Financial protection upon divorce

I often hear stories of women being divorced because they are too “educated” or “too old” and many times simply because the husband can marry someone “prettier” that he fancies. Consequently, women live in constant fear of divorce, exacerbated by the near-universal financial and social dependence of women on their husbands and a complete lack of financial or social consequences for the divorcing husband.

Women’s dependence can be reduced with secure and paid employment but it stands at an abysmal low of about 22%, and nearly 77% female paid employees earned less than the minimum wage in 2013-14. Moreover, only 2% own land and 6% have accounts in formal banking institutions. Social constraints limit women’s work outside the house and influence the kind of work they can engage in. Unfortunately, despite this fragile economic and social status of Pakistani women, family laws in Pakistan make no provision for financial protection for Muslim women upon divorce.

In Pakistan, Muslim Family Laws Ordinance 1961, the Family Courts Act 1964, and the Dissolution of Muslim Marriages Act 1939 deal in detail with marriage and divorce and maintenance following separation and divorce. However, there is no provision for maintenance after divorce, exception being the iddat period of three months or, when a woman is pregnant, in which case she becomes entitled to subsistence support until she delivers the child. There is also no provision in these laws for access to matrimonial property, which is property created during the life of marriage and has contribution in kind and sometimes in cash from the wife.

Since our societal structures encourage women to restrict their role to confine their activities to the house, termination of financial support from the spouse upon the breakdown of marriage leaves women from all strata of society extremely vulnerable. This constitutes a major reason behind women continuing to live in abusive marriages. Lack of state support for single women in the form of long-term government housing or unemployment support to financially dependent women exacerbates vulnerability for women leaving abusive marriages.

Islam does not forbid financial protection for women in marriage and upon divorce. In fact, it contains provision for support to women under the doctrine of mata’a or mata’tu’talaq, which refers to an award of maintenance to the divorced wife for life or, till she remarries, piecemeal or in a one-time transaction. Muslim countries like Turkey and Iran have detailed legislation for recording a woman’s contribution to family business and property acquired during marriage. In case of divorce, this record helps assign the respective share to the man and woman. Similarly, Tunisian and Malaysian family laws provide for a woman’s right to ownership of property acquired during their marriage. In 1956, the Commission on Muslim Marriage and Family Laws in Pakistan took a very sympathetic view of mata’a, observing that “a large number of middle-aged women who are being divorced without rhyme or reason should not be thrown on the street without any means of sustaining themselves and their children”. Unfortunately, powerful male members of the same commission opposed this burden on men, declaring that it would be against morality to provide for continued support of a now “na-mahram” woman from her ex-husband. These members also termed it unfair to the new wife who would be denied her rightful share in the husband’s earnings. The Law and Justice Commission of Pakistan has twice proposed a draft law for mandatory maintenance beyond the period of iddat and the Council of Islamic Ideology recommended enactment of a law on mata’a in 2008, but the Parliament has not taken up the matter till now.

Pakistan needs to enact laws for maintenance and the right to matrimonial property and take measures to record the husband’s and wife’s assets and sources of earning accurately. This will help reduce women’s financial vulnerability and the practice of arbitrary divorces based often on whims of the husband.

Published in The Express Tribune, February 20^th, 2020.

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