Judicial Divorce Research Articles

A Salafiya marroquina e a questão feminina: leitura de l'Autocritique de Allal el-Fassi

Falar do longo processo de mobilização nacional pela reforma do código da família no Marrocos exige que se preste homenagem aos primeiros militantes, homens e mulheres, pela emancipação das mulheres. Desde os anos quarenta, esses pioneiros colocavam entre suas reivindicações a abolição da poligamia, o estabelecimento do divórcio judiciário e os direitos iguais para as mulheres no interior da família. Os líderes do movimento de reforma Salafiya no Marrocos, entre eles Allal el-Fassi, estiveram entre seus inspiradores. De fato, a evolução da condição das mulheres marroquinas no início do século XX deu-se sob a dupla influência, por um lado, das novas condições sócio-econômicas e culturais resultantes da colonização e, por outro lado, através das idéias-chaves do reformismo muçulmano (Salafiya), difundidas pelos movimentos nacionalistas nas quais se inspiravam. Este ensaio é um convite para que se conheça a contribuição desta corrente e, em particular, a contribuição de seu líder, Allal el-Fassi, à evolução da sociedade marroquina moderna e à ascensão das mulheres marroquinas durante a primeira metade do século XX.

"Asbab l'il-darb ktir basita": The Legality of Claims of Violence During Judicial Divorce Cases in Damascus

AbstractThrough observations of Damascus shari'a (or Muslim family) court processing of three recent judicial divorce cases, this paper analyses court personnel's evaluations of the veracity and legal implications of allegations of domestic violence. These accusations are not articulated as a justification for judicial rulings granting divorces to female claimants in the court's files. However, despite the fact that the issue is not recorded in the paper work, allegations of physical and psychological abuse are not marginalised or ignored by the court. These claims both contribute to establishing the legally established conditions for the granting of a judicial divorce and may also be a factor in the courts ruling on what financial settlement is entailed by the termination of the marriage.Court procedure appoints professional arbiters to hear judicial divorce claims in private sessions, and allows them considerable discretion in processing these cases since their recommendations do not have to be substantiated in their final report to the judge. It is only through observation of the arbiters' work, therefore, that conclusions can be drawn regarding the norms that contribute to their recommendations to the court. Although they often make strenuous attempts to reconcile spouses, arbiters routinely grant persistent claims and award signifiant financial entitlements. In making their recommendations, arbiters are influenced by several factors; the kinds of evidence offered to substantiate a claim, social definitions of violent acts, the nature of specific claims, pragmatism regarding the spouses'financial circumstances and the expectations of the judicial culture. These three cases demonstrate the complexity and unpredictability of the processing of cases and support the conclusion that judicial divorce claims receive a sympathetic hearing in the court.

Mother Love: A Forced Divorce in Damascus

The impact of kin during personal status cases is not anticipated by Syrian statute, although the influence of litigants' families in disputes is frequently acknowledged by the court. Although usually supportive of claims, kin can undermine the legal process by opposing litigants' strategies through threats to withdraw economic and social support or by asserting their authority to intervene on the litigant's behalf. Through observation and analysis of a recent arbitration session related to a request for a judicial divorce in Damascus I describe how the court is powerless to oppose the intervention of the wife's angry mother, although the final resolution appears to have been formulated within the parameters set by the legislation.

Les relations pécuniaires entre époux. Cinquante ans après l’entrée en vigueur du Code du statut personnel tunisien

The Tunisian Personal Status Code reveals an audacity and a courage of the legislator who abolished polygamy, founded the judicial divorce and envisaged in a general way a system tending towards an equality of the sexes within the family. This audacity relatively does not exist in the pecuniary relations between spouses (expenses of marriage and goods), where the legislator had been very traditional by keeping rules which are inegalitarian or formally egalitarian. In order to complete the reform, the legislator intervened. Concerning the expenses of marriage, the unquestionable evolution towards equality is incomplete. Moreover, it led to discrepancies... Also, we notice, concerning the property of spouses, a constancy of the principle of separation of goods. The beginnings of evolution exist since in 1998, the Tunisian legislator founded an optional mode of community of goods. The study of Tunisian law is undertaken in comparison to the new Moroccan and Algerian family laws, which appear, on certain points, more audacious than their Tunisian counterpart....

