Doctrinal change in Mālikī law: the case of judicial divorce on account of harm (Ḍarar)

This study investigates the dynamics of divorce in Madura and women's rights in divorce from a gender perspective. There are three main issues addressed in this study, those are the dynamics of divorce in Madura, women's rights in divorce, and gender equalities. This study is field research with a qualitative approach. The data used comes from primary data and secondary data. By conducting an in-depth analysis based on the sociological theory of gender, particularly Talcott Parson's theory of structural feminism, this study found some findings; firstly, the number of divorces, either from talaq divorce or judicial divorce, in Madura in the last five years has increased. This is because of the decline in ethics such as polygamy without the permission of the first wife, the low-income factor, the presence of a third party either due to parental interference or infidelity with other people, and disharmony due to disputes and differences of opinion; secondly, the number of divorce cases in Madura in the last five years has been dominated by judicial divorce rather than talaq divorce. In 2021, the percentage of judicial divorce compared to talaq divorce is around 73.04% to 26.96%, meanwhile, in 2020, this ratio was only 25.49% to 74.51%. Besides, in 2019, this was about 67.63% to 32.39%, in 2018 it reached 64.23% to 35.77%, and in 2017 it was about 67.18% to 2.82%; thirdly, the phenomenon of increasing divorce by law in Madura indicates that there has been a shift in perception among women about the meaning of divorce, as a response to the presence of legislation that provides room for legitimacy for women to file for divorce. In the perspective of contemporary feminism, the space for legitimacy contains the meaning of gender equality, and the patriarchal culture begins to collapse which has long been attached to the social system of the Madurese community.

Under Islamic Law it is the general perception that the right of Divorce belongs only to the husband. This concept has been administered in Islamic countries due to the opinion that there is no such kind of right for a woman to get divorced from her spouse. Muslim women living in British India before the independence of Pakistan had no legal right to divorce. When Pakistan became an independent state in 1947, it retained the law. For a woman who suffers and has an unhappy life, the Dissolution of Muslim Marriages Act 1939 (DMMA) was initiated where by the law of Redemption (khul‘) was introduced in section 2(ix) of Dissolution of Marriage (fasakh-e-nikah). This enactment created confusion over whether Redemption (khul‘) is Dissolution of Marriage (fasakh-e-nikah) or Divorce (talaq), that is, whether the court can grant Redemption (khul‘) to a married woman without the consent of her husband. While in Malaysia the law of Redemption is administered under section 49 of the Islamic Family Law (Federal Territories) 1984, Dissolution of Marriage (fasakh-e-nikah) is put in a separate section, section 52 of the Islamic Family Law (Federal territories)1984. This paper discusses the Islamic perspective of Redemption (khul‘) and the relevance of the Malaysian enactment for Muslim Family Law in Pakistan is recommended, where separate sections for Dissolution of Marriages and Redemption (khul‘) should be demarcated.

Currently, the key factor in the development of society, its socio-economic infrastructure is primarily intelligence, the results of which allow relevant actors (creators of creative intellectual products, as well as legitimate rights holders) to take the lead in competitive economic struggle, and with it states where there are conditions for the realization of intellectual, scientific, technical and creative potential in general. Today, transformation processes are taking place in Ukraine, which are reflected in almost all spheres of life. Since law is a superstructure over the economic foundation of society, it contains the basic laws of development of the state and society, which is reflected in the principles. Principles of law help to eliminate contradictions between individual regulations and improve the quality of legislation, thereby ensuring the effectiveness of regulation of relations. Ukraine's integration into the world market and into the European community necessitates the harmonization of national legislation in the field of intellectual property in accordance with the principles and standards contained in international agreements. Despite the fact that the study of principles in the legal literature is given enough attention, the principles of intellectual property law are poorly understood. The study of the concept and principles of intellectual property is conditioned by the need to guarantee the protection and defense of personal property and non-property rights of its subjects. According to Part 3 of Art.418 of the Civil Code of Ukraine: “Intellectual property rights are inviolable. No one may be deprived of intellectual property rights or restricted in their exercise, except in cases provided by law "[1]. These provisions are in line with basic international principles in the field of protection of intellectual property rights. However, the law clearly defines the cases when such rights may be limited. The purpose of the article is to explore the basic principles of restriction of intellectual property rights, their role in the implementation of intellectual property rights.

