Wives resort to “khula” to escape the difficulty of “proving harm” when intercourse is impossible

Wives face difficulty in proving the harm done to them, as their lives with their husbands reach a dead end, which prompts some of them to divorce, as a quick solution to end the marital relationship without thinking about the consequences of this solution, especially the loss of their rights.

The new Personal Status Law gives each spouse the right to request a divorce due to harm that makes it impossible for them to continue living together in a fair manner between them. The court may rule for divorce if the harm is proven and reconciliation is impossible.

At the same time, the law also stressed that it is not permissible to agree to khula in exchange for forfeiting any of the rights of the children, their maintenance, or their custody. If the husband refuses to accept the khula allowance out of obstinacy, the court will rule for khula in exchange for an appropriate allowance that it determines.

Wives told their stories to Emirates Al-Youm, as part of the consultations they received, as they confirmed their desire to separate from their partners, but they face difficulty in making the right decision, whether to divorce or divorce due to harm, especially since there are many harms that are caused to them that are difficult to prove.

Over the past years, the state courts have registered a number of divorce cases, as well as divorce due to harm, after the court was certain that the harm befell the wife was proven.

A reader said in her message: “My daughter has been married for about a year, and her husband has been suffering from health problems since the beginning of the marriage, and she wants to separate. How can this harm be proven? Should we cut corners and file a divorce case?

A query came from another reader asking: “Which is better, khula or requesting a divorce due to harm?” She explained that “she has been suspended for a while, and her husband does not support her, and at the same time rejects the idea of ​​divorce. She fears losing all of her rights if she requests khula. She also wonders: Do she retain her rights in the event of harm with the khula?”

Another reader said: “I am a resident of the country, and I was married to a resident, and we had disagreements, as a result of which I filed a divorce suit, but circumstances required me to travel to my country after the company I was working for closed, and I did not complete the divorce procedures. A year after I left the Emirates, my husband was deported to his country, and I returned to the Emirates again, and I want to file a divorce suit, so what steps should I follow?”

A reader asked to inquire about a topic related to a woman’s right to divorce in the event of harm and the husband’s refusal to divorce. She said, “Her daughter married a young man, and after six months of marriage, many things became clear to her and to us, including that she was exposed to harm, such as his refusal to fulfill his obligations in terms of housing and spending. After the matter of reconciliation became impossible and a dead end reached, a divorce was requested, but the husband refused.”

The new Personal Status Law defines the concept of khul’ as separation between spouses at the request of the wife and the husband’s approval of the compensation offered by the wife or someone else. Khul’ is considered a minor irrevocable divorce.

He also specified four controls regarding the Khula allowance, as he clarified that everything that is validly considered to be money may be considered an allowance for the Khula, and if the Khula compensation is the dowry, then the delivery of what is received from the dowry is limited and what remains of it is forfeited even if it was deferred. It is not permissible to agree that the compensation in the Khula should be the dropping of any of the rights of the children or their alimony or custody. If the husband refuses to accept the Khula allowance out of obstinacy, the court will rule the Khula in exchange for an appropriate allowance that it estimates.

The law affirmed that divorce from spouses with full legal capacity is valid, and compensation for divorce is valid based on the legal capacity of the person providing the compensation. It also stipulates that the spouses must document the divorce in accordance with the procedures in force before the competent court within a maximum period of 15 days, and any interested party may submit to the court to prove it by any means of proof.

For his part, the legal advisor, Dr. Youssef Al-Sharif, confirmed that as long as there is harm, such as lack of maintenance and abandonment, the wife can file a divorce suit due to harm and not a divorce suit, because divorce usually occurs in the event that there is no harm in the first place, or the inability to prove this harm.

He said that divorce is not recommended if there is harm, because divorce if there is harm is a loss of rights despite their entitlement if the wife can prove this harm, as she has the right to file a divorce suit for harm while demanding all the legal rights resulting from that, provided that harm is proven.

He pointed out that the legislator dealt with these cases with the provisions of the Personal Status Law, including what was stipulated in Articles (69) and (70), which regulated the dissolution of marriage due to diseases and illnesses that prevent sexual pleasure, as Article (69) stipulated that if one of the spouses finds in the other a disease or persistent illness that is repulsive or harmful, such as insanity, leprosy, or leprosy, or that prevents sexual pleasure, such as impotence, cornea, and the like, he may request Annulment of marriage, whether the reason existed before the contract or occurred after it.

