Fiqh Arguments for the Palestinian khulʿ Divorce (before Consummation)

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The present article analyses a Decree issued by the Chief Islamic Justice in Ramallah, in September 2012, legalising khulʿ divorce for women without the consent of the fiancé/husband, but only before the consummation of the marriage.1 The 2008 draft family law intended the same right for women also after consummation. Discussing the term ‘khulʿ’, the article shows that it is used as a generic term in these legal texts. The Decree presents a juristic construction that takes as its starting point that the general shariʿa norm is that divorce is in the hands of the husband, and that khulʿ is an exception, allowed by necessity (haja). The khulʿ may only be claimed when the petitioner harbours such a severe abhorrence of her husband that she fears she will not be able to serve him to his satisfaction and thus not live within the hudud Allah, in which case she might not enter Paradise. It is therefore not woman as citizen that petitions for khulʿ, but woman as homo religiosus. Thus, the existing and proposed rules regulating khulʿ are construed, not to empower women as equal citizens with men, but rather to cement women’s asymmetric legal position in shariʿa-based law.2

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    According to Welchman (1999) the legal code calls the form of divorce in question ibraʾ ʿamm whereas the shariʿa court records in Palestine classify it as talaq muqabil ibraʿ.

  • 29

    The Egyptian family law law number 1 2000article 20 states that “the court shall rule for khulʿ . . . after the wife has explicitly stated that she loathes life with her husband and that there is no way for their married life to continue and that she is afraid that she will not [be able to] live within the limits of Allah because of this loathing [that she has for her husband].” The Jordanian Family Law article 126 (C) after the amendment (Interim law No. 82 of 2001) demands that the wife in her claim for khulʿ (after the consummation of the marriage) must state “that she detests living with her husband that there is no way for their conjugal life to continue and consequently she fears that she will be unable to keep the commandments of God that she is willing to redeem herself by renouncing all her matrimonial rights and that she wishes to divorce her husband and return the dowry that she received from him.” From the text of article 126 (b) it seems somewhat easier for a woman to get a khulʿ before consummation.

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