Question 1: I am a Muslim woman married to a Muslim man since two years. I want to divorce my husband now. What is the difference between requesting a divorce due to prejudice and a divorce without prejudice? Does this differentiation affect issues of alimony and child custody that the court orders? Also, how can a divorce due to prejudice be proven?
Answer 1: The difference between the two kinds of divorce affects the alimony for the wife, not child alimony or child custody. In the compensation alimony (Motaa’), the prejudice sustained by the wife is taken into consideration in assessing the matter as per Article 140 of Federal Law No. 28. On Personal Status.
The law states that in case the husband divorces his wife from a valid consummated marriage by his unilateral will, without a request from her, she is entitled to a compensation other than the alimony paid during the waiting period, depending on the financial status of the husband, provided it does not exceed a one-year alimony payable to those in similar condition.
The judge may order that it be paid in instalments, depending on the degree of solvency or insolvency of the husband. In assessing the amount thereof, the prejudice sustained by the wife shall be taken into consideration.
As a general rule, the possibilities of the debtor, the circumstances of the beneficiary and the economic situation in place and time play an essential role in assessing the amount of alimony, provided it does not fall below the sufficiency level, whether the alimony is for the wife or child.
In the case of divorce due to prejudice, Article 122 of the above law explains that prejudice shall be established by the legal means of proof like testimony, documents, oath and by the court judgments rendered against one of the spouses.
The hearsay testimony is accepted if the witness explained, or it was understood from his statement, that the prejudice is widespread in the spouses’ life environment as decided by the court. A hearsay testimony to negate the prejudice is not accepted.
The testimony of a male or female witness, except the testimony of an ascendant against a descendant or vice-versa, shall be accepted if the witness fulfills the conditions set forth by law for testimonial evidence.
