Pakistan is a diverse country, and more than a dozen laws oversee marriage and divorce issues. The most important of these laws is the Muslim Family Law Ordinance (1961) which sets out the grounds and procedure for Muslims to divorce in Pakistan. Keep reading to find out more about divorce laws in Pakistan, how financial settlements work and who gets custody of children.
Divorce laws in Pakistan
Marriage in Pakistan is considered a contractual agreement, even though churches recognise the marriage.
According to Islamic Law, the contract of marriage may be ended in any one of the following ways:
- Nikahnama – where a wife has a right to divorce
- Talaq – when the husband divorces his wife
- Khulaa – when divorce is obtained by mutual consent
- Mubarrat – when divorce is obtained through a court’s intervention.
The Nikahnama is a written document that two Muslim partners must sign in order to legalise their marriage. Under the Muslim Family Laws Ordinance 1961, it is the legal evidence of the marriage and lays out the rights and obligations that you and your spouse agree on.
A husband can give his wife the right to divorce in the Nikahnama. If a wife meets conditions laid out by her husband, she has the right to divorce.
Under Islamic law, any husband who has reached the age of maturity and is of a sound state of mind may divorce his wife without offering any reason. This is called ‘talaq’.
However, reforms introduced in the Muslim Family Laws Ordnance (1961), a divorcing husband should give notice in writing to the chairman of the Union Council as soon as talaq has been pronounced.
The chairman of this council must then supply a copy of the notice of divorce to the wife. Within 30 days the chairman must hold a council and take steps to reconcile the two parties. If this fails, a divorce takes effect 90 days after the talaq was notified to the chairman.
Failure of a man to follow this process can lead to a fine or even imprisonment.
If a wife is prepared to forego a claim on the ‘mahr’ (her financial rights) then she can exercise her right to divorce through judicial khula.
Grounds on which a wife may seek khula include:
- Desertion for more than 4 years
- Failure to provide maintenance for more than 2 years
- Husband’s imprisonment for more than 7 years
- Husband’s failure to fulfil marital obligations for more than 3 years
- Husband’s polygamy without wife’s consent.
Additionally, if a wife was married while under 15 years of age, the marriage was not consummated, and she chooses to end the marriage before she reaches 18 years of age, the marriage can be dissolved.
If the two of you mutually agree to divorce, it is called ‘mubarrat’.
Financial settlements after divorce in Pakistan
After divorce, a wife may be able to claim:
- The deferred part of her ‘mahr’ (if applicable)
- Financial support during the waiting period (iddat)
- Maintenance for children
- A share of any jointly-owned property.
If a husband initiates a divorce, then the wife is entitled to the return of her dowry (mahr). In most cases she is also entitled if she is the one to initiate the divorce.
Under khula, a wife will forego her financial rights in order to secure the divorce.
The financial support of any children in Pakistan rests with the father, both during marriage and after divorce. The court has the power to enforce child support payments, and the amount of maintenance should be in proportion with the husband’s financial means.
Child custody following divorce in Pakistan
In Islamic law, custody of the children should go to a Muslim who is in good physical and mental health and is in the best position to meet the child’s needs.
In Pakistan, the custody of a child generally rests with the mother while they are young (the right of ‘hizanat’). After the age of seven, the mother’s right over a son ends and they will generally live with their father, while mothers are given custody of girls until they attain puberty.
However, this is starting to change as culture develops and more mothers opt to return to work. The welfare of your child is paramount and so a court may make a decision based on who is best placed to raise your child.
The conditions of custody include:
- being an adult of sound mind
- being free (not a slave)
- being of good character
- being a Muslim if the child concerned is a Muslim
- being able to fulfil all obligations towards the child.
It is also important to note the third point above about ‘good character’. The conduct of a mother can be considered, and if she is considered ‘objectionable’ then this may affect custody. An example would be marrying someone who is a ‘stranger’ (i.e. not related) to the child.
Pakistan became a signatory to the Hague Convention on Civil Aspects of Child Abduction in 2017. This Convention supports members by providing procedures and formalities for the protection and return of abducted children when taken abroad by a parent or guardian.
This means that there are policies and agencies in force in Pakistan to deal with cases where children have been taken out of the country – or from another country to Pakistan – by a parent.
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