Support from Islamic sources

• In the Book of Divorce in Sunan Abu Dawud, the Prophet (s.a.w.) was reported to have said, ‘Of all lawful acts, the most detestable to God is divorce’. Therefore, divorce should not be the first resort when any difference between a couple emerges. However, divorce may be sometimes unavoidable if a couple proves to be incompatible, and thus the essence of family life is missing, even though each one of the couple individually may be a good person.
   
• Islam does not force the continuation of a marriage that has failed to produce a harmonious togetherness, though it restricts any hastiness in deciding divorce. When a divorce is inevitable, however, Islam secures its smoothness and fairness (Fathi Osman, Concepts of the Qur’an, p. 821). Even if a divorce is unavoidable, it should, if possible, take place in an amicable manner, as Surah al-Baqarah 2:229 states that ‘the parties should either hold together on equitable terms (ma’ruf), or separate with kindness (ihsan)’.
   
• While it has been generally accepted by the traditional fuqaha that talaq (repudiation) is the right of the husband, it has also been acknowledged that a couple may divorce by mutual consent, of which the two forms are known as khul‘ or mubara’at, and that women may also seek divorce through ta‘liq (breach of condition) and fasakh (judicial dissolution for cause). According to Mohammad Hashim Kamali, Islamic Law in Malaysia: Issues and Developments, p. 77, the difference between khul‘ or mubara’at are that ‘when discord is on the side of the wife and she desires a divorce, it is called khul‘, but when discord is mutual and both desire a divorce, it is called mubāra’a’. With khul‘, the wife gives her husband a consideration, often but not always the return of the dower, for her release from the marriage tie.
   
• The Qur’an cares about the rights of divorced women without sacrificing the rights of divorced men (Fathi Osman, pp. 809, 824). If it is the wife who wants to initiate a divorce, for her own personal reasons on grounds that are not related to any mistreatment, injustice or negligence on the part of the husband, then compensation may be payable to the husband in the khul‘ form of divorce, as provided for in Surah al-Baqarah 2:229. This compensation is more in the form of restitution of the dower and similar gifts that the husband had made to the wife upon their marriage. There are also several Traditions with regard to a woman seeking khul‘ during the time of the Prophet (s.a.w.). For example, in one case the wife of Thabit asked for divorce because she no longer wished to live with him (Sunan Abu Dawud, Vol II, Kitab VI, chap. 734).
   
• The traditional fuqaha agreed that women have the right to seek divorce, but disagreed as to the extent to which it may be exercised. They placed different restrictions upon the types of divorce that may be obtained by a wife. The Hanafis and the Shafi’is give a narrow interpretation on the court’s power to order dissolution of marriage, while the Malikis and the Hanbalis give a more liberal interpretation. Unfortunately, the lack of restriction on a husband’s right to divorce and the numerous restrictions placed on a wife’s right has led to various forms of injustice: on the one hand, in cases of hasty pronouncements of divorce by a husband, and on the other hand, in numerous delays during a wife’s application for divorce. Muslim women often face numerous delays and difficulties as the Syariah courts are often extremely anxious to preserve the marriage when it is the wife who initiates the divorce proceedings.
   
• A look at the injunctions in the Qur’an and Sunnah shows that the spirit of the Shari‘a tends towards egalitarian rights, for it allows divorce rights to both husbands and wives, subject to the payment of compensation to innocent divorced spouses. The proceedings for arbitration and mediation in Surah an-Nisa’ 4:35 places both spouses on an equal footing: ‘If you fear a breach between a married couple appoint (two) arbiters, one from among his people, and the other from among her people’.

Support from universal human rights standards

• The Universal Declaration of Human Rights states, ‘[Men and women] are entitled to equal rights as to marriage, during marriage and at its dissolution’ (article 16(1)). The Convention on All Forms of Discrimination Against Women reiterates the principle that States shall ensure that men and women have ‘The same rights and responsibilities during marriage and at its dissolution’ (article 16(1)(c)). Although there may be different ways for women and men to initiate divorce, there should be substantive equality in their ability to initiate it and fairness throughout the divorce process.
   
• Governments of the Non-Aligned Movement countries committed themselves in the 2005 Putrajaya Declaration to ‘[r]eview and amend all laws in order to identify and eliminate negative traditional and customary practices that discriminate against women’ (article 44(a)). One such negative practice is giving the right of divorce only or predominantly to men. One of the consequences of such a relationship may be violence against the wife, exactly what the Putrajaya Declaration seeks to curtail. The Declaration continues, in the same section, with the Governments pledging to ‘[e]ducate men and boys to respect women and girls as equal partners in all spheres of life and society’. If the women are equal partners in marriage, they should also have equal rights in the dissolution of marriage.
   
• Men and women must have equal access and rights before courts of law and within the legal process. Article 15 of CEDAW requires States to ‘accord to women equality with men before the law’; ‘accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity’; and ensure that contracts that are ‘directed at restricting the legal capacity of women shall be deemed null and void’.
   
