Divorce Rights
Equal right to divorce
All divorces must go through the court. The grounds for divorce are equally available to both spouses. Divorce through unilateral repudiation (talaq) by the husband is not recognised.
A wife will inevitably get a divorce whether the husband agrees to the divorce or not and even in instances where the wife is unable to prove a breach of the marriage vows (taklik) or one of the grounds for judicial divorce. The reconciliation process (hakam) will end up with either: (i) the husband voluntarily pronouncing talaq; or (ii) the husband delegating the right to divorce to his wife (talaq-e-tafwid o r ‘esma); or (iii) if the husband refuses to do either (i) or (ii), the court will direct the husband’s arbitrator during the reconciliation process to pronounce talaq on the husband’s behalf.
Judicial divorce due to irreconcilable differences:
A wife may petition the court for a divorce on the ground of “irreconcilable differences” or irretrievable breakdown of the marriage (shiqaq wa niza’).
Divorce through repudiation by the husband (talaq)
A divorce by way of repudiation by the husband can only be effectuated through the court.
The standard marriage form includes a provision on the curtailment of a husband’s right to divorce.
A divorce by way of the repudiation by the husband cannot be finalised unless both parties appear before the court to register the divorce.
Talaq must be pronounced in court and it is an offence to pronounce talaq o utside the court. If a husband pronounces talaq outside the court, he is required to report the pronouncement within seven days and will be subject to a penalty (imprisonment, fine or both).
A divorce by way of repudiation by the husband (cerai talak) must be effectuated through the court. The husband must make a request to the court where his wife resides to hold a court proceeding to witness his pronouncement. His application must contain the reasons for his request.
Divorce by way of repudiation which can only be effectuated under judicial supervision. The wife and children must have received all their vested rights before it is authorised.
A husband must register a divorce by way of repudiation before a judge. In case he divorced his wife outside the court and did not register it, he must report to the religious court for the registration of the divorce within 15 days. Failure to register the repudiation is penalised. The court must notify the wife who is absent within one week from its registration.
Both the husband and wife must personally appear before the court within seven days of the pronouncement of talaq to apply for divorce. Failure do to do so is an offence.
A husband must register his divorce by way of repudiation within 30 days for its pronouncement. If the wife is not present at the registry office, the civil registrar (ma’dhun) is tasked with the responsibility of notifying the wife of her divorce.
Delegated right of divorce to the wife (talaq-e-tafwid or ‘esma)
A husband may delegate his unilateral right of divorce to his wife through the marriage contract, thus permitting her to pronounce talaq upon herself (t alaq-e-tafwid/‘esma). The wife’s right to financial entitlements remains preserved.
The standard marriage contract form includes a provision for the delegated right of divorce (talaq-e-tafwid/’esma) . If granted this right, the wife can initiate divorce without grounds and without going to court, while retaining relevant financial rights.
Divorce by redemption (khul’)
A wife can obtain a khul’ divorce in court without the consent of the husband upon payment of compensation to the husband. If the parties cannot agree on the amount of compensation, a judge is mandated to determine the sum to be paid, provided that it does not exceed one third of the dower (mahr).
A wife can obtain a khul’ divorce through mutual agreement and payment of compensation to the husband. A judge is mandated to rule for khul’ if the husband’s objection is unreasonable.
A wife can obtain a khul’ divorce (or cerai tebus talak) t hrough mutual agreement and payment of compensation to the husband. If both parties are unable to reach a mutual agreement on the amount of compensation to be paid by the wife, a court is mandated to assess the amount in accordance with Shari’ah principles and having regard to the status and financial means of the spouses and to the dower (mas kahwin). Once the amount of compensation has been fixed and the husband still refuses to the divorce, the court is mandated to grant the divorce.
A wife can negotiate with her husband for an ibra’ d ivorce by relinquishing some or all of her financial rights. If both parties are unable to reach a mutual agreement on an ibra’ divorce, a wife may bring a court case to seek a khul’ d ivorce, where she needs to: (i) declare in court that she detests life with her husband, the continuation of married life between them is impossible and she fears that she will transgress against the ‘limits of God’ due to this detestation; (iii) pledge to return her mahr; and (iv) renounce all her financial rights. In such a case, the court must order a reconciliation process, and if it fails it must then rule for divorce.
A wife can obtain a khul’ d ivorce through mutual agreement and payment of compensation to the husband. If the parties are unable to reach a mutual agreement on a khul’ divorce, a wife may bring a court case for an iftida divorce, where she needs to: (i) declare in court that she detests life with her husband, the continuation of married life between them is impossible and she fears that she will transgress against the ‘limits of God’ due to this detestation; (ii) pledge to return her mahr; and (iii) renounce all her financial rights. In such a case, the court must order a 30-day reconciliation process, and if it fails, the court must then rule for divorce.
A wife can obtain a khul’ divorce (or cerai tebus talak) through mutual agreement and payment of compensation to the husband. If the husband agrees to the khul’ divorce but the parties are unable to reach a mutual agreement on the amount of compensation to be paid by the wife, the court may assess the amount in accordance with Shari’ah principles, having regard to the status and the means of the parties. If the husband does not agree to the khul’ divorce, the court will order a reconciliation and if needed, an arbitration process. Should the reconciliation and arbitration processes fail, a wife will be granted a divorce.
A wife can petition a court for a khul’ divorce by pledging to pay compensation to the husband or forfeiting her financial rights. If a judge determines that the wife had asked for a khul’ due to harm or mistreatment by her husband, the judge can confirm the khul’ divorce without payment of compensation by the wife and restore her financial rights.
A wife can apply to dissolve her marriage through khul’ by filing suit in the Family Court. This can be done without the consent of the husband if she forgoes her financial rights.
A wife can obtain a khul’ divorce through mutual agreement and payment of compensation to the husband. If the parties are unable to reach a mutual agreement on a khul’ divorce, a wife may bring a court case where the court will attempt to reconcile the couple by appointing two arbitrators to conduct the reconciliation within six months. If reconciliation is impossible, the Court must grant the divorce on condition that the wife: (i) returns her mahr; and (ii) renounces all her financial rights.
A wife can obtain a khul’ divorce through mutual agreement and payment of compensation to the husband. If the husband agrees to the khul’ divorce but both parties are unable to reach a mutual agreement on the amount of compensation to be paid by the wife, the court may assess the amount of compensation to be paid by the wife, having regard to the status and the means of the parties. If the husband does not agree to the khul’ divorce, the court will order a reconciliation process. Should the reconciliation process fail, a wife will be granted a divorce.
A wife can obtain a khul’ divorce through mutual agreement and payment of compensation to the husband. If the husband persistently opposes the divorce, and if it is feared that the spouses will transgress the limits of God, the court will rule for divorce (mukhala’a) and determine the ‘appropriate consideration’ (badal munasib) owed by the wife to the husband.
A wife can obtain a khul’ divorce through mutual agreement and payment of compensation to the husband. If the parties agree to the khul’ divorce but disagree on the amount of compensation, the court may determine the appropriate amount of compensation to be paid by the wife to the husband.