The Lawsuit for Separation for Discord and Dispute under Jordanian Law: The Role of the Two Arbitrators and the Wife's Rights
In a lawsuit for separation for discord and dispute (shiqaq), the conduct of both spouses is examined together, and the lawsuit ends with a report that determines on whom the fault falls and in what proportion, and it is from this report that the wife's financial rights are determined: she may come out of the lawsuit claiming the unpaid part of her dower (mahr) and her 'idda maintenance, or she may come out obliged to make a compensation payment ('iwad) to her husband. This lawsuit is governed by the Jordanian Personal Status Law No. 15 of 2019 in Articles 126 and 127, which set out a path that begins with an attempt at reconciliation before the Sharia Court and ends with the report of the two arbitrators (hakamayn), in accordance with which the judge rules where it conforms to the provisions of the law. Because the outcome of this path is built on what is presented to the court and the two arbitrators from the first hearing, preparing the file before filing the lawsuit is work undertaken by a lawyer specializing in Sharia cases.
1. The Concept of the Discord and Dispute Lawsuit and Who May File It
The discord and dispute lawsuit is a lawsuit in which one of the spouses asks the Sharia Court for separation on account of harm caused to them by the other party that makes continuing the marital life impossible, and Article 126 allows it to either spouse. Harm under the text is either tangible, such as abuse by act or by word, or moral, meaning any disgraceful conduct or behavior contrary to good morals that causes the other party moral injury. The law adds to this one spouse's persistence in breaching the marital duties set out in the chapter on the marital home and cohabitation, including good companionship and kind treatment, which Article 77 requires.
Characterizing the facts under one of these forms is the first thing the lawyer examines, because the form on which the lawsuit is built determines what must be proven later and what is presented to the two arbitrators.
However, the starting point differs depending on who files the lawsuit. If the wife is the plaintiff, the judge verifies her claim, then makes efforts at reconciliation, and if that fails, warns the husband to mend his conduct toward her and adjourns the lawsuit. If the husband is the plaintiff, he must first prove the existence of discord and dispute, after which the court proceeds with the attempt at reconciliation and the adjournment. This difference determines what must be ready in the file before the first hearing, which is itself a legal point that merits consultation before filing the lawsuit.
2. The Stages of the Lawsuit from Reconciliation to the Two Arbitrators' Report
Article 126 arranges the lawsuit in successive stages, which the following table sets out together with what the lawyer examines in each:
| Stage | Legal basis | What happens in it | What the lawyer examines |
|---|---|---|---|
| Acceptance of the claim | Article 126, paragraphs (a) and (b) | The judge verifies the wife's claim if she is the plaintiff, and the husband is required to prove the discord if he is the plaintiff | Whether the available evidence is sufficient to get through this stage |
| Judicial reconciliation | Article 126, paragraphs (a) and (b) | The court makes efforts at reconciliation and adjourns the lawsuit for a period whose minimum the law sets, warning the husband if the wife is the plaintiff | The client's position on reconciliation and its effect on the picture the file presents |
| Appointment of the two arbitrators | Article 126, paragraph (c) | Two just arbitrators capable of reconciliation, one from the wife's family and the other from the husband's family if possible, otherwise two persons of experience and integrity | The facts that should reach the two arbitrators in full |
| The two arbitrators' inquiry | Article 126, paragraph (d) | The two arbitrators examine the causes of the dispute with the spouses or with anyone they consider useful to hear, and record their inquiries in a signed record | What the record contains and what is missing from it |
| Disagreement between the two arbitrators | Article 126, paragraph (h) | The judge appoints other arbitrators or adds a third, tie-breaking arbitrator to them, and the majority decision is then followed | The effect of re-arbitration on the course of the file |
| Report and judgment | Article 126, paragraph (i) and Article 127, paragraph (b) | The two arbitrators submit their report, and the judge rules in accordance with it if it conforms to the provisions of the article, and the judgment constitutes an irrevocable divorce | Whether the report conforms to the provisions of the law |
The two arbitrators' stage is the one that decides the lawsuit, since the judge rules in accordance with their report where it conforms to the provisions of Article 126, and whatever was not presented to them in time may not find its way into the judgment afterward.
3. How the Two Arbitrators Allocate Fault and Its Effect on the Wife's Financial Rights
If the two arbitrators are unable to reconcile the spouses, they move on to determining the source of the fault. Paragraphs (e) and (f) of Article 126 link each conclusion they reach to a specific financial effect:
| What appeared to the two arbitrators | What they decide | Effect on financial rights |
|---|---|---|
| All the fault lies with the husband | Separation by a single irrevocable divorce | The wife may claim the unpaid part of her dower and its accessories and her 'idda maintenance |
| All the fault lies with the wife | Separation for a compensation payment they determine | The wife is obliged to make a compensation payment not exceeding the dower and its accessories |
| The fault lies with both spouses and its proportion is known | Separation for a portion of the dower | The dower is divided in proportion to each spouse's fault toward the other |
| The fault lies with both spouses and its proportion cannot be assessed | Separation for a compensation payment they determine from either of them | A compensation payment not exceeding the amount of the dower and its accessories, which may fall on either party |
Paragraph (g) adds a provision with a direct financial effect: if the wife is the one seeking separation and the two arbitrators decide on a compensation payment against her, she must secure its payment before the separation decision, unless the husband agrees to defer it. If the husband is the one seeking separation and the two arbitrators decide on a compensation payment against the wife, the judge rules for separation and the compensation payment in accordance with the two arbitrators' decision. Thus a lawsuit the wife files to escape harm may end with a financial obligation on her that precedes the separation judgment itself.
