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Do divorce laws need reform?

  • Published at 12:05 am August 4th, 2019

How can we empower women during divorce proceedings?

This is a commonly heard statement in Bangladesh: “Bideshe chelera divorce-er shomoy kangal hoye jai.” It makes me wonder why, in 2019, our marriage laws are still based on Shariah, which clearly fails to ensure fairness for women.

It is important to mention that the notion of sufficiency and fairness varies between people. For some people after divorce, if the woman can somehow sustain herself even at a lower standard of living than during marriage, and not receive a fair and almost equal share of assets accumulated during marriage, that’s sufficient and fair. 

However, fairness is only ensured when the woman after divorce can maintain the standard of living she had while being married.

Does the Islamic den mehr system ensure that? In Islamic marriages, the wife is usually paid an upfront amount at the time of marriage, and a deferred amount is specified and fixed at the time of marriage which the husband has to pay to the wife if and only if the husband divorces the wife. 

So, in the case the wife wishes to divorce her husband, she gets nothing from the marriage.

Even when the husband divorces the wife, is the deferred mehr an adequate reflection of the contribution of the wife in husband’s assets accumulated during their marriage? The deferred mehr was set at the time of marriage when they had no information about what was going to happen afterwards. 

How can we predict accurately information such as the duration of marriage, assets that will be accumulated during marriage, whether or not the wife will work after the children are born, how many promotions the husband/wife will get after marriage, and their standard of living post marriage.

It is always the case that contracts made with more information are always fairer (or at least never worse off) than contracts made with less information. Hence, a compensation to wife decided after the divorce would always be better in ensuring a fair and sufficient compensation to the wife in case of divorce. 

It’s time we replaced the den mehr system with the alimony system followed in Western countries where a wide range of factors are taken into account. It is also gender-neutral because husband also gets payments from the wife if the court deems that after divorce he would not be able to sustain the same standard of living he had during marriage. 

Islamic den mehr system does score high in ensuring ease of divorce by the husband in making him only having to pay the amount mentioned during the time of marriage. The longer the duration of marriage, the greater the difference between the husband’s net worth at the time of divorce and marriage. 

Islamic mehr system also encourages women to stay in abusive marriages and not ask for divorce.

Jeff Bezos built most of his wealth after marriage to his wife. The couple recently got divorced; the divorce was initiated by the wife, and due to his massive wealth accumulated after marriage, his ex-wife became the world’s fourth-richest woman after the divorce settlement. 

The Islamic-mehr system is an archaic system which does make exit from marriages easier, but fails to ensure a fair amount of compensation. Ex-ante arrangements (when information is not realized yet) are always worse off in ensuring fairness than arrangements made ex-post (when all information is realized). 

Hence, replacing the Islamic mehr system with an alimony arrangement will empower women to leave abusive marriages, and even during marriage will enhance her bargaining power in household allocation of resources. 

Maliha Ahmed is a PhD candidate, Economics, University of Illinois at Chicago.