GHANAETIYAN LAW  Firm

Divorce is not easy for the husband, by the standards of Islamic countries, and for the wife it usually means giving up the children. It occurs mainly in the middle and upper social strata.1 A divorce may be revocable or irrevocable: in the former the husband has a right to renounce his intention to divorce his wife at any time during a waiting period (‘iddah). This is know as ‘returning’, and may be signalled  by word or deed, without any requirement for witnesses or that the wife be informed.2The result is that a wife may believe she is divorced, and may have remarried, while her ex-husband claims that the did or said something during the waiting period which cancelled the divorce. This fundamental weakness in the law explains the need for the present system of registering divorces at the end of the waiting period. Divorce by consent or dethroning (see below) is irrevocable. A unilateral divorce is irrevocable if it occursbefore the marriage has been consummated, because the wife is not able to conceive, for instance because he is past her menopause or has not reached the age of menstruation,1 or in the case of a third divorce between the same two parties.2The third divorce may arise either because the man has divorced his wife and remarried her, divorced her and remarried her, and again divorced her (without her being married to any other man in the interval), or because the man has pronounced the divorce formula and changed his mind (‘returned’ to his wife) twice. The act of returning to the wife, thus cancelling a divorce which has been initiated but not completed, is counted as a new marriage. This has lead to the ‘triple divorce’, in which a man pronounces the divorce formula three times. By means of the legal fiction that he has changed his mind after the first and second times that theformula was pronounced, the third recitation of the formula achieves an irrevocable divorce. Such a ‘third’ divorce also creates a bar to remarriage between the couple which remains until the wife has contracted and consummated marriage with another man (a tahlilmarriage).



Unilateral divorce: Talaq
Talaq is divorce through the repudiation by a man of his wife, by speaking a repudiation formula (once) in the presence of two male witnesses.3 There must be an immediate intention to effect a divorce, so a conditional divorce is null and void4 and the words said in jest have no effect.5 Khomeini says that the divorce formula must be read in correct Arabic, and takes the form"My wife, Fatimeh, is divorced."6 In the Sharí`ah, no grounds are required, but intention is necessary and the word talaq or a derivative must be used. The wife need not agree or evenbe informed. The husband can only utter the talaqformula when his wife is in a state of purity (tuhr) having washed after the end of a menstruation (or following childbirth).1 These requirements do not apply if the husband is absent, and so cannot obtain information concerning her menstruation,2 if the marriage has not been consummated, or if the wife is pregnant.3 It is notproper to divorce a wife between two menstruations during which intercourse has taken place, unless the wife is pregnant or is incapable of conception.4The effect of these provisions appears to be that both parties should know whether the wife is pregnant or not at the time of repudiation.Where a woman is of childbearing age but has no periods, the repudiation cannot be pronounced until three months after the last intercourse.5 After pronouncing the repudiation, the husband abstains from sexual intercourse with his wife, and she enters a period of waiting ("iddah) lasting three menstrual cycles. This is a revocable repudiation: during the threemonthperiod the husband has the right to revoke his repudiation and take his wife back without any further formalities, by any act or word that conveys his intention.6 During this period the wife cannot remarry, and is entitled to maintenance and does inherit if her husband should die duringthat period.The Civil Code specifies that the repudiation formula must be in clear and precise wording, and may be uttered by an attorney.7 The divorcer must be of legal age, in possession of his faculties, must intend the act and not be under coercion.8 The guardian of a permanently insane person can divorce his ward’s wife if this is in the interests of his ward. The guardian of aminor cannot divorce the permanent wife of his ward, but may terminate a temporary marriage before the end of its term, if this is in the interests of his ward.9 

Divorce by consent (Mubarat) or ‘dethroning’ (Khul")
A khul’ divorce is one in which the wife, seeking a divorce, pays herhusband to divorce her.1 Mir-Hosseini reports that half of the divorcesregistered in Tehran are of this type.2 The payment involved is often theportion of the dowry which the husband still owes, but it may be anyamount.3A mubaratdivorce is defined as one in which both parties feel adislike for the other, and in this case the amount which the wife pays to herhusband is limited to the value of the dowry.4 Since the husband has aunilateral right to divorce, and can effect an immediate irrevocable divorce,divorce of this kind arises only where a man is genuinely unwilling to effecta divorce or is unwilling or unable to pay outstanding dowry and other debtsto his wife (such as payment for household work). There are specificformulas for each type of divorce, to be read by the husband or his agent inArabic. The woman’s portion of the proceedings, in which she or her agentspecifies what she will pay, may be said in Persian5If a talaqdivorce formula has been pronounced and the wife later paysher husband not to ‘return’ to her during the waiting period, as is in khul’divorce, this does not in fact prevent the husband returning.6



