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Marriage and Divorce in Sharia and Saudi Law

Marriage and Divorce in Sharia and Saudi Law

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Marriage and Divorce in Sharia and Saudi Law

Introduction

Different cultures have laws and regulations that define how activities ought to happen in these areas. Whereas some nations adhere to rules that emanate from legally formulated processes, others such as Saudi Arabia and many Arabic countries conform to the Sharia that mostly borrows from the Quran and the Sunna teachings. The practices involving marriage and divorce in the Saudi Kingdom depict a perfect example of how the Sharia law works about the social acts. It appears that the guidelines by Sharia on marriage and divorce have some weak points that may require modifications after an in-depth analysis of the possible harms on the family. The strict conformity to Sharia laws makes the marriage and divorce laws more favorable to men than women thus developing some form of inequality.

Background Information

The current Islamic view of women, gender, marriage, and divorce, differ significantly from those of the Jahiliyah (pre-Islamic) community tribes of the Arabian region. Before the emergence of modern regulations, patriarchy was dominant in the areas surrounding the Persian and Roman Empires. A common practice in Jahiliyah that Islam forbade was the practice of killing the infant by the woman. Apart from the heinous act, the ancient community regarded women as inferior beings who had no right to own any property. Al-Hibri states that any male member of their family could easily possess what females possess by imprisoning them at home in what the community called adhl[1]. Islam noted the brutality women faced and introduced new sets of regulations that would view women and family life as being essential elements of the society[2]. The new establishments further refurbished the rules guiding divorce making them more equitable. The changes were effected to be in line with the teachings of the Quran that prohibited the radical acts that males executed forcefully.

The Quran serves as a vital guide for the marriage and divorce practices in Islamic nations and for all married people who ascribe to Islamic teachings. The Islamic Holy Scripture views marriage and divorce as staying together on equal terms or going parts with kindness. The Islamic spiritual guide also considers marriage as a sacred covenant with Prophet Mohammad terming the tie as a contract that couples should strive to fulfill, and divorce as the highly hated practice before God (Al-Hibri, 2009).  The Muslims since the time of the Prophet used marriage to articulate the rights women required from their husbands, and therefore, offered valuable protection to women. Marriage in Islam happened following the structures outlined in the Quran and the subsequent interpretations.

Initially, the Islamic laws on family issues were not in codes. The jurists who intervened in family-related conflicts sought guidance from the Quran and the critical thinking of recognized jurists (Ijtihad). Al-Hibri describes ijtihad as a way of reasoning and interpretation that relies on several essential guidelines that borrow from the law that may alter depending on the time, circumstance, and place[3]. The invasion of the Europeans into the Arabic world influenced many nations to codify their family laws. The codification resulted in a uniform way of viewing family-related issues thus weakening the pluralistic approach of the Islamic legal practice. Al-Hibri mentions that even though many Islamic states in North Africa and the Middle East have codified their policies, a few nations in the Gulf region such as Saudi Arabia and Bahrain continue to abide by a weak structure of the common-law[4]. The author proceeds to mention that even though these nations do not follow a definite pattern to determine its family-related issues, they adhere to the selected official school of view.

Marriage and Divorce Laws in Saudi Arabia

Saudi Arabia is one of the leading Kingdoms in the Middle East that aligns its legal system in strict conformity with Sharia which acts as an Islamic law acquired from the Sunna (beliefs and practices) of Islam and the Quran. The country has put attempts to codify Sharia, but the effort comes amidst oppositions and critics from different quarters, particularly the strict followers of the traditional beliefs[5]. Even though some cases involving corporate law and intellectual properties may require the application of a royal decree, Sharia continues to serve as the primary source of law, more so in areas such as criminal activity, family issues, and business matters. The strict adherence to Islamic teachings compels the government to consider the Sunna and the Quran as the state’s constitution thereby meaning that all that happen in the country adhere to the Sharia which in this case includes marriage and divorce[6]. The report, therefore, expounds on the regulations defining marriage and divorce in Saudi Arabia to show how Sharia require the social practices to happen.

