Question: I am a Muslim woman married to a Muslim man. A month ago, the court issued a ruling rejecting our divorce lawsuit. Do I have the right, according to the civil status law, to file Khul (Procedure based on traditional jurisprudence that allows a Muslim woman to initiate separation from the spouse under certain conditions)? What are these conditions? If I decide to marry again, do I have the right to stipulate in the marriage contract that the divorce decision can be in my hands?
Answer: You have the right to file Khul with the Family Orientation Committee. Khul’, as per Article 110 of the Personal Status Law, is a contract between the spouses, whereby they agree to terminate the contract of marriage against consideration to be paid by the wife or by another person. The amount to be paid as a consideration shall be governed by the same rules as dowry. Should the consideration to be paid in case of divorce by agreement not be valid, divorce shall occur and the husband shall be entitled to the dowry.
Where the husband is unduly obstinate in his rejection and it is feared not to observe God’s will, the judge shall decide the “Mukhala’a” (divorce) against an adequate consideration.
But before recourse to Khul’, you can file another lawsuit for prejudice where the court will transfer the matter to two arbitrators as per Articles 118, 119, 120 & 121 of the above law which says that if the prejudice is not established, the lawsuit shall be rejected, and if discord is still continuing between the spouses, then the aggrieved party may file a new lawsuit.
If the Family Orientation Committee and the judge are not successful in reconciling them, the judge shall issue a judgment appointing two arbitrators who have to find out the reasons of discord and deploy reconciliation efforts. The two arbitrators shall submit to the judge their decision that shall include the extent to which the spouses offended each other. If the two arbitrators fail to reconcile the spouses, the court shall present the arbitrators’ recommendations to the spouses and invite them to reconcile before issuing the judgment of separation taking into consideration the extent to which the spouses offended each other.
It is permissible for the divorce to be in the hands of the wife according to what was agreed upon in the marriage contract and in accordance with what is followed by the “Maliki” school of thought. As Article 100 of the law stipulates, divorce shall be initiated either by the husband or any one acting on his behalf by virtue of a special power of attorney, or by the wife or any one acting on her behalf by virtue of a special power of attorney, according to what was agreed upon in the marriage contract, and it must be documented according to the procedures followed in the court.
Also, according to Article 2 of the same law, the general rule is that the provisions of this law shall apply on all matters dealt with herein, in words and context.
For the purposes of interpretation and completion of their provisions, the doctrinal school of thought from which these matters are derived shall be consulted. In the absence of a text in this law, judgment shall be given in accordance with what is widely known of Malik’s doctrine, then Ahmed’s, then El Shaffei’s, then Abi Hanifa’s doctrine.