Judicial divorce
Tatliq, or judicial dissolution is a possibility where a woman seeks adivorce but her husband refuses to release her. It involves the judge eithercompelling the husband to pronounce a divorce or pronouncing it himself,on the husband"s behalf. The only grounds recognized in Shí`ah law are afailure to maintain the wife, and the husband"s impotence.7 These groundshave been greatly extended since 1982, including the husband"s taking asecond wife without the permission of the first (for a list, see above, p. 19).However these apply, as a judicial divorce, only to marriages contracted1 For applications of this principle see Mir-Hosseini, Islam and Gender 62, 162,164-5. 2 CC Articles 1020 to 1023. 3 CC Article 1029.66before 1982. For marriage contracted after 1982, the conditions may (ormay not) be included as part of the marriage contract and the wife wouldhave to pursue her own rights as a party to the contract. Article 1130 allowsa judge to compel a husband to divorce his wife where she has proved that"the continuation of the marriage causes difficult and undesirableconditions." Although it is presumed pro forma that the husband willpronounce the divorce formula, where this cannot be achieved the divorce"will be made on the permission of the Islamic judge". Whether the formulais dispensed with, or the judge makes himself the husband’s agent to effectthe divorce, is not clear.Article 1129 specifies that a judge may compel a husband to divorce hiswife where he is unable to maintain his wife, or has refused to paymaintenance and cannot be forced to do so.1Article 1156 allows a wife how husband is continuously absent andwhose whereabouts are unknown to apply for a judicial divorce. Thewaiting period in this case is four months and ten days from the time thedivorce is granted.A court may also issue a finding of presumed death, following aprocedure of public notification, where a person has been continuouslyabsent for 10 years and the person concerned would be 75 years old orolder, or was engaged in hostilities in the Armed Forces and has notappeared three years after the conclusion of peace, or has been presumedlost on board a ship or aircraft under specified circumstances.2 Such afinding is also relevant to inheritance. Where a man has been continuouslyabsent for four years, his wife can apply to the court for a divorce withoutthe case having to meet the more stringent requirements for a declaration ofpresumed death.3 The procedure of public notification is the same. Awaiting period (uddah) must be required following the judicial divorce,since Article 1030 deals with the possibility that the missing husbandreturns during this period. From this it follows that the divorce pronouncedby the judge is conditionalinserting this as a condition in the marriage contract, enabling her to divorceherself. The husband retains his own right of talaq.The right is normally subject to a condition, for instance the wife mayhave the right to divorce her husband if he remarries or treats her harshly.The procedure in this case would be for the wife to apply to a court,demonstrating that the condition had been fulfilled, and asking the judge topronounce the talaq.1

Annulment (faskh)
A marriage may be annulled either by a fault in the marriage contract, or asresult of an impediment to a valid marriage in one or other party. Bothparties have an equal right to seek an annulment. If the annulment isordered before the marriage has been consummated, the wife is not entitledto keep any dowry: if after, she is entitled to half. The wife must observe thesame waiting period as in a divorce.Where the annulment arises because a milk relationship is discovered,Khomeini says that there is no dowry if the marriage has not beenconsummated, and the dowry of equivalence if it has been consummated butthe woman was not aware of the milk relationship.2

Cancellation
Serious deficiencies arising in either partner give the other partner the rightto cancel a marriage, without requiring a divorce, or its attendantprocedures.3The reference to procedures may be only to the need forattempted reconciliation in the case of a divorce, or may also mean thatthere is no need for an ‘iddah period where a marriage is cancelled due tolong-lasting impotence on the part of the man. The deficiencies listed are- in a man: - chronic madness, whether it is continuous or recurrent(CC Article 1121)- impotence continuing for one year after the wife refers the matter to a magistrate.- castration- amputation of the sexual organ (CC Article 1122).A woman’s right to cancellation in case of madness or sexual impotence onthe part of her husband applies whenever the deficiency arises, unless shewas aware of the deficiency at the time of marriage (Article 1126), andsubject to article 1131, which says that an option to cancel the marriagelapses if it is not exercised once the deficiency is known, within a period tobe determined by "custom and usage."The contraction of a venereal disease is not a grounds for cancellation,but does entitle the wife to refuse to have sexual relations, without any lossof her right to maintenance.1- in a woman: - chronic madness, whether it is continuous or recurrent(CC Article 1121)- protrusion of the womb- black leprosy (but Khomeini says, ‘elephantisis’: which may bethe same thing)2- leprosy- connection of the vaginal and anal passages- being crippled (but Khomeini says, ‘obvious lameness’)3- being blind in both eyes (CC article 1123).The man’s right to cancellation applies if they existed (and by implication,were not known to him) at the time of marriage,4 and subject to article 1131just mentioned.Some deficiencies are also mentioned in the Family Protection Act of1975, article 8, with the interesting variation that they apply on the sameterms to husband and wife. The deficiencies concerned are illnesses thatmake the continuation of the marriage dangerous to the other partner.

