Divorce in Saudi Legislation System and Islamic Law - Term Paper Example

Divorce in Saudi Legislation System Islamic Law Causes of Divorce in Saudi The Lack of intimacy in the bedroom has led to more than 1600 divorces in Saudi Arabia in the past 15 months1. Most of these cases were blamed on the men by the women. Statistics by the Justice Ministry indicate that the courts in Saudi Arabia recorded a total of 1,371 divorce cases that were filed by women (wives) mainly due to the reluctance of their husbands to sleep with them2. Conversely, the courts also recorded 283 divorces by men who accused their wives of denying them any form of intimacy in the bedroom3. Officials in charge of the research also reported the fact that the actual number of divorces caused by sexual matters was much higher than the reported cases. This was because most couples withheld information on their private sex matters4. According to Sadhan, an Islamic studies professor, hatred could also be among the prime reasons resulting to divorces in the Gulf Kingdom5. In addition, problems arising from psychological and social factors as well as organic illnesses are responsible for divorce in Saudi Arabia6. Saudi Legislation System Consent to Marriage Women under Sharia law and living Saudi Arabia have the independent right of entering into a marriage contract. The only formalities involved are the offer of marriage by the husband, acceptance by the wife and the presence of two witnesses. Under the Islamic law, a woman may offer to marry a man7. Polygamy under Sharia The issue of polygamy under Sharia is one which has lately been surrounded by a lot of controversies. Even though a man may marry up to four wives, he cannot do so whenever he feels as there are some conditions that need to be met which serve the purpose of permitting and regulating polygamy8. Such regulations serve to protect the right of women. In general, all wives must enjoy the privileges and rights of being a wife without any discrimination or distinction. A polygamous man is obligated to fulfill conjugal responsibilities to all wives without exception9. In the event that any of the wives feels that they are not satisfied, then the wife may file a suit against the husband in this respect. In regard to polygamy, except for exceptional circumstances, it is persuasive to say that the sources of Sharia law perceive that a monogamous relationship is the ideal form of association. Divorce It is a fact that divorce is the ultimate and most practical solution to marriage when such a relationship becomes impossible. In the event that the husband and wife cannot live together anymore, and serious attempts at reconciliation have failed, then divorce acts as a solution of last resort. Divorce actually occurs in the event that it is clear that reconciliation will bear no fruit and neither party can satisfactorily fulfill the implicit commitment in the marriage contract namely, provision of enough emotional, physical spiritual and psychological happiness. Islamic law is actually proud of the fact that it has legislated divorce and detailed its rulings by giving divorce partners an opportunity of getting back together in three divorce pronouncements with each of them separated by periods of waiting in a way that no other man-made law has ever produced. Islamic law also recognizes the right of a man and woman to end a relationship due to compelling reasons10. Due to the law, a husband is granted the right of divorcing his wife (talaq) and a wife the right to dissolve her marriage (khul) due to the harm done to her, if she dislikes her husband, dislikes being in the marriage or in the event that it becomes impossible to stay with the husband. In the first case, a husband is forbidden from asking the bridal gifts that were given to the wife. In the second case, the wife can return the bridal gifts as a fair compensation as the husband is keen to keep the wife when she makes the choice of leaving him. In this case, a husband is forbidden from taking back any gifts that he had previously given to the wife except in instances where the wife chooses to end the marriage. Islamic Law of Personal Status and Family Law in Saudi Arabia Gulf Arabs are entitled to marry once they reach puberty. However, in the recent years, the average age of marriage has increased considerably to 20 years among the Gulf Arabians. In the traditional setup, the ideal marriage was tribal with related families encouraging their children to marry relatives such as cousins so as to strengthen the tribe11. Occasionally, one was allowed to marry from another tribe