Tuesday 17 January 2012

DIVORCE- The Dissolution of a Marriage in Muslim Personal Laws in Nigeria BAOBAB FOR WOMEN’S HUMAN RIGHTS LEGAL LITERACY SERIES



DIVORCE- The Dissolution of a Marriage in Muslim Personal Laws in Nigeria


                             BAOBAB FOR WOMEN’S HUMAN RIGHTS
                                      LEGAL LITERACY SERIES


                    DIVORCE-THE DISSOLUTION OF A MARRIAGE
                                        In Muslim personal laws in Nigeria
                                        (Baobab legal Literacy Leaflet No.2)
      
     Baobab is a not for profit, non-governmental organisation working on the women’s human and legal rights in religious laws, statutory laws and customary laws

Baobab works with women, legal professionals and paralegals, policy makers, women and human rights groups, other NGOs, and members of general public:
  

  • to promote human rights education, particularly regarding women’s human rights.

  • to sponsor training and education programs that further the appreciation and observance of   women’s   human   rights and

  • to enhance the knowledge and understanding of women’s and human rights with a view to determining policies, which can best promote all   human rights


  This is one of a series of leaflets aimed at enabling people to know what their rights are and how to protect them.
The topics of the leaflets include: Divorce, Child Custody and Guardianship, Violence Against Women, Early Marriage, Inheritance, Maintenance, Rights and Responsibilities of spouses, Rights of widows, Economic Rights, Female Genital Mutilation, Citizenship, Voting and politics, Marriage.

Editorial Committee

 Justice Abdul Mutalib Ambali---Sharia Court of Appeal, Kwara State, Ilorin
 Hajiya Jummai Audi--- Lecturer, Faculty of law, Ahmadu Bello University, Zaria 
 Dr. Ayesha Imam--- Regional coordinator for Africa and Middle East Network of Women living under Muslim Laws
Dr. Chermain Pereira--- Sociology Department Ahmadu Bello University Zaria
Mallama Hajara Usman--- Director, Baobab
 Sindi Medar-Gould----,Acting Executive Director, Baobab
 Tolulope Lewis, Assistance Programme Officer Baobab


Contributors to this leaflet

  Asma’u Ibrahim Faki--- Lecturer, Language Arts Dept, Federal College of Education, Kano
  Mustapha Halidu--- Lecturer Kaduna State Polythenic Zaria
  Yusufu Dan Kofa ---Barrister, Kaduna
  Sani Lawal ---Ihima  Command Secondary School, Ihima
  Fadimatu Hadiu Umar,--- Centre for Women and Adolescent Empowerment, Yola
  Zalikhau Bello Ahmed--- Lecturer, Department of Arabic and Islamic Studies, University of Maduguri, Maduguri
  Ayesha Imam--- Regional Coordinator (Africa and Middle East) Network of Women Living under Muslim Laws

Illustrators
  Shedrack Ayalomen --- Student, Yaba College of Technology Lagos
  Danjuma Baba --- Centre for Women and Adolescent Empowerment Adamawa State



                         





























Divorce-The Dissolution of a Marriage
(Baobab Legal Literacy Leaflet No.2)
INTRODUCTION
   This leaflet set out the form of divorce available under Muslim personal laws in Nigeria, where the Malik School of law is followed. Muslim personal laws in Nigeria are often referred to as Sharia. The leaflet also discusses the Conditions and consequences of each type of divorce in Muslim Personal Laws.

There are also other systems of law. Statutory Law is applied to persons who marry under the marriage act of 1914 (i.e. in a registry office, although some Christian priests may also perform this kind of marriage). Different systems of native or customary laws may be applied to people from different ethnic groups.

APPLICABILITY OF MUSLIM PERSONAL LAW
Muslim personal laws of divorce apply where both husband and wife are Muslim, and where both husband and wife (even if not Muslim) agree that Muslim Personal Law should be applied to them. In addition where both Parties contract the Marriage in accordance with Muslim law as stated under s242 (2)(a) of the 1979 constitution of the federal Republic of Nigeria. It must be noted that Muslim law presently applies only in Northern Nigeria.






