Like all legal matters the law surrounding divorce will vary considerably from country to country and across differing cultures. International divorce can therefore be an extremely convoluted matter to resolve when dealing with spouses from differing countries, especially when the custody of children is also an issue. However, the issue is becoming more prevalent as people travel more, but also as the trend for divorce is on the rise. This article looks at some of these issues taking the example of Bahrain to illustrate the contrast of legal processes overseas.
A fundamental issue in international divorce is establishing where, under which jurisdiction, a case should be heard. In general it usually advised that divorce should be sought in the country that is most relevant to the case being heard, which will tend to be the country of either the claimant’s or their spouse’s residence. This approach minimises the ability for the spouse to then seek a ruling in another country which may then challenge the original ruling. However, in cases where couples live apart and seek rulings in different countries, the jurisdiction of the home country of one spouse may not be honoured in the home country of the other. In Bahrain for example, foreign court rulings will not be honoured if they contradict the local laws within the country.
For cases being heard in Islamic countries such as Bahrain the type of court that will have jurisdiction over a case will depend on the faiths of those involved. If one of the parents involved is from Bahrain then the case will be heard under Sharia Law. However there is then the distinction between the Suni and Shia courts as each sect has its own interpretation of Sharia law. The decision as to which of these courts the case should be heard in will usually be specified within the initial marriage contract but if it is omitted from the contract then the husband’s court will take precedent. There is also the option of hearing the case in a civil court if the parties involved are non-muslim.
To understand the laws surrounding divorce in any given country it is important to remember the historical and religious context in that country of the institution of marriage. For example, in Bahrain marriages historically took place within or between tribes within a strict Islamic framework in which the men and women were segregated throughout the proceedings until the marriage was finally confirmed (between the groom and his father in law). Men were traditionally permitted to take up to four wives and the male and female roles were well defined as providers and homemakers respectively
Although these traditions have significantly evolved to keep pace with the modern world they have undoubtedly left a legacy which favours the rights of the man over those of the woman in comparison to westernised legal frameworks.
A Bahraini husband of the Sunni faith may still be able to divorce his wife without going to court by simply by quoting “I divorce you” three times (the triple talaq) although in practice further conditions (the need for witnesses etc) may apply and the Shia interpretation of this law can differ considerably. Women in Bahrain however must go to court to gain divorce regardless of the reason and/or the behaviour of the husband and will need to present a recognised reason for their claim, such as maltreatment or financial neglect on the husband’s behalf. Even then the husband is likely to be granted a period of grace to resolve the issue with a divorce only being granted if he does not succeed.
There is no specific family law in Bahrain to guide rulings on divorce and child custody. Decisions are currently made on a case to case basis and left to the discretion of the judge under the guidance of their interpretation of Sharia law. Consistency can therefore be lost from one case to another.
In general priority will be given to the father in regard to child custody matters. The mother will generally get custody of girls up to the age of nine and boys up to the age of seven, although when the children reach these ages the custody will often switch to the father. Furthermore, a child has the right to choose which parent they live with once they reach what is known as the age of discretion, although, this concept has no defined age assigned to it and therefore is again at the discretion of the judge. A father will have of the obligation of supporting their children financial irrespective of which spouse they live with.
Decisions can be heavily influenced by the concept of ‘incompetence’. If either party is deemed to be incompetent then the custody of their children can be awarded to the other party. This concept introduces a further area of ambiguity and discretion as a judge’s definition of incompetence could include any behaviour which they deem as contradicting Sharia law or accepted Muslim behaviour. Whilst the definition often covers serious breaches of law it has in practice be known to include marrying a non-muslim or even being a non-Muslim.
The issue of judge discretion and resulting inconsistencies has caused a rift in Bahraini society with human rights groups and groups representing women’s rights calling for the introduction of a Personal Status Law which would provide judges with a single legal framework and reduce the degree to which discretion is used. The more traditional Islamist elements on the other hand argue that the existing laws are determined by the will of God and therefore should only be interpreted by religious leaders, not politicians.
Taking the example of Bahrain it can be seen that divorce legislation can vary significantly sometimes even within a country, never mind internationally, as a result of traditions, social history and religion. Therefore it is paramount that if you seek the right advice from experienced and local Bahrain Divorce Solicitors before you start any such proceedings.