Saturday, June 1, 2013

Having Loved and Lost in Oman-Divorce

Divorce is a disliked but not-sinful thing for Muslims. Divorce happens. Yes, even in Oman. Sultan Qaboos University is currently doing research into the effects of the growing divorce rate in Omani society. That is not what I am going to write about though. I am going to write a rough guide for divorce [no, I am not planning on getting a divorce, I just thought this is useful information for some out there]. The first thing though to understand, is Islamic marriage rights and customs, and then, which of these one will be bound to if married to an Omani.

The whole reason behind the Islamic marriage (the actual Islamic marriage, called 'nikah' or 'melka') is to protect the rights of the bride from this unfortunate event {divorce}, or otherwise, the early demise of her beloved. The Islamic marriage consists of the signing of a marriage contract where the rights and responsibilities of both husband and wife may be comitted, and also, a portion of money {or as otherwise stated as per the bride's wishes} given to the bride, meant to be maintained for her do with as she likes. Unfortianetly in Oman, this is usually wasted in wedding expenses and can even be eaten up by greedy father-in-laws. I have also known women whose intended did not pay the promised maher. Most women in Oman who face hardships due to divorce in Oman did not ensure their legal rights upon the time of marriage, or did not care to live within the laws of the country.

Oman's family law is derived from Islamic Shariah law, but it is not entirely true to that, so within this post I will advise so anyone entering into marriage will understand their due rights.

RIGHT TO CHOOSE ONE'S OWN SPOUSE CAN BE GROUNDS FOR ANNULMENT: In Islam, no woman can be married against her will. If she was threatened by any memeber of her family {either to be cast out, isolated, beaten, abused, ect.} in order to marry a man she did not want, she has it within her legal rights to go to any courthouse in Oman, and sue for an annulment. This is part Shariah law, and Oman does enforce it. Unfortunately, most women facing this situation have been purposefully kept ignorant of such a right within Islam, or uneducated and unable to financially provide for themselves or their children, and are afraid of their family hurting them if they should be so brave as to seek such an annullment. Ladies, if facing this situation, I do know places you can go where other women who have been through the same can help you to start over. Oman's government does, fortunately, support Islamic law on this. Be brave ladies. There is a way out so don't just complain and do nothing about it.

Men can also face such a situation. In our family for instance,  one guy was married pretty much without his consultation when he was 11 years old to a bride of 8 years, and another at the age of 10 to a bride of 6 . It happens to guys too, although is more common for women in very tribal, rural areas.

KNOW WHAT CONSTITUTES A MARRIAGE: I cannot begin to stress this enough. Islamic marriage consists of the nikha/melka contract (verbal or written) as witnessed by two witnesses other than the bride and groom and the one preforming or overseeing the ceremony. Also, the bride requires a wali, either a muslim male from her family, or from the State, to make sure she is getting her maximum rights out of the premise of the marriage, and that she recieves her maher/dowry. She should also know her rights so that she gets a wali that cares about what she needs/wants, or so that she doesn't expect something out of a marriage contract that can't be assured under Oman's laws, or Islam.

DOWRY/MAHER: 
 The entire marriage portion/dowry/maher has to go to the bride. In Islamic law anyone who touches this but the bride or takes it from her or coerces her out of it against her free will has comitted a sin punishable by God/Allah himself in Hell. Oman's law also protects the bride's portion, and she may sue a man who does not pay it as he comitted in her written contract [called the aqed I believe in Oman?]. Also, if any male family member who takes from her portion can be sued. If a bride is not given her maher, her marriage under Islamic law is null and void, and should not be continued until the marriage portion is delivered as promised.

***It must be noted that if a marriage portion is not delivered as promised that a bride can only legally sue for the maher ammount cap that the Omani government has put on dowries, which is around 3000-4000 OMR I believe.**** [And honestly, guys, if you agree to any ammount higher than this, you're losers. Women who love you will marry you for 4000 and their families suck if they won't let a girl this. I say this about Oman, not other GCC countries where the legal system is less kind to women, like say, Saudi Arabia.]. Also, not receiving the maher is grounds for annulment of the marriage.

WITNESSES: The event must be witnessed by two witnesses OTHER than the Wali of the bride and officiator of the contract +bride+groom.

Normally, the witnesses are from the bride's family, or from the husband's. Be wary in the witness choice dear brides, especially if your marriage contract is purely verbal in form at the time of marriage, and/or if there is no actual marriage contract for you to read over and sign {be wary also if you cannot read Arabic as in Oman, all legal documents must be inArabic to be valid}.

I have known cases where witnesses, being husband/douche's friend during divorce, either lied or just refused to testify the truth of a woman's rights. It is a woman's rights to be able to trust the witnesses. Same goes for a husband.

