Analysis of Divorce in Islamic Law - Essay Example

A Comparative Analysis of Divorce in Islamic Law and English Law Islamic Law and English Law on marriage and divorce are essentially determined by two different sets of beliefs, views and philosophies about the existence of man on the earth as well as in human society. Islamic scholars views man as the representative of God (Allah in Islam) on the earth. Therefore, according Islamic philosophy, human being’s sole duty is to lead his or her life according the codes given by God. His duty is to obey the divine law. Necessarily, a devoted Muslim is bound to follow the Islamic rules and laws in important issues, of life, like marriage and divorce. It is only the interpretation of Islamic law on marriage and divorce from a religious perspective. But a neutral and unbiased sociological interpretation of the Islamic laws related to marriage and divorce will necessarily reveal that Islamic laws are devoted to highlight a balanced support to both the individuals and the society. On the other hand, English law depends on a secular view of man and his existence in human society. This secular view assumes that man is essentially a self-sufficient structural functional entity who can decide his own life choice. Therefore, English law regarding marriage and divorce necessarily solely emphasizes on the individuals’ freedom and choice. It considers that individuals are the sole decision-maker in important matters like marriage and divorce. Indeed, this philosophical disparity determines all basic difference as well as similarities between the two laws. An in-depth analysis of divorce in Islamic Law necessarily demands a substantive description of how this legal systems view marriage. In Islam, a marriage is endowed with two facets: divine facet and social facet. The religious aspect of marriage necessarily assumes that it is a divine duty of every Muslim to marry and lead a peaceful and sacred conjugal life. According to Muhammad, it is a part of a Muslim’s faith in the divine. Simultaneously, it is his or her social duty also. In this regard, Mian Muhibullah Kakakhel (2008) likes to view the Islamic concept of marriage and divorce as following: It is well settled that marriage amongst Muslims is not a sacrament, but in the nature of a civil contract. Such a contract undoubtedly has spiritual and moral overtones and undertones but legally, in essence, it remains a contract between the parties which can be the subject of dissolution for good cause. (paras. 1) In order to a life of sanctity and prevent the social anarchy caused by promiscuous sexuality, a man must marry a woman, if his situation is physically and economically affordable to lead a conjugal life. Therefore, the primary requisites of marriage in Islam are that a Muslim must be able to fulfill the demands of sexuality as well as the economic needs of his family. If any person can fulfill these demands, he can enter marriage which is essentially considered as a social contract in Islam. The requisite for women to enter the marital contract is much easier than men. Since the economic expense of conjugal life sole pivots on men, women are free of the economic obligations. Hence, these prerequisites of Islamic marriage, in fact, determine those of divorce in Islam. Divorce in Islam is considered as the most heinous legality which empowers a man to divorce his wife without showing any reasonable cause. It is because Islam demands the unquestionable loyalty of women to their husbands. In this regard, a man will not be accountable to the Sharia council or the Islamic Legal system which consists of the elders and the religious authority of the society, unless his wife brings a charge of sexual perversion against him. On the other hand, a Muslim woman seeks divorce, she must appeal to the Sharia Council with the charges that her husband is sexually impotent or missing for years (Kakakhel, 2008, paras.2-7). The rule of divorce for men is different from that of women. If a man seeks divorce, the term, ‘talaq’ is used for him; but in the context of a woman, it is called, “khula”. The English legal system regarding marriage and divorce is based on a secular philosophy which assumes individuals are the sole decision-makers in matters of their major life-choices. Here, the terms, ‘individual’ is asexual and it extends to any human beings irrespective of their genders. Such assumption necessarily invests both men and women with the power to divorce their counterparts without being accountable to the existing legal system. According to English Law, marriage is a social contract into which any consenting couple of opposite sex can enter. On the other hand, if any party or both parties do not want to respect this contract mutually, they are permitted to seek divorce in English court. Though this is the basic premise of the validity of divorce, there are conditions which are required to invoke the legal jurisdiction. In most cases, the English Court is invoked to decide each of the divorcing couples’ shares in their marital property. Whenever any of the two parties of a marriage is not willing to be divorced, the other can invoke jurisdiction on the following grounds: “Adultery”, “Unreasonable behavior”, “Desertion”, “Two years' separation with consent”, and “Five years' separation without consent” (Terry, 2013, paras.3). In fact, English Law regarding divorce depends on an individual’s to freedom and property. Whereas the English legal system requires the consents of both parties to enter marital contract, only one of the parties’ refusal to continue marital life may prove sufficient to break the bond, as Terry (2013) says in this regard: The very fact that one of the parties has presented a divorce petition is a reasonable indication that at least one of the parties to the marriage thinks it is over. There are some very limited circumstances under which one spouse can prevent the other from getting a divorce but cases which fulfill such criteria are very rare. (paras. 