Laws relating to divorce in Muslim majority countries
Algeria: Islam is the religion of the State and the Maliki school is predominant.
Divorce is only established by a judgement of the court and must be preceded by reconciliation efforts by the judge. Efforts at reconciliation are not to exceed three months.
Bangladesh: Since 1988, the State religion of the republic is Islam and the Hanafi school is predominant.
The provisions of the Muslim Marriages and Divorces (Registration) Act, 1974 on divorce are similar to the situation in Pakistan (see below).
Egypt: Islam is the religion of the State and the Hanafi school is the predominant school of fiqh.
Talaq expressed indirectly, while intoxicated or under coercion, or conditionally with the intent of forcing the taking of some action has no effect. A talaq to which a number is added verbally or by gesture is effective only as a single and revocable talaq, except for the third of three… A written and notarised certification of talaq must be produced within 30 days of repudiation and the notary must forward a copy of the certificate to the wife.
India: India is a "sovereign socialist secular democratic republic"; among the Muslims, the predominant school is Hanafi. The Muslim Personal Law (Shari’at) Application Act, 1937 directs the application of Muslim Personal Law to Muslims in a number of different areas related to family law. Muslim Personal Law is applied by the regular court system.
The Muslim husband retains the right to repudiate his wife extra-judicially, and from the available sources it appears that the most common form of divorce is the triple talaq. The stance of the pre and post-independence courts has generally been to accept extra-judicial repudiation as "good in law, bad in theology".
Indonesia: "The State is based upon the belief in the One, Supreme God" and the majority of the population is Shafi’i Muslim.
The Marriage Law provides that divorce shall be carried out only before a court of law, after the court has endeavoured to reconcile the parties. A husband married under Islamic law may submit a letter notifying the religious court of his intention to divorce and giving his reasons. If the husband’s reasons accord with any of the six grounds for judicial divorce outlined in the Marriage Law and the court determines that reconciliation is not possible, the court will grant a session in order to witness the divorce. Either spouse may seek a judicial divorce (preceded by reconciliation efforts by the judge) on specified grounds.
Iran: The official State religion is Islam and the Ja’fari school is predominant.
A 12-article law on marriage and divorce passed in 1986 allows the wife the right to obtain a divorce if the husband marries without her permission or does not treat co-wives equitably in the court’s assessment.
Talaq is governed by classical Shi’i law, requiring a specific formula and two male witnesses. A conditional formula of divorce is invalid. The 1992 amendments provide that registration of divorce without a court certificate is illegal.
Iraq: The current provisional constitution declares Islam the State religion and the Ja’fari and Hanafi are the predominant schools.
Talaq must be confirmed by the Shari’a Court’s judgement or registered with the court during the ‘idda period. Talaq by a man who is intoxicated, insane, feeble-minded, under coercion, enraged (madhosh), or seriously ill or in death sickness is ineffective. All talaqs are deemed single and revocable except the third of three.
Libya: Islam is the official State religion and the Maliki school is predominant.
With reference to divorce, Article 28 of the Civil Code states that "[i]n all cases, divorce shall not be established except by a decree by the relevant court". Talaq uttered by a minor, insane, demented or coerced husband or without deliberate intent is invalid, as is talaq that is suspended or conditional. Any talaq to which a number is attached is considered single revocable (except the third of three).
Most of the grounds for judicial divorce are available to men as well as women. Judicial divorce may be obtained if the parties do not agree to talaq by mutual consent and arbitration and reconciliation efforts fail and harm is established.
Malaysia: Islam is the official State religion; the majority of Muslims are Shafi’i, with Hanafi minorities.
A divorce may be granted only by a court. You may petition for a divorce:
a. by mutual consent, i.e. both parties consent to the divorce, by way of a joint petition; or
b. if there is no mutual consent, by way of a contested petition.
(Source: http://www.lawyerment.com.my/family/divorce.shtml. Information compiled & extracts from Bar Council Malaysia).
Pakistan: Islam is the State religion and the predominant school is Hanafi.
The Muslim Family Laws Ordinance, 1961 considers every talaq except the third of three as single and revocable. The MFLO introduced marriage registration and provides for penalties of fines or imprisonment for failure to register. The MFLO requires that the divorcing husband shall, as soon as possible after a talaq pronounced "in any form whatsoever", give the chairman of the Union Council notice in writing.
The chairman is to supply a copy of the notice to the wife. Non-compliance is punishable by imprisonment and/or a fine. Within 30 days of receipt of the notice of repudiation, the chairman must constitute an Arbitration Council in order to take steps to bring about a reconciliation. Should that fail, a talaq that is not revoked, either expressly or implicitly, takes effect after the expiry of 90 days from the day on which the notice of repudiation was delivered to the chairman. If the wife is pregnant at the time of the pronouncement of talaq, the talaq does not take effect until 90 days have elapsed or the end of the pregnancy, whichever is later.
Syria: Article 3(1) of the Constitution declares that the religion of the President of the Republic shall be Islam. Article 3(2) declares Islamic jurisprudence a main source of legislation. The Hanafi school is predominant.
Talaq uttered while intoxicated, disoriented/enraged, under coercion, during death sickness or grave illness, or in order to coerce is ineffective. Talaq to which a number is attached shall be considered a single revocable repudiation (except the third of three).
Either spouse may apply for a judicial divorce on grounds of discord causing such harm as makes cohabitation impossible (after reconciliation efforts). The divorced wife may be awarded compensation of up to three years’ maintenance (in addition to the maintenance owed her during her ‘idda) if the judge finds the husband’s exercise of talaq to have been arbitrary.
Tunisia: Islam is the state religion and the Maliki school is predominant.
Talaq or extra-judicial divorce are prohibited. An irrevocable divorce becomes a permanent impediment to remarriage between divorced spouses. Judicial divorce is available, after reconciliation efforts, at the request of either party.
It is evident from the above examples that in most Muslim majority countries, including those that claim to be run on Islamic principles, triple talaq (instant divorce) is prohibited. Similarly, polygamy is either prohibited or is permissible under specific circumstances and only after permission has been obtained from the courts and the existing wife.
It is therefore not true that the subject matter of ‘Muslim Personal Law’ in India are God-given laws that are immutable and all Muslims are obliged to follow them.
(Researched by Javed Anand).
(Source: Except in case of Malaysia, the source for other countries is http://www.law.emory.edu/IFL/legal/)
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