Sharia law initially provided gender inequality. However, within the world’s attitude and call for equality, there are still countries (for instance, Saudi Arabia, Iran, and Mauritania) that live according to this law, entirely following all its ideas, including the divorce issue. Thus, it is advisable to examine the divorce perception provided by Sharia law in order to determine the level of the women’s rights in the countries which live in accordance with this law and those ones in which the transformation of the Islamic law under the influence of the foreign law occurred.
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The Muslim law (Sharia) is the civilizational phenomenon. It combines two types of elements: religious (irrational) and secular (rational) ones (Mohammad, 2014). It is the legal system which has eventually acquired the global significance and has taken its shape within the framework of the Arab Caliphate. The process of its development was closely linked to the evolution of the Arab statehood. The sources of Sharia were extremely diverse. The most significant among them were the Qur’an and the Sunnah (the “sacred tradition”), which included the stories (hadith) about the actions and sayings of Muhammad outlined by his associates (Mohammad, 2014).
The Muslim law originally came from the fact that the human activity was ultimately determined by the divine revelation. However, it did not exclude the person’s possibility to choose and find the proper orientation of his or her actions. Thus, Sharia observed the failure of the proper behavior not only as a legal violation, but also as a religious sin entailing the highest retribution.
The Divorce Issue in Sharia Law
Sharia permits divorces but in any case does not approve them. According to the Ja’fari jurisprudence, seven types of women defects and deficiencies (both physical and mental) can be the reason for termination of the marriage contract. They include madness, blindness, leprosy, impotence, weakness, combination of anal or urinary channels with menstrual one, or women genitals which make sexual intercourse be impossible (Mohammad, 2014). The woman also has a right to raise the issue of divorce if she finds out after the wedding that her husband is crazy, suffering of the male impotence, castrated, or has a disease which hinders normal sexual life.
The husband or the wife who became aware of these defects or vices can break the marriage without issuing the talaq divorce (Mohammad, 2014). Considering the ethical and psychological factors, Sharia requires to keep the reasons of the divorce without divulging in any case. If the wife demands a divorce because of her husband’s impotence, he is obliged to pay a half of the mahr – the premarital gift. If he did not have any sexual intercourse with her (or even was not left alone with her for a time sufficient for the sexual intercourse), in a divorce the wife gets nothing. Contrarily, the divorced gets all the mahr if her husband had intercourse with her (or stayed alone with her for a time sufficient for the sexual intercourse).
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Precepts of Sharia Law Concerning the Termination of the Marriage
Any researcher studying the perceptions of Sharia about the family and the marital relations can conclude that a remarkable ease and absence of any formalities are distinctive for the divorce under the Muslim law, in contrast to many other religious and secular laws of the world (Mohammad, 2014). The amazing thing is that Islam, so jealously fighting against celibacy and monasticism, creates extremely light conditions for the dissolution of the marriage. And the paradox is that despite such easy legal mechanism of divorcement, the Muslims divorce quite rarely. There are quite strict Islamic moral principles which regulate this issue. Sharia condemns divorce and leaving the family or children without substantial reason (Mohammad, 2014). The man who has frequent marriages and divorces loses the prestige and respect in the Muslim society.
In the case of divorce, a man is more free in his actions than a woman, although formally has the similar right (Mohammad, 2014). The only conditions which Sharia puts before a man who wishes to divorce is his being in the sound mind and not forced by anyone in this desire. In addition, during the divorce, the woman should be free from menstruation and the husband must not have intercourse with her. The husband can give a divorce to his wife in her menstruation period under the following conditions: if he did not have with her any sexual intercourse or he knows that she is pregnant; or in the situation when the husband is in the other place and does not know whether she is free from the menses. If the husband had close relationship with his wife after the cessation of her menstrual period, he is obliged to wait for the second period of menstruation to divorce with her (Mohammad, 2014).
The dissolution of the marriage is carried out, like the marriage contract, by reading the formula in Arabic. While the bride reads the formula of the marriage contract first, her husband should pronounce the divorce formula first. The Muslim divorce formula sounds in Arabic as “My wife Fatima is free” (Mohammad, 2014). The husband’s lawyer can also arrange the marriage termination. According to Sharia, the wife cannot refuse her husband’s desire to obtain the divorce, thus she can only accept it. As a rule, she has a right to protest only if the reason for the divorce is a charge in betrayal (Mohammad, 2014). In this case, the husband has to provide the testimony of the witnesses who are able to confirm the guilt of his wife. If the husband is not able to prove the guilt of his wife, he will be punished for the slandering of the Muslim woman.