THE WALI: A bride, if previously unmarried/and/or a virgin MUST have aguardian {either from her own family or from the State} to make sure that all of her legal rights are included on the marriage document, and this person should be seprate from the two required witnesses but not necessarily so under the law. Divorced or widowed women in some Islamic opinions, do not require a guardian, but may simply have the knowledgeable one officating the marriage and contract act as their wali. Under Omani law though, a woman must have a wali in order to recieve legal recognition of her marriage.

***If you are a woman and have no male relatives or your family refuses to help you get married, a wali can be obtained from any local courthouse or by hiring a lawyer. I don't understand why women are so scared of their families when it is their own lives they are dealing with. Trust me, if it ever comes down to divorce, you want a wali you can't count on.***

Usually when most marriages go wrong, it is because the woman knew nothing about her wali. ***The wali should NOT be a friend or family member of the man whom one is marrying, EVER.*** He should also be able to communicate to the bride, her rights, and have an interest to ensure them for her. Think of the wali as extra protection, like a lawyer on your side presiding over a prenuptial agreement. Also, if a wali is obtained through a courthouse or the government, make sure you have a copy of his ID card, that he speaks your language, and is willing to make the marriage contract to contain everything you deserve/want. You want to make sure that you can get into contact with him again if you ever need to sue or divorce. And you want him to be on your side.

The wali's main concern should be making sure the marriage is Islamically and legally valid, by ensuring the bride recieves her maher/dowry, and that the character of the man marrying the woman is good, and that she is not being coerced into marriage, knows her rights and responsibilities as a wife, and drafting the nikah/aqed agreement. This agreement can be verbal but urge strongly against this. I urge bride's, and I can't urge enough, to draft the agreement beforehand, make sure it is accurate to their wishes in Arabic, and that this is the only contract the wali should should. Also, that it should contain the bride and groom's signatures.

***I do wish Oman would make is a legal requirement that both the bride and groom's signatures be taken on the contract as well as the wali and the witnesses as a precaution against the bride being denied any of her rights and to protect her against coercion***

THE AQED/NIKAH AGREEMENT/MARRIAGE CONTRACT: In Islam, the last major requirement of the marriage is the drafting and agreement to of the marriage contract. This agreement may be verbal and still valid Islamically, but under Omani law, I urge that it be taken on paper. Only a paper aqed is viable in the courtroom but if verbal the witnesses and officiator can apply to produce an aqed for the courts.

The contract must be signed by the two witnesses and usally [legally in Oman] the wali. Often the agreement of the bride and groom to the contract is verbal. I urge again, get signatures. I myself didn't, but I think that is because I marired originally without permission from the government kind of secretively. Later, I was required to "sue" my husband in an Omani court, in order to get a aqed nikah paper. This required a whole whack of paperwork. Just get a written contract (in Arabic) correctly spelling out rights and responsibilities, maher ammount recieved, marriage accepting and not coerced on both parties, required signatures, and bam, life get's A LOT easier.

When you have a contract, make sure both you and your husband have a copy. Don't let one keep it. I know many cases of divorce where the husband kept the contract and refused to give it to the court so that he woudn't have to do as he was legally bound.

Girls, be smart.

WHAT TO THINK ABOUT WHEN DOING THE AQED: In Islam a woman has the right to a lot. She has the right to work, she has the right to live where she wants, she has the right to say upfront if her husband married again she will get a divorce and during divorce her rights will be a payment of a certain ammount, and custody of future children should be decided before marriage is even entered into.

Many find this hinders romance. My husband, for example, thought it meant I didn't trust him, but I insisted, these are my rights and this is what I want. I made a contract, first in English, and during marriage negotiation with my now Omani-husband, we worked out the kinks (even put in some rights for him), and then I had it professionally translated into Arabic and made into a document the courts in Oman would accept. For instance, custody of minors during divorce under many circumstances was spelt out in our aqed. Any particular marriage rights were also put in, such as where we would live, and anything either of us was agreeing to outside of norms. Custody should be numero uno when doing your aqed, as well as any financial provision required to be paid after divorce. As far as I know, in Oman, the financial provision required of a father to the mother raising his children barely covers diapers and milk and clothes, let alone anything for the mother if she doesn't work already and have someone to watch children while she works.

WHAT YOU CANNOT EXPECT THE AQED TO PROVIDE FOR YOU: Number one, don't expect the aqed to include anything against Islam. The right to marry up to four wives is a husband's right in Islam, just as it is a wife's to divorce him if he does. You can't put into your contract he wont remarry. In court, it won't benefit you anything.

In Oman, if you are a non-Omani, you can't expect that the law will allow your children to go with you outside of Oman if you divorce an Omani husband. It won't hold up in court, and frankly, I do agree with this. Know this before marriage. If you want your kids in the case of Oman, expect to have to stay and work in Oman. I mean, in Oman, it is really hard for most of us to get permission to marry an Omani man to start with because the Interior Ministry doesn't like dealing with dirty custody battles and all that, and kids being split with passports, yada yada. If you apply for permission to marry an Omani man from the start be ok with this or don't complain later.