                                       BEFORE THE DIVORCE
RECONCILATION
In principle, Husbands and wives should not seek for divorce without making serious efforts at reconciliation amongst themselves. They are expected to sit and discuss together. Attempts at reconciliation may involve arbitration, whether formal or informal because Muslim law prefers reconciliation to adjudication.




ARBITRATION
 Arbitration or mediation is asking people to try and make peace between the married couple. Usually it would be a relative on the wife’s side and a relative on the husband’s side or someone appointed as their Waliyi or guardian.

    
                                                  THE DIVORCE ITSELF
There are five main forms of divorce in Muslim Personal Laws in Nigeria

1.      Talaq where the husband repudiates the marriage. However a woman who has dictated certain terms with her potential husband before the formalisation of her marriage has the right to demand that the husband pronounces talaq when he breaches any of the terms.
2.      Mubarah, where both parties decide to put the marriage to an end.
3.      Khul’u where the wife offer ransom to obtain her release.
4.      Tadriq or Faskh where the wife seek her release on the ground of violation of the marriage terms by her husband.
5.      Zihar,Ila and Lia’n


                                       (1) TALAQ SUNNI
A talaq that is given properly is known as Talaq Sunni. This is dissolution of marriage in an orthodox manner. There are 4 laid down conditions for talaq.

CONDITIONS FOR A VALID TALAQ
1. The husband must
  (a) be an adult
  (b) be sane
  (c) not acting under any sort of coercion (external pressure).

2. The woman must be in a ‘state of purity’ (free from menstrual blood and the blood of child birth)
3. There should be no cohabitation between the two after being ‘clean’
4. He should not give it more than once; that is, it should be pronounced in a manner leaving room for reconciliation. This is known as Talaq Raj’i.
5. He should not give another divorce within the time of the three months awaiting period.
6. The intention to divorce must be clear. Intention can be shown by speaking, clear signs or writing.
7. Each statement of divorce must have at least two witnesses
8. The divorce that is pronounced once or twice is a revocable divorce.
    This is known as Bid’i.

  (a) This means that if the husband and wife decide to reconcile before the end of the waiting period (iddah) they may do so.

(b) But, if they mutually reconcile after the end of the waiting period, they must go through another marriage contract. This is known as talaq ba’in bainuna sugra.

9. A divorce that is given three times is irrevocable. This is known as talaq ba’in kubra. A talaq ba’in kubra means that the husband and wife cannot reconcile and be married again, after the wife has been married to and divorced from another man. This should not be a marriage done for the purpose of being able to remarry with the former husband.

A divorce Bid’i is a pronouncement of divorce that does not fulfil the conditions mentioned above. This renders the divorce unorthodox but valid, i.e. legal but not morally correct.

A wife may challenge her divorce in court if the proper conditions for a divorce Sunni have not been carried out.



EFFECT OF TALAQ

The wife does not have to reimburse her mahr (dower) or any marriage expenses. (The mahr is the marriage gift that a groom makes to his bride on marriage. Muslim Marriage is not valid without mahr.)  

DELEGATED TALAQ (TALAQ-TAFEEZ)

CONDITIONS
  The husband can assign his right to Talaq (repudiation) to his wife. This is usually agreed upon at the time of the marriage contract, either in writing or with two witnesses present.

The husband cannot legally delegate his right of talaq to any person except the wife herself.

EFFECTS
If the state condition occurs, then the divorce is automatic, unless the wife chooses not to exercise the right.
The wife does not have to reimburse her mahr (dower).

         (2) DIVORCE BY MUTUAL CONSENT (MUBARAH)

  CONDITIONS
  Mubarah is a divorce by mutual consent of the husband and the wife. This is usually initiated by the woman and decided by a court. However, if both husband and wife wish, they can agree to it between themselves, or with walis (guardians).