Wills, Divorce and the Fate of the Dispositions in Favour of the Spouse: A Common Trend in European Laws of Succession.

Abstract: Some European laws of succession have a provision dealing with the effects of judicial separation, divorce and annulment of marriage on wills. This article compares those provisions and stresses a common trend alien to any intervention of a supranational legislator. Even though the approaches in each system of law are not the same, all of them establish the ineffectiveness of any disposition in favour of the spouse made in the will. Another possible common principle of the law of succession in Europe is thus outlined.

Comparative Law, Family Law and Common Law

General works on comparative law view analysis of family law as particularly problematic. Political and institutional dimensions of legal policy are primary concerns. One assessment, over 50 years ago, while not unreservedly negative, was that '[fJamily law is so largely moulded by racial or religious and political considerations that comparison is fraught with difficulty and apt to be inconclusive'.1 This appraisal may be attributed to a phase in the development of comparative law, after an appreciation of the complexity of the subject had replaced the grand design of the early 20th century.2 The standard work on classification of legal systems subsequently struck a more positive note, referring to increased harmonization in various fields. However, this also hinted that family law was, to some extent, a special case.3 And more recently, in their discussion of comparative method, Zweigert and K6tz recommend avoidance of topics 'heavily impressed by moral views and values, mainly to be found in family law and in the law of succession'.4 In the search for functional equivalence of legal policy, they advocate focusing on 'those parts of private law which are relatively unpolitical '.5 Contrary to these negative positions, comparative examination of family laws does serve a purpose. Moreover, political factors, which these authors find so problematic, are central to this. Cross Currents provides an opportunity to investigate this perspective in relation to two common law jurisdictions. This collection of essays originated as a sequel to A Century of Family Law, published in 1957 to commemorate the anniversary of judicial divorce and abolition of ecclesiastical jurisdiction over marriage in England.6Cross Currents

Divorce and the elite household in late medieval Cairo

This article examines the rate and causes of divorce among the elite households of late fifteenth-century Cairo. By using a unique contemporary chronicle, it is possible to estimate that a third of all marriages ended in divorce. Wives initiated divorces at least as often as their husbands. They did so by reaching a divorce settlement with their husbands for a financial compensation, or, in the case of desertion, by using the courts to impose a judicial divorce. In the vast majority of the cases, the causes for the divorce were grounded in marital relations. In spite of the importance of marriage alliances for the elite household, these marriages did eventually hinge on the mutual consent of the two individuals concerned.

The Dawning of the Third Millennium on Shari`a: Egypt's Law No. 1 of 2000, or Women may Divorce at Will

A husband's prerogative, divorce, is not an exclusive right of the husband in Islamic law, being also the privilege of the judge. Under certain conditions in which harm (darar) to the wife is established to his satisfaction, the judge may order a judicial divorce at the request of the wife. In Egypt in particular, during the first part of the twentieth century, Laws No. 25 of 1920 and No. 25 of 1929 marked a substantial increase in the chance of a wife being accorded judicial divorce. Basing themselves on the Maliki wide interpretation of harm, the Egyptian lawmakers gave wives greater freedom to sue for divorce, a circumstance that was not allowed by the Hanafi family law, officially consecrated by the state in 1897, and which recognised practically just two causes for marriage dissolution: the incapacity of a husband to consummate the marriage, and his apostasy from Islam.' The generosity of the Maliki inspired provisions of the 1920 and 1929 Laws towards suffering wives notwithstanding, a woman's obtaining divorce always depended on a suing wife's ability to persuade the judge that she is suffering harm or injury due to one of the following causes, her husband's:

The Dawning of the Third Millennium on Shari`a: Egypt's Law No. 1 of 2000, or Women may Divorce at Will

