The Nature and Effects of Divorceby Mutual-Consent in Jurisprudence and Law

Divorce by mutual-consent (ma’a-al-evaz) is a new phenomenon in family law based on which couples come to an agreement to apply to the family court for divorce and settlement for their financial affairs and issues related to the children. Due to different effects different kind of divorces may have on couples’ relationship, it is particularly important to understand the nature of them separately. This study investigated the nature of divorce by mutual-consent (ma’a-al-evaz) qualitatively and by referring to legal and jurisprudential documents. In mutual-consent divorce, it must be confirmed that wife dislikes her husband; which makes it an irrevocable divorce; otherwise the divorce is revocable even if the wife paid considerations. Therefore, the judge should confirm wife’s disliking her husband or living with him and then, issue the certificate of incompatibility. Considering the fact that whether the wife dislikes living with her husband or both parties dislikes living together determines the kind and nature of divorce, careful considerations must be made in judicial as well as notary procedures of divorce. Moreover, this study suggests adopting a comprehensive approach in the proceedings of divorce so that in case it is not confirmed that the wife dislikes her husband or both parties dislikes each other, a revocable divorce be registered. In such cases, based on sharia, the right to revoke the divorce by husband is maintained, which prevents hasty dissolution of family.