In Oman if you divorce as a woman you will probably have to provide for yourself. Unless you put into your aqed something upon divorce you won't get anything towards alimony. We don't have the splitting of property in Islam upon divorce. what his is stays his and what's yours is yours. That's why my husband puts the house in my kids' names instead of his. To show me that he cares about that.

In Islam also, when a woman remarries, after her children are two years of age, the custody generally goes to the father to prevent any financial burden upon the mother. This is not always the case in Islam though, as it also says that a girl would be able to stay with her mother until puberty and a boy until he is old enough to decide which parent, provided the mother and her new husband accept this then as their responsibility. In Oman though generally the age of the child is not considered and the courts will lean to the Omani parent unless the aqed contract is exact about the Islamic rights of the mother to retain the children until puberty or their own decision.

CHANGES MADE TO THE AQED AFTER THE FACT: I honestly don't know if it is ok to amend your aqed contract after the fact as people have asked me that question through the blog. I suggest asking that at an Omani court and through the religious Ministry of authority to subscribe to.

DIVORCE WITHOUT YOUR RIGHTS: I know many sad cases of women divorced from GCC locals who either didn't know or act to ensure their rights. Many I feel were abused, others I feel less sorry for and think were stupid and get annoyed when they start spouting off, "islam is bad" or "Oman's courts are bad" without them caring about how the system works or trying to help themselves from the outset. For example, the court in Oman says you can have your kid provided you don't move out of Oman. No they will not pay for you to live or make your husband to (Islam does not require him to if you didn't ask for that WHEN you married) so you will have to set yourself up to work though. Don't like it? I don't know, I'd do that to stay with my kids sooooooo....

Divorce without an aqed insuring your rights sucks in Oman. Less so than in say, Saudi Arabia, where making a case for yourself, or the court even issuing a divorce for the woman at her own bequest is a horrible and sometimes impossible process.

In Oman you CAN obtain a divorce just by asking for one. You do have to show though, that there is a reason if you husband refuses to agree to the divorce. Such as, he married again, didn't provide financially, was abusive. Usually in Oman, thankfully, one doesn't have to substantiate these claims, declaring them is enough. In Islam never being able to be happy with the person (irreconcilable differences) exists and is a valid claim for divorce although some idiot dudes in the courts don't like to accept this one.

Of course, even you have an aqed that says you should receive alimony, in Oman, it isn't like a man's salary is docked by government if he doesn't give what he is supposed to for his wife and his kids. You can sue a deadbeat dude but that's about it. He might wind up in jail once in a while, but no one will actually take the money from him for you. Same goes for banks though, when people in Oman default on their loans, so don't take it personally as government-versus-women.

My friends who have been divorced usually say they prefer UAE's laws to say, KSA, Kuwait, Qatar, when it comes to making provisions for divorcee female formerly married to locals.

I hope this post (depressing as it might be in places) shows what one should do and know about divorce in Oman from the outset of marriage. There's a lot of misconceptions out there, and I hope this clarifies the issues that lack in Oman's legal system  for divorce cases where troubles come from.

5 comments:

❤ αmαℓ said...

MashAllah, good article. I was really surprised when I got married here, because Idk if my expectations were too high or what..but the whole thing with the Sheikh only lasted like 3 minutes lol and he just asked me (through a translator) if I received my mahr and asked my husband some questions and stamped the paper and that was it basically. The only thing I signed was a paper when the woman was filling out our info before seeing the Sheikh. :-/
& when she was doing that, she asked me what I would like to put in the contract. I told her I want to add that if my husband takes another wife I can get a divorce but she totally laughed in my face and was in disbelief. She made me so embarrassed LOL and I changed my mind :-/
I don't think I have anything to worry about, but too late now lol

Anonymous said...

@ Amal. How rude of her to just laugh at your islamic rights subhnallah!.
When i was at my nikahh i had the same request as you that if my husband was to remarry i could get a divorce and the sheikh wrote it on the back of the contract and my husband asked him to write it on the front and he was like.".no brother its ok on the back is fine"..and my husband was like NO I want it on the front. As if its shameful or something. Allah gave women their rights..we just need to enforce them
Do you know that you can go back and change your marriage contract as long as your husband approves.
@ OPNO Its so important sisters know what they can and cannot ask for..sometimes we are so caught up in blind love we would never think negatively of our new husbands but after 10 years and a bitter divorce maybe some sisters would regret being so naive and not having those essentials on their marriage contract.

Anonymous said...

I think you should read "Social and gender inequality in Oman"
The book challenges the Islamic and tribal traditional cultural norms relating to marriage, divorce, and women's rights

Sandra said...

Thanks for a good article! I like your blog :)

Maymohd said...

Am a non omani woman who was married to an Omani husband ,after having 2 children he had a brain harmarege was in a coma for almost a year after that he could not do anything he is on a wheel chair , his family deported me back to my country leaving my 2 children , since then I have been saving to come to Oman and fight for my rights to be close to my children . But from what I have read in the Oman family law we non Omani mothers have no rights