sharia divorce and NSO
1 sharia divorce and NSO on Wed Jan 23, 2013 3:52 pm
2 Re: sharia divorce and NSO on Wed Jan 23, 2013 5:01 pm
. chanrobles virtual law library
Section 1. Nature and Form. —
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Art. 45. Definition and forms. — Divorce is the formal dissolution of the marriage bond in accordance with this Code to be granted only after the exhaustion of all possible means of reconciliation between the spouses. It may be effected by:
(a) Repudiation of the wife by the husband (talaq);
(b) Vow of continence by the husband (ila);
(c) Injurious assanilation of the wife by the husband (zihar);
(d) Acts of imprecation (li'an);
(e) Redemption by the wife (khul');
(f) Exercise by the wife of the delegated right to repudiate (tafwld); or
(g) Judicial decree (faskh).
Art. 46. Divorce by talaq. — (1) A divorce by talaq may be effected by the husband in a single repudiation of his wife during her non-menstrual period (tuhr) within which he has totally abstained from carnal relation with her. Any number of repudiation made during one tuhr shall constitute only one repudiation and shall become irrevocable after the expiration of the prescribed 'idda.
(2) A husband who repudiates his wife, either for the first or second time, shall have the right to take her back (ruju) within the prescribed 'idda by resumption of cohabitation without need of a new contract of marriage. Should he fail to do so, the repudiation shall become irrevocable (Talaq bain sugra).
Art. 47. Divorce by Ila. — Where a husband makes a vow to abstain from any carnal relations (ila) with his wife and keeps such ila for a period of not less than four months, she may be granted a decree of divorce by the court after due notice and hearing.
Art. 48. Divorce by zihar. — Where the husband has injuriously assimilated (zihar) his wife to any of his relatives within the prohibited degrees of marriage, they shall mutually refrain from having carnal relation until he shall have performed the prescribed expiation. The wife may ask the court to require her husband to perform the expiation or to pronounce the a regular talaq should he fail or refuse to do so, without prejudice to her right of seeking other appropriate remedies.
Art. 49. Divorce by li'an. — Where the husband accuses his wife in court of adultery, a decree of perpetual divorce may be granted by the court after due hearing and after the parties shall have performed the prescribed acts of imprecation (li'an).
Art. 50. Divorce by khul'. — The wife may, after having offered to return or renounce her dower or to pay any other lawful consideration for her release (khul') from the marriage bond, petition the court for divorce. The court shall, in meritorious cases and after fixing the consideration, issue the corresponding decree.
Art. 51. Divorce by tafwid. — If the husband has delegated (tafwid) to the wife the right to effect a talaq at the time of the celebration of the marriage or thereafter, she may repudiate the marriage and the repudiation would have the same effect as if it were pronounced by the husband himself.
Art. 52. Divorce by faskh. — The court may, upon petition of the wife, decree a divorce by faskh on any of the following grounds :
(a) Neglect or failure of the husband to provide support for the family for at least six consecutive months;
(b) Conviction of the husband by final judgment sentencing him to imprisonment for at least one year; . chanrobles virtual law library
(c) Failure of the husband to perform for six months without reasonable cause his marital obligation in accordance with this code;
(d) Impotency of the husband;
(e) Insanity or affliction of the husband with an incurable disease which would make the continuance of the marriage relationship injurious to the family;
(f)Unusual cruelty of the husband as defined under the next succeeding article; or
(g) Any other cause recognized under Muslim law for the dissolution of marriage by faskh either at the instance of the wife or the proper wali. . chanrobles virtual law library
Art. 53. Faskh on the ground of unusual cruelty. — A decree offaskh on the ground of unusual cruelty may be granted by the court upon petition of the wife if the husband:
(a) Habitually assaults her or makes her life miserable by cruel conduct even if this does not result in physical injury;
(b) Associates with persons of ill-repute or leads an infamous life or attempts to force the wife to live an immoral life;
(c) Compels her to dispose of her exclusive property or prevents her from exercising her legal rights over it;
(d) Obstructs her in the observance of her religious practices; or
(e) Does not treat her justly and equitably as enjoined by Islamic law.
Art. 54. Effects of irrevocable talaq or faskh. — A talaq or faskh, as soon as it becomes irrevocable, shall have the following effects:
(a) The marriage bond shall be severed and the spouses may contract another marriage in accordance with this Code;
(b) The spouses shall lose their mutual rights of inheritance;
(c) The custody of children shall be determined in accordance with Article 78 of this code;
(d)The wife shall be entitled to recover from the husband her whole dower in case the talaq has been affected after the consummation of the marriage, or one-half thereof if effected before its consummation; . chanrobles virtual law library
(e) The husband shall not be discharged from his obligation to give support in accordance with Article 67; and
(f) The conjugal partnership, if stipulated in the marriage settlements, shall be dissolved and liquidated.
Art. 55.Effects of other kinds of divorce. — The provisions of the article immediately preceding shall apply to the dissolution, of marriage by ila, zihar, li'an and khul', subject to the effects of compliance with the requirements of the Islamic law relative to such divorces.
Section 2. 'Idda. —
Art. 56. 'Idda defined. — 'Idda is the period of waiting prescribed for a woman whose marriage has been dissolved by death or by divorce the completion of which shall enable her to contract a new marriage.
Art. 57. Period. — (1) Every wife shall be obliged to observe 'idda as follows:chanroblesvirtuallawlibrary
(a) In case of dissolution of marriage by death, four months and ten days counted from the death of her husband;
(b) In case of termination of marriage by divorce, for three monthly courses; or
(c) In case of a pregnant women, for a period extending until her delivery.
(2) Should the husband die while the wife is observing 'idda for divorce, another 'idda for death shall be observed in accordance with paragraph 1(a).
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