التدابير الشرعية الواقية من الطلاق التعسفي : دراسة فقهية مقارنة في ضوء الشريعة الإسلامية، و ما عليه العمل في قانون الأحوال الشخصية الإماراتي (282005م)‎

Abstract EN

Family related cases are of great complexity, of which divorce cases are some of the most critical.

This is due to the increasing importance of the role of family in building society, and in view of the intensification of marital disputes which in turn have led to the spread of divorce in Arab societies, in addition to spouses’ abuse of the decision to divorce, which raises concerns about the resulting harm.

This research sheds the light on one type of family related cases in particular, which is the arbitrary abuse of the right to divorce which can cause negative impact on society.

This research focuses thoroughly on the principles of Islamic Fiqh that aim to limit such a phenomenon, in addition to understanding the fundamentals of the Islamic vision pertaining to divorce.

Especially since there is a great emphasis in Islam on guaranteeing the wellbeing and stability of the family and the prevention of the occurrence of what is contrary, including the disputes between spouses caused by temperamental issues.

Hence, preventing divorce from becoming a weapon for the husband to use at his wish.

This will be done through the interpretation of the preventative methods and the remedies, based on Quranic texts, the statements of the tafsir and the jurisprudential rulings relating to them, in an attempt to find a rationale that protects the family against the effects of arbitrary divorce.

Islamic Sharia has set legal restrictions on divorce in order to reduce its potential harm, preserved women’s moral and marital rights and protected them from injustice and aggression in arbitrary decision to divorce.

Such restrictions include: The divorce must be a necessity.

That the divorce should not be in the period of menstruation and the case of intercourse, it is obligatory to wait for menstruation followed by purity afterwards.

That the threefold final divorce cannot be pronounced at once.

The provisions of the UAE Federal Law No.

28 of 2005 on Personal Status are consistent with Islamic jurisprudence where repeated divorce is to be considered only as one (Article 103/3), in purpose of maintaining marital stability.

The UAE legislator also took care of the rights of spouses involved in Article 54 of the law, in relation to the Islamic emphasis on the preservation of family welfare and its importance.

Thus, it is important to state that although divorce is lawful, its arbitrary abuse is forbidden in Islamic Sharia