Divorce and Obstacles for Women
The need for companionship is a basic need. The Holy Quran and Islam has stressed both partners to live in peace and harmony, however it is a natural process of life that some disagreements between spouses may arise during the course of marriage, especially during early years of marriage. Religions tend to support and encourage marriage and the breakdown of a marriage is regarded with sadness. In Islam marriage is a social contract called ‘Nikah’ to remain together for whole life. and divorce would mean terminating that contract.
Everyone has some marital issues in his/her life. In these situations, some family members, friends and extended families can play a vital role to help the couple sort out their issues. However, in some situations the couple might consider that divorce is their only option. Divorce (Talaq) in Islamic Law, in its original sense means 'repudiation' of marital bond. It means termination of the contract of marriage. In the terminology of jurists, Talaq also signifies dissolution of marriage.
'Breakage up of marriage' in Islam can take a variety of forms, some initiated by the husband and some initiated by the wife. The main traditional legal categories are Divorce, Talaq-e-Mubarat, judicial divorce and khulʿ. For example, in Pakistan, as per Muslim Law and under section 7 of the Muslim Family Law Ordinance the husband pronounces Talaq (oral or by way of deed of divorce) and sends written notice to the Union Council, and to his wife.
The agreement between husband and wife is called Talaq-e-Mubarat or Mutual Divorce agreement. The literal meaning of the word Mubarat is 'obtaining release from each other'. When husband and wife, with mutual consent, seek release from marital state, it can be initiated either from the wife or from the husband. As soon as it is accepted, dissolution is complete.
A judicial separation is a formal of separation which is sanctioned by the court. The marriage is not terminated on a judicial separation, neither party will be free to remarry until allied divorce conditions are also fulfilled. It enables the court to make orders about the division of money and property, similar to the orders which can be made on divorce.
Khul (Arabic-Khula') is a procedure through which a woman can apply for divorce in a Family Court by returning the dower (mahr) or something else that she had received from her husband or without returning anything, as agreed by the spouses or Court depending on the circumstances.
A wife can initiate to dissolve her marriage unilaterally only if the right of divorce has been unconditionally delegated (tafweez) to her by the husband in the marriage contract or the nikahnama. if the wife is not delegated the right of divorce in her nikahnama then she would need to apply for Khul. The Divorce Laws of Pakistan state that a woman has a delegated right of divorce, but it is a common practice that the delegated right of divorce is struck out before the nikahnama or marriage contract is presented to the bride for signatures. The marriage contract is prepared in advance. There is need to disseminate this legal information that a woman has a right of delegated divorce and hence her right should not be removed or struck off without her consent in the nikahnama prior to obtaining her signatures. It is also important that all the clauses should be read and understood by the bride and the groom, or read out to her clearly before signing the marriage contract.
Different reasons for divorce and 'dissolution of marriage' are attributed, for example: infertility, desire of male child, disability, chronic illness, and mental disorders, extramarital affairs, financial incompatibility, domestic abuse, conflicts over family responsibilities, communication problems, lack of trust etc. It is important to highlight that, to grant 'dissolution of marriage', the Court must be satisfied that are valid reasons for an Islamic divorce to be granted, and that the husband and wife cannot maintain the 'limits of Allah'. A valid reason covers matters such as adultery, domestic violence and other aspects of immoral behavior.
Matrimonial offences such as ill treatment and cruelty by the husband or his family members are hard to prove, because such offences take place within the privacy of homes and those accused of wrongdoing tend not to testify for the women. For these reasons, a no-fault based remedy was badly needed in the law. Khul' seems to provide an answer.
The complainant wife, in a case for dissolution of marriage, has to prove the offence. However, in case of khula' she can claim it on the basis of 'strong aversion'.
It is a matter of fact that women seeking to end their marriage face legal hurdles that men do not encounter as frequently. The cases are delayed unnecessarily, besides adding to the financial problems. Private lawyers can help clients protect their best interests but they charge high fees besides charging extra for each hearing. For a woman, there is great stress in, and sometimes not possible, to go back to parents' house or elsewhere. Moreover, her psychological and emotional well-being usually suffers including high levels of anxiety, unhappiness and depression may completely change the personality of the woman in both the situations whether husband divorced her or she applies for Khul.
Essentially, husbands take three positions when they file cases: to demonstrate to the court that he never wanted this divorce and hence shouldn’t have to pay a proper maintenance; to put legal pressure on the woman and bury her in litigation; and/or to add to her financial burden. Lawyers seek long adjournments to defeat the time unnecessarily.
A survey performed by UBS Global Wealth Management found that 56 percent of married women leave major financial decisions to their husbands. As a result, when a divorce does happen later in life, women are more likely to be in a disadvantageous position financially.
Divorce is a major social issue in the world. Divorce is not just the end of the relationship between husband and wife; it affects the couple, their children, their families and society. Children and adolescents who experience the divorce of their parents also have higher rates of depression, lower self-esteem, and emotional distress. “Divorce has been rated the number one life stressor,” according to Arizona University.
“Divorce is the most hateful in the sight of God": The general directions and limitations of divorce may be studied in (Quran 2:228-232, 236-237, 241, and 4:35), and many ahaadith.
Divorce is discussed in several parts of the Bible as God hates divorce and there are few expectations where divorce is allowed [Bible; Matthew 19:9 (ESV) 1 Corinthians 7:14-15,7:10-11 (NIV)Mathew 5:31-32,19:9]