to heal rifts between clans and families. The main reason for such kinds of marriages was that families knew the backgrounds of the partners well. As would be the case of some Latin American countries, the young couples in the Gulf region are allowed to meet only under the watchful eye of a chaperone. However, in some of the stricter societies in the Gulf region, marriages are arranged without the husband seeing any part of the female body including the face. The groom only relies on the progressive reports of his female relatives to envision the appearance of his wife to be12. Arab marriages are characterized by three major elements. The first element is the discussion of dowry by the groom with the father of the bride. The dowry may be paid in the form of gold, clothing or jewelry. Dowry should be an item considered valuable by the society. In the absence of the groom, the bride is questioned if she agrees to be married after which the same question is put to the groom. If there is an agreement, then the groom joins hands with the future father-in-law in the presence of two witnesses to officiate the marriage. The wedding party takes place before the couple actually meets. In the celebrations, women and men stay in different sections of the house. In the last day of the festivities, the couple is allowed to meet and leaves for the honeymoon. Sharia Family Law and Women In accordance to the Sharia law, a man can have as many as four wives only if the man can look after the material needs of all the wives and treats them equally. The practice is, however, dying out13. Only a few can afford it, and many women are becoming independent and assertive thus refusing to accept it. It is infact possible for a Muslim woman to insert a clause into her marriage agreement that restricts the marriage of another woman to her husband so long as the contract is valid. The wife can also retain her name after the marriage. Even though the gender roles of men and women are explicitly defined by the Sharia law, both men and women are increasingly providing for the family14. Nonetheless, the practice is less common in Saudi where there are restrictions on women going to work except in occupations accepted by their cultures such as teaching and medicine15. Many men in these countries are, however, reluctant to marry nurses and doctors who are exposed to male bodies. Under the Sharia law, a man can divorce the wife by merely uttering the words ‘I divorce you’ three times. The man can rescind the divorce in case it was done in the heat of the moment, but only in the case where the wife consents. Women, on the other hand, must go to courts and present their cases when seeking divorce even if they have legitimate issues such as unfaithfulness, abuse, desertion or criminal activity by the husband16. Under Age Marriage The story Aisha recorded in the Quran who was married at 6 and started living with the husband at 9 is the basis for practicing the marriage of young girls in many Islamic countries17. Even though there is a small number of Muslims dispute the age, the age recorded in the hadith is accepted by the vast majority of believers to be accurate. In Saudi, for instance, a judge refused to annul the marriage of an eight-year-old girl to a forty-seven-year-old man. The judge ruled that the Sharia law did not bring injustice to women and argued that it is incorrect for observers to say that the marriage of girls younger than 15 years is not permitted. A religious ruling issued by Fawzan allowed the marriage of girls even if they are in their cradle. There is a heated debate surrounding the issue of child marriage and its justification in Islam. It is evident that the discussion will continue. However, the practice still remains widespread and is continuously defended by several clerics in the name of Sharia. Attempts to raise the of marriage in Yemen, for instance, were dismissed as being “un-Islamic” by clerics of Yemen ultimately making the practice of child marriage remain widespread. Child Custody The Islamic Sharia Council states that when spouses separate by annulment or divorce, then the welfare responsibilities are also split according to the best abilities of the man and woman18. According to the Sharia law, the period in which the children live with the mom is known as the “period of female custody”19. When this period ends, the care of the children is awarded to the dad at a preset age. The preset age depends on the interpretation of the Islamic law being applied. According to the law, the mother has the sole right to custody of a child and if she marries