Judicial divorce
Divorce law in Gaza, on the other hand, provides a remedy for abused wives that is denied in the West Bank, by providing for ‘injury’ or prejudice as grounds on which the wife is entitled to petition the court for judicial divorce.
This provision in the Gazan law, and its counterpart in the West Bank, is based on Maliki rules, but both provisions have adopted incomplete versions of the Maliki position. In the West Bank, the JLPS allows either spouse to apply for divorce on the grounds of ‘discord and strife’ (fundamental breakdown of the marriage), in line with the classical Maliki rules, while in the LFR in the Gaza Strip only the wife may apply on these grounds. On the other hand, the LFR takes another Maliki rule in allowing the wife to be granted a divorce by the court on establishing her husband’s injury of her. It is only in the event of her failure to prove this injury that the case may be referred to arbitrators by the judge and proceed to a divorce on the grounds of strife or breakdown if the arbitrators are unable to reconcile the couple. In the West Bank, by contrast, if a woman successfully establishes her husband’s injury of her, the judge is to 'warn the husband to improve his behaviour’ and if he does not, then to transfer the matter to arbitrators. In both cases, if their attempts at reconciliation fail, the arbitrators are empowered to recommend that the judge divorce the couple, specifying the proportions of blame attached to each spouse so that the judge can order a proportionate financial settlement.Here, the significance in the difference between the laws does not appear to extend substantially to practice. In an examination of the records of four shari'a courts in the West Bank for the years 1989 and 1992-94, claims for judicial divorce based on the grounds of ‘discord and strife’ accounted for 8 per cent of all claims for judicial divorce, behind the more common grounds of failure of the husband to maintain the wife and the injurious absence of the husband for over a year. On the other hand, the shari'a courts records in Gaza City and Rafah for the same four years failed to reveal a single claim for divorce submitted on the grounds of injury (Welchman 1999: 173). Nevertheless, the fact that divorce for injury is on the books in Gaza holds a certain protective potential; elsewhere in the region, it is a more common cause for divorce at the petition of the wife.21
More on the topic Judicial divorce:
- Classical Rome had a very liberal divorce policy (as did Greco-Roman Egypt; see Part III). By the first century B.C.E., women who were not married with manus [see Chapter 1, Part II.B.] had the right to divorce their husbands unilaterally, and eventually the same right was enjoyed by women married with manus.
- Divorce
- Triple Divorce
- A Definition and causes of divorce
- 7.2 Some indirect correctives to the problems of judicial rule-making
- 28 On the Judicial Powers of the Jewish Authorities
- Judicial Guidance - Hudson v Leigh
- A Divorce documents from Roman Egypt
- Reasons for divorce
- B Sending a notice of divorce
- The Judicial Role
- Judicial practice[61]
- C Return of dowry after divorce
- POLYGYNY AND DIVORCE
- Judicial Procedure and Violence