AbstractNo Abstract

The Recognition of Foreign Divorces in Ireland: The Return of Travers v. Holley

Over the course of the last hundred and fifty years or so the general trend in the laws of Western European countries has been, first, to make provision for judicial divorce and, second, to make it easier for parties to a marriage which has broken down to obtain such a divorce. This coupled with increased mobility has added to the significance of the law relating to the recognition of foreign divorces. The law's essential task is to strike the right balance between, on the one hand, being too restrictive, thereby creating “limping” marriages (i.e., marriages which are valid in one or more countries, but not others) and, on the other, being too generous, thereby sanctioning “quickie” divorces or divorces of convenience.1

Judicial Divorce at the Wife's Initiative: The Sharīʿa Courts of Egypt, 1920-1955

Judicial Divorce at the Wife's Initiative: The Sharīʿa Courts of Egypt, 1920-1955

Judicial Divorce At the Wife's Initiative: the SharīcFa Courts of Egypt, 1920-1955

AbstractIslamic law defines divorce as a unilateral act of a husband. In Egypt, modernist statutory legislation (1920 and 1929) improved the legal status of women by granting them four grounds for judicial divorce based on Mālikī doctrine: a husband's defects and diseases; his nonprovision of maintenance; his prolonged absence; and injury caused by him to his wife. This study, based on seventy decisions of the sharīca courts issued between 1920 and 1955, attempts to determine which of these four grounds was more frequently used and to clarify the attitude of the qādīs toward the reform. The qādīs interpreted the term injury (darar) broadly, thereby enabling women to complain of a wide range of physical and mental abuses. The qādīs were capable of adapting their decisions to the changing social environment and they generally supported the liberal expectations of the Egyptian legislator.

Legislative Divorce in Virginia, 1803-1850

Glenda Riley The Virginia General Assembly took a crucial step in 1803: it terminated a marriage by enacting the state's first act of divorce.' A scant twenty-four years later, Virginia legislators felt so overwhelmed by the growing number of divorce petitions that reached their desks during each session that they began to shift part of their burden to superior courts of chancery. In 1850, the Virginia legislature stopped granting divorces altogether; it turned the matter of divorce over entirely to Virginia chancery courts. Despite this scenario, recent literature on divorce in the South in general, and in Virginia in particular, suggests that divorces were almost impossible to obtain in the Old Dominion during most of the antebellum period.2 Because the history of judicial divorce in Virginia

A Study of the Judicial Divorce before the Enforcement of the Meiji Civil Code

In earlier studies about judicial divorces before the enforcement of the Meiji Civil Code, on the one side, survive of custom of Arbitrary divorce by (_??__??__??__??__??_) has been emphasised, however the highly appraisal of the Proclamation No. 162 and No. 247 of Dajokan(_??__??__??_) which recognized the right of wife to sue for divorce.It is true that causes of divorce in Ukagai-Shirei (_??_·_??__??_) (inquiries from the prefectures and instructions by the government) were very restrictive; when husband was not Adopted son-in-law (_??__??__??_), recognized causes were only (1) Disappearance more than two years of husband (2) Punishment of penal servitude or grave imprisonment more than one year of husband (3) Disappearance of wife.But as for judicial divorces of the District Court in Kyoto (_??__??_[_??__??_·_??__??_]_??__??__??_), sources of decisions were not merely Ukagai-Shirei; when husband was not Adopted son-in-law, causes of judicial divorces were (1) Punishment of husband (include of penal servitude or grave imprisonment less than one year) (2) Violence and cruelty to wife by her husband (3) Adulty of husband (4) Disappearance of wife (5) Adulty and punishment of wife (6) Misconduct of wife. We think that as sources of decisions, the Old Civil Code of 1890 (_??__??__??_) and French Civil Code of 1804 or 1884 were occasionally applied.However, we can't be maintained that the custom of Arbitrary divorce by was wholly vanished in the Former Meiji Era.For the number of suit for divorce from husband was very few and there were many cases that turned out against wife who had suited for divorce because of violence and cruelty by her husband.

Insanity as a ground for judicial separation and divorce.

Insanity as a ground for judicial separation and divorce.