Under the rules of divorce in Islamic sharia, a husband has the prerogative right to divorce his wife anytime, any place and with or without any reason. Under certain conditions, the wife may request from the religious judge a judicial divorce in case of ‘harm’ (darar), as stated by the Maliki School of jurisprudence.
Based on the wide interpretation of the Maliki School, the wife may seek divorce if she can convince the judge that she is suffering a ‘harm’ from her husband, a provision that is not allowed by the Islamic Hanafi School of law. In general terms, Islamic sharia allows the wife to seek divorce if:
(1) the husband is unable to consummate the marriage;
(2) his apostasy from Islam;
(3) his imprisonment for a long period of time; and
(4) if he contracts an incurable skin disease. The provision of suffering in Maliki interpretation of sharia allows the wife to convince the judge that the husband used systematic maltreatment, and is unable to provide maintenance to her.
Such provisions in Islamic sharia created hardship for thousands of women who were seeking divorce, but unable to prove harm to the satisfaction of the judge; women were unable to get out of their unhappy marriages because their husbands refused to consent to the divorce, and the judge was not persuaded by the evidence provided by the women. To remedy this situation, the Egyptian government enacted a law allowing judges to approve the divorce through a process known as Khul’, or repudiation.
Khul’ was practiced in early Islamic period; it allows the wife to obtain a final divorce by means of a financial settlement paid by her to the husband in compensation, without having to prove harm or maltreatment. Frequently, under the terms of Khul’, the wife is required to pay back all or part of the “mahr”, which is the amount of money or objects of value that the husband gave his wife when the marriage contract was signed. Also, she has to relinquish her right to the amount of “mahr” he promised to give her in the future. In addition, the husband must agree to the Khul’. In other words, should the husband refuse to give his wife a divorce, she cannot exercise her right to the Khul’. Faced with that difficulty, the legislators in Egypt enacted a law in which the judge was given authority to separate the couples based on Khul’ without the approval of the husband.
On January 2000, former President, Hosni Mubarak of Egypt, issued in the Official Gazette [al-Jaridah al-Rassmiyyah] Law No.1, of 2000, granting women the right to file for a “no-fault” divorce (Khul’) on the basis of “incompatibility,” without having to provide evidence of harm. Under the provisions of the new law, the wife may obtain a definitive judicial separation from her husband if she desires so; the only condition she has to satisfy is to forfeit her rights to alimony and her deferred “mahr” (mu’akhar) as well as repay her advanced “mahr” (muqaddam).
First section of Article 20 of the new law provides: “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 married 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.
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