EFFECTS
The husband and wife agree on a divorce. The wife does not have to pay for her freedom from the marriage.
       
       (3) DIVORCE BY RANSOM (KHUL’U)
Khul’u is a divorce initiated by a court. Where there is dispute over the ‘ransoms ‘the case will be decided by the court, which would fix a ‘ransom.’

In khul’u divorce, the wife usually does not give a reason for wanting a divorce. Where reasons (or complaints) are the cause of seeking a divorce then court-decided divorce (tafriq or faskh) should be the procedure (see below).

CONDITIONS AND EFFECTS OF KHUL’U DIVORCE
The husband and wife agree on a divorce and the wife agrees to pay the husband an agreed sum for her freedom. Unfortunately, often the husband is greedy and demands large sums of money.

Khul’u is a negotiation. They negotiate in the way dower is negotiated. Some recent Sharia court cases have found that the Khul’u payment should not be more than the original value of the mahr received or promised at marriage. For example, Babajo vs. Dontsho, the sharia Appeal court found that the maximum Dantsoho should pay her husband is the amount of the mahr she had received, which in this case was N100 and that to demand for more was unjust and amounted to promoting immorality.

     (4) COURT DECIDED DIVORCE (TAFRIQ OR FASKH)
  This is the form of divorce where the court arbitrates and can pronounce a divorce. Cases of this sort are usually brought by women since men have the right to talaq (unilateral divorce). Where a complaint is made, the court is obliged to investigate its truth by independent investigation, by hearing witnesses, or by accepting an oath sworn by husband and wife.

CONDITIONS
Either the wife or husband must bring application for court-decided divorce on one or more of the following grounds (complaints):

1. The failure of the husband to provide maintenance (shelter, food, medical expenses, clothing). For example in Yahaya vs. Adama Salusy the wife called witnesses to prove lack of provision of food or adequate medical care. The Sharia court of Appeal, Kano, affirmed the divorce.

2. Defect on the part of the husband or wife-for example, if the husband or wife is insane, or impotent or frigid, this can be a reason for divorce. However, where the wife or husband knew about the defect in advance but remain silence they can no complain afterwards. If the complaint is one of impotence or insanity, the case may be adjourned for a year.


3. Prolonged absence -for example, Aisha Umar complained to Area court 1 Sokoto that her husband had left her for 2years and 3 months. She produced Witnesses and was granted the divorce.

4. Injury or discord between the wife and husband - for instance, Luba Mamaman complained to the Area court, Sokoto that her husband often verbally abuses her father and accuse her of commuting adultery. The husband, Tukur Ibrahim, protested against the divorce. Finally the Sharia court of Appeal ruled that the wife could have the divorce on the grounds of cruelty and destruction of property. The Area Court Zaria granted the divorce.

5. Failure to provide sexual satisfaction- in the case of Modu Fugurambe vs. Amina Alirambe, Amina complained that her husband was ‘not her match sexually’ to Lamisula Area Court 11 Maduguri. Eventually she swore on the Holy Qur’an that her complaint was true and the marriage was dissolved.

6. Refusal of the husband to enable wife to undertake her religious obligations. For instance, if the husband refuses to allow his wife to go on pilgrimage, this can be a reason for divorce, if she wishes.

EFFECTS
 If the court grants any of the divorce for any of the reasons above, then the wife does not have to make any of the payment to the husband or reimbursement of mahr.

Unfortunately, often women have to resort to Khul’u,  divorces and pay for their freedom, even when they have good complaints for a court-decided divorce. This may be because they do not know that in a court-decided divorce they do not have to pay the husband. Or, it can be because of the delays in the judicial system or proceedings that a wife feels she would rather pay and be released, than wait.


                          (5) ZIHAR, ILA, AND LIA’N
  These forms are rarely found nowadays.

CONDITIONS
  Zihar is divorce when a man compares his wife to his mother.