• In order to grant women and men equality before the law, equal legal capacity, and equality before courts and tribunals, States must ensure that women and men have equal access to the legal system, including access to lawyers, when they want to initiate a divorce. In addition, States should ensure that divorce proceedings occur within the legal system, rather than independent of it.
   
• Other more general provisions of CEDAW, including the definition of ‘discrimination against women’ and the article 2 obligation to take action to eliminate such discrimination, require States parties to act to end divorce procedures that are discriminatory against women.

Support from national constitutions, laws and policies

► Because constitutions, laws and policies differ dramatically between countries, NGOs, activists, lawyers, academics and government officials should examine the laws and policies of their own countries to determine how to use these to promote equality in the family.

Support from social and cultural realities

• In many countries, the husband can easily and quickly end the marriage through a unilateral pronouncement of divorce that is afterwards registered with the court, while divorce cases initiated by women are slow and cumbersome, with delays and gender bias throughout the process. When a woman institutes legal proceedings, she must satisfy conditions that are difficult to prove or pay financial compensation to her husband and give up the possibility of compensation (mut‘ah) so that he will agree to repudiate her. The price a woman has to pay for her freedom can be destitution. This also places divorced women who have children in an economically unstable situation, especially in the context where children are usually taken care of by the wife as a single mother without the benefit of a joint income.
   
• Women whose husbands contest their applications for divorce often face endless delays at each step of the process. The husband’s failure to attend marriage counselling courses, court hearings or at arbitration proceedings can delay the divorce. This can cause a prolonged period of emotional and economic trauma for a woman who feels that she is no longer able to live in a marriage union with her husband.
   
• There are still many cases of domestic violence, where women are physically, mentally, emotionally and financially abused in the home and feel trapped in their marriages. Wives must have standard, efficient methods of legally dissolving marriages that are harmful to them. If women find it overly burdensome or intimidating to initiate a divorce, they might be forced to remain in violent homes, exposing themselves and their children to continuing violence. Delays in the process can expose women to further physical or emotional harm.
   
• Providing equality in divorce also restores the vision of mutual respect and kindness between husband and wife. The dominance of the use of unilateral pronouncements of divorce positions women in precarious subservience to their husbands and threatens the stability of the marriage institution. A lack of respect towards women can arise through reckless use of unilateral divorce, constructing both marriage and divorce as something trivial, frivolous and without integrity – a far cry from the admonition in Surah al-Baqarah 2:229 for the parties to ‘either hold together on equitable terms (ma’ruf), or separate with kindness (ihsan)’. A requirement of judicial decree of divorce in all cases would also protect women and children from situations where they do not know repudiation has taken place.
   
• Contrary to preconceived notions, granting women and men equality in terms of legal divorce does not necessarily lead to an increase in the number of divorces. In Tunisia, where repudiation has been abolished and where men and women have equal rights to divorce, divorces must be granted by the courts. Surveys and vital statistics show that from 1958 to 2000, the divorce rate remained stable at 14% on average (INS, Statistical Yearbooks for Tunisia, 1958-2000, Tunisia, quoted in Collectif 95 Maghreb-Egalite, Guide To Equality in the Family in Maghreb). This rate is similar to the ratio of Muslim divorces to marriages in other countries, such as Malaysia from 1999-2003, despite the fact that both men and women in Tunisia have equal capacity to initiate the dissolution of the marriage.
   
• Giving men and women equal rights in determining the terms of divorce and equal obligations and duties will reduce the amount of harm caused at the dissolution of marriage and strengthen commitment, mutual respect and kindness between parties.

Examples from various countries

• Algeria, Bangladesh, Pakistan, India, Nigeria, Morocco, Senegal and Tunisia recognise divorce by mutual consent (mubara’at).
   
• Indonesia: Under Muslim law, all divorces must go through the court. A husband must provide the religious court with a written notification of his intention to divorce. The six grounds for divorce are available to both husbands and wives. Reconciliation meetings are called separately, failing which the court calls the parties to witness the divorce. Revocable divorce is not recognised.
   
• Morocco: The 2004 Moudawana makes dissolution of marriage a prerogative that may be exercised both by the husband and wife, based on legal conditions established for each party. Repudiation requires judicial permission, and the wife and children must have received all of their vested rights before it can be authorised. Irregular pronouncements of repudiation are not valid. A wife has access to assigned repudiation, khol (divorce in exchange for compensation) and divorce for cause, and there are several forms of divorce that may be pursued by both husband and wife (irreconcilable differences, mutual consent).
   
• Tunisia: Divorce shall only take place in court. There are equal grounds for divorce for husband and wife, including mutual consent, on the grounds of harm (understood to relate to the failure to fulfil rights and responsibilities of the spouses as laid out in the law), or ‘at the will of the husband or at the request of the wife’. Unilateral talaq is not recognised.
   
• Algeria: Divorce at ‘the will of the husband’ can be established only through a court judgement, which must be preceded by a judge’s attempt to reconcile the couple.
   
• Iran: All divorces must go through the court. A husband can divorce his wife without ascribing any reasons, provided he first settles all her financial rights. The Registrar can only register the divorce after permission has been issued from the court and after mahr, maintenance, and/or wages for housework have been paid to the wife.