Could the bond of Marriage be women`s decision in UAE`s legislation?
The Personal status law allocated special provisions concerning the Bond of Marriage, Article (100) from UAE`s personal status law (8) of 2005 stipulated: Repudiation takes place by the husband or his proxy, designated in a special power of Attorney or by the wife if her husband gave her complete autonomy of herself, or if she stipulated it in the contract of Marriage. This is called the autonomy of the bond of marriage, however, the article (2) of the personal status act stipulates 1. In understanding, interpreting or construing the legislative provisions of this Law, the principles and rules of the Muslim doctrine shall be consulted. 2. The provisions of this Law shall apply to all matters dealt with herein, in words and context. For the purposes of interpretation and completion of their provisions, the doctrinal school of thought from which these matters derived shall be consulted. 3. In the absence of a text in this Law, judgment shall be given in accordance with what is widely known of Malik’s doctrine, then Ahmed’s, then El Shaffei’s, then Abi Hanifa’s doctrine. The absence of autonomy of divorce in the text of this law was clear. Therefore, it is necessary to consult the famous Maliki doctrine:” may the wife or third-party act for the Husband concerning repudiation through divorce authorization which is of three types power of attorney, facultative and autonomy Which is each pronunciation indicates the divorce is upon wife or third party`s decision without the liberty of choose nor through power of attorney and is of three types: absolute, restrained and none of them.
We will discuss divorce authorization: firstly: the absolute autonomy: the absolute bond of marriage is vested by the Husband to his wife at any time and place, by saying you have the absolute autonomy of yourself, your repudiation and the bond of marriage is your decision whenever you decide, whatever the repudiation number is and all time. In only two cases:
The first case when the wife appears before the judge:
- in the event that wife revoked the divorce before the judge then the judge decides the nullity of divorce.
- In the event that the wife remains silent before the autonomy council, she will be prevented from her husband and he will abandon her, and not approaching her till she answers if she wants the divorce or the nullity of it.. The lasting of the bond of marriage in this case is questionable because the wife has the right to divorce herself, and the enjoyment with a woman living doubtful bond of marriage is not permitted, as a consequence, she loses the alimony as she initiated the divorce, even in the case that she inherits him at time of his death.
Second case in the event that being sexual intercourse: autonomy is considered null in the event that the woman willingly not forcibly empowers herself, even if she does not have sexual intercourse with her husband. And her right drops when she enables herself after knowing that he empowers her, even if she did not know that her empowerment drops her right. if she forbids her husband from sexual intercourse and does not pronounce that she divorced herself, then, the husband is capable to report the matter before the judge, and shall ask the wife for response without according a delay then the wife shall divorce herself immediately or revoke autonomy, in the event that she revoked the autonomy the judge decides its nullity and she still his wife even the Husband accepts the according of delay. Owing to the right of Allah of binding the enjoyment with a wife which the lasting of her bond of marriage is doubtful.
secondly restricted autonomy:
in the event that the empowerment of the wife is restricted to particular time and place as saying: I empowered you to divorce yourself this day or that month, your bond of marriage is your decision before this council, in this town or in this house as a consequence she has the right to divorce herself restricted by his restrictions, if the time expired she will lose the empowerment.
Thirdly not absolute nor restricted autonomy:
in the event that the empowerment of divorcing the wife herself is not absolute nor restricted as saying: I empowered you to divorce yourself, and the autonomy council was canceled without announcing any resolution of annulment or consuming of Marriage. There are two versions about Imam Malik:
firstly: the wife shall lose her autonomy as the autonomy council is canceled without any resolution, as the council was held, In the event that a held council is terminated the acceptance forfeited then the empowerment is nulled as it does not coincide acceptance.
Secondly: the wife does not lose her empowerment, she still empowered even after the response and acceptance council is canceled if she has not been stopped or sexual intercourse as abovementioned.
In conclusion, we found that women may have the bond of marriage upon her decision, there is no legal or legislative obstacle but in accordance with The Maliki doctrine.