Ila is divorce when the husband has made an oath that he will abstain from sexual intercourse for four months or more and he carries it out. Lia’n divorce is where a husband accuses his pregnant wife of committing adultery and therefore disowns paternity. Husband and wife will be asked to swear to the truth.

EFFECTS
 In Zihr, Ila or Lia’n divorce, the wife does not have to make any payment to the husband or reimbursement of mahr.

                        AFTER THE DIVORCE
IDDAH
After any divorce, iddah or a waiting period must be observed, before a woman can remarry.

CONDITIONS
1.      During the iddah, the husband is responsible for the wife’s maintenance when there is room for reconciliation-i.e. before an irrevocable divorce.
2.      The length of the waiting period is three months (or three menstrual cycle) unless the woman is pregnant in which case it is until after delivery.
3.      Following a revocable divorce, the wife is entitled to remain in her marital home during the iddah time.

    CUSTODY AND GUARDIANSHIP OF CHILDREN AND MAINTENANCE

  The custody of children may be granted either to the wife or another person. The mother of the children is preferred principle. Guardianship is often granted to the father or waliyi. The father of the children remains responsible for their maintenance and education. See Baobab leaflet on 3 for more details.                                                 



�  � � � � pT � span>DIFFERENTIATION OF SEX ROLES: A third Islamic tradition which affects the future of any feminist movement in an Islamic environment is that it specifies a differentiation of male and female roles and responsibilities in society.  Feminism, as represented in Western society, has generally denied any such differentiation and has demanded a move toward a unisex society in order to achieve equal rights for women.  By "unisex society," I mean one in which a single
set of roles and concerns are given preference and esteem by both sexes and are pursued by all members of the society regardless of sex and age differentials.  In the case of Western feminism, the preferred goals have been those traditionally fulfilled by the male members of society.  The roles of providing financial support, of success in career, and of decision making have been given overwhelming respect and concern while those dealing with domestic matters, with child
care, with aesthetic and psychological refreshment, with social interrelationships, were devalued and even despised.  Both men and women have been forced into a single mold which is perhaps more restrictive, rigid and coercive than that which formerly assigned men to one type of role and women to another.
            This is a new brand of male chauvinism with which Islamic traditions cannot conform.  Islam instead maintains that both types of roles are equally deserving of pursuit and respect and that when accompanied by the equity demanded by the religion, a division of labor along sex lines is generally beneficial to all members of the society. This might be regarded by the feminist as opening the door to discrimination, but as Muslims we regard Islamic traditions as standing
clearly and unequivocally for the support of male-female equity.  In the Qur’an, no difference whatever is made between the sexes in relation to God. "For men who submit [to God] and for women who submit [to God], for believing men and believing women, … for them God has prepared forgiveness and a mighty reward." (33:35)  "Whoever performs good deeds, whether male or female and is a believer, We shall surely make him live a good life and We will certainly reward them for the best of what they did." (16:97)
It is only in relation to each other and society that a difference is made - a difference of role or function.  The rights and responsibilities of a woman are equal to those of a man, but they are not necessarily identical with them.  Equality and identity are two different things, Islamic traditions maintain - the former desirable, the latter not.  Men and women should therefore be complementary to each other in a multi-function organization rather than competitive with each other in a uni-function society.
            The equality demanded by Islamic traditions must, however, be seen in its larger context if it is to be understood properly.  Since Muslims regard a differentiation of sexual roles to be natural and desirable in the majority of cases, the economic responsibilities of male and female members differ to provide a balance for the physical differences between men and women and for the greater responsibility which women carry in the reproductive and rearing activities so necessary to the well-being of the society.  To maintain, therefore, that the men of the family are responsible for providing economically for the women or that women are not equally responsible, is not a dislocation or denial of sexual equity.  It is instead a duty to be fulfilled by men as compensation for another responsibility which involves the special ability of women.  Likewise the different inheritance rates for males and females, which is so often sited as an
example of discrimination against women, must not be seen as an isolated prescription. It is but one part of a comprehensive system in which women carry no legal responsibility to support other members of the family, but in which men are bound by law as well as custom to provide for all their female relatives.