Requirement of a Wali

The Saudi Arabian law demands that a woman must have a wali (a guardian) at the time of their marriage. The three primary Islamic schools (Shafi, Maliki, and Hanbali) concur that an Islamic lady requires a guardian, who in many cases is the father to marry. The Saudi Arabian view does not adhere to the opinions of Hanafi that is applicable in many Arabic states and which views a mature woman as one who can make their decision regarding their marriage with the guardian only acting as an advisor. The need to have a wali as it happens with the Saudi Arabian law on marriage continues to generate heated conflicts among scholars. Al-Hibri makes reference to Jafaris’ view of a mature woman who has attained the age of puberty, whether a virgin or not, as one who has full legal rights to choose her spouse, and one who is legally able to make decisions regarding their marital affairs, regardless of their father’s consent and the social status of the prospective partner[7]. The government in this scenario may have to consider from all the schools of thought before settling on the law; otherwise, the issue will continue to draw conflicting reactions.

Polygamy

Women who enter into marriage in the Saudi Kingdom must be ready to comply with the polygyny that is allowable by the law. All the principal schools of thought according to the article by Al-Hibri view the Quran as having permitted men to have more than one wife so long as the union adheres to fairness and equality[8]. The existence of the Sharia law that allows men to have multiple wives (up to four) continues to face criticism from many young people who feel that the act is wrong and only subjects the partners to more social challenges. Aziz who works as a reporter for the Arab News reports from a study he conducts that polygamy is not taking place as stipulated in the Quran which only depreciates its worth[9]. Mohammed Jibrael who takes part in the study mentions that many people married many people in the past but the tough economic times draw men from the practice. Huma Sayeed who also participates in the research asserts that the practice is becoming less rampant because of the increasing awareness processes among women who feel that the way of life subjects them to more burden. Sayeed further says that some women only choose to enter into a polygamous structure for fear of being part of the increasing number of unmarried women in the country. The article by Aziz also informs about the findings of a survey carried out in the UAE and Saudi Arabia and its results discussed at the Asian Pacific Society of Cardiology Congress of 2015[10]. The convention held in Abu Dhabi disclosed that many men who enter into polygamous marriages develop heart-related complications further criticizing the effectiveness of the law.

Indications show that apart from the permission by Quran to have more than a single wife, other social issues compel the state to permit polygamy. A survey by Young finds that the escalating number of divorced and single women in the Kingdom lead the officials to allow polygyny as the answer to the problems single ladies face[11]. Even though the government tries to develop more stringent regulations for polygamists which include paying higher dowry prices and having to memorize the entire Quran, the number of people entering into this structure does not seem to reduce at an alarming rate, mainly because of the emergence of social media groupings that use Whatsapp to link ladies who would want to enter into polygamous settings[12]. More than nine hundred women have since joined the group that attracts an equal number of men. Al-Hibri gives the example of Tunisia that prohibited polygyny in 1956 following the amendment of the Tunisian Personal Status Code but continuously contemplate changing its stand considering the pressure it faces from the citizens who criticize the law for going against the requirement of Sharia[13].

Divorce

Even though it is not uncommon to see different regulations about divorce in Saudi Arabia, all the schools of thought tend to adhere to some similar views on how separations ought to occur based on the Sharia law. The Saudis permit a woman to obtain a divorce by returning her marital gift (mahr), or by surrendering all the claims she made regarding the award. The woman’s desire for divorce, however, only materializes when the husband gives his approval. Al-Hibri refers to the form of separation that borrows from the prophetic tradition as khul[14]. The requirement to return the marital gift may sometimes prove challenging some women who have already expended their mahr but also protects against the wife profiteering through the union.

The Sharia that requires women who seek to divorce from their husband to refund the marital gift often pose significant threats to the form of separation. Al-Hibri criticizes the requirement mentioning that it gives husbands the chance to profit from the relationship thereby classifying it as being unwarranted[15]. A country such as Egypt has realized the challenges facing women who want to quit their marriages and revised the Egyptian Code of 2000 which now makes khul a preferable exit strategy for women who feel that their relationship is not yielding the anticipated outcome. Alternatively, the Saudi law permits women who want to divorce to follow judicial proceedings that might be a time-consuming but efficient way of preserving the woman’s right to her mahr.

