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- Ask Elhais
April 03, 2016|
Most women seeking divorce have 3 priorities:
1. Divorce Certificate
2. Custody of the children
3. Maximum Financial support and settlement
After the No Objection Certificate (NOC) is received from the Family Guidance Committee in order to file the case, the claimant can proceed to court. In court, the woman is usually asked to produce witnesses who can testify to the reasons she wants a divorce. The witnesses can be 2 men or 1 man and 2 women. These witnesses will have to explain to court that the woman is in an unhappy marriage due to such reasons and based on her suffering, she is seeking a divorce.
There are no exact questions that are asked of the witnesses. They should be aware of the personal and family matters of the claimant and should be able to answer all questions put to them on how they know or believe that family life between the couple is difficult, unhappy and hence not possible. For those who do not speak Arabic, a translator is provided by the court to listen to the witness statements.
If the woman is unable to bring any witnesses, the divorce process can still go ahead. What the judge will try to ascertain from the witness statements is that the married life of the claimant is not successful or happy.
Custody is the most sensitive and emotional subject for the claimant, and in this case particularly the woman. The general rule as far as custody is concerned is that it should be with the mother until the male child is 11 years old and the female child is 13 years old. However, this general rule has many exceptions, and it is safe to say that the court looks for the betterment of the child or children involved.
Should it be in the best interest of the child to remain with the mother even after these ages described above, the court might extend the custody of the children in the favour of the mother. Should the court feel even before these ages that the child is better off with the other parent and its in the child's best interest, the decision can be handed down against the mother. However, for this, the burden of proof to show that the mother is unfit is very high and in most cases the child remains with the mother.
When the child reaches the above age, custody does not automatically pass to the father, he has to make a claim and file for the custody of the child. If he does not, he is assumed to accept that the mother should continue the custody of the child.
3. Maximum Financial support and settlement
When it comes to claiming financial support from the husband, the most important aspect of this is to prove the husband's income. The income of the husband shall determine the amount of the maintenance paid towards the children and the one-off lump sum amount to be paid to the wife. Many people, while claiming for these amounts focus purely on the amount claimed and not the income, resulting in a weak claim and lower chances of success. The basis for any settlement decided by the court is the income and that should remain the focus for all such proceedings. It should also be kept in mind that the wife can demand for any unpaid maintenance, or can claim the reimbursement of any amounts paid towards her living or towards the children by her for up to 3 years back-dated. Under Personal Status Law, the husband and the father is liable to pay towards all expenses of his wife and children regardless of the woman's financial standing and income.
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