This is why, before filing the lawsuit, the lawyer assesses where the file is likely to fall in this table, because a lawsuit filed without this assessment may end in the opposite of what its filer wanted.
Practical note: Do not sign any reconciliation record or financial settlement in front of the two arbitrators until a lawyer has reviewed it, since the record is the basis of the report in accordance with which the judge rules, and the effect of what is acknowledged in it differs from one file to another, and assessing it requires studying the facts or consulting a specialist lawyer.
4. Proving Discord and Harm
Paragraph (a) of Article 127, taking into account paragraph (a) of Article 126, sets out the method of proof in this lawsuit: discord, dispute and harm are proven by the testimony of two men or one man and two women, and hearsay testimony based on common repute within the sphere of the spouses' life is sufficient.
The acceptance of hearsay testimony does not mean that everything relatives pass around qualifies as evidence, since the text restricts common repute to the sphere of the spouses' life. The lawyer assesses whether the available evidence meets the threshold required by law, and whether the facts to which it testifies are connected to the form of harm on which the lawsuit was built, and whether the abuse claimed already has a file under the Protection from Domestic Violence Law in Jordan. Testimony unconnected to the harm claimed does not serve the file.
5. The Nature of the Separation Judgment and What Follows from It
Paragraph (b) of Article 127 provides that a judgment of separation for dispute and discord constitutes an irrevocable divorce. The husband therefore cannot take his wife back afterward by his own unilateral will; however, a new marriage contract may be concluded between them with the consent of both parties, even during the waiting period ('idda), if the irrevocable divorce is by one or two pronouncements of divorce, as established by Article 93.
Article 151 requires the husband to provide maintenance to his wife during her waiting period following a divorce or annulment, and paragraph (e) of Article 126 expressly states the wife's right to her 'idda maintenance where all the fault lies with the husband, while the effect of the compensation payment on her rights in the other cases is a point the lawyer scrutinizes in the two arbitrators' report. While the lawsuit is being heard, the wife retains her right to spousal maintenance during the dispute under its own rules, and Article 62 counts the husband's abuse or ill-treatment among the lawful justifications for the wife leaving the marital home.
The separation judgment does not settle the question of the children's custody, which is subject to its own rules and to the best interests of the child.
6. Discord and Dispute and Other Ways of Ending a Marriage
The discord and dispute lawsuit is not the only path open to the wife. Separation in return for the wife's compensation (iftida'), regulated by Article 114, is based on the wife's explicit declaration that she detests life with her husband and her offer to buy her release, and it does not depend on proving harm by the husband; its details are covered in the article on the khula (khul') lawsuit (iftida'). Compensation for arbitrary divorce under Article 155, on the other hand, rests on a divorce the husband pronounces of his own will without reasonable cause, whereas separation for discord is issued by the judge's ruling based on the two arbitrators' report.
Each of these paths has its own conditions and a different financial effect. The lawyer determines the path most suited to the facts of a particular file after studying the facts and evidence, because filing the lawsuit on the wrong path may cost the wife rights she would have kept on another path.
7. Frequently Asked Questions
Are witnesses required in a discord and dispute case?
Yes. Article 127 provides that discord, dispute and harm are proven by the testimony of two men or one man and two women, and allows hearsay testimony based on common repute within the sphere of the spouses' life. Assessing whether the evidence in a particular file is sufficient is a matter the lawyer studies before filing the lawsuit.
What is the wife entitled to in a discord divorce in Jordan?
It is determined by how the two arbitrators allocate the fault. If all the fault lies with the husband, she may claim the unpaid part of her dower and its accessories and her 'idda maintenance; if it lies with her, she may be obliged to make a compensation payment not exceeding the dower and its accessories; and if it is shared, the dower is divided in proportion to each spouse's fault where this can be assessed.
How long does a discord and dispute case take in Jordan?
The law does not set an overall duration for the lawsuit. It imposes an adjournment of a minimum length for the attempt at reconciliation, after which the duration depends on the work of the two arbitrators, on whether they disagree and the judge needs a new arbitration or a third, tie-breaking arbitrator, and on the circumstances of each file.
How many hearings does a discord and dispute case involve?
The law does not set a fixed number of hearings, as it depends on the reconciliation stage and the progress of the two arbitrators' work. The lawyer can assess the expected course after reviewing the facts.
Can the husband file a discord and dispute lawsuit?
Yes. Article 126 allows either spouse to seek separation. However, a husband who is the plaintiff is required to prove the existence of discord and dispute before the matter is referred to the two arbitrators, and the two arbitrators may decide on a compensation payment against the wife if it appears to them that the fault lies with her.
Can the husband take his wife back (raj'a) after a judgment of separation for discord?
The judgment constitutes an irrevocable divorce, so there is no taking back by the husband's unilateral will; however, a new marriage contract may be concluded with the consent of both parties if the irrevocable divorce is by one or two pronouncements of divorce, under Article 93.
Legal Consultation
The discord and dispute lawsuit is one of the most delicate personal status cases; the wife seeking separation may come out claiming what remains of her dower and her 'idda maintenance, or obliged to make a compensation payment to her husband, and the husband who files it or against whom it is filed may bear financial consequences he did not anticipate, and what separates the two outcomes is the two arbitrators' report. Whatever does not reach the two arbitrators in time is difficult to make up for after their report has been submitted. For specialist consultation in divorce and separation cases before the Sharia courts, or to learn about the paths connected to this lawsuit such as compensation for arbitrary divorce and the effect of separation on custody and its transfer to the father, you can contact Alabwini Law Firm & Legal Consultancy.