an individual not related to the child, then she loses the right to custody20. If the child is still under seven years old, then the father is given custody but under a female who is selected preferably from the relatives of the mother. But if the child is older than seven years old, then the child is no longer in need of a woman’s care and the custody of the child is passed to the father. Divorce In Islamic law, women do not have the unilateral rights of divorcing their husbands21. A woman wishing to do so must obtain the permission of a male Islamic cleric or her husband22. This case applies to even extreme cases of abuse or rape. According to Sharia, there are separate rules for divorce for women and men. Talaq is the procedure of divorce initiated by a man. On the other hand, when a woman initiates divorce, then this is referred to as Khula. As aforementioned, talaq is much easily obtained when compare to Khula23. According to Sharia, a wife can get a divorce primarily by two reasons. The first instance is when she can prove that the husband refused to have intercourse with her for a period more than two months. The second instance is the failure of the husband to provide the wife with basic needs for survival such as food and a shelter. When seeking to divorce their husbands, women face a myriad of financial and legal obstacles. In many instances, the woman may be compelled to pay the dowry as well as the marriage expenses. In addition, the woman may forfeit the custody of her children if they are above seven years of age. If the child is less than that age, then the woman will have to hand over the child when they turn seven. The woman then loses the access rights and the right to make any decisions regarding the life of the children. A woman is obligated to pay in order to obtain a divorce whereas men are not. Moreover, when convincing the court to obtain the divorce, the woman is required to provide a witness to attest to the woman’s word. The said provision is as mandated by the Sharia law that the testimony of a woman needs to be corroborated. Developments in Family Law in Saudi Arabia In the Gulf country of Saudi Arabia, the fundamental rights in regard to family law constitute a dimension of good family practices as well as equality. Without such rights, women may be vulnerable to the whims of men (husbands) and in extreme cases those of other relatives. The rights of women in relation to family law have been expanded. Polygamy is also permitted in the country with the limitation being a maximum of four wives. Acts of polygamy have been on the rise as a result of revenues from the oil wealth among the educated elite (Hejazi)24. The Saudi government has been promoting the act by declaring it as a necessary way of the Islamic package to fight the growing epidemic cases of spinsterhood. The country still lacks a minimum age of marriage for women and girls in the 10 to 12-year-old bracket are marriageable. With regard to inheritance, the Islamic law specifies that a fixed portion of the estate has to be left for Quranic heirs (women)25. In general, females who are heirs receive up to half the portion of what male heirs receive. A Sunni Muslim, for example, is allowed to bequeath up to a third of their property to non-Quranic heirs26. The remnants are thus divided amongst agnatic heirs. Divorce Law and Women’s Rights in Saudi Arabia Women’s Right to Custody When parents’ divorce, the Islamic law states that if the minor is a girl, then she is to remain under the care of her mother until she is of age (seven years). In the case of a boy, then the male is given the opportunity of choosing which parent to stay with. A mother is entitled to the custody of her children if she is sane, free, an adult, capable and trustworthy. The right to custody can be forfeited in the event that the woman remarries a stranger, fails to attend to child responsibility and openly indulges in sin with the risk of the child being influenced and affected. According to the Islam law, the mother is more entitled to take custody of a child as a woman is considered more capable of carrying out the task of nurturing children below the age of seven. It is obvious that she is the only one capable of breastfeeding the child and has the patience of raising the kid when compared to their male counterparts27. In regard to the second stage of custody, when the child attains puberty, different opinions are existent among scholars on who should take care of a child. Some prophetic traditions, however, suggest that a child should choose for themselves. Women’s Right to Maintenance