Separating in a household is certainly not an easy decision, but sometimes there are conditions that make divorce a last resort. One reason that often arises is when the husband does not provide the maintenance that is his obligation.
The husband is obliged to provide maintenance to his wife periodically. This is as stated in Article 34 paragraph (1) of Marriage Law No 1/1974.
If this obligation is not fulfilled, the wife has the right to question the continuity of the household.
Many wives wonder whether they can file for divorce if their husbands do not provide maintenance. Check out the following explanation to find out the legal basis and rights of wives when facing this situation.
When can a wife sue her husband for divorce?
Everyone doesn’t want a divorce. However, based on the Compilation of Islamic Law (KHI), there are a number of reasons that can be grounds for divorce, one of which is if there are continuous disputes and quarrels between husband and wife and there is no hope that they will live in harmony again in the household.
Here are some reasons why:
- one of the parties commits adultery or becomes a drunkard, junkie, gambler, and does other things that are difficult to cure;
- one party leaves the other party for 2 consecutive years without the other party’s permission and without valid reasons or for other reasons beyond his/her control;
- one of the parties is sentenced to 5 years’ imprisonment or a heavier penalty after the marriage has taken place;
- one party commits cruelty or serious abuse that endangers the other party;
- one of the parties is physically disabled or sick with the result that he or she cannot fulfill his or her duties as husband or wife;
- between husband and wife there are continuous disputes and quarrels and there is no hope that they will live in harmony again in the household;
- the husband violates the taklik talak;
- change of religion or apostasy that causes domestic disharmony.
Husband’s Obligation to Provide Proper Maintenance
Husbands who do not provide maintenance to their wives may describe the situation as listed in the reasons in point F.
In addition to the reasons explained, it is important to recognize that the husband must provide proper maintenance to his wife.
Husband and wife have a noble obligation to uphold the household which is the foundation of society. One of the husband’s obligations is to protect his wife and provide all the necessities of household life according to his ability.
In addition, Article 80 paragraph (4) KHI also emphasizes this obligation by explaining:
according to his income the husband bears:
- maintenance, kiswah and shelter for the wife;
- household expenses, care and medical expenses for the wife and children;
- education costs for the child.
In fact, a marriage creates a civil relationship between husband and wife, giving birth to rights and obligations that must be fulfilled by both. In other words, if a husband does not provide proper maintenance to his wife, he is in default.
So, what if the husband is unable to provide?
If the husband does not fulfill his obligation to provide maintenance, the wife can sue the court for proper maintenance.
So, regarding the provision of proper maintenance, there is actually a legal remedy available, namely a lawsuit to claim maintenance, and does not necessarily have to take the step of divorce. The wife can take this step in the mediation process at court before the divorce decree is made.
Although in the reasons for divorce that we explained at the beginning of this article, the inability to provide maintenance is not one of the reasons for divorce, but in practice, the absence of physical/financial support to the wife can make the husband and wife’s relationship disharmonious and there are arguments between the two. The wife may then use this as grounds for divorce.
Pre-nuptial agreement to regulate alimony
In marriage, the obligation to provide alimony is one of the important foundations that support a harmonious relationship between husband and wife. However, if the husband does not fulfill this obligation, it can have a significant impact on the continuity of the household.
Inability or negligence in providing maintenance often triggers divorce, although couples can still pursue mediation or legal action regarding maintenance before deciding to divorce.
Therefore, it is very important for couples getting married to consider a prenuptial agreement.
A prenuptial agreement is not just a formal document, but a legal instrument that can regulate in detail the rights and obligations of both parties, including the matter of providing maintenance.
The husband and wife establish a clear agreement in this agreement regarding the amount of maintenance to be provided, the frequency of maintenance (e.g. monthly or annually), and the needs that must be covered, such as housing costs, daily needs, children’s education costs, and health care costs.
In addition, a prenuptial agreement can also include a settlement scheme if one of the parties defaults or fails to fulfill its obligations.
For example, if the husband does not fulfill the maintenance as agreed, the wife can demand compensation or seek a solution through mediation first.
This agreement may specify the dispute resolution process, whether it will go through mediation, arbitration, or directly to court.
More than that, a prenuptial agreement can also regulate the division of joint property in the event of a divorce.
In essence, with a prenuptial agreement, both parties not only protect themselves from possible conflicts in the future, but also create clarity and legal certainty in exercising rights and obligations during marriage.
KH Contact
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