The Saudi Arabian law on divorce permits the man to divorce his wife by repeating the words “I divorce you” three times. The words of separation may sometimes come as a result of uncontrolled emotions and the law, therefore, permits the man to rescind the decision, but only if the wife concurs and this is limited to just three instances. The wife, on the other hand, must seek legal address before obtaining the mandate to quit the relationship. Fortunately, the Saudi Arabian law states that the man must provide for the needs of the divorced woman and the children in case exiting wife cannot provide for her needs and that of the young ones. An excellent example of a Saudi divorce case where the man had to compensate the wife after a breakup is Christina Estrada vs. Sheikh Walid Juffali[16]. The husband requested for the divorce by uttering the words “I divorce you” three consecutive times and upon hearing the case, the Family Court of Saudi Arabia ruled that the man pays up to $97 million being one of the highest settlements in history[17]. The case in this instance shows how a man can initiate a divorce process by simply uttering some words, and how the courts seek to protect divorced women by providing compensation from the man.

Recommendations

The analysis of the Saudi Arabian marital laws that conform to the Sharia present some issues that may require some adjustment to achieve a more realistic and fair coexistence between man and wife. Even though it is vital to adhere to the religious teachings based on one’s spiritual belief, it is also paramount to look into possible negative effects of some actions when viewed from a more critical perception. It may appear presentable when a groom’s parent intervenes during their marital processes, but it might be quite restrictive to make compulsory for every woman to have a wali (a guardian) during their marriage. Apart from the criticisms that may appear within the different Islamic cultures that exist in Arabic nations as Al-Hibri describes, such restrictions may hinder mature women who do not have close relations or who are not in good terms with their parents from getting married[18]. The creators of the law, in this case, should review any strict measures and give mature ladies the freedom to make choices that suit their desires. Permitting women to make decisions regarding their marital affairs will show adherence to the ethical concept of principalism that calls on people to respect the autonomous nature of a person[19]. A person’s autonomy according to Lawrence’s description is the right every individual deserves when it comes to respecting their opinion[20]. Otherwise, denying women the chance to make decisions that suit them would not only limit the number of women who get married but will also go against major ethical principles that guide human actions.

Even though the Quran permits men to have more than one wife if he can manage them according to the teachings, it is crucial for the government to initiate awareness campaign programs about the social and economic pressures that come with polygamy. Abu-Abu-Saad et al. find from a survey that polygamous family structures come with a wide array of problems which encompass lower marital satisfaction, higher possibilities of developing health complications, a greater possibility of unequal treatment, and higher chances of experiencing domestic mistreatment[21]. The article by Abu-Saad et al. also pays close attention to the effects of polygyny on children who are most affected by such settings[22]. Some children according to Abu-Saad et al. may face neglect or may develop stress as a consequence of the prolonged tussles between the parents[23]. The proponents of polygamy who argue that such kind of settings provide a broader base of warmth and comfort to the children should consider if this is the case in all instances before deciding to support the type of family structure. The law creators should examine the effects that come with marrying multiple wives and take the initiative to conduct awareness programs that sensitize on the need to limit to the number that one can manage without hardships. Educating members of the public will convince many people to marry according to their ability thus cutting on the number of divorces which is increasing over the years.

Conclusion

Developing quick solutions to the challenges facing the application of Sharia laws in managing marital practices in Saudi Arabia will bring long-lasting solutions to the impediments that face the regulations. It emerges that women must have a guardian who oversees their matrimonial processes which bars them from making decisions that suit them. The Quran’s approval of polygamy also seems to have a negative impact on many families that find it hard to cope with the socioeconomic hurdles that come with serving in this area. The report recommends the need to give women the freedom to make the choices that suit their relationship and also calls on government officials to conduct public awareness initiatives that teach about the advantages of marrying fewer wives. The analysis draws on its readers to be aware of how to balance between religion and social practices that may cause detrimental consequences when critical thought is not applied.

