VIII. Islamic and Middle Eastern Family Law Divorce

1. Prof. Dr. Andrea Büchler, Law Institute, University of Zurich 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 2:228-238; 65:1-6 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. Prof. Dr. Andrea Büchler, Law Institute, University of Zurich 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. Prof. Dr. Andrea Büchler, Law Institute, University of Zurich 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) 2:228, 2:229, 2:232, 2:230

4. Prof. Dr. Andrea Büchler, Law Institute, University of Zurich 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. Prof. Dr. Andrea Büchler, Law Institute, University of Zurich 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. Prof. Dr. Andrea Büchler, Law Institute, University of Zurich 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. Prof. Dr. Andrea Büchler, Law Institute, University of Zurich 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. Prof. Dr. Andrea Büchler, Law Institute, University of Zurich The right to divorce of the wife Redemption (khul‘) 2:229; 4:128 Promise of the man to pronounce the divorce when he receives the agreed compensation from the wife Classical law: Husband‘s consent still required

9. Prof. Dr. Andrea Büchler, Law Institute, University of Zurich 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. Prof. Dr. Andrea Büchler, Law Institute, University of Zurich 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 4:35)

11. Prof. Dr. Andrea Büchler, Law Institute, University of Zurich 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. Prof. Dr. Andrea Büchler, Law Institute, University of Zurich Consequences of divorce Waiting period for women (idda): Three months or until the birth of the child for divorced women (2:228); 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. Prof. Dr. Andrea Büchler, Law Institute, University of Zurich 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 husband‘s exercise of talaq to have been arbitrary Reconciliation

14. Prof. Dr. Andrea Büchler, Law Institute, University of Zurich 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. Prof. Dr. Andrea Büchler, Law Institute, University of Zurich 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)