The numerus clausus of property rights is one of the fundamental principles of property law. It refers to the idea that both the number and content of property rights is limited and is traditionally placed in contrast to party autonomy, which reigns in contract law. Parties can only shape their property rights when they stay within the boundaries provided for by the legal system. Such boundaries are provided by both legislation and case law. Numerus clausus can be understood as a principle, but also as a rule, depending on how strictly it is applied. It can be viewed from a legal perspective, but also from a constitutional or economic point of view, which enhances understanding of why the idea of numerus clausus exists as well as understanding of how it is supposed to function. Numerus clausus also plays a different role within a legal system than it does in respect to the effect of foreign law. There numerus clausus becomes a defensive mechanism. With this more thorough understanding, the practice of numerus clausus can be examined. How do we know a numerus clausus exists and which property rights are part of the numerus clausus? Various authors have argued for a less rigid approach to numerus clausus, possibly looking at ex post control rather than ex ante rigidity. They connect the need for flexibility to the increasingly dynamic nature of property law. Much has been done to discover why numerus clausus exists, but not so much on what role it can play in the future development of property law.

As we all known, there are some legal rights that had been given and obtained by husband after divorce. The research is focused on the claim of these rights in Kota Bharu Shariah Court, Kelantan as enacted in Islamic Family Law Enactment No. 6 of Kelantan in 2002. Among the provided claims are matrimonial property(harta sepencarian) and child custody right (ḥaḍānah). It is focused on cases from 2013 until 2015 by referring to the statistics of claims initiated by husband and the rights that are successfully acquired. The outcomes show that only 6 over 40 cases of claim for matrimonial property right throughout the past three years were initiated by husband. Meanwhile, claims for child custody only 25 out of 72 cases were initiated by husband. The pattern of husband’s claims over divorce rights each year are inconsistent and without positive rise compared to the claims initiated by wife.

As we all known, there are some legal rights that had been given and obtained by husband after divorce. The research is focused on the claim of these rights in Kota Bharu Shariah Court, Kelantan as enacted in Islamic Family Law Enactment No. 6 of Kelantan in 2002. Among the provided claims are matrimonial property(harta sepencarian) and child custody right (ḥaḍānah). It is focused on cases from 2013 until 2015 by referring to the statistics of claims initiated by husband and the rights that are successfully acquired. The outcomes show that only 6 over 40 cases of claim for matrimonial property right throughout the past three years were initiated by husband. Meanwhile, claims for child custody only 25 out of 72 cases were initiated by husband. The pattern of husband’s claims over divorce rights each year are inconsistent and without positive rise compared to the claims initiated by wife.

The paper discusses general scientific approaches to determining the principles of civil law. The civil law of Ukraine is characterized by a number of factors, among which an important place is occupied by the principles unique to it. Ensuring stability, legality and justice in civil legal relations, the principles of civil law play an important role in the legal system of any legal state. They determine the essence of the relations themselves and their social orientation, without which uniform law enforcement is impossible. At the same time, those studying general scientific approaches to the definition of the principles of civil law should note that legal science has not developed a single name for this legal category (Ukrainian researchers use different terms: "principles of law", "legal principles", "fundamental ideas", " principles", "guidelines", etc.), nor a unified approach in the aspect of its interpretation of the concept. The principles of civil law in their general scientific context should be understood primarily as its guiding ideas, initial provisions. At the same time, in a narrow sense, the principles of civil law are the legally defined principles of civil legal relations (clearly prescribed in Article 3 of the Civil Code of Ukraine: inadmissibility of arbitrary interference in the sphere of a person's personal life; inadmissibility of deprivation of property rights, except in cases established by the Constitution of Ukraine and the law; freedom of contract; freedom of business activity, which is not prohibited by law; justice, good faith and reasonableness"), in general, the principles of civil relations, which are not only contained in legislation, but also developed by judicial practice and doctrine. We are supporters of the second approach. Since, in general, the principles are the main ideas that form a certain branch of law, reflect the needs and values of society, transform, interact with other legal phenomena, revealing a new law enforcement potential. These are the original guiding rules that in a concentrated form determine the essence of law, its content and purpose in society, express the direction of legal regulation and apply to all subjects of law.

