The Issue of Divorce between Restraint and Release: A Comparative Study
Dr. Qais Abdul Wahab Issa
Associate Professor of Personal Status Law
Faculty of Law – Ajman University – UAE
Abstract:
This research examines the issue of divorce between its prohibition and legalization in terms of considering it a right or a permit authorized by God when absolutely necessary. The research also clarifies the opinions of Muslim jurists as divided into two opinions: the first opinion states that the principle of divorce is an absolute right of the husband, while the second opinion states that divorce is a restricted right. The importance of the research lies in explaining the legitimacy of the positive lawmaker’s intervention in restricting and regulating divorce in legal texts; for the benefit of the family and society. The scope of the research focused on the opinions of jurists and the position of comparative laws (Kuwaiti, Iraqi, Emirati, Syrian, Tunisian and Algerian).
The research aims to clarify the different jurisprudence and to explain the most likely and most appropriate opinions and suggest legal texts to reduce the cases of divorce in our Arab society. The researcher adopted the comparative analytical approach to clarify the opinions of jurists and the positions of comparative laws as well as discussing and weighing them, and concluded with a set of results, the most important of which is the difference of the position of comparative laws in restricting the right of the husband in divorce in two directions: the first direction stated that divorce is an absolute right for the husband and it was adopted by Kuwaiti, Iraqi, Emirati and Syrian laws, while the second direction restricted the husband’s right to divorce and was adopted by Algerian and Tunisian laws. The research also concluded with a set of recommendations for each of the comparative laws, the most important of which is the elimination of the definition of divorce in comparative laws, and the organization of divorce in courts through legal texts.
Keywords: family, prohibition, legalization, guardian, legislator.