Alemohamad Law Office

A divorce petition filed by one of the spouses, under the provisions of the Civil Code, differs greatly depending on who files it. The husband can divorce and separate from his wife without needing to state a reason. However, a divorce petition filed by the wife is only accepted in the specific cases set out in the Civil Code. Where the spouses cannot reach an agreement for an uncontested divorce and one of them wishes to separate, certain conditions apply. Although divorce is ordinarily carried out at the husband's will, there are circumstances under which the wife can file for divorce without her husband's agreement. If one of the conditions discussed below is met, the wife may go to court and submit her divorce petition.

Conditions for a divorce petition filed by the husband

Under the amended Article 1133 of the Civil Code: "The husband may, in compliance with the conditions set out in this law, go to court and request a divorce from his wife." Accordingly, under this article, the right to divorce belongs to the husband, and its validity does not require the wife's consent. A divorce petition filed by the husband requires going through steps such as referral to arbitration, obtaining a certificate of irreconcilable differences, and completing formalities such as paying the wife's financial entitlements. A divorce initiated by the husband always requires a court hearing, counseling, and a court appearance. The divorce formula must be pronounced in the presence of at least two just men who witness it being recited.

Mahriyeh in a divorce initiated by the husband

If the divorce is initiated by the husband, he is obligated to pay the wife the full mahriyeh, along with her other entitlements, in one lump sum and without any deduction. Otherwise, the wife cannot be divorced unless she agrees, or unless it is proven that the marriage was obtained through deception. If the husband does not have the financial means to pay the mahriyeh, he may request insolvency status and installment payments from the court. Regarding nafaqa and ojrat-ol-mesl (compensation for housework) in a husband-initiated divorce: after the divorce decree is issued, the husband is responsible for paying nafaqa until the end of the waiting period (eddeh), which is 100 days, unless the spouses agree otherwise, the wife is a virgin, or other circumstances apply under which she is not entitled to nafaqa. Ojrat-ol-mesl for the years of marriage is calculated by determining the years of married life from the date of marriage to the divorce, with the amount for each year set by an official court expert based on the husband's assets, the wife's circumstances, the number of children, and the couple's lifestyle from the date of the marriage contract to the divorce.

Conditions for a divorce petition filed by the wife

Under the note to Article 1133 of the Civil Code: "The wife may, where the conditions set out in Articles 1119, 1129, and 1130 of this law exist, request a divorce from the court." Under the Civil Code, the cases in which the wife may request a divorce comprise four grounds:

Power of attorney for divorce, whether conditional or unconditional
The husband's failure or inability to pay nafaqa
Hardship and difficulty (osr o harāj) for the wife
The husband's absence for more than four years

If any of the conditions listed above are met, the wife's divorce petition will be heard by the courts.

Failure or inability to pay nafaqa

Under Article 1129 of the Civil Code: "If the husband refuses to pay nafaqa, and it is not possible to enforce a court judgment compelling him to pay it, the wife may apply to the judge for a divorce, and the judge shall compel her husband to divorce her. The same applies if the husband is unable to pay nafaqa." Under this article, if the wife can prove in court that her husband has refused or is unable to pay nafaqa, the court will compel the husband to divorce his wife. If the husband refuses to comply with the judgment, the court or its representative will perform the divorce formula and sign the divorce certificate.

Hardship and difficulty for the wife

Under Article 1130 of the Civil Code, hardship and difficulty (osr o harāj) means "a situation arising that makes continuing the marriage burdensome and difficult for the wife to bear." In effect, the wife has the right to request a divorce from the family court if continuing the marriage involves hardship for her. Examples of hardship and difficulty include:

The husband abandoning family life for at least six consecutive months, or nine intermittent months within one year, without valid excuse
The husband's addiction to narcotics or alcohol
The husband's final conviction to five years' imprisonment or more
The husband's beating or any continuous abuse
The husband suffering from an incurable mental or contagious illness, or any other incurable condition, that disrupts married life

These examples are not exhaustive, and other circumstances may also be included among them. Determining what constitutes hardship and difficulty is left to the court.

The husband's absence for more than four years

Under Article 1029 of the Civil Code: "If a person has been missing and unaccounted for for a full four years, his wife may request a divorce. In that case, with due regard to Article 1023, the judge shall grant her a divorce." Under this article, if the husband has been absent for four consecutive years with no information about him available, his wife may file for divorce, but issuing and enforcing the divorce decree is conditional on completing certain formalities, namely:

Publishing a notice in a local newspaper and in a widely circulated newspaper, three times consecutively
The passage of one year from the date of the last notice

Power of attorney for divorce

Under Article 1119 of the Civil Code: "The parties to a marriage contract may include any condition that is not contrary to the nature of that contract, within the marriage contract or another binding contract — for example, a condition that if the husband takes another wife, or is absent for a specified period, or fails to provide maintenance, or attempts against the wife's life, or mistreats her to such a degree that life together becomes unbearable, the wife shall be his agent, with the power to delegate that agency, so that after proving the condition has occurred in court and a final judgment has been issued, she may divorce herself." The content of this article is reflected in the twelve conditions included in marriage contracts. Acceptance of a divorce petition filed by the wife under this provision depends on proving the condition in court — meaning that until the condition (for example, the husband's addiction) is proven in court, the court will not issue a divorce decree for the wife.

The twelve conditions included in the marriage contract

If any of the twelve conditions included in the marriage contract occurs, and it is proven in court, the wife becomes the husband's agent for divorce, and without needing the husband's presence or agreement, and with the court's authorization, she may go to the divorce registry office and pronounce the divorce formula. These conditions are:

The husband's refusal to pay the wife's nafaqa.
The husband's mistreatment to an intolerable degree.
An incurable illness of the husband that is untreatable and makes continuing the marriage difficult.
The husband becoming, or being, insane during the marriage.
The husband engaging in an occupation that damages the family's honor and the wife's reputation.
The husband's conviction to five years' imprisonment or more.
The husband's addiction to narcotics to a degree that disrupts married life.
The husband abandoning family life for six consecutive months or nine intermittent months without valid excuse.
The husband's final conviction for committing a crime contrary to the wife's family standing.
The husband's infertility after five years of married life.
The husband going missing, with no information about him six months after the wife applies to the court and he cannot be found.
The husband remarrying without the wife's permission.

It should be noted that, at every stage, having an experienced lawyer can make the process considerably easier.

A Divorce Petition Filed by Either Spouse