The ordeal of going through a divorce is intricate and laborious. On the other hand, several divorced individuals believe it provides them with a second opportunity in life, portraying it as resurrection. Recently, the breaking of families became exceedingly familiar amongst societies. Each jurisdiction has a different approach regarding this matter. Numerous jurisdictions are influenced by religious beliefs, for instance, canon law and Islamic law.
This research paper will examine the waiting period(s) required for a divorce in Scotland and Iraq. This paper will also look at the Scottish and Iraqi law on the waiting period(s), the period of marriage required, how long does the process take and a comparison of the similarities and differences between the two jurisdictions.
This paper will be following a comparative research methodology. This approach will help enhance the appreciation of the two diverse jurisdictions by exploring the differences and similarities among them. Additionally, pursuing to comprehend the justifications behind various techniques that may become apparent, presented characteristic within each jurisdiction.
This piece will be relying on legislations’ and case law to validate my points, primarily employing the Divorce (Scotland) Act 1976 and the Personal Status Law 1959. These sources will help me examine the waiting period used in Scotland and Iraq. I did not go through any difficulties in find sources pertain to Scotland as it is very accessible using Westlaw and the legislation was accessible via google. Nevertheless, when looking at Iraqi law, it was challenging to find the appropriate sources. Despite having the knowledge on the matter at hand, I found minor complications in gain access to sources online in English. Sources were accessible in Arabic; thus, I had to translate some of the sources used.
Divorce must be a result of the irretrievable breakdown of the marriage. One or more of the grounds of divorce must occur for matrimony to have broken down irretrievably. To illustrate, it is of no importance irrespective of whether the marriage has genuinely irretrievably broken down, a divorce is only available if there is a confirmation that one of the conditions occurs.
Adultery is one of the primary grounds for divorce in Scotland. Another ground for divorce is unreasonable behaviour. This is where the spouse has behaved unreasonably whether this was due to ‘mental abnormality’ , or this conduct has been ‘active or passive’ . As a result of the defender’s action can cause the purser to wish no longer to remain in the relationship and therefore can apply for divorce using that ground. The argument is that expecting any male or female to continue cohabiting with a violent partner is unjust.
In Scotland, the establishment of adultery and unreasonable behaviour can grant the divorce without a waiting period. On the other hand, a failure in providing sufficient evidence on the grounds of adultery and irrational behaviour, parties can show the irretrievable breakdown of their marriage by living separately for a specified period.
England has a waiting period of five years; in the case of Owens v Owens , which ignited many debates. Fortunately, this is not the case for Scotland. If the parties have been living apart for one year and they both consent to the divorce, then the marriage has broken down irretrievably. On the contrary, if the parties do not consent to the divorce, then as soon as the parties have resided separately for two years, the marriage has irretrievably broken down.
Calculating the length of time, the parties spent apart is quite convoluted, solely because many couples may return to the previous relationship they had. In the hope of setting their differences aside, this is encouraged by the law. In which couples are given six months within the one- or two-year period. As A Result, they do not have to run the risk of losing their time of non-cohabitation. Alternatively, the six months do not count against the one or two years, but they do not count against that time, either.
Iraq relies heavily on the teaching of Islam in lawmaking. The law bordering divorce might be like various other Islamic nations. According to Islamic law, a woman must
According to the Personal Status Law of 1959, the act defines divorce as ‘the removal of marriage registration/record by the husband or the wife, if she is authorised or delegated, or by the judge. The divorce can only take place in the manner legally prescribed for it.’ According to the text, a divorce can take place verbally by the spouse. Partner must express the intention of divorce orally and then it must be registered at the court on a later date. It is crucial to notice that the court does not get involved in the divorce if it is verbally expressed. The job of the court, in this case, is to register the divorce only. However, the court can decide the divorce based on the request of either party if ‘If either spouse has caused harm to the other or their children, after which marital life cannot continue.’
The waiting period of divorce is determined according to the two types of divorce adopted by Iraqi law. The first type of divorce is known as a revocable divorce. This type of divorce means that the parties can return to their normal marriage relationship without a need for a new marriage contract following a divorce. If the parties desire to return to each other, they can do so within the Iddah (prescribed waiting period).
The second type of divorce is an irrevocable divorce. This type of divorce subdivides into two parts a minor and a major. A minor irrevocable is one that grants the spouse permission to remarry the woman he divorced. The parties can return to each other without a new wedding contract. While a major irrevocable denies the husband consent to remarry his ex-wife if he divorced her on three different occasions, and whose Iddah has been completed.
A waiting period is only held by the woman and not the man. The primary intention of this is to eliminate uncertainty as to the fatherhood of the infant born following a divorce. The woman must go through a waiting period if she became separated after consummation irrespective of the type of divorce she had. If the marriage was consummated, the woman would have to go through a waiting period of three months. The waiting period mandatory commences instantly following the divorce.
Comparison of the two jurisdictions
There are evident distinctions and similarities among Scottish and Iraqi law. Both jurisdictions agree on the necessity of a waiting period. A waiting period .is designed to give couples time to in case they wish to return to each other. Both jurisdictions agree that divorce should be the last resort. Muslims refer to the saying of the prophet ‘of all the lawful acts the most detestable to Allah (God) is divorce’. While it is permissible for a couple to divorce, it should be the last option. This is due to the consequences that follow the divorce, from the collapse of families to financial and emotional struggles. Scottish and Iraq law recognise the complexity of the divorce process. Therefore, they give couples a waiting period where they can return to the relationship they once had.
However, the waiting period varies, it is and dependent on the circumstances. The Scottish jurisdiction insists on a waiting period before the marriage, which is reliant on the consent of the spouse for a divorce. This is not the case for Iraq as the divorce will go through if permission is not given, then this is taken to court. The waiting period does not change; it remains for three months.