A woman who got a divorce, as well as and a widow, cannot immediately get married, and the time when she can not get married is called iddah (Mohammad, 2014). The Ja’fari law establishes the following rules: the right to marry immediately after the marriage termination is given to a woman who is less than 9 or more than 50 years old, as the Muslims believe that the women of this age cannot have children. Thus, they do not have to wait for the expiration of the post-divorce term. Iddah lasts for three menstrual cycles or up to 4 months and 10 days. The woman getting a divorce who had no close relationships with her husband has a right not to wait for the period of iddah and can marry right after her divorce with the first husband. One of the goals of the iddah is to find out whether a woman is pregnant, becoming a widow, or getting the divorce. Another goal is to facilitate the family restoration in the case of reckless divorce (Mohammad, 2014). One can consider the accouchement to be the end of the iddah period. For example, if the husband gave his wife the divorce, and she gave birth to a child in one hour, she would be free from the iddah right after the birth.
Shariah comprehensively regulates all aspects of Muslim life. Its rules regulate even such purely personal issue as the behavior of the woman who has lost her husband (Mohammad, 2014). According to Sharia, non-pregnant woman whose husband has died is obliged to comply the mourning period for 4 months and 10 days, and only then she can marry again. If she was pregnant after her husband’s death, the mourning period continues until the accouchement. During the period of mourning, the widow is forbidden to wear bright dresses, color her eyebrows, beautify herself and decorate the apartment. Even the slightest mistake in violating the rules during the compliance of the mourning for her husband is unacceptable. So, if a woman married after the mourning period, and suddenly people find out that her first husband died later than expected, she had to get a divorce from her second husband and wait for the expiration of the full mourning period.
Shariah practices two basic types of divorce: a complete divorce (talaq bain) and a divorce with the possibility of returning to the previous family relations (talaq raji) (Mohammad, 2014). After talaq bain divorce, the husband can regain his wife only after the following steps. First, the former wife should complete the period of iddah. Then, she has to enter the full-fledged marriage with another man and divorce with him. And after the expiry of the iddah, she is able to marry her first husband again. Thus, bain talaq divorce is definitive. The Ja’fari jurisprudence specifies the following variants of talaq bain. First, the definitive receives the wife if she has not reached the age of nine or her age is over than 50 years. The second case of the talaq bain occurs if the husband has not had close relationship with the woman after signing the marriage contract. The divorce automatically becomes ultimate if it is the third talaq (Mohammad, 2014).
Thus, the Muslim woman of the age of 50, after getting a divorce, loses the right to return to her husband, and the husband cannot return her by signing the new marriage contract. The woman who for some reason did not have the intimate relationships with her husband, after getting divorce, loses the right to return to her husband as well. The easiest at the first glace but the most severe according to the consequences is so-called triple talaq. At the moment when the husband angrily repeats three times: “you are not my wife,” the spouses, according to some Muslim researchers’ beliefs, immediately become forbidden for each other. If the wife desires to restore the previous family, she has to marry someone else, divorce with him, and only after that she is able to return to her former husband. However, even in this case, Islam does not accept the fictitious marriage. As a rule, the husband finds himself the false husband for his wife. Therefore, in their sermons, the Muslim preachers often warn men and women not to treat giddily to the word “talaq”.
Raji is literally not the final divorce. The term “raji” means “returning” (Mohammad, 2014). Thus, the husband giving his wife a divorce can repent and desire to return her back. The husband in this case does not lose the right to reconcile with his wife and return to his family. As a rule, after the talaq raji iddah, the wife does not leave her husband’s house. Sharia encourages the husband during his return to the wife not to admit publicly about his mistake but only to make it clear to his wife with the hints that he returns to her. That is the reason of the Shariah requirement not to deport the wife out of her previous husband’s house right after the divorce (Mohammad, 2014). If the husband decides to return to his wife after the first or second divorce raji, then there is no need in any witnesses.