 

 

 

 

 

 

 

 

References

AB Lifestyle. (2016). Court orders Saudi tycoon to pay $97million in landmark divorce case. Retrieved from http://www.arabianbusiness.com/court-orders-saudi-tycoon-pay-97-million-in-landmark-divorce-case-637847.html

Abu-Saad et al. (2002). The effect of polygamous marital structure on behavioral, emotional, and academic adjustment in children: A comprehensive review of the literature. Clinical Child and Family Psychology Review, 5(4), 1-13.

Al-Hibri, A. (2009). Marriage and divorce: Legal foundations, in The Oxford encyclopedia of the Islamic world. New York, NY: Oxford University Press.

Aziz, A. (2015). ‘Many young people oppose polygamy’. Retrieved from http://www.arabnews.com/saudi-arabia/news/825906

Lawrence, D. (2007). The four principles of biomedical ethics: A foundation for current bioethical debate. Journal of Chiropractic Humanities, 3, 34-40.

Niblock, T. (2006). Saudi Arabia: Power, legitimacy and survival. London: Routledge.

Young, M. (2017). Rising number of spinsters and divorced women in Saudi Arabia leads to polygamy push. Retrieved from http://www.news.com.au/lifestyle/relationships/marriage/rising-number-of-spinsters-and-divorced-women-in-saudi-arabia-leads-to-polygamy-push/news-story/a5c40bc6bd190db41a72702e87f9eadc

[1] Al-Hibri, A. (2009). Marriage and divorce: Legal foundations, in The Oxford encyclopedia of the Islamic world. New York, NY: Oxford University Press, pp. 54.

 

[2] Al-Hibri, A. (2009). Marriage and divorce: Legal foundation, pp. 54

[3] Ibid, pp. 57.

[4] Al-Hibri, A. (2009). Marriage and divorce: Legal foundation, pp. 67.

[5] Niblock, T. (2006). Saudi Arabia: Power, legitimacy and survival (London: Routledge), pp. 61.

[6] Ibid, 62.

[7] Al-Hibri, A. (2009). Marriage and divorce: Legal foundation, pp. 72.

[8] Ibid, 73.

[9] Aziz, A. (2015). ‘Many young people oppose polygamy’. Retrieved from http://www.arabnews.com/saudi-arabia/news/825906

 

[10] Aziz, A. (2015). ‘Many young people oppose polygamy.

[11] Young, M. (2017). Rising number of spinsters and divorced women in Saudi Arabia leads to polygamy push. Retrieved from http://www.news.com.au/lifestyle/relationships/marriage/rising-number-of-spinsters-and-divorced-women-in-saudi-arabia-leads-to-polygamy-push/news-story/a5c40bc6bd190db41a72702e87f9eadc

[12] Ibid.

[13] Al-Hibri, A. (2009). Marriage and divorce: Legal foundation, pp. 75..

[14] Al-Hibri, A. (2009). Marriage and divorce: Legal foundation, pp. 77.

[15] Ibid, 76.

[16] AB Lifestyle. (2016). Court orders Saudi tycoon to pay $97million in landmark divorce case. Retrieved from http://www.arabianbusiness.com/court-orders-saudi-tycoon-pay-97-million-in-landmark-divorce-case-637847.html

[17] Ibid

[18] Al-Hibri, A. (2009). Marriage and divorce: Legal foundation, pp. 76.

[19] Lawrence, D. (2007). The four principles of biomedical ethics: A foundation for current bioethical debate. Journal of Chiropractic Humanities, 3, pp. 35.

 

[20] Lawrence, D. (2007). The four principles of biomedical ethics, pp. 35.

[21] Abu-Saad et al. (2002). The effect of polygamous marital structure on behavioral, emotional, and academic adjustment in children: A comprehensive review of the literature. Clinical Child and Family Psychology Review, 5(4), pp. 8.

[22] Ibid, 8.

[23] Ibid, 9.

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