Pauline Kruiniger Pauline Kruiniger

Repudiated, by husband and Europe

Written by  Femke Kools Tuesday, 25 August 2009 11:12

About Muslim marriage dissolution and European recognition

A woman who has been repudiated by her husband in Egypt may have a very difficult time getting this type of marriage dissolution recognised in Belgium. That can be a problem if, for example, she wants to marry again or apply for a state benefit. Such recognition is easier to obtain in the Netherlands. Not only do the recognition policies differ among the European member states, but the forms of marriage dissolution in the Islamic countries themselves vary enormously. There’s more to the issue of repudiation than the Western perception that it is ‘anti-woman’. Which recognition policy best serves the interests of women divorced under Islamic law?

Within countries subject to Islamic family law, marriages can be dissolved in several ways. Marriage dissolution also takes on a variety of forms in the different countries. For her master’s thesis, Pauline Kruiniger looked at the stance of the Netherlands on Moroccan khul’ (repudiation in exchange for compensation). She has now expanded this topic for her PhD dissertation. In the dissertation, she examines how the three types of divorce, the khul’, the talaq (‘ordinary’ repudiation) and the tatliq (court-pronounced divorce) are implemented in Egypt, Iran, Morocco and Pakistan. In addition, she analyses the differences in recognition policies in Belgium, Germany, England, France and the Netherlands. Gaining recognition for repudiations in particular is a struggle, because of the presumed violation of the right to equal access to marriage dissolution (since, in principle, only husbands can initiate repudiation), as well as the presumed violation of the women’s procedural rights. In this respect, divorces pronounced by Islamic courts pose fewer problems, because of the involvement of a judge.

“The recognition policy for repudiations differs immensely within Europe, even though we share the same values and have adopted the same procedural rights”, says Kruiniger. “We simply interpret that framework differently. In France, it’s very difficult to get a repudiation recognised, while recognition is less of an issue in the Netherlands. I certainly don’t think that you should recognise every repudiation without question, but I do have the feeling that a more uniform policy is possible.” Only time, and Kruiniger’s research, will show if that’s really true.

‘I repudiate you’

Repudiation raises the same negative connotations in the West as Islamic law, the Sharia. The general impression is that “a husband only has to say to his wife three times: ‘I repudiate you’ and he’s rid of her,” Kruiniger says. So far, Kruiniger has investigated Moroccan and Egyptian family law, and the practice has turned out to be far more complex. In Egypt, a husband can still repudiate his wife within the family circle, without having to go to court. The repudiation must then be recorded by a kind of notary, the mad’hun, as official proof. In Morocco, family law was radically transformed under King Mohammed VI in 2004. Since then, formal proceedings must be brought before the family courts, including summonses for the parties, mandatory reconciliation attempts, registration by professional witnesses and determination of financial and other obligations. The court must formally approve the repudiation and ensure that the wife receives what she is entitled to. In sum, it is a procedure which better safeguards the rights of the wife. “Previously, especially prior to 1993, a woman might, for instance, remain in the dark as to whether she’d been repudiated or not, while depending on her husband for her maintenance. That’s definitely a thing of the past.”

Equivalent weapons

The situation regarding the tatliq, the court divorce, also changed in Morocco in 2004. Until that time, a wife could only have her marriage dissolved through the courts on a limited number of grounds, such as lengthy abandonment, failure to fulfil the maintenance obligation or a serious disorder on the husband’s part. The wife bore the burden of proof, which was onerous in practice. Since 2004, Moroccan law has implemented a condition of ‘irreconcilable differences’, shiqaq, without any burden of proof. “This is a new development within Islam, which gives both women and men better options for dissolving a marriage. The wife’s position has improved in Morocco, although this still necessitates a change in mentality for some Moroccans. Fundamentalist groups objected strongly to the amendment of the law in 2004.”

In Egypt, a court divorce, likewise based on a limited number of grounds, is effectively impossible for women. The proceedings take years, the costs are nearly unaffordable, adequate proof is difficult to provide and the social pressure is intense. The law was radically modified here too in 2000. A wife can now apply to the court for a khul’, or repudiation in exchange for compensation, which must then be recognised. With the traditional type of khul’, a wife would ask her husband to repudiate her. In return for his cooperation, she might, for example, return the dowry or waive the right to care for the children. She was entirely dependent on his willingness to cooperate. Since 2000, an Egyptian wife can request that the court grant her the khul’.
“The shiqaq procedure and the court khul’ provide the wife with more or less the same access to marriage dissolution as the husband has through repudiation: The wife may not have the same weapon at her disposal, but the weapon she does have is surely equivalent.”

Lumped together

These are the initial results from Kruiniger’s research, which she hopes will lead to a PhD degree in late 2013. “In Europe, all types of repudiation under Islamic law are lumped together. There’s this dominant preconception that women have no rights whatsoever in this regard and that recognition in the West is therefore at odds with our values. I think you have to look carefully first at what type of repudiation you’re dealing with: a Moroccan repudiation isn’t the same as an Egyptian repudiation. Unjust decisions are currently being taken in Europe, which is giving rise to a ‘wobbly legal status’. Someone might, say, be divorced in Egypt, but still be considered married in the Netherlands.” Kruiniger has observed that these situations have negative consequences for individuals: “Women suffer in particular. Partly for that reason, the wife’s position is the starting point for my research. Within Europe, we want to treat people as equally as possible and facilitate the free movement of people – so this is an absurd situation.”

Aversion

The deeper Kruiniger delves into Islamic law, the more fascinating it becomes for her. “It’s not as clear as it seems. The aversion which some Westerners have now towards Islam, which is usually based on a lack of knowledge and ingrained prejudices, is so undeserved. A regrettable trend. We conveniently forget that we had to endure a lot of changes here in the Netherlands, too. My mother was fired when she got married, and that wasn’t all that long ago. And, until recently, divorce in Belgium was difficult, and only available on specific grounds, with the stigmatising question of who was at fault playing a big part.”

Kruiniger emphasises that Western values remain the point of departure. “But going forward from there, we can strive for a fairer and more efficient approach.” Ultimately, she hopes to produce a user-friendly document providing real guidance for the people applying the policies, such as the registrars of marriages in Europe and the judiciary.

Pauline Kruiniger is a junior researcher at the Department of Private Law at the Faculty of Law. Her supervisors are Prof. G-R. de Groot and Dr S. Rutten. Kruiniger carries out her research as part of the European Family Law section of the Ius Commune research school. She received a grant from the Netherlands Organisation for Scientific Research (NWO) via the Open Competition of its Division for Social Sciences (MaGW) in January 2009. “Sebastiaan Huntjens and his colleagues at the Maastricht University Office provided valuable assistance when I submitted my research proposal. I can recommend their expertise to all UM researchers who wish to submit a proposal.” Contact: This email address is being protected from spambots. You need JavaScript enabled to view it. tel.+31 43 3883241

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