By: Annelies Moors

Annelies Moors — Fri, 06 May 2016 16:50:06 +0000

Differentiating between Islamic “Sharia law”, on the one hand, and ‘adāt wa taqalīd (customs and traditions), on the other, as two overlapping codes of family law seems to me not very helpful to understand ‘divorce before the consummation of marriage’. It is true that people often point out that harmful local traditions, such as marrying women without their consent, have been criticized by Islamic scholars. But there are also traditions, such as those involving making a marriage public (a communal meal, a wedding feast), that some Islamic scholar also deem necessary for the validity of a Muslim marriage. Tracing the history of statutory family law points to a variety of sources.

About ‘the emergence of divorce before consummation’, it is interesting to compare your data with research on the Palestinian West Bank. Lynn Welchman (2000) did extensive research about marriage contracts in the late 1980s and early 1990s, and I (Moors 1995) traced changes in registrations between 1920 and 1990 in Nablus. We both concluded that mutual consent divorces (khul’) are much more common than talaq, and that a considerable number of these khul’ divorces are before the consummation of marriage. These divorces are relatively easy because there are no children involved and because the husband does not need to pay the dower (in contrast to what you state about your cases). There is, indeed, a gradual increase in the number of divorces before consummation, but there also is a longer history. In Nablus already in the mid-1970s over one third of all khul’ separations took place before consummation and by the mid-1980s this had increased to over 50%! The time-span between writing the contract and celebrating the wedding is then used as something similar to a family-approved dating period.

Comments on: The Emergence of “Divorce Before Consummation” as a Legal Category in Jordanian Sharia Courts fictions

By: Annelies Moors