This text gives the wife a fixed right to file an annulment lawsuit if it is proven that the husband is unable to have intercourse, even if the husband or his family did not declare the situation before the marriage. The wife’s right to request an annulment due to an illness that prevents sexual pleasure is not waived under any circumstances, even if the marriage lasts for a period of time. This reflects the legislator’s awareness of the sensitivity of this type of harm and the difficulty of declaring it.

He pointed out that if the illness or harmful illness is not reversible, the court will annul the marriage contract without the need for a grace period. However, if it is possible for them to disappear, the court will postpone the lawsuit for an appropriate period, not exceeding one year. If the illness or illness remains during that period, and the person seeking the annulment insists, the court will annul the marriage contract.

With regard to proving sexual impotence, Al-Sharif stated that the court may seek the assistance of experts (forensic medicine) to determine whether there is sexual impotence or not, and if it exists, the expertise will assess the condition and the possibility of treating it or not, and if treatment is possible, it determines how long the treatment may take.

As for the effects of annulment of the marriage contract by the wife due to illness or harmful illness, they are specified in Article (70), which differentiates between whether the occurrence of illness or illness in the husband preceded the contract, and the annulment occurred after consummation or seclusion. The wife is entitled to the full dowry, but if the wife learns of the defect in the husband before the contract, and then requests annulment for the same defect after consummation or legal seclusion, she must return half of the named dowry or half of the equivalent dowry if the dowry is not specified.

Thus, we see that annulment is the best way in cases of medically proven impotence, because it preserves the wife’s full rights and is based on clear and explicit legal texts. As for resorting to khul’, it may be the quickest option if the wife wants to end the relationship without proving the husband’s sexual impotence, because khul’ does not require proof of harm, but rather the wife’s mere waiver of her legal financial rights and the return of the dowry.

He called for the necessity of frankness before marriage regarding health matters, especially those related to sexual health and reproduction, to preserve the stability of the family, and the right of the other party to make an informed decision, as the issue is not an individual one as much as it reveals a problem that is repeated, but is often managed silently and marriages are ended before they begin.

---

4 cases of annulment of the marriage contract due to illness or illness

The Personal Status Law specifies four cases in which the court may annul a marriage contract due to illness or a harmful illness. If one of the spouses finds in the other an illness or a persistent illness that is repulsive or harmful, such as insanity, leprosy, and leprosy, or one that prevents sexual pleasure, such as impotence, horniness, and the like, then he may request annulment of the marriage, whether that illness existed before the contract or occurred after it.

Likewise, the right to annulment is forfeited if he knew about the illness or illness before the contract, or he consented to it after it explicitly or implicitly. However, the wife’s right to request annulment due to illness or illness that prevents sexual pleasure is under no circumstances forfeited.

If the illness or harmful illness is irreversible, the court shall annul the marriage contract without the need for a grace period.

However, if their demise is possible, the court will postpone the lawsuit for an appropriate period not exceeding one year. If the illness or illness does not disappear during that period, and the person requesting the annulment insists, the court will annul the marriage contract.

---

Effects of annulling the marriage contract due to illness or illness

If the marriage contract is annulled due to an illness or harmful illness in one of the spouses, the court must decide the following: If the illness or illness in the wife preceded the contract, and the annulment occurred after consummation or seclusion, then the wife gets the dowry, and the husband may claim the dowry back from the one who was deceived by it.

If the occurrence of illness or illness in either spouse preceded the contract, and the annulment occurred before consummation or seclusion, the husband shall recover what he paid of the dowry, and forfeit what remains of it, even if it was deferred.

If the occurrence of illness or illness in the husband preceded the contract, and the annulment occurred after consummation or seclusion, then the wife gets the dowry.

If the husband learns of the wife’s defect before the marriage contract, and then requests annulment due to the same defect before consummation and legal seclusion, she is entitled to half of the named dowry, or half of the equivalent dowry if the dowry is not specified.

If the wife learns of the defect in the husband before the marriage contract, and then requests annulment for the same defect after consummation or legal seclusion, she must return half of the specified dowry, or half of the equivalent dowry if the dowry is not specified.

• A wife complains of harm due to her husband’s illness, another wife does not provide for her husband, and a third wife wants to separate after her husband is deported to his country.