Divorce or dissolution of marriage is the final termination of marriage, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between married persons.
Divorce laws vary considerably around the world. Divorce is not permitted in some countries, such as in Malta and in the Philippines, though an annulment is permitted.
The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt, though these matters are usually only ancillary or consequential to the dissolution of the marriage.
THE TYPES OF DIVORCE
Though divorce laws vary between jurisdictions, there are two basic approaches to divorce:
- fault based
- no-fault based.
Court may take into account the behavior of the parties when dividing property, debts, evaluating custody, and support.Laws vary as to the waiting period before a divorce is effective. Also, residency requirements vary. However, issues of division of property are typically determined by the law of the jurisdiction in which the property is located.
Under a no-fault divorce system, the dissolution of a marriage does not require an allegation or proof of fault of either party.
The application can be made by either party or by both parties jointly. This type of divorce may also be called a consenting divorce.
In such cases divorces are required to prove by one party that the other party had committed an act incompatible to the marriage. This was termed “grounds” for divorce (popularly called “fault”) and was the only way to terminate a marriage.
Fault-based divorces can be contested and may involve allegations of collusion of the parties, or condonation, connivance, or provocation by the other party. Contested fault divorces can be expensive and not usually practical as eventually most divorces are granted. Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches.
THE KEY FACTORS TO CONSIDER PRIOR TO DIVORCE
- Duration of the marriage
- Children ( when the spouses have resolved custody and set child support payments for children of the marriage)
- Property/Assets in mutual name and/or gifted property
When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, they may ask the court to decide how to split property and deal with the custody of their children. Though this may be necessary, the courts would prefer parties come to an agreement prior to entering court.
Where the issues are not complex and the parties are cooperative, a settlement often can be directly negotiated between them.
Collaborative divorce is becoming a popular method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys/lawyers who are trained in the collaborative divorce process and in mediation.. The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support. Such collaborative divorce in Pakistan can be less expensive and such cases will raise less legal bills by the divorce lawyer.. However, should the parties not reach any agreements, any documents or information exchanged during the collaborative process can later be used in further legal proceedings, as the collaborative process is not a confidential proceedings absent some binding agreement that say it is confidential. Furthermore, there are no set enforceable time lines for completion of a divorce using collaborative divorce.
DIVORCE LAW IN ISLAM
In Islamic law and marital jurisprudence, divorce is accepted and referred to as Divorce (Talaq).
In the medieval Islamic world and the Ottoman Empire, the rate of divorce was higher than it is today in the modern Middle East, which now has generally low rates of divorce. In 15th century Egypt, Al-Sakhawi recorded the marital history of 500 women, the largest sample on marriage in the Middle Ages, and found that at least a third of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with many marrying three or more times. According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo ended in divorce. In the early 20th century, some villages in western Java and the Malay peninsula had divorce rates as high as 70%.
DIVORCE AND SEPARATION LAW IN PAKISTAN: AN OVERVIEW
There is a plethora of law and legislation in Pakistan regarding Marriage, Divorce, Separation, Custody of children and Maintenance to spouse and/or children which include the following:
- Guardians and Wards Act 1890
- Child Marriage Restraint Act 1929
- Dissolution of Muslim Marriages Act 1939
- Muslim Family Law Ordinance 1961
- (West Pakistan) Muslim Personal Law (Shariat) Application Act 1962
- (West Pakistan) Family Courts Act 1964
- Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Law of Evidence (Qanun-e-Shahadat) Order 1984
- Enforcement of Sharia Act 1991
- Dowry and Bridal Gifts (Restriction) Act 1976
- Prohibition (Enforcement of Hudood) Order 1979
- Offence of Qazf (Enforcement of Hudood ) Order 1979
- Execution of Punishment of Whipping Ordinance 1979
Pakistan is an Islamic republic, therefore laws an legislation has been designed to cater for Muslim Marriages especially which:
The Child Marriage Restraint Act 1929 has made under-age marriages a penal offence. Under the Act the minimum age of marriage for a male is 18 years whereas the minimum age of marriage for a female is 16 years. Despite the fact that under-age marriages are liable to punishment, such unions are not rendered invalid.