            Does this mean that Islamic traditions necessarily prescribe maintaining the status quo in the Islamic societies that exist today? The answer is a definite "No." Many thinking Muslims - both men and women - would agree that their societies do not fulfill the Islamic ideals and traditions laid down in the Qur’an and reinforced by the example and directives of the Prophet Muhammad (peace and blessings of God upon him).  It is reported in the Qur’an and from history that women not only expressed their opinions freely in the Prophet's presence but also argued and participated in serious discussions with the Prophet himself and with other Muslim leaders of the time (58:1). Muslim women are known to have even stood in opposition to certain caliphs, who later accepted the sound arguments of those women.  A specific example took place during the caliphate of 'Umar ibn al Khattab. The Qur’an reproached those who believed woman to be inferior to men (16:57-59) and repeatedly gives expression to the need for treating men and women with equity (2:228, 231; 4:19, and so on).  Therefore, if Muslim women experience discrimination in any place or time, they do not and should not lay the blame on Islam, but on the un-Islamic nature of their societies and the failure of Muslims to fulfill its directives.
            SEPARATE LEGAL STATUS FOR WOMEN:  A fourth Islamic tradition affecting the future of feminism in Muslim societies is the separate legal status for women which is demanded by the Qur’an and the Shari'ah.  Every Muslim individual, whether male of female, retains a separate identity from cradle to grave.  This separate legal personality prescribes for every woman the right to contract, to conduct business, to earn and possess property independently.  Marriage has no effect on her legal status, her property, her earnings - or even on her name.  If she commits any civil offense, her penalty is no less or no more than a man's in a similar case (5:83; 24:2).  If she is wronged or harmed, she is entitled to compensation just like a man (4:92-93; see also Mustafa al Siba'i 1976:38; Darwazah n.d.:78). The feminist demand for separate legal status for women is therefore one that is equally espoused by Islamic traditions…
THE FORM OF AN ISLAMIC FEMINISM: If the goals of Western feminism are
not viable for Muslim women, what form should a feminist movement take to ensure success?
            Above all, the movement must recognize that, whereas in the West, the mainstream of the women's movement has viewed religion as one of the chief enemies of its progress and well-being, Muslim women view the teachings of Islam as their best friend and supporter.  The
prescriptions that are found in the Qur’an and in the example of the Prophet Muhammad, (Peace and blessings of God upon him), are regarded as the ideal to which contemporary women wish to return.  As far as Muslim women are concerned, the source of any difficulties experienced today is not Islam and its traditions, but certain alien ideological intrusions on our societies, ignorance, and distortion of the true Islam, or exploitation by individuals within the society.  It is a lack of an appreciation for this fact that caused such misunderstanding and mutual distress when women's movement representatives from the West visited Iran both before and after the Islamic Revolution.
Second, any feminism which is to succeed in an Islamic environment must be one which does not work chauvinistically for women's interest alone.  Islamic traditions would dictate that women's progress be achieved in tandem with the wider struggle to benefit all members of
the society.  The good of the group or totality is always more crucial than the good of any one sector of the society.  In fact, the society is seen as an organic whole in which the welfare of each member or organ is necessary for the health and well being of every other part.
Disadvantageous  circumstances of women therefore should always be countered in conjunction with attempt to alleviate those factors which adversely affect men and other segments of the society.
            Third, Islam is an ideology which influences much more than the ritual life of a people.  It is equally affective of their social, political, economic, psychological, and aesthetic life.  "Din," which is usually regarded as an equivalent for the English term "religion," is a concept which includes, in addition to those ideas and practices customarily associated in our minds with religion, a wide spectrum of practices and ideas which affect almost every aspect of the daily life
of the Muslim individual.  Islam and Islamic traditions therefore are seen today by many Muslims as the main source of cohesiveness for nurturing an identity and stability to confront intruding alien influences and the cooperation needed to solve their numerous contemporary problems.  To fail to note this fact, or to fail to be fully appreciative of its importance for the average Muslim – whether male or female - would be to commit any movement advocating
improvement of women's position in Islamic lands to certain failure. It is only through establishing that identity and stability that self-respect can be achieved and a more healthy climate for both Muslim men and Muslim women will emerge…”


