Judges call for overhaul to cut the divorce rate

ABU DHABI // The law that lets women file for divorce with no evidence of harm is the sole reason for the high divorce rate, a judge said yesterday.
Judge Ibrahim Rashid al Shdifat, who sits in the Sharjah courts, said article 118 of the 2005 family law has made divorces easier to obtain, removing the sharia requirement for the man to make three statements of divorce.
He joins a chorus of criticism from law professors and judges, who say the law as it stands can easily be abused by women who lack solid reasons for divorce.
In 2008, the divorce rate was put at 40 per cent. Some 3,855 divorces were recorded that year, including 1,737 Emirati couples and 676 Emirati men married to foreign women.
Those figures have since fallen slightly - last year there were 3,459 divorces, with 1,486 Emirati couples and 583 Emirati men divorcing expatriate wives.
According to court records, 44 per cent of divorces occurred within the first year of marriage.
In Islam, after a man makes his first statement of divorce, the woman stays in the marital home and the man can take her back any time he wants, with her consent.
If the man makes a second statement of divorce, the woman should leave the house. If he then wishes to take her back, he must go to her and ask her to return.
After the third and final statement they are completely separated, and can remarry each other only after the woman has married and divorced someone else.
The 2005 law states that judges can grant a divorce without the man's permission if the woman files for it, even without evidence of harm.
In that case, the judge's ruling qualifies as a second divorce - allowing her either to go back if the man wants her, or marry someone else.
"I hope that legislatures end this law," said Judge al Shdifat in a lecture at the General Women's Union. "This is the biggest mistake and should be cancelled in the UAE."
But he admitted that in cases where a marriage had not been consummated, it was easier for the woman to allow separation rather than insisting on three divorce statements. In such cases, the women must return, via the court, any gifts or dowry from the man.
Judge Khalil Ibrahim, who sits in the Dubai courts, mentioned a case he had presided over in which the dowry was a woman's sole reason for marrying a man 40 years her senior.
"One couple came to me at court. The man was 60 years old, and the girl was 20 years old and very beautiful," he said. "The man was not. And when we refused to allow the marriage, the girl came with her mother crying - so then we let them marry. Within 24 hours, she asked for a divorce. We found out the dowry was Dh100,000."
Judge al Shdifat said there are certain cases where the law that allows for separation applies. Such cases include if either spouse had a communicable disease, or if a dowry was not paid.
The judge was also keen to clear up a common misconception that if a man professes his certainty by swearing on his marriage - as in "I swear I have three pairs of gloves. If don't, I am not married" - the statement is binding. "Unless he intended it to be a real divorce, it would not be counted. All men fall into this trap and Emirati legislators realised the importance of this."
He added that even if the man tells the woman she is divorced "one million times" in one go, it would counts as just one statement.
Judge Ibrahim concluded by saying there was a lack of knowledge of divorce among Muslims.
"In all honesty, there is no knowledge of divorce or what you do after divorce," he said, noting that this was "completely different to westerners".
He said divorcing Arab couples tended to be more aggressive towards each other, whereas westerners were more respectful.
osalem@thenational.ae