8) Even though Islamic and English legal systems emerge from two different and, to a great extent, opposite philosophies, they have both procedural similarities and dissimilarities in terms of the valid grounds of divorce and subsequent disputes about both parties’ rights and responsibilities. In the following table, I will show the basic features of both Islamic law and English Law regarding divorce comparatively in order to point out the similarities and difference between the two laws. The similarities of the two laws regarding divorce are shown below: Islamic Law English Law View Islamic legal system considers divorce as the breakup of a social contract of duty and responsibility to each other of a married couple. As a result, The English legal system also holds, more or less, the same view about divorce. Procedure In case of ‘talaq’, a man has to pronounce the word, ‘talaq’, for three times at some interval which may allow his wife to reconcile with him. In English law, there is no hard and fast rule and procedure of divorce. It solely depends on the individuals’ decision as well as the court’s verdict. If the court thinks it right, it may give the divorcing couples enough scope to reconcile. But this reconciliation period ends once the man pronounces ‘talaq’ for the third time. Thus the divorce is completed. The first utterance initiates the process of divorce, while the intervals allow the wife to have enough time to reconcile. During the intervals, if the couples perform sexual intercourse, then it is assumed, they have reconcile. (Kakakhel, 2008, paras.3-4) Grounds Islamic Law does not prescribe any specific reason as the basis of divorce on a man’s part. But it has always encouraged a man to forgive and to reconcile. The grounds which are sufficient enough to invoke jurisdiction are “Adultery”, “Unreasonable behavior”, “Desertion”, “Two years' separation with consent”, and “Five years' separation without consent”. (Meyer, 2013, paras.2-3) In the case of ‘khula’, a woman has to provide, to a ‘qazi’ or shariah council, certain evidences who proves that her husband is insane, risky for her life, unfaithful, pervert, or involved with any serious activities which forbidden in Islam. (Hamada, 2010, paras.3-5) The laws of Divorce in English Court are alike for both men and women. Both men and women can seek divorce on the same ground. Aftermaths After the divorce, their sexual intimacy is totally forbidden but they can help each other in nurturing their infants. Sexual intimacy between the divorced couple completely rests on their choice. They cannot remarry each other again. But they can marry a different person. They can remarry anyone including the divorced ones. The divorcee is entitled to receive financial help from her ex-husband on certain reasons such as having children, illness and other reasonable grounds. According to the “Matrimonial Causes Act 1973”, the divorced parties (especially women) are entitled to “ancillary relief” which comes in the form of one-time financial compensation or periodical compensation. (Meyer, 2013, paras.2-3) If the divorce is initiated by a man, he may not receive the dowry which he usually has to give to his wife. There is no such obligation of repaying the ‘pre-nuptial’ dowry or gift to any of the divorced parties. Instead, according to the court’s decision, ‘marital property’ is divided between the divorced husband and wife. If the divorce is initiated by a woman, she may have to pay the dowry which she usually receives from her husband. A divorced woman is allowed to keep her children with her, until she remarries. But after her remarriage, she needs her ex-husband’s consent to meet her children. In cases, it is up to the children with whom they choose to live. (CFLP, 2013, paras. 8) In English law, the guardianship of the children of the divorced couples simultaneously depends on the court’s decision, the compromise between the divorced parents and the children’s decision. (CFLP, 2013, paras. 8) Both divorce laws have their merits and demerits. Though the English law has been continuously adapted and amended in order to face the demands of modernity, the Islamic law remained the same for hundreds of years. In modern age, people have begun to question the lack of divorced women’s right to the marital property, which is acknowledged by the English. Moreover, the Islamic demand for a woman’s unquestionable loyalty to her husband has been subjected to criticism, since such loyalty often inspires despotic patriarchal power of a man over his wife (Palmer, 2012, paras. 6; Wynne-Jones, 2011). One of such criticisms against male superiority, which is acknowledged by Islam, is as following: “Central to Islamic marriage law is the wife’s duty of submission to her husband, which he purchases by agreeing to provide for her for the duration of the marriage” (Palmer, 2012, paras. 6). In the face of modern human right movement and the demands for equal right to women, voice for more lenient interpretation the Quranic verse has been raised. Many Muslim countries in the Middle East have mutilated the unaccountable power of a Muslim to divorce his wife. Rather the power has shifted to the existing legal system of those countries. The English Law is facing such issues. For example there is very often a grumble from the male counterpart of a divorce that women often maliciously seek divorce and manipulate the court’s sympathy for them as the weaker sex in order to consume a part of their husband’s property, as David Terry (2013) refers to this issue as following: “All too often the man feels he has lost everything under such circumstances - wife, home and children - and that what he has spent years building up has suddenly been snatched away from him” (paras. 1). Referring to the difference between Islamic Law and English regarding the children’s guardianship, CFLP (2013) says, “Sharia law also makes provision for children’s arrangements which often conflict with the approach of the English courts” (paras. 8). References CFLP. (May 8, 2013). Islamic marriage and divorce. Cambridge Family Law Practice. Retrieved 10 September 2013 from http://www.cflp.co.uk/islamic-marriage-and-divorce/ Hamada, S. (18 March 2010). The Hard Way Out: Divorce by Khula. The WIP. Retrieved 2 February 2013 from http://thewip.net/contributors/2010/03/the_hard_way_out_divorce_by_kh.html Kakakhel, M. (2008). The Law of Divorce in Pakistan. Kakakhel Law Associates. Retrieved 10 September 2013 from http://kakakhellaw.com/publications/synopsis-of-articles/149-the-law-of-divorce-in-pakistan.html Meyer, C. (2013). Issues Surrounding a Contested Divorce. About.com. Retrieved 10 September 2013 from http://divorcesupport.about.com/od/typesofdivorc1/p/contesteddiv.htm Palmer, A. (2012, Jul 28). English law is fair to women, not 'unfair’ to Muslims. The Telegraph. Retrieved October 26, 2013 from http://www.telegraph.co.uk/women/sex/divorce/9434099/English-law-is-fair-to-women-not-unfair-to-Muslims.html Terry, D. (2013, Oct 26). Divorce advice for men. Terry & Co Solicitors. Retrieved October 26, 2013 from http://www.terry.co.uk/men_div.html Wynne-Jones, J. (2011, Aug 7). Sharia: a law unto itself? The Telegraph. 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