From “Muslim Women’s Rights in the Global Village: Challenges and Opportunities,”
Azizah Yahia al-Hibri, Fellow, National Humanities Center, University of Richmond Law Professor. This article was reprinted by permission of the Journal of Law and Religion and is posted online on the Karamah Muslim Women for Human Rights web site at http://www.karamah.org

“…Introduction
In this age of information technology that shrank our world into a global village, it is fair to ask how this recent development has impacted Muslim women’s rights across the world.  Having just traveled through nine Muslim countries, ranging from Pakistan and Bangladesh to the Gulf States, Egypt, Syria, and Lebanon, I would answer that it is leading, slowly but surely, to reassessment and change.  Attempts to accelerate the pace of this change, however, without full understanding of its complex topology, and the deep-rooted commitment by most Muslim women to spiritual and cultural authenticity, could halt or even reverse this process at great cost to women particularly and Muslim societies as a whole.  Hence the challenges and opportunities.
Pious Muslim women are generally bewildered by the laws and judicial systems of their societies, which are supposed to be Islamic.  It is well understood that the hallmark of Islam is justice.  Yet Muslim societies have been dispensing injustices to women in the name of Islam.  Some women seeking divorce in Islamic courts have been trapped within the system for years.       On the other hand, divorce and remarriage have been rendered much easier for men. Also, various Shari’ah (Islamic law) protections for women in case of an unhappy marriage, divorce, or custody have been ignored even by the women’s own families.  While Western feminists have been focusing on such issues as the veil and the perceived gender discrimination in the laws of inheritance, Muslim women I spoke to did not regard these issues as important.  They were more interested in re-examining family law and in the proper application of all Islamic laws, including the laws of inheritance as they stand.  In short, Muslim women want a more just understanding of and adherence to Islamic principles.  They appear to believe that existing laws and practices are not conducive to a happy home life or a just society.  Surprisingly, Muslim women have the support of many Muslim male jurists who share their concerns.
Several factors have forced Muslims to reassess the status quo.  The colonization experience, wars, Western education and Western modes of communication have been primary among these factors.  Colonization exposed the soft underbelly of the indigenous systems of governance, while at the same time challenging and marginalizing the Muslim individual’s religious beliefs and cultural values.  Wars dislodged established social structures, especially those relating to the family.  Finally, through the twin lenses of Western education and modes of communication such as satellite television and the Internet, Muslim men and women are experiencing instantaneously, though vicariously, the post-colonial Western worldview and Western ways of life.  Generally, they like a good part of what they see, such as democratic governance, freedom of speech, independent women, and comfortable technologically advanced societies.  There are other things, however, they decidedly do not like, such as sexual permissiveness, the accelerating divorce rate, growing violence in society, especially among the youth, and the treatment of the elderly.
Consequently, many Muslims, male and female, are struggling today with the following questions: How do they introduce progress into their societies, while at the same time protecting their deep-seated spiritual beliefs and cultural identities, two valuable foundations that colonialism tried unsuccessfully to destroy?  How can they benefit from the Western experience, including its recognition of the legitimate rights of women, without inadvertently destroying their highly valued familial ties?  In this context, the experience of those North American Muslims who have successfully integrated their religious beliefs and ethnic heritage with the American and Canadian ways of life becomes very valuable.  It is a living proof of the fact that Islam is not a mere “Oriental” religion, but a world religion which is capable of meeting the needs of Muslims in all historical eras and all geographical locations…”

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