Friday May 13th, 2011 8:10 AM
Under the rules of divorce in Islamic sharia, a husband has the prerogative right to divorce his wife any time, any place, with or without any reason. Under certain conditions, the wife may request from the religious judge a judicial divorce in case of ‘harm’ or maltreatment (darar), as stated by the Maliki School of jurisprudence.
First section of Article 20 of the new law provides the following: “A married couple may mutually agree to separation (al-Khul’); however, if they do not agree and the wife sues demanding it [i.e., the separation], and separates herself from her husband (khala’at zawjaha) by forfeiting all her financial legal rights, and restores to him the “mahr’ he gave to her, then the court is to divorce her from him (tatliqiha ‘alayhi).”
Before the judge rules on Khul’, he has to order the couple to undergo a process of reconciliation, and after asking two mediators [hukkam] to pursue conciliation efforts between them for a period that may not exceed three months; and after the wife decides explicitly [tuqarrir sarahatan] that she abhors living with her husband and there is no way to continue married life between them, and that she is afraid to transgress God’s limits of this abhorrence.
It is important to note here that while a woman is required to submit to burdensome and time-consuming court-ordered conciliation, men seeking divorce, on the other hand, are never required to make any efforts at reconciliation. The reconciliation process is rooted in the biased notion that women are not capable of making rational decisions on issues related to divorce. According to one prosecutor in Cairo, mediation was necessary because “a woman may be hasty in filing for a divorce and may not have a strong keenness in keeping the family together. The court has to play this role and intervene. Men are more wise and rationale than women. A woman’s emotions can overcome her rationality”. (See Divorced from Justice: woman’s unequal access to divorce in Egypt, Google eBook, p.28).
Section 3 of Article 20 states that the separation order of the judge is “an irrevocable divorce [talaq ba’in]”; and the court’s decision is not subject to any form of appeal. Article 20 of the Egyptian law of 2000 does not accord legal weight to the husband’s consent to the terms of Khul’ divorce. This is based on the Sunnah literature, embodied in the Islamic canonical collections of the sayings and deeds of the Prophet of Islam, and especially the collection of Sahih al-Bukhari, which contain an authenticated version of Muhammad’s handling of the Habiba separation case in which he ruled to separate her from her husband without asking the husband’s permission.
Although Article 20 of the Egyptian Personal Status Law, which grants women the right of Khul’ is considered a significant accomplishment by women’s rights activists, it is harmful to women’s financial rights because the wife is forced to give up her mahr, alimony and other gifts provided by the husband during their marriage. Poor women, particularly in rural areas, suffer most of this financial loss.
DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.
Gabriel Sawma is a lawyer with Middle East Background, and a recognized authority on Islamic law of marriage, divorce, and custody of children. Professor of Middle East Constitutional Law and Islamic law. Expert Consultant on Islamic divorce in U.S. Courts and Canada. Admitted to the Lebanese Bar Association. Former Associate Member of the New York Bar Association and the American Bar Association.
Professor Sawma’s experience in Islamic and Middle East laws comes from his study and practice of law in the Middle East. Islamic family law is part of the curriculum at the Lebanese University School of Law from which he graduated with honor.
Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and universities in the U.S., Europe and the Middle East. He wrote affidavits in connection with Islamic divorce to immigration authorities, Federal Courts and State Family Courts throughout the United States. Travelled extensively to Saudi Arabia and the Arabian Gulf region and other countries in the Middle East, and wrote numerous articles on Islamic divorce in USA and abroad. He speaks, reads and writes Arabic, French, English, and few other languages spoken in the Middle East.
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Taught Islamic Finance at the University of Liverpool and lectured on Islamic Sharia at Fairleigh Dickinson University: http://view.fdu.edu/default.aspx?id=7899 and abroad.
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