Separation (Article 37-49)

Many of the articles in this chapter deserve special attention, in that they are unique and completely different from Moslem and Jewish laws and in fact contradict them.

Article 37 rules that the marriage contract is not invalidated by the husband divorcing his wife, but must be done through a judgment of the Qadi of the community. This is in complete contrast to Moslem Shari'a.

Article 38 goes still further in forbidding a man to remarry his divorced wife after a decision by the Qadi separating them. This is in complete contrast to Islam, which permits a man to remarry his ex-wife after she has married another man; and to Judaism, which permits him to remarry his ex-wife as long as she did not remarry in the meantime.

Article 39 rules that a woman who is free from all defects which prevent contact, discovers before or after marriage that her husband does have such a defect such as, elephantiasis, leprosy, syphilis, etc., may turn to the Qadi to demand a separation. The Qadi will rule on separation if the disease is incurable, but if the disease can be cured then the Qadi is to postpone his decision for two years, but must rule immediately on a temporary separation. If the disease is not cured during this period and the husband refuses a divorce while the wife insists, the Qadi will rule on separation. Defects such as blindness or lameness are not grounds for separation.

In contrast to Ottoman Law and to Moslem fiqh, this article rules that the separation must be postponed for two years (instead of one), and obligates the Qadi to separate the couple temporarily for two years until it is verified whether he will recover or not. To the best of Anderson's knowledge (p. 84), fiqh has no such ruling of two years. (16)

Regarding defects which do not constitute grounds for separation, see Articles 119-122 in Ottoman Law.

Article 40 gives the woman the right to demand separation from her husband, or invalidation of the marriage, if she finds that he is impotent and medical treatment will not help. This applies if the man contracted the illness even after the marriage. What distinguishes the Druze Law is that it does not call for a trail period or treatment before the separation, as in Hanafi and Ottoman Law (articles 119 -121).

Article 41 rules that if the husband becomes mentally disabled after the marriage and the wife applied to the Qadi for a separation, the Qadi may rule on separation if this condition did not pass after one year and the woman still persists. See Article 23 of Ottoman Law.

Articles 42-45 are unique to Druze Law and have no parallel in Islamic Law.
Article 42 recognizes the right for a couple to separate if both agree on this. The divorce must take place before two witnesses and a Qadi, who will pass judgment accordingly. This law is one of the more modern liberal laws adopted by the Druze judiciary.

Article 43 states that if the husband is found to be guilty of adultery, the wife may demand a separation. If the wife is found to be guilty of adultery and her husband divorces her on these grounds then her right to maintenance is forfeited. This law has no basis in Moslem Shari'a.

Article 44 states that if a man is sentenced to ten years or more in jail and has served over five years, the wife may request separation within this period. A parallel law to this may be found in Egyptian law (Article 14 of Law no. 24 of 1929). (17)

Article 45 states that if the husband is missing for a period of three years and maintenance is not received by the wife, the Qadi can pronounce a separation if requested by the wife. If it is possible to receive the maintenance from him, however, her request is not granted, unless five uninterrupted years have passed since his disappearance. If a wife has a maintenance order against her husband who is present, and he has not paid for a period of two years, she may then demand a separation.

The conditions in this article are stricter for the woman with the aim of preserving the marriage as long as possible. But with regard to the man the law is more lenient, for ample time is given, in the event of his being missing or being unable to pay the maintenance. The periods of time given here are uniquely Druze and have no basis in Shari'a.

Article 46 rules that if the wife has had her marriage annulled because of the absence of her husband and has remarried, the wife's second marriage may not be annulled if the first husband later returns. This article has a parallel in Ottoman Law (Article 128)

Articles 47-48 explain the procedures to be taken to bring about a reconciliation between the couple through arbitration. In contrast to Ottoman Law, the Druze Law does not give the mediators the authority to rule on the issue of damages. The Druze law fixes the amount the wife must pay if she is the guilty party, and gives the Qadi the authority to add an additional sum. These conditions do not exist in the Ottoman Law (Article 130).

Article 49 protects the woman against any attempt by the husband to unjustly divorce her. It rules that if the Qadi finds that the divorce is legally unjust, he shall rule to pay damages and compensation in addition to the deferred Mahr, taking emotional and material considerations into account.

Although Article 37 states that a marriage contract is invalidated not by divorce, but by ruling the Qadi, a husband who divorces his wife cannot change his mind; and the Qadi is bound to grant a divorce. This article thus imposes this restriction on the husband to prevent, or discourage him from divorcing his wife without legal justification. Emotional damages are to compensate for loss of her good name and because the wife may not be able to remarry owing to her age or the number or children.

Intorduction Chapter 1 - Eligibility to Enter into Marriage (Articles 1 - 5) Chapter 2 - Forbidden Marriages (article 9 - 13) Chapter 3 - Arranging the Marriage (Articles 14 -19) Chapter 4 - Marriages Rules (Articles 20 -23) Chapter 5 - Dower ("Mahr") (Articles 24 - 27) Chapter 6 - Maintenance (Nafaqa) (Articles 28-36) Chapter 7 - Separation (Article 37-49) Chapter 8 - Waiting Period (Idda) (Articles 50-53) Chapter 9 - The custody of the children (Articles 54-66) Chapter 10 - Child allowance (Articles 67-74) Chapter 11- Payments by sons to parents and other relatives (Articles 75-80) Chapter 12 - Guardianship over minors (Articles 81-87) Chapter 13- Guardianship and wills (Article 88-98) Chapter 14- Responsibilities of the guardian [executor] (Articles 99-118) Chapter 15- Circumstances under with a Qadi may disqualify a person and appoint a guardian (Articles 119 -125) Chapter 16 - A Missing Person and his Trustee (article 126 -136) Chapter 17 - Paternity (nasab) (Articles 137-144) Chapter 18 - Wills and Inheritance (2) (Articles 145 -170) End Notes