Indian High Court clarifies spousal support for divorcing Muslims

A story released today by the Indo-Asian News Service reports that the India’s Supreme Court on Friday ruled that their former husbands of Muslim women were liable to provide for them till remarriage.

In 1985, the Supreme Court had ruled that divorced Muslim women were entitled to maintenance for life. The order overruled an earlier provision that allowed payment for only three months after divorce.

But after orthodox Islamic groups said the ruling clashed with Muslim personal laws, the government enacted the 1986 law that ended the women's life-long right to financial support from husbands. Since then, women activists have been fighting the 1986 legislation. It is this issue that was clarified by the court on Friday.

"A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well," the bench said. "Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period," the court ruled.

The bench also ruled that a divorced Muslim woman, who had not remarried and who was not able to maintain herself after the iddat period "can proceed against her relatives who are liable to maintain her in proportion to the properties, which they inherit on her death".

"If any of the relatives are unable to pay maintenance, a magistrate may direct the state Waqf board established under the act to pay such maintenance," the court ruled.

Welcoming the judgement, Anees Ahmed, a lawyer who represented the National Commission for Women during the hearings in the Supreme Court, said the confusion on the maintenance payable to divorced Muslim women had now been cleared.

"The court has given a very benevolent judgement, which favors Muslim women and is according to true Islamic traditions," said Ahmed.

What kids really think about divorce

A story published today by the Guardian reports that for 20 years now, concerned experts have been telling us that divorce harms children. But the real question that need should be asked is not "Does divorce damage children?" but "How does divorce damage children, and when do they do better?"

Researchers Bryan Rodgers and Jan Pryor have developed a "risk and resiliency" model that looks at children and divorce in a radical new way. They look not just at the immediate aftermath of divorce, but at the wider picture and the long term. One of their most striking findings, though, has been that almost no studies on divorce have ever sought the views of children.

According to Professor Priscilla Alderson of the Institute of Education at the University of London, this oversight has to do with deep-seated cultural views on children: we like to think of childhood as a "happy little state", which means that children need "protecting" from the nasty realities of adult life.

When children have a chance to exercise their judgment, she says, they show a highly developed sense of fairness. What's more, they are "very conscious of their parents' anxieties. They are tolerant, forgiving and loyal." Where there is a conflict between parents, be it during a medical emergency or during a divorce, "they tend to refuse to take sides".

In a new report for the Joseph Rowntree Foundation which surveyed 460 children from different family backgrounds, including nearly 250 children from stepfamilies, its co-author Professor Judy Dunn, of King's College London, found that a major problem at the time of divorce or separation was poor communication - not between the adults, but with the children. A quarter said that no one had talked to them, and only 5% felt fully informed and free to ask questions.

Where children felt they could renegotiate these things openly, and talk to both parents about their problems, they were much more likely to be positive about living in two households. Where they were close to their grand parents - and able to confide in them at the time of divorce - they were less likely to show signs of anxiety or aggression, or run into problems at school. They also did better if they were close to their fathers and stepfathers, and if they were able to keep in touch with their friends.

A study by Bren Neale and Carol Smart based on in-depth interviews with 52 children and young people - echoes all the themes of Dunn's research. What matters to children is not the shape of the households within which they live, but the quality of their family and social relationships. Children across the board seem to manage difficult changes better if they live in households that practice what they call "democratic parenting" or "family citizenship". They define this as "balancing care and protection with respect and participation". This style of parenting is especially beneficial to children during a divorce.

It does not take the pain away. Divorce, says Neale, is always "an enormous challenge". But she insists that it can be managed well, and usually without legal or professional interventions. Children, she says, are good at cooperation and compromise when given the chance. As a rule, they want their parents to make the big decisions for them. But children also want to be "listened to, taken seriously, informed" and consulted.

They might not need to know the full extent of their parents' miseries, but they do want to know about what Judy Dunn calls "the basic architecture of their lives". Who's going to take them to school on Wednesday and where they'll be at Christmas. They do not see themselves as victims or objects: many talk with pride about helping their parents. They're upset when their parents fight in front of them, use them as pawns or expect them to take sides. All they want is for everyone to try.

Tuesday, September 25, 2001

English courts won’t recognize prenuptial agreement

A story published today by the Guardian reports that if you happen to live in England or Wales, there's nothing to stop you from signing up a prenuptial agreement. Lawyers are advising well-heeled clients contemplating matrimony that they have little to lose in tucking one away and possibly much to gain.The only problem is that British courts are not obliged to enforce them.

The first case on a prenuptial agreement to go to the Court of Appeal may be heard by the end of this year. In a case that has not yet had any publicity, the husband, a rich Canadian, is hoping to appeal against a high court judge's refusal to uphold the agreement his pregnant wife-to-be signed just before the wedding.

Lawyers think the appeal court may take the opportunity to clarify what weight the courts should give to a premarital agreement freely entered into on both sides. High court judge Sir Nicholas Wilson won't comment on individual cases, but he says that in principle "there must be an acceptance that the mood of the public, the government and probably parliament is moving towards some greater respect for these agreements and I'd expect the Court of Appeal to reflect that."

"But notwithstanding that, many judges have grave reservations about the appropriateness of people getting married but not wanting the full effects of marriage to attend their own marriage and possible divorce. Are they having their cake and eating it?"

Judges are reluctant to give up their discretion but they may find themselves with fewer couples to exercise it on. While the rate of marriage breakdown in England remains among the highest in Europe, the number of divorces is dropping. That's because fewer couples are getting married and the break-ups of those who haven't made their relationships official don't feature in the statistics. Those with most to lose - mainly men - are becoming more reluctant to take such a leap in the dark.

"We have made marriage much less legally attractive to men," the appeal court judge Dame Brenda Hale told lawyers and judges at the world congress on family law in Bath last weekend. If the government wants to make marriage more appealing, it may have to give more say to the individuals involved and less to the judges. Letting couples make enforceable prenuptial agreements is one obvious answer.

Friday, September 21, 2001

South African court awards custody to single dad

A story released today by the South African Press Association reports that South Africa’s Kimberley High Court made a landmark ruling on Friday when it granted a single father custody of his year-old son.