Jeremy D. Morley[1]
1. This article concerns Muslim divorces in Pakistan.
2. A Muslim marriage is a civil contract, known as a nikah nama. The nikah nama contains provisions for the dowry (“mahr”). The mahr is usually in two parts – the money or gifts delivered to the wife upon marriage and the money or gifts to be deferred and delivered upon a divorce.
3. The husband has an inalienable legal right of divorce by way of his pronouncement of “talaq,” meaning that he states that he is divorced. Sharia law requires that the talaq be stated three times.
4. Sections 7 and 8 of the 1961 Muslim Family Law Ordinance provides as follows:
7. Talaq.—(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.
(3) Save as provided in sub-section (5), a talaq unless revoked earlier, expressly or otherwise shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section 2 [(3)] or the pregnancy, whichever be later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from re-marrying the same husband, without an intervening marriage with a third person unless such termination is for the third time so effective.
8. Dissolution of marriage otherwise than by talaq.⸺ Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq, the provisions of section 7 shall, mutatis mutandis and so far as applicable, apply.
5. Section 2 of the Ordinance provides that the “Chairman” is the Chairman of the Union Council in the local area or other designated governmental agency.
6. The effect of these provisions is that a husband is entitled to obtain a divorce by talaq (meaning merely by three declaration made on three separate occasions or simultaneously) provided he sends a written notice by registered post to the Union Council or other government office responsible for issuance of divorce certificates. In the notice the husband must provide the address of his wife. The government office shall then issue notices to the wife by registered post within 30 days thereafter. After 90 days the office will issue a certificate of talaq unless the talaq has been revoked, either “expressly or otherwise.” The talaq is not effective until the expiration of the 90-day revocation period. Claiming a talaq divorce other than through this process is criminal.
7. A wife may obtain a similar divorce through the Union Council only if the right to do so is expressly granted to her in the marriage contract (nikah nama). A wife who has no such right in the nikah nama can only divorce through the courts.
8. If a wife seeks a divorce through a court she must satisfy the requirement to establish a specific ground for the divorce and she thereby relinquishes all rights to receive a mahr and she must return any such items that she has previously received.
9. Under an order identified as Notification No. S.R.O. 1086(K)/61, dated 8-11-1961 and different precedent of superior courts, where both spouses are permanent residents of a foreign country, the Union Council in Pakistan does not have jurisdiction to handle the divorce proceedings in Pakistan. The function of Chairman Arbitration Council under Muslim Family Laws Ordinance, 1961, are then to be performed by an appointed officer of the Pakistan Mission in the country in which the parties reside.
10. In any Muslim divorce in Pakistan the financial consequences of a divorce are as set forth in the Muslim law that applies to the sect of Islam to which the parties belong. The Union Council has no power to make any financial decisions.
11. Unless stipulated in the nikah nama or unless it is stated in a Prenuptial Agreement, a divorced wife is only entitled to 3 months (90 days) of spousal support (or if she is pregnant, then for the duration of her pregnancy).
12. Pakistan has a separate property regime. The Married Women's Property Act, 1874 gives women an exclusive right to their own separate property, whether it is acquired before or after the marriage. Courts in Pakistan have used this along with the mahr requirement to hold that spouses will have no legal claim against each other's property during their marriage or upon a divorce.
13. Child support is payable based on the father's financial capacity. However, interim support is always extremely low and it currently takes several years before any final support order is issued.
14. Pursuant to the Guardian and Wards Act, the father is the natural guardian of a child. A guardian is defined by section 4 of the Act as “a person having the care of the person of a minor, or of both his person and property.” In practice, courts often require the guardian to consult with the mother as to important matters concerning the child. The mother is generally the parent with residential custody of children below certain ages. Generally, a mother has a right to the custody of a male child until he is seven years old, and of a female child until her puberty.
[1] Jeremy D. Morley is the principal attorney in the International Family Law Office of Jeremy D. Morley. He is admitted to practice only in New York. He is not admitted to practice law in Pakistan. He works with lawyers in Pakistan and other jurisdictions whenever appropriate.