Hulu is the type of the divorce in which the wife must financially compensate the marriage compensation to her husband, rewarding him for giving her the freedom (Mohammad, 2014). The wife offers her husband her mahr or some other property as a gift for the right to get a divorce with him. However, neither wife nor husband deepens into the reasons which forced the woman to make this step. If the husband agrees to the compromise divorce, Sharia considers it legitimate.
The divorce through the renunciation (mubarat) is quite similar to the hulu divorce, but there are differences between them (Mohammad, 2014). In both cases, the divorced husband receives from his wife some material compensation for the consent to terminate the marriage. In the case of the hulu divorce, the initiative of breaking the marriage belongs to the wife and the husband does not agree without the receiving of the financial compensation from her, whereas the wife offers the reward by herself. In the case of the mubarat, both spouses agree to terminate the marriage; however, the husband first sets out the terms and conditions and demands the material compensation. The mubarat divorce describes the man as a dishonest, unscrupulous, and begging his wife’s dowry one. In the case of mubarat, the husband has no right to demand the compensation, which exceeds the value of the woman’s mahr (Mohammad, 2014). Contrariwise, in the case of hulu, Sharia allows this excess because the wife asks for the divorce and determines the amount of remuneration by herself. Both hulu and mubarat are formalized in a similar way, which requires indicating divorce type along with amount and type of the compensation.
In Sharia, divorce rules are developed up to the smallest details. Thus, it provides an opportunity of the madman’s wife to receive a divorce from her husband’s father or paternal grandfather (Mohammad, 2014). If a man caused a divorce of some woman with her husband through a deception and then married her, the divorce is considered legitimate according to the viewpoint of the legal norms of Sharia, but it is a grave sin according to the ethical standards of Islam.
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Sharia law operates in accordance with the statements of the ancients: “What can be justified from a legal point of view, cannot always be justified from the point of view of the moral standards and ethics” (Mohammad, 2014). And since one cannot fix all immoral acts in the legislation, Sharia, in many cases, just finishes with the curse of the violators of the moral principles. Hence, in the above case, it sends a curse on the seducer and the woman consent to the sin. If an extraneous couple mistakenly had an intimate relationship considering each other as the husband and the wife, the woman should not approach her husband until the end of the iddah period to avoid the problems concerned with the possible pregnancy due to that erroneous meeting (Mohammad, 2014). The other case elaborated by Sharia is when a woman, having lost her husband, desires to get married to another man. In this case, she still cannot solve the problem by herself and should seek some advice from a spiritual person.
The Divorce Rules in Mauritania
Sharia law became the basis of the legislation in Mauritania since the early 80s (GID-DB, 2008). Its rules currently regulate almost all aspects of the family, social and personal life of the citizens in this country. The foremost feature of the divorce in Mauritania is the fact that its initiative practically always comes from the husband. According to the Qur’an, a divorce is considered to be a unilateral action which mainly comes from and is excited by the man’s will. In addition, the man can use unlimited rights for the termination of the marriage (GID-DB, 2008). For instance, he can give the divorce to his wives at his own discretion, without announcing the reasons, and at any time.
The property issues in the case of divorce are usually solved on the basis of Sharia law in Mauritania (GID-DB, 2008). After the termination of the marriage, the Muslim divorced woman cannot claim any part of the joint property, except her personal belongings and the gifts of her husband. If one is talking about the marriage with a foreign woman, the Moorish court will not recognize such marriage and will consider it as a form of the consensual residence (or the partnership). In this case, the court recognizes the rights of the women on the jointly acquired property (GID-DB, 2008). However, in this case, the Moorish court will examine the application of the cohabitation termination, which is not similar to the divorce proceedings and is considered as the civilian property claim. If the woman proves that she has had her personal incomes which she has given to her cohabitant, or that the couple has acquired any property using her funds, in principle, the court can decide to allocate her a certain part of that property or some compensation, but it occurs extremely rarely.
In Mauritania, the consequences of a divorce are unusually heavy in both moral and organizational plans for Muslim women. According to Sharia law, she has to leave her children in the family of her former husband (GID-DB, 2008). In addition, there are some difficulties which arise when she tries to create a new family, especially if the woman is a foreigner. The divorce in the Muslim society is a colossal moral humiliation for any woman (GID-DB, 2008). Till nowadays, for the Mauritanian, a divorced woman is an immoral and unworthy person. Once a man divorces his wife, even without declaring the reasons, the fact of the divorce is enough to convict the women according to the viewpoint of the Mauritanian public morality.