Scholars of Muslim are generally in agreement that the maintenance of a wife is the duty of a husband as dictated by the Sharia law28. Indeed, such is a reflection of the honorable treatment by Allah as enjoined on Muslim men towards their wives. Mothers give care to offspring for two years if the father decides to complete the term29. Parents, however, bear the cost of clothing and food in equitable terms. The amount of maintenance significantly depends on the financial standing of the husband. Problems Associated with the Application of Divorce The application of divorce is associated with a number of problems that affect a family. In case a wife files for a divorce, then she undergoes a great amount of turmoil in court before securing the consent of the court to proceed with the divorce. Such turmoil includes a great deal of time and money wasted in court as well as the need to provide witnesses to back up claims. Divorce also puts the family in an awkward position in relation to the custody of children who are below seven years of age30. Once these children are seven years, custody is transferred to their fathers thus denying them of motherly love. Furthermore, women are forced to pay back the dowry and other marriage expenses to their husbands in the event of divorce. They are also mandated to pay for the divorce while men are exempted. Acts of divorce thus burden women more than men due to the fact that, in the long run, women stand to lose more when compared to men. Bibliography Ahmed, Qanta. “In the Land of Invisible Women: A Female Doctors Journey in the Saudi Kingdom.” Naperville, Ill: Sourcebooks, Inc, (2012). Ali, Kecia. “Marriage and Slavery in Early Islam.” Cambridge, Mass: Harvard University Press, (2013). Al-Rodiman, A.S. “The Application of Shari’ah and International Human Rights Law in Saudi Arabia.” School of Law, Brunel University.(2013). Bello, Dogarawa A. "Marriage and Divorce in Islam." (2009). Bhala, Raj. Understanding Islamic Law: Sharīʻa. New Providence, NJ: LexisNexis, (2012). Charrad, Mounira M. "Tunisia at the Forefront of the Arab World: Two Waves of Gender Legislation." (2007). Dalmasso, Emanuela, and Francesco Cavatorta. "Reforming the Family Code in Tunisia and Morocco – the Struggle Between Religion, Globalisation and Democracy." Acta Metallurgica Et Materialia, (2010). doi:10.1080/14690764.2010.511462. Diamantides, Marinos, and Adam Gearey.“Islam, Law and Identity.” Abingdon, Oxon, U.K.: Routledge, (2012). Dupret, Baudouin, Annelies Moors, and Barbara Drieskens.“Narratives of Truth in Islamic Law”. London: I.B. Tauris, (2008). Emirates News. “1,600 Saudi Divorces over Bedroom Issues.” (2014). Retrieved from: http://www.emirates247.com/news/region/1-600-saudi-divorces-over-bedroom-issues-2014-01-20-1.535359 Hallaq, Wael B., and Wael B. Hallaq.“An Introduction to Islamic Law”. Cambridge, UK: Cambridge University Press, (2013). Hefner, Robert W. “Shariʻa Politics Islamic Law and Society in the Modern World.” Bloomington: Indiana University Press, (2012). Just Landed. “Marriage & Divorce: All You Need to Know about Muslim Marriages.”(2012). Retrieved from: https://www.justlanded.com/english/Saudi-Arabia/Saudi-Arabia-Guide/Legal-System/Marriage-Divorce Marie, A.W. “Sharia Family Law and Women.” (2014). Retrieved from: http://www.shariawatch.org.uk/ARTICLES/SHARIA-FAMILY-LAW-AND-WOMEN#.VPgoCi6HhtW Kafumbe, Anthony L. "Women’s Rights to Property in Marriage, Divorce, and Widowhood in Uganda: The Problematic Aspects." Human Rights Review, (2012).doi:10.1007/s12142- 008-0112-0. Mir-Hosseini, Ziba.“Marriage on Trial Islamic Family Law in Iran and Morocco.” London: I.B. Tauris, (2012). Mulia, Siti M. "Regional Conference on Advancing Gender Equality and Womens Empowerment in Muslim Societies 11-12 March (2009), Jakarta, Indonesia Counter Legal Draft of the Compilation of Islamic Law (Review of Marriage Law in Indonesia)." 0. Picken, Gavin N. “Islamic law.” London: Routledge, (2012). Piorkowski, Geraldine K. “Adult Children of Divorce Confused Love Seekers.” Westport, Conn: Praeger Publishers, (2008). Sedgwick, Mark J. “Islam & Muslims A Guide to Diverse Experience in a Modern World.” Boston, MA: Intercultural Press, (2014). Shukri, Ahmed, and Ahmed Shukri.“Muslim Law of Marriage and Divorce.” Piscataway, NJ: Gorgias Press, (2012). Voorhoeve, Maaike. “Family Law in Islam Divorce, Marriage and Women in the Muslim World.” London: I.B. Tauris, (2012). Welchman, Lynn. “Women and Muslim Family Laws in Arab States A Comparative Overview of Textual Development and Advocacy.” Amsterdam: Amsterdam University Press, (2007). Read More