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Children and Divorce

By Abdusalam Hussein



Almost all the world religions seem to have given an aura of sacrosanctity to marriage, including Hinduism, Christianity, Judaism and Zoroastrianism.

Although marriage under Islamic law, is not a sacrament, it’s in the nature of civil contract, Such a contract undoubtedly has spiritual and moral overtones and undertones, yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity, that a high degree of sanctity is attached to it.

But in spite of the sacredness of the character of the marriage – tie, Sharia recognizes the necessity, in exceptional circumstances, of keeping the way open for its dissolution.

With exception, perhaps, of the Hindu law, the necessity of divorce has been recognized by all legal systems.

It appears from primary sources of sharia divorce is permitted, yet the right could be exercised only under exceptional circumstances. Not only must there be good cause for divorce, but rather all means to effect reconciliation must have been exhausted before resorting to this extreme measures.

The impression that a Muslim husband may put away his wife at his mere caprice, is a grave distortion of the institution of marriage as held in SS v. HA (Unreported, Kadhi’s Court of Kenya , Hon. Hussein,23 July 2015) p.3 stating that: “The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice………………………………………”

Undoubtedly the rate of divorce among Muslims is very high. Recently, the Saudi Ministry of Justice has published new figures revealing the rate of divorce at almost three times the rate of marriage that took place between Saudi couples last year – a total of 33,954 divorces took place as compared to 11,871 marriages. The Ministry called on engaged couples to attend free government marriage guidance workshops designed to counter unrealistic media portrayals of marriage and cut the Kingdom’s high divorce rate.

Divorce introduces a ‘massive change ‘ into the life of children. They surgically divide the family unit into two different households which children would transit back and forth creating confusion, instability, insecurity and never being able to live with one parent daily. All this create a real challenge! The life that follows is significantly changed from how life was before. As suggested by a psychologist Carl Pickhardt , the child’s world is a dependent one, closely connected to parents who are favored companions heavily reliant on parental care, with family the major locus of one’s social life.

Divorce has pervasive weakening effects on children and on all the five major institutions of society – Family, Schools, Religious centers, Market place and Government.

Our children today are weaker than the previous generations- intellectually, morally, emotionally, psychological and physically. Norwegian research find that children who experience divorce early in life are likely to have lower education outcomes, finding that the effect of divorce on education is strongest when the child is young. An American study, by contrast, found that those who had experienced a late divorce (between grades six and 10) were more likely to get low grades than children who experienced an early divorce (between kindergarten and grade five).

Divorce litigation is like a big fight , but the greatest worry is that children are caught in the middle of the ring. The children stagger helpless and bewildered around the ring, emerging with lifelong bruises, while the couple searches fruitlessly for a knockout blow/punch. It’s time for the courts – courts dealing with family matters to become proactive and more vocal in its effort to avoid arbitrary litigation with an open eye and to consider the best interest of the children.

The courts, having power under the constitution and all other enabling laws, should refer or direct litigants towards alternative dispute resolution. There is capacity within the legislation to order couples to attend mediation or counseling sessions. Greater use of this power would be a positive way to promote the best interest of the children. Out of court settlement can stop the fight going to the final bell.

There is much to be done, but I will end with this caution to parents from MR v K: “The Court Caution both parents to always maintain harmonious relationship after the divorce especially towards the parent and child relationship. Thus, the right of access should be seen as a means to protect the interest of the child as well as the right of both biological parents. This is to avoid a tag of war situation as both parents are equally responsible for their children.”

Nepjournal columnist Abdusalam Hussein is an Advocate and an expert in Islamic Law. He can be reached at


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NepJournal is a progressive media initiative that aims to serve as the leading space where North Eastern Kenya’s leading thinkers, analysts and writers provide you, our readers, with new perspectives on all issues affecting the region. We aim to publish daring perspectives with original content, and beautifully written pieces, to give voice to writers and thinkers so as to inform, educate and empower our people.

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