A Critique of the Constitutionalization of Divorce Regulations with Emphasis on the Limitations of Divorce at the Wife’s Request
Keywords:
Divorce regulations, fundamentalization, restrictions, wife's divorce, marriageAbstract
Marriage is a sacred institution and one of the fundamental pillars of family formation in Islam, arising from the interaction and shared life of the spouses, with rights and obligations stipulated for each. However, this does not mean that all laws and regulations are just or that they equally take into account the rights and responsibilities of both spouses. One of the fundamental issues that has created legal challenges is the limitation of divorce for wives, which, in a broader perspective, is referred to as the constitutionalization of divorce regulations. The constitutionalization of divorce regulations refers to the legal protection afforded to the husband for unilaterally requesting the right to divorce, while disregarding the wife’s right in this regard. Accordingly, the present study seeks to examine the approach of constitutionalizing divorce regulations, with special consideration of the limitations imposed on wives’ access to divorce. The central question is: What factors have led to the emergence of the constitutionalization approach in divorce regulations and the imposition of restrictions on women? The research findings indicate that constitutionalization is rooted in certain jurisprudential teachings that view the man as a fully authorized and entitled party, granting him the right to divorce while depriving the wife of some of her basic rights. This approach has manifested in the legal system as the husband’s exclusive authority over the right to divorce, which requires revision and adjustment in favor of the wife. For instance, provisions regarding the husband’s nushūz (marital misconduct) or neglect of the wife’s needs could be recognized as grounds for women to request the right to divorce. Furthermore, eliminating the constitutionalization of divorce regulations necessitates acknowledging the private nature of marriage and moving away from a public-law perspective on it, which has reinforced a state-centric view and vested this right in the husband or the court. This article adopts a descriptive–analytical approach and employs library-based research tools.
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