The Divorce Law in Morocco
Although Morocco lives in accordance with Sharia law, French law provides a significant impact on the resolution of the divorce issue in this country as well. Thus, in 2004, by the initiative of the King of Morocco Mohammed VI, a sensational reform in the field of the family relations was carried and the new Family Code (Moudawana) was approved (Hanafi, 2013). Due to the amendments, the women got more rights, in particular, the right to initiate the divorce, to marry without the consent of the family head or the male caregiver, not to give the consent for the polygamous marriage, and so on. According to the Family Code of Morocco, both spouses can dissolve the marriage. Earlier this right belonged exclusively to the men. If a woman appealed to the court concerning this issue, she had to provide the evidences of the indecent treatment. Although previously the divorce procedure could last for ten months up to fifteen years, nowadays the court is obliged to satisfy the claim for the divorce within six months (Hanafi, 2013).
Now there are two foremost types of the divorce proceedings in Morocco: the divorce under the judicial control and the divorce according to the court decision (Hanafi, 2013). The divorce under the judicial control proceeds in the following way. The statement about the desire to dissolve the marriage, regardless the underlying causes, may be submitted by any of the spouses or jointly with the mutual agreement without any dispute. If the divorce was initiated by the husband and the attempt of the reconciliation did not give any positive result, the court would determine the amount which the husband would be obliged to pay to his wife in thirty days (Hanafi, 2013). If he does not pay the given sum, it will be considered by the court as the refusal to implement the divorce.
If the wife initiates the divorce (such possibility should have been discussed before the marriage and registered in the marriage contract), the permission to open the process is provided without the consideration of its motives. The court accepts for the consideration the act of divorce compiled by the Adul (the religious judge) (Hanafi, 2013). It includes the women’s rights (allowances, accommodation costs, the right for the child support, and so on) and the further destiny of the children.
One of the types of divorce under the judicial control is the one with the compensation of one spouse to another (Hanafi, 2013). However, if the woman after the divorce pays her husband the sum from the funds intended for the maintenance of the children, he will become the official debtor of his ex-wife and will have to return her the money. The amount of the compensation determined by the court depends on the financial situation of the wife. In addition, if the woman managed to prove that she had been forced to terminate the marriage, she would have a right to claim the refund of the compensation amount (Hanafi, 2013).
Further, the divorce is carried out on the basis of mandated court decision (Hanafi, 2013). The main reasons for the divorce process can be the following. The first reasons for the marriage termination in this case can be the disharmony in the family or the failure of the complying any marital duties by the husband, including the absence of the maintaining the wife’s normal safe and financial conditions. The court also considers the issue of the gender-based violence in the family and may approve the divorce in the case of physical or moral humiliation provided by the husband (Hanafi, 2013). The court will issue the divorce decision in the case of a long-term (over one year) absence of the husband or his imprisonment for a term which exceeds three years. The poor health state of one spouse or his/her incurable disease or illness which threatens the health of the other spouse or a child can be the reason of the court divorce decision as well (Hanafi, 2013).
The Divorce Issue in Tunisia
The tangible imprint of the traditional Islamic concepts and Qur’anic postulates wear those areas of law which govern the marriage and the family relations in Tunisia. However, the problem of the legal status of women and the legislative consolidation of their equality with men (as well as a women’s issue as a whole), in contrast to the other Arab countries in North Africa got there the pretty significant development. Adopted in 1956, the Code of the personal status (Mashhour, 2005) fixed, among other things, the basic principles of the emancipation of the Tunisian women at the state level. The personal integrity and human dignity for the women proclaimed by the Code were supported by the number of measures, including the abolition of the polygamy (disagreeing with this requirement was punishable by the law), establishment of the legitimized divorce given by the husband to his wife, and the official granting the right to divorce for both spouses. The Code of the personal status gave the mother the right of guardianship of the minor child after his father’s death, and so on (Mashhour, 2005). The activity of the existing law is not static and is constantly supplemented with the amendments made in the legislation of the country. Despite the fact that the new law provided formally the equal rights of the wife with her husband (the old version determined the duty of the wife obey her husband in almost everything), in the cases of the law conflicts or the court proceedings Sharia law still plays a significant role (Mashhour, 2005).
