain a
  judicial divorce. Schools of legal thought
  recognise different divorce grounds
• Hanafi school only when man is incapable to
  consummate the marriage. Maliki school many
  different divorce grounds physical and mental
  defects failure to maintain desertion, absence
  for more than one year for whatever reason
  ill-treatment (according to Maliki school
  judicial power results from 435)

11

• Egypt
• Grounds for judicial divorce
• Abuse, mistreatment by the husband (Art. 6 Law
  1929)
• Absence of the husband for a period of more than
  one year (Art. 12, 13 Law 1929)
• Conviction of the husband to more than three
  years of imprisonment (Art. 14 Law 1929)
• Failure to pay maintenance (Art. 4 Law 1920)
• Illness impotence (Art. 9 to 11 Law 1920)
• Polygamous marriage (Art. 11bis Law 1929)
• Reconciliation process mandatory (Art. 7 bis 11
  Law 1929 Art. 18 und 19 Law 2000)

12

• Consequences of divorce
• Waiting period for women (idda) Three months or
  until the birth of the child for divorced women
  (2228) four months and ten days for widows.
  Entitlement to maintenance during idda.
• No other obligation after divorce
• Egypt
• Reform 1985
• Maintenance after divorce during at least two
  years if divorce is not her fault and is against
  her will (Art. 18bis Law 1929)
• Temporary use of the marital home (Art. 18bis 3
  Law 1929)

13

• Syria
• Talaq uttered while intoxicated, enraged, during
  grave illness or in order to coerce is
  ineffective
• Wife may seek judicial divorce on different
  grounds
• The divorced wife may be awarded compensation up
  to three years maintenance if the judge finds
  the husbands exercise of talaq to have been
  arbitrary
• Reconciliation

14

• Yemen
• Judicial dissolution available on different
  grounds divorce if husband neglects equal
  maintenance or accomodation obligation towards
  co-wives
• Khul in exchange for compensation
• Maintainance after divorce for one year to a wife
  who is divorced without just cause
• Reconciliation

15

• Tunesia
• Divorce strictly judicial matter extra-judicial
  talaq has no validity
• Divorce based on 1. agreement of the spouses 2.
  a petition from one spouse by reason of injury
  caused by the other 3. the will of the husband
  or the petition of the wife
• Reconciliation
• Compensation in case of divorce that is not by
  mutual agreement (lump sum, alimony as long as
  needed)