Marriage and Divorce Laws of the World Part 24

"The women," says the Koran, "ought to behave toward their husbands in like manner as their husbands toward them, according to what is just."

When the husband has left the place of conjugal domicile without making any arrangements for his wife's support, the judge is authorized by law to make an order that her maintenance shall be paid out of any fund or property which the husband may have left in deposit or in trust, or invested in any trade or business.

When a woman abandons the conjugal domicile without any valid reason, she is not ent.i.tled to maintenance from her husband.

The Mohammedan law lays down distinctly that a wife is bound to live with her husband, and to follow him wherever he wishes to go; and that on her refusing to do so without sufficient or valid reason, the courts of justice, on a suit for rest.i.tution of conjugal rights by the husband, would order her to live with her husband.

The obligation of the wife, however, to live with her husband is not absolute. The law recognizes circ.u.mstances which justify her refusal to live with him.

Although the condition of women under Mohammedan law is most unsatisfactory, it must be admitted that Mohammed effected a vast and marked improvement in the condition of the female population of Arabia.

Amongst the Arabs who inhabited the peninsula of Arabia the condition of women was extremely degraded, for amongst the pagan Arabs a woman was a mere chattel. The Koran created a great reformation in the condition of women. For the first time in the history of Oriental legislation the principle of equality between the s.e.xes was approached.

DIVORCE.--The Mohammedan law of divorce is founded upon express injunctions contained in the Koran, as well as in the Traditions, and its rules occupy an important part of all Mohammedan works on jurisprudence.

These rules may be summarized thus:

The thing which is lawful but disliked by G.o.d is divorce.

A husband may divorce his wife without any misbehaviour on her part, or without a.s.signing any cause.

There is an irregular form of divorce in which the husband repudiates his wife by three sentences, either express or metaphorical, as for example: "Thou art divorced! Thou art divorced! Thou art divorced!" The Mohammedan who thus divorces his wife is held in the _Hidayah_ to violate the law, but the divorce is legal.

A sick man may divorce his wife, even though he be on his death-bed.

An agent or agents may be appointed by a husband to divorce his wife.

In addition to the will or caprice of the husband, there are also certain conditions which require a divorce.

The following are causes for divorce, but generally require to be ratified by a decree from the _Qazi_ or judge:

1. _Jubb._ That is, when the husband has been by any cause deprived of his organ of generation. This condition is called _majbub_, and if it existed before the marriage the wife can obtain instant divorce.

2. _Unnah._ Impotence of either husband or wife.

3. Inequality of race or tribe.

4. Insufficient dower. (If the stipulated dowry is not given when demanded.)

5. Refusal of Islam. If one of the parties embrace Islam, the judge must offer it to the other three distinct times, and if he or she refuse to embrace the faith, divorce follows.

6. Unjust accusation of adultery by a husband against his wife.

7. If a wife becomes the proprietor of her husband or the husband becomes the proprietor of his slave wife divorce takes place.

8. An invalid marriage of any kind, arising from consanguinity or affinity of parties, or other causes.

9. The executed vow of a husband not to have s.e.xual intercourse with his wife for as long as four months.

10. Difference of country. As, for example, if a husband flee from a non-Moslem country to a country of Islam and his wife refuses to accompany him.

11. Apostasy from Islam.

The Greek Church holds that marriage is dissoluble in case of adultery, but not till a probationary period has elapsed during which a bishop or priest mediates with a view to reconciliation.

A fourth marriage is unlawful.

When a man or woman apostatizes from Islam, then an immediate dissolution of the marriage takes place, whether the apostasy be of the man or of the woman, without a judicial decree. If both husband and wife apostatize at the same time, their marriage bond remains; and if at any future time the parties again return to Islam, no remarriage is necessary to const.i.tute them man and wife.

There is a form of divorce known as _khula_ which is when a husband and wife disagreeing, or for any other cause, the wife on payment of a compensation or ransom to the husband, is permitted by law to obtain from him a release from the marriage tie.

_Mubara'ah_ is a divorce which is effected by mutual release.

A COMPARISON.--When compared with the Mosaic law it will be seen that by the latter, divorce was only sanctioned when there was "_some uncleanness_" in the wife, and whilst in Islam a husband can take back his divorced wife, in the law of Moses it was not permitted. See Deut. xxiv., 1-4.

IDDAH OR IDDAT.--This is the term of probation inc.u.mbent upon a woman in consequence of a dissolution of marriage, either by divorce or the death of her husband. After a divorce the period is three months, and after the death of her husband four months and ten days, both periods being enjoined by the Koran.

EFFECTS OF DIVORCE:

1. s.e.xual intercourse between the divorced persons becomes unlawful.

2. The wife is free to marry another husband after the completion of her _iddah_; or immediately if the marriage was never consummated.

3. The husband may complete his legal number of four wives without counting the divorced one, or may marry a woman who could not be lawfully joined with the divorced one, for example, her sister, after the completion of her _iddah_ but not before.

4. If the marriage has been consummated before the divorce, the whole of the unpaid dower becomes immediately payable by the husband to the wife, and is enforceable like any other debt if the marriage had not been consummated and the amount of dower was specified in the contract, he is liable for half that amount; if none was specified, he must give the divorced wife a present suitable to her rank, or their value. But the wife has no right to anything if the divorce took place by her wish, or in consequence of any disqualifications on her side, as for instance, her apostasy.

5. The wife is ent.i.tled to be maintained by her husband during the _iddah_ on the same scale as before the divorce, conditionally on submitting to her husband's control as regards her place of residence and general behaviour. But on completion of her _iddah_ she ceases to have any claim for maintenance.

CHAPTER XXV.

THE UNITED STATES OF AMERICA.

The United States as such, that is, in its Federal capacity, has no single system of marriage and divorce laws applicable to all the States and Territories.

The purpose of the Const.i.tution of the United States is to maintain by its federal structure a strong national government, while recognizing each of the States which make up the federation to be so far as is consistent with the motive of the Union, sovereign commonwealth.

When one considers this wonderful federation of States and Territories, with nearly half a hundred separate governments each making and interpreting its domestic laws, and yet all parts of, and working in harmony with, the central or Federal Government, the justice of Gladstone's tribute to the American Const.i.tution as "the most wonderful work ever struck off at a given time by the brain and purpose of man" is apparent.

The laws of marriage and divorce in the various States and Territories cannot therefore be ascertained from a single legislative or judicial source. The law of the several jurisdictions consists not only of legislative enactments, but of judicial construction and interpretation of such legislation.

Fortunately the tendency is toward uniformity of legislation among the States, especially on the important subject of marriage and divorce, and such differences as exist are pointed out substantially in this chapter when each State or Territory is considered separately.

The Congress, or national legislature, has power to legislate only upon such subjects as the Federal Const.i.tution marks out for it, and all powers not granted to the Federal government remain with the several States.

The regulation of marriage and divorce is one of the most important domestic concerns which remains within the jurisdiction of a State.