Current Issues Separation & Divorce Laws

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Current Issues: Separation & Divorce Laws

Najaf. Iraq. 2004. Iraqi lawyer Nidal Jreo listens as a courthouse clerk explains marriage licensing laws and fees to a man. Jreo was appointed as the first woman judge in the conservative Shiite Muslim city Najaf. Photo Credit: Julie Jacobson/AP Images.

Islam describes the marital bond as one filled with tranquility, love, mercy and that which should not be broken except for compelling reasons. In the Quran, couples are asked to pursue all possible remedies whenever their marriages are deeply challenged. Islam treats divorce as something that is not recommended, but permitted—but only when mutual good treatment is not possible and all reconciliation and mediation efforts have been exhausted. According to the Prophet, out of all things permitted, divorce is the most hated by God.1 Despite this, Muslims today are divorcing in larger numbers than before.

The four schools of Islamic jurisprudence have different approaches when it comes to divorce. Generally speaking, a man has the right to pronounce the words of divorce, talaq, to his wife or give her the statement of divorce in writing. The woman can establish divorce through khul, divorce where a woman returns her dower or pays another sum to her husband to obtain divorce, and if he refuses she can request the dissolution of marriage through the court.2 There are also other means by which women can obtain a divorce. These include conditional or delegated divorce, where the wife includes a condition in her marriage contract that allows her to divorce on her own initiative under specific circumstances. However, although these conditions can increase a woman's access to divorce, they do not challenge the husband’s right to repudiate her at his discretion.3 However, countries such as Turkey, Tunisia, Algeria, Iran, Indonesia, and Bangladesh require divorce to proceed through the judicial system where a judge rules. They do not accept oral repudiation as means of divorce.4

There have been several attempts in the Muslim world to reform divorce laws. Some countries impose financial penalties on a husband who divorces his wife without cause and others state that the wife has to be present before a man can announce divorce. In Morocco and Tunisia couples are required to appear before a judge so a woman’s rights are safeguarded and oral repudiation is no longer considered grounds for divorce. In March 2000, Egyptian law granted women the right to obtain divorce without her husband’s consent if she returned her mahr, dower. By the middle of the month, 3,000 petitions seeking divorce under these provisions were filed in Cairo alone.5

 

[1] Special Focus: Islam Divorce- Feminist Sexual Project.
[2] Dr Muzzamil H. Siddiqi: On divorce
[3] Special Focus: Islam Divorce- Feminist Sexual Project.
[4] Religion of Peace: How A Man Divorces His Wife.
[5] Special Focus: Islam Divorce- Feminist Sexual Project.

Related Current Issues

Freedom To Choose Marriage Partner

Organizations Active on this Issue

Women Living Under Muslim Laws

MUSAWAH

Sisters in Islam

Newspaper/Magazine Articles

Fassihi, Farnaz. "Iraqi Shiite Women Push Islamic Law On Gender Roles." Wall Street Journal - Eastern Edition 09 Mar. 2005

"Fighting free." Economist 373.8400 (2004): 52. Academic Search Premier. EBSCO. Web. 1 July 2010

Scholarly Articles

Anthony Luyirika Kafumbe. “Women's Rights to Property in Marriage, Divorce, and Widowhood in Uganda: The Problematic Aspects.” Human Rights Review. New York: Jun 2010. Vol. 11, Iss. 2; pg. 199

Relevant Books

John, l. Esposito & Natana J. Delong-Bas. “Women in the Muslim Family Law.” 2002.

Amira El Azhary Sonbol (ed.). “Women, the Family, and Divorce Laws in Islamic History.” Syracuse University Press, 1996.

Therese, Saliba. (ed), Carolyn, Allen. (ed), Judith, Howard. (ed). “Gender, Politics, and Islam.”, University of Chicago Press Journals, 2002.

Laws

Declaration on the Elimination of Violence Against Women (1993)

Fourth World Conference on Women [FWCW]: Beijing Declaration and Platform for Action (1995)

World Conference on Human Rights: Vienna Declaration and Programme of Action (1993)

CEDAW Committee, General Recommendation 21: Equality in Marriage and Family Relations (1994)

Women's Learning Partnership for Rights, Development and Peace, International Law

Women's Learning Partnership for Rights, Development and Peace, Family Law Charts

WISE Women Active on Issue

Shahina Akbar

Marhabo Zununova