Background: The Republic of Kosovo is a country located in Southeast Europe with partial diplomatic recognition. Kosovo declared its independence on 17 February 2008, and has since gained diplomatic recognition from 116 member states of the United Nations. On 22 July 2010, the International Court of Justice rendered an advisory opinion on the legality of Kosovo’s declaration of independence, which was not in violation of neither general principles of international law, nor specific international law. In 2022, Kosovo filed a formal application to become a member of the European Union. In the Republic of Kosovo, the Constitution is the highest legal act. Laws and other legal acts shall be in accordance with this Constitution. Civil law is not codified but divided into separate laws. The property right is regulated by the Law on Property and Other Real Rights Law No. 03/ L-154. Property rights and other real rights in the Republic of Kosovo originate from this law. Keeping this in mind, in our article, we are going to highlight the range of problems related to property rights’ regulation and protection, including gaps in primary and secondary legislation, analysing case law, courts, state attorneys, and administrative authorities’ activities. Methods: In this paper, we analyse the institution of property rights. We used comparative and analytical methods based on the current legislation in Kosovo, utilising resources from the former Yugoslavia. Additionally, we used some historical methods to derive concrete results. Kosovo has inherited the relics of the former Yugoslav legal system; building a new system is a challenge in and of itself. In the context of property law in general, its legal protection is crucial for the owner to use and dispose of his property. Results and Conclusions: With the knowledge that the institution of property law is one of the main institutions of civil law, and is the fundamental institution of real law, we have analysed this law institution as a constitutional principle, regulated by special laws in Kosovo. Additionally, given the importance of the property institution, Kosovo has adopted laws that protect property rights, enjoying civil legal protection, criminal legal protection, and international protection. These laws should be in accordance with the country’s Constitution, with international human rights instruments, as well as with EU legislation.

A unit in a registered sectional titles scheme is classified as an independent thing that can be the object of real rights. The legislature regulates in detail the legal principles applicable when eg a flat in an existing apartment building becomes a “unit” or “section” when the building is subsequently registered as a sectional title scheme. However, no provision is made for a reversal of the legal position relating to a single unit apart from the rest of the units in a building, when the building is no longer to be considered as a sectional title scheme and the unit reverts back to its original status of a flat forming part of the erf on which the apartment building had been constructed. The legislature merely provided for the regulation of all interests involved should the scheme be terminated after eg the demolition or destruction of the building encompassing the scheme. The status of a thing as potential independent object of a real right does not depend on the existence of a legal subject as holder of the real right with the particular thing as object. This is evidenced in Roman-Dutch law and most Continental European legal systems sharing the same Roman law principles by the acknowledgment of the category of things as res derelicta. In the absence of a legal subject having acquired a real right over the thing after meeting all the requirements for the acquisition of a real right, no real right exists regarding such thing, however, the status of the abandoned thing as res derelicta is unaffected. Res derelicta belongs to the category of res nullius and any legal subject can, by meeting the requirements of eg occupatio acquire an original “new” real right of ownership over that object. South African law never received any of the feudal norms that were founded on the regalia of the Middle Ages governing feudal law, as part of Roman-Dutch common law. Consequently, the state does not have an automatic entitlement to all res derelictae under the term bona vacantia. These inherent principles of South African property law also apply to juristic persons as holders of real rights because the principles of property law are not replaced by a secondary set of property law principles merely because the subject of a subjective right is a juristic and not a natural person. In the Harbour Terrace Body Corporate case a company SD, the registered holder of the real rights of ownership and all the encompassing entitlements of unit 57 in a sectional title scheme, was deregistered in 2007. It consequently lost its legal personality and independent existence as a juristic person. Irrespective of this, the deregistered company remained reflected as the owner of the unit in the deeds register. Some of the different aspects involved in this scenario are discussed against the background of the submitted fact that it is unjustified to assume that South African law must be the same as English law and consequently to presume that the state acquired the property rights of the deregistered company ex lege as bona vacantia to the exclusion of the shareholders who are entitled to an aliquot share in the distribution of the surplus assets of the erstwhile company. Had the state indeed acquired the real rights in 2007, it should also be liable for payment of all the levies due since.

