Contact: Hassan Elhais
For Muslims in the UAE, divorce is the cancelling of the valid contract of marriage between the parties. The divorce can be commenced by the husband, or by the wife if her husband gave her the right to do so (Isma’) in the marriage contract. If the wife is not given the right to divorce the husband within her marriage contract, she may still do so for reasons of ‘harm’. The definition of harm is wide ranging and includes the 7 grounds for divorce set out below.
There are 2 routes to obtain a divorce:
1. The first is by pronouncing the ‘Talaq’ (which means ‘I divorce you’ in Arabic). The husband or wife (if she has ‘Isma’) must say or write ‘I divorce you’ or ‘Talaq’ in the presence of a witness. For Muslims, religiously this is a valid method of divorce however, for the divorce to be legally recognized it should be registered with the court, this allows documentary evidence of the divorce to be relied upon in court in the future. (Article 106 Personal Status Law states ‘divorce is considered valid when…the judge authenticates it’). If there is a dispute as to whether the Talaq was pronounced, the witness would be able to give evidence at court. There are financial implications for a spouse that commences a divorce by pronouncing the Talaq without the consent of their spouse.
2. The second method of obtaining a divorce is by application to court (‘separation by way of a judgment’). The applicant will issue a divorce case and the parties will be referred to the Family Guidance Committee, which forms part of the court.
The purpose of the Family Guidance Committee is to try and reconcile the parties before separating them under Article 98 of the Personal Status Law. The family guidance counselors are not legally trained, but have experience in mediation and counseling. They meet with both parties and if there cannot be reconciliation, the matter is referred to a judge. The judge will then decide whether there is a valid reason for the divorce. These include:
1. Separation due to defects
• Defects such as madness, leprosy, impotence and venereal disease: A party can only rely on such ‘defects’ as a ground for divorce if they were not aware of the defect at the time of marriage. It is possible for the court to adjourn the case for a period of up to a year to determine whether the defect is capable of being ‘removed’ (Article 113 Personal Status Law).
• Deceit: if there has been serious deceit between the parties during the formation of the marriage. Therefore, if one party would not have entered into the marriage contract had they been aware of the deceit, they are entitled to use this as a basis for divorce (Article 114 Personal Status Law).
2. Separation for non -payment of the current dowry (‘Mokadam’)
3. Separation due to harm or disputes. One spouse has the right to ask for divorce if he or she is being harmed by the other, and such harm makes it impossible for the parties to live together (Article 117 Personal Status Law). In this situation, the court may instruct two arbitrators to investigate the reasons for the discord between the parties and report back to the court. A finding of fault on one party may have financial implications.
4. Separation due to lack of financial support during the marriage: a wife is entitled to ask for a divorce if the court decides that the husband has funds to support her but has failed to do so.
5. Separation due to absence of one party: a wife may be entitled to divorce if her husband has disappeared. However, the divorce judgment would not be pronounced until a year has passed from the date of her application for divorce, without the husband returning during this time.
6. Separation due to jail sentence: a wife is entitled to divorce if her husband is sentenced to more than 3 years in prison and at the time of the divorce he has been in prison for more than one year.
7. Separation due to desertion (‘Hajr’): if the husband leaves the family home and does not return within 4 months of the wife’s request, she is entitled to a divorce.
The waiting period (‘Eddah’) is an important concept within Muslim divorces. This a 3 month period that commences after the Talaq has been pronounced by the court. If the wife is pregnant, the waiting period does not conclude until after she has given birth. During the waiting period, the wife must stay single. The purpose of the waiting period is to ensure that the wife is not pregnant, but is also a period of reflection for the parties to decide whether there is a chance for reconciliation. The husband provides expenses to the wife during the waiting period, regardless of who initiated the divorce proceedings.
There are 2 types of divorce, revocable and irrevocable. The revocable divorce will allow the parties to maintain a valid marriage, until the conclusion of the waiting period. After this period, if they wish to reconcile, they must do so by entering into a new marriage contract.
The irrevocable marriage divorce ends the marriage as soon as it has happened. There are two types of irrevocable divorce, the irrevocable divorce with small ‘intent’, where the divorced woman can reconcile with her husband only with a new marriage contract and dowry, or the irrevocable divorce with ‘big intent’ where the divorced woman can only return to her husband after marrying another husband, having sexual intercourse with him, divorcing him and waiting until the conclusion of that period.
