The right to compensation in an arbitrary divorce

If a man divorces his wife and the judge finds that the husband is abusive in her divorce without reasonable cause and that the wife will thus suffer misery and poverty, the judge may order her divorced according to the condition and degree of his arbitrariness, with compensation not exceeding the amount of three years’ maintenance for her likes above the maintenance of the waiting period, and the judge may make the payment of this compensation Bulk or monthly, as the case may be.

Diligence

Any marriage contract can only be made by the will of the two parties, but when it is separated, it may be done unilaterally by the husband, and in this severe injustice and prejudice to the woman, if one of the pillars of the marriage contract is the offer from one of the contracting parties and acceptance from the other as stated in Article 5 of the law, it is a consensual contract. It is natural for this contract to be terminated by the will of the two parties or by a decision of the judge if one of the parties breaches his obligations or requests the annulment.

What is an arbitrary divorce? And what are the conditions?

It is the divorce that occurs by the husband or his agent against the wife without a reasonable cause or a legitimate justification, as indicated in Article 117 of the Syrian Personal Status Law, which says: (If a man divorces and his wife and the judge finds that the husband is abusive in the divorce without reasonable cause and that the wife will suffer misery and fulfillment, the judge may rule on the divorced according to the condition and degree of his arbitrariness, with compensation not exceeding the maintenance of three years above the maintenance of the waiting period, and the judge may make the payment wholesale or monthly as the case requires). There are three conditions, which are that the divorce is without justifiable reason, that it leads to misery and poverty, and that the judge deems that it deserves compensation.

When the aforementioned conditions are met, they deserve compensation, and the same applies if the divorce took place, whether before consummation or seclusion, or after them, then the case precludes awarding compensation.

It is worth noting that compensation for arbitrary divorce is not absolute, but the wife can be deprived of this compensation in many cases, the most important of which are:

  • If the divorce took place in one of the cases of separation or what is known as judicial divorce, that is, the divorce is included in the legally known cases of separation, as in the case of separation due to discord and damage because the place of compensation for divorce is the one that the husband signs by his unilateral will. The divorced woman does not deserve compensation for this divorce.
  • Marriage of a divorced woman because she is not entitled to compensation for arbitrary divorce due to the absence of the second reason, which is that she suffers misery and poverty.
  • If the divorce is lawful, then the wife is denied compensation, and the wife’s sterility is not considered a legitimate reason.
  • The work of a divorced woman is also another reason for depriving her of claiming compensation.
  • The existence of a breadwinner for a divorced wife deprives her of compensation for arbitrary divorce, but it is stipulated that the breadwinner is capable of spending on her by decree or consent.
  • It should be noted that these cases in which they are deprived of their right to compensation are by way of mention but not limited to.

Estimating compensation and the power to assess it:

Article 117 clarifies the authority to assess compensation, which is the Sharia judge, and this assessment must be limited to the husband’s condition and degree of arbitrariness, provided that it does not exceed three years’ maintenance for the likes of the wife, and this assessment does not include the maintenance of the waiting period, per month, depending on the situation.

So, the estimation of compensation is one of the objective matters left to the conviction of the Sharia judge alone, and the presence of the deferred or the expedited one in the marriage deed does not prevent the divorced woman from benefiting from her right to compensation for this divorce.

Compensation can only be claimed after the legal waiting period, i.e. after the divorce becomes irrevocable and cannot be submitted during the waiting period.

This means that these conditions are impossible and difficult to verify, so the divorced woman will not receive even this compensation, which in fact will not be more than a mere financial aid to manage her affairs. With regard to divorce after more than twenty years of married life, this negatively affects the woman, who will not benefit from compensation, no matter how large, as she will not be able to find a home or work and may have given up her inheritance share as many women in our country, so it is The law must be amended to allow the woman to naturally take half of the marital home, or half of what the husband owns, if a long period of time has passed since their marriage specified by the legislator.

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