Homesteading and Property Rights; Or, "How the West Was Really Won"

• This article addresses the impact of family law on women during the Middle Byzantine period, 726–1204. Restricted to household roles, marriage provided betrothed women, wives, and mothers with certain legal protections. In the Middle Byzantine period conceptions and practices concerning betrothal, marriage, and dissolution of marriage were not consistent because both the church and the state determined sometimes contrasting rules and laws. The civil law protected women with respect to betrothal and marriage; pressure from the church, however, resulted in harsh laws concerning dissolution of marriage. Canon law nevertheless claimed that both sexes had quite identical legal rights in divorce, and women escaped from unhealthy marriages in certain circumstances. It seems that through its own legislation and its impact on civil law, the church enforced women’s position in marriage. At issue is whether this favorable treatment corresponded to social changes that improved the position of women in the Middle Byzantine era.

The family is the most important unit of any society; it can be called cell of any community. The most important and crucial issue in this community is divorce, which is growing rapidly nowadays. Divorce, in fact, is a mental action having legal consequences, and spiritually can hurt relatives and hence dissolute the unity of society. Due to unique status of family in Islam, it is tried to restrict the intention of parties to divorce, and because of that the right of divorce belongs to man. However, as will be discussed in following chapters, according to jurisprudential texts, legal and rightful analyses, there is a possibility as for granting the right of divorce to women, whether absolutely or conditionally. Even though, this study practically shows that granting the right of divorce to women can increase the divorce rate, and the researcher believes that granting the right of divorce cannot be a strong backing and does not guarantee the common life, so it is suggested to provide dowry with stronger guarantees for more legal equality. Keywords : Family; divorce; unity of society; granting the right of divorce to women; legal equality. Resumo A familia e a unidade mais importante de qualquer sociedade; pode ser chamada de celula de qualquer comunidade. A questao mais importante e crucial nesta comunidade e o divorcio, que esta crescendo rapidamente nos dias de hoje. O divorcio, na verdade, e uma acao mental que tem consequencias legais e espiritualmente pode ferir parentes e, portanto, dissolver a unidade da sociedade. Devido ao status unico da familia no Isla, tenta-se restringir a intencao das partes de se divorciar e, por causa disso, o direito ao divorcio pertence ao homem. No entanto, como sera discutido nos capitulos seguintes, de acordo com os textos jurisprudenciais, analises legais e legitimas, existe a possibilidade de conceder o direito ao divorcio as mulheres, seja absoluta ou condicionalmente. Mesmo assim, este estudo praticamente mostra que conceder o direito de divorcio as mulheres pode aumentar a taxa de divorcio, e o pesquisador acredita que conceder o direito ao divorcio nao pode ser um forte apoio e nao garante a vida em comum, por isso sugere-se dote com garantias mais fortes para uma maior igualdade legal. Palavras-chave : Familia; divorcio; unidade da sociedade; concessao do direito de divorcio as mulheres; igualdade legal.

Liberalism and Married Women’s Property Rights in Nineteenth-Century Latin America

This study aimed to know about the flexibility of women's rights in divorce at Parepare Religious Court and how the judge resolved divorce case. This study was conducted with qualitative research with a focus on case studies, with a juridical, socio-anthropological, philosophical and psychological approach. The results of this study shows; 1) Judge's decision in Case No.171/Pdt.G/2019/PA.Pare is flexible in deciding divorce case. The case of divorce is a reflection of equality and justice in women's rights to law enforcement in the Religious Courts. Divorced as well as eliminating patriarchal culture by placing women as second class; 2) The judge at Religious Court in Parepare can approve in a divorce case for several reasons as follows; disputes and quarrels occur between husband and wife, the husband persecutes and hurts his wife's body, the husband betrays his wife to another woman.

A woman who faces a law on a judicial divorce get a change of her right as a wife after the divorce. There are some arrangements about the right that woman gets when her husband divorce her as in QS. Al-Ahzab [33]: 49, QS. Al-Baqarah [2]: 236, and QS. Al-Baqarah [2]: 241. The husband must give mut’ah to the wife he divorced. As well as the arrangement in the Islamic Law Compilation, it only applies to the husband who divorces his wife and he must give mut’ah and nafkah iddah. However, for the divorce case whether it is in Al-Qur’an, the majority of ulama’s opinion, or the Islamic Law Compilation do not explain about it. Yet, as the time goes by, it is also affected by the changes of the situation in society, then the arrangement to accommodate the right after the divorce for judicial divorce is created. This article attemps to discuss about the relevance problem of Ibnu Qayyim’s opinion to the issue of the woman who faces a law on the judicial divorce case. The result of the research shows that Ibnu Qayyim’s theory about the changes of the law is very relevant to the problem that the writer takes.