Divorce procedures
The majority of divorces do not go through the courts, since a divorce cansimply be registered where there is mutual agreement. Courts deal only withcases where one party is resisting divorce, or the couple have agreed on thedivorce but cannot agree on a settlement. Blame is very much an issue,since the wife loses her claim to maintenance during the marriage and"iddahperiod if the divorce results from her failure to comply with hermarital duties. During the divorce proceeding the residence of the wife is to be fixedby mutual agreement (thus not unilaterally by the husband), and failing thisby the judge, who is to ascertain the opinions of near relatives wherepossible.1- ArbitrationAfter an initial attempt to reconcile the couple, the court refers them toarbitration. Each spouse nominates an arbiter, and these must submit areport of their attempt to reconcile the couple within two months.2They seem to have no power of enforcement, and theirintervention may in many cases be no more than a pro forma actionrequired before the real divorce procedures will be accepted by a court.The court cannot deny a petition for divorce brought by a man, but maydelay giving a decision, either on its own initiative or on therecommendation of the arbiters stating that reconciliation is possible. Mir-"in one court, the judge referred each case only once toarbitration and, upon the receipt of the report, issued the document enablingthe husband to register the divorce. In another court, the judge used everypossible device available to delay what he considered to be an unjustdivorce and made sure that the wife was duly compensated."4Where the wife has petitioned for divorce, courts often seek to reconcilethe couple by repeatedly referring the case to arbitration, or bystrengthening the wife"s position in the marriage by persuading the husbandto make a promise — for instance, promising to divorce another wife, tostop taking drugs, or not to beat his wife. These can be enforced byrequiring him to delegate the right of talaqto his wife if he should break thepromise. This is effected through a contract which in effect becomes anattachment to the original marriage contract. The ancillary contract itself isa quaint device: it is formally a contract of sale for some trifle belonging toone party, sold for a few tumans to the other party, and the condition of thedelegation of talaqis attached to this contract of sale.1- Post ArbitrationFinally the court may issue a certificate of the impossibility of registration,2which is valid for three months. If it is presented to the registry within thistime, the notary must inform the spouses when they should attend for theexecution and registration of the divorce. If on or other fails to do so, a newtime is set. If on the second occasion the wife does not attend, the divorce isexecuted by the husband and duly registered. If the husband fails to attendthe matter must be referred back to the court to summon the husband. If heagain fails to attend, the court may execute the divorce in his stead.3

The waiting period (iddah)
The waiting period, during which the ex-wife may not remarry, is threeconsecutive menstruations, or 3 full lunar months for a woman ofchildbearing age who does not menstruate.4 The period begins at the timethe divorce formula is recited, whether or not the wife knows that theformula has been recited.5 This applies also where a woman has had sexualrelations "by mistake", that is, outside of a valid marriage but where therewere reasons that might have led her to suppose that there was a validmarriage.6The waiting period following a temporary marriage is twomenstruations, but for a woman of childbearing age who does notmenstruate it is 45 daysThe waiting period for a widow extends for fourth months and ten daysfrom the time she learns of her husband’s death,1 even if the woman is inmenopause, she was pregnant and gives birth within this period, themarriage was not consummated, or it was a temporary marriage.2 Duringthis period she may not wear colourful clothes, eye shadow, or other formsof beautification.3 Since bright clothes and makeup are now forbidden inpublic anyway, this rule would appear to be a religious precept regardingprivatebehaviour.However if the woman is pregnant at the time of divorce or dissolutionof the marriage the waiting period extends until she has given birth andperformed the ablutions following childbirth, even if this is time is less thanthree months.4 Thus it is not possible for a man to ‘adopt’ the child ofanother marriage by marrying the mother before she gives birth.There is no waiting period for a woman who has been divorced beforethe marriage was consummated, or who is past the menopause (the divorcein both cases being irrevocable).5Since the calculation of the waiting period depends on factors that maybe known with certainty only by the woman (when she heard of herhusband’s death, if and when she menstruates) it is not surprising that thewoman’s simple statement that her waiting period has ended is taken assufficient, except where she is ‘under accusation’ or the time since the deathor divorce is shorter than the possible waiting period.6During the waiting period following a revocable divorce, the husbandand wife retain their inheritance rights from one another.7 There is noseparate right to alimony, but the wife’s right to maintenance by herhusband continues during the waiting period8 except where:- the divorce arises because of the wife’s disobedience, or- the marriage has been annulled or- in those cases mentioned above, in which a repudiation constitutes an1 Marriage on Trial, 64.2 CC Article 1109. 3 Mir-Hosseini, Islam and Gender, 275. The legislation is in the form of a note toarticle 1082 of the Civil Code. 4 Mir-Hosseini, Marriage on trial 74.72irrevocable divorce.Except in these cases, the husband is required to pay maintenance to hiswife during the divorce proceedings and, in advance, for three months afterthe divorce is registered. Failure to pay is punished by the same court, withMir-Hosseini mentioning floggings of fifty and seventy-four lashes astypical.1If the wife is pregnant by her husband, she is entitled to receivemaintenance until the child is born, even in the three exceptional cases justmentioned.2

Payment of any unpaid dowry
In 1997 a law was passed requiring an unpaid dowry that is specified inmonetary terms to be revalued in line with inflation, unless the couple hasagreed otherwise.3 Contracts have commonly stipulated the dowry in gold

coins, in which case no correction for inflation is required.