CONSENT OF WALI
According to the Hanafi School, an adult woman may contract her marriage without the consent of a wali.
REGISTRATION OF MARRIAGES
The Muslim Family Laws Ordinance (THE MUSLIM FAMILY LAWS ORDINANCE (MFLO)) 1961 introduced reforms regarding registration of marriages, and in default of such registration, penalties of fine and imprisonment have been prescribed. Nevertheless, Muslim marriages are still legal and valid if they are performed according to the requisites of Islam.
The Muslim Family Laws Ordinance 1961 has also introduced some reforms in the law relating to polygamy. Now, a husband must submit an application and pay a prescribed fee to the local union council in order to obtain permission for contracting a polygamous marriage. Thereafter, the chairman of the union council forms an arbitration council with representatives of both husband and wife/wives in order to determine the necessity of the proposed marriage. The application must state whether the husband has obtained consent of the existing wife or wives.
Contracting a polygamous marriage without prior consent is subject to penalties of fine and or imprisonment and the husband becomes bound to make immediate payment of dowry to the existing wife or wives. Nonetheless, if the husband has not obtained consent of the existing wife or wives the subsequent marriage remains valid.
DIVORCE / DIVORCE (TALAQ) BY THE HUSBAND
Under The Muslim Family Laws Ordinance (MFLO) limited reforms have also been introduced in relation to Divorce (Talaq). Under The Muslim Family Laws Ordinance (MFLO) a divorcing husband shall, as soon as possible after Divorce Divorce (Talaq) has been pronounced, in whatever form, give a notice in writing to the chairman of the Union Council. The chairman must then supply a copy of the notice of Divorce (Talaq) to the wife. Non-compliance is punishable by imprisonment and/or a fine. Within thirty days of receipt of the notice of Divorce (Talaq), the chairman must constitute an Arbitration Council in order to take steps to bring about a reconciliation between the husband and the wife. If and when such attempts to negotiate a reconciliation fail, a Divorce (Talaq) that is not revoked in the meantime, either expressly or implicitly, takes effect after the expiry of ninety days from the day on which the notice of repudiation was first delivered to the chairman. If, however, the wife is pregnant at the time of the pronouncement of Divorce (Talaq), the Divorce (Talaq) does not take effect until ninety days have elapsed or the end of the pregnancy, whichever is later.
FAILURE TO GIVE NOTICE OF DIVORCE (TALAQ)
Failure to notify, in the above stated manner, invalidated Divorce (Talaq) until the late 1970s and early 1980s, but introduction of the Zina Ordinance allowed scope for abuse as repudiated wives were left open to charges of zina if their husbands had not followed the The Muslim Family Laws Ordinance (MFLO)’s notification procedure. Since early 1980s, the practice of the Courts in Pakistan is that they validate a Divorce (Talaq) despite a failure to notify as provided under the The Muslim Family Laws Ordinance (MFLO).
JUDICIAL DIVORCE / KHULA
According to Dissolution of Muslim Marriages Act 1939, Judicial khula may also be granted without the husband’s consent if the wife is willing to forgo her financial rights.
GROUNDS FOR JUDICIAL DIVORCE
Grounds on which a woman may seek khula include:
- Desertion by husband for four years,
- Failure to maintain for two years
- Husband contracting a polygamous marriage in contravention of established legal procedures,
- Husband’s imprisonment for seven years,
- Husband’s failure to perform marital obligations for three years,
- Husband’s continued impotence from the time of the marriage,
- Husband’s insanity for two years or his serious illness,
- Wife’s exercise of her option of puberty if she was contracted into marriage by any guardian before the age of 16 and repudiates the marriage before the age of 18 (as long as the marriage was not consummated),
- Husband’s cruelty (including physical or other mistreatment, unequal treatment of co-wives), and
- Any other ground recognised as valid for the dissolution of marriage under Muslim law.
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