Conferences

General View about the Articles of Divorce 49, 50 and 57

-Article 49 stipulates: «Divorce can be proved only by a verdict after many attempts of reconciliation that should be made by the judge within three months».

-Article 50 stipulates: «The return back of the woman to her husband during the period of reconciliation doesn't require a new contract of marriage, and it will be obligatory if she returns back after pronouncing the verdict of divorce».

First: the two articles do not stipulate the kinds of divorce: revocable and irrevocable.

Second: the husband can utter the divorce but the proceedings of the verdict last a long in accordance with article 49. The session of reconciliation may be held after the end of the legal retreat (Idda) which starts from the moment of uttering divorce. If it succeeds, the wife will return back to her husband without a new contract, according to article 50. Therefore, this article contradicts the Islamic Charia. According to the latter, this kind of divorce is an irrevocable one with short interval; it requires a new contract, contrary to article 50 which doesn't stipulate a new contract.

Third: the application of the two articles leads to the emergence of the duality of Idda: a legal Idda which starts from the moment of uttering divorce, and juridical Idda which begins from the moment of pronouncing the verdict of divorce. In fact, there is a contradiction between the law and the Islamic Charia at different levels mainly after the end of the legal Idda and the continuity of the juridical one.

1.       The woman should stay at her husband’s house, according to Article 61of the Family Code and not according to the Islamic Charia.

2.       Giving the differed dowry is obligatory according to the Islamic Charia and not according to the law.

3.       The spouse who is alive inherits the dead one, according to the law and not according to the Islamic Charia, because the marital relationship is not dissolved judicially.

4.       It is allowable to the divorced wife whose legitimate Idda has finished to marry another man, and it is not permissible for her at juridical level (the beginning of the juridical Idda). Thus, her husband can bring suit against her.

Fourth: It is possible to treat Article 50 with one of the two cases:

1.       If the attempt of reconciliation fizzles out, the judge pronounces the verdict of divorce retroactively to the date the husband uttered divorce.

2.       To relate the session or the sessions of reconciliation with the legal Idda.

Article 49 can be reformulated as follow: « Divorce can be proved only by a verdict after many attempts of reconciliation that should be made by the judge during the period of the legal Idda ».

Fifth: To reformulate the articles of divorce in the way that they correspond to the provisions of the revocable and irrevocable divorce.

Sixth: The Personal Status Affairs should be entrusted to a married and a well experienced judge.

-Article 57 stipulates: «The verdicts of divorce are not susceptible of appeal except what concerns their material aspects».

First: This article doesn’t cancel the other means of appeal. If the legislator desires so, the article should have been formulated as follow: «The verdicts of divorce are not susceptible of appeal by all means of appeal ».

Second: Article 57 contradicts article 3 of the Civil Proceedings Code which consolidates the principle of judging at two degrees. This article reads as follow:  «In all the other lawsuits, the courts judge with verdicts that are susceptible of appeal».

Third: What can be understood from this article is that the verdicts of divorce are susceptible of appeal, whereas the divorce that is asked by the woman from the judge is not. If the legislator wanted something else, the article would have been formulated as follow: «The verdicts that are issued about the dissolution of marriage are not susceptible of appeal».

Fourth: To reformulate Article 57 as follow: «The verdicts of divorce and Khol’â (the divorce that is asked by the woman from her husband even if there is no reason) are not susceptible of appeal except in their material aspects. But, the verdicts of the divorce asked by the woman from the judge (if there are legal reasons) are susceptible of appeal ».Because, the verdicts or divorce and Khol’â are demonstrative (In case the husband utters divorce, the role of the judge is only to  make it official), whereas the verdict of the divorce that is asked by the woman from the judge is constitutive (the judge has the right to pronounce the verdict of divorce even without the consent of her husband, according to the discretionary powers of the judge).

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