Considering the new laws and amendments designed to secure the legal status of the women in the system of marriage and the family relations, one should note that despite the efforts of the Government, their implementation is accompanied by the considerable difficulties. In general, a practical solution of these issues, although it has a plurality of the specific features and nuances, still largely depends on the position occupied by the husband or the relatives of the husband’s line (Mashhour, 2005). The divorce case between the couple of Abdelwahid and Hedia, concerned by the Tunisian Court of Cassation, is a great example of this statement (Voorhoeve, 2009). Thus, being a married couple since 1984 and having three children, they lived in the small provincial city until 2001, when the husband became ill and family had to move to Tunis, the capital of the country, to ensure his proper treatment. Three years after, the husband decided to come back home, and after getting the wife’s disagreement, he filed the petition for the divorce, having the goal to reason his wife. After prolonged proceedings in the courts, starting with the local one and ending with the highest Tunisian court, despite the significant arguments given by the wife, which included higher educational level for the children in the capital and the need of the proper treatment for one child who got the father’s disease, the Court of Cassation ruled in 2007 to satisfy the demands of the husband.
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Sharia law is still disseminated and has a significant influence in the Muslim countries. It is the legal system consisting of religious (irrational) and secular (rational) elements and based on the Qur’an and the Sunnah, which included the stories (hadith) about the actions and sayings of Muhammad outlined by his associates. In Sharia law, there are the regulations concerning the divorce, which, according to these rules, is allowed but not encouraged. There are some preconditions related to health state of both spouses which can be the undisputed causes of the divorce: blindness, impotence, madness, and so on.
In contrast to the other world religious and secular laws, a remarkable ease and absence of any formalities are distinctive for the divorce under the Muslim law. Thus, to terminate the marriage, the man needs only to pronounce the divorce formula. Surprisingly, in order not to maintain desirable image, Muslims divorce quite rarely, even though the legal mechanism of divorcement is not that complicated.
Sharia practices two basic types of the divorce: a complete divorce (talaq bain) and a divorce with the possibility of returning to the previous family relations (talaq raji). In the case of talaq raji, the husband does not lose the right to reconcile with his wife and return to his family. After talaq bain divorce, the husband can regain his wife only after her being married and divorced with the other man. Even once pronouncing the divorce formula, the husband executes the final termination of the marriage if he had no close relationships with the woman after signing the marriage contract or the woman’s age is less than 9 or more that 50. As a rule, after the divorce the iddah period starts, during which the woman has to live in the husband’s house. One of the goals of the iddah is to find out whether a woman is pregnant, becoming a widow or getting the divorce. Another goal is facilitating the family restoration in the case of the reckless divorce. According to Sharia, only a man can pronounce the divorce formula. Thus, to deliver her will about the termination of the marriage, a woman has to ask the cleric to pronounce her claim or to beg her husband, offering him the compensation. Thus, it is the injustice towards women in Sharia law. Besides, it allows the cases when the husband demands the compensation from his former wife despite mutual agreement concerning the divorce. Another injustice towards women is the following. After the termination of the marriage, the Muslim divorced woman cannot claim any part of the joint property, except her personal belongings and the gifts of her husband (which can easily be picked away if the husband demands the compensation). According to Sharia law, the woman has no right to challenge her husband’s desire to terminate the marriage.
There are some countries, for instance, Saudi Arabia, Iran and Mauritania, which still live in accordance to Sharia law. There one can observe the lack of the gender equality in the divorce issues. On the contrary, the governments of the other Muslim countries, such as Morocco and Tunisia, provided the reforms in the family and marriage regulations. Due to the amendments, the women there got more rights, in particular, the right to initiate the divorce, to marry without the consent of the family head or the male caregiver, not to give the consent for the polygamous marriage, and so on. The women in those countries can proclaim their will to terminate the marriage by themselves. However, despite the fact that the new laws provide formally the equal rights of the wife with her husband, in the cases of the law conflicts or the court proceedings Sharia law still plays a significant role.