Divorce - for Assemblies

1. The first task of the National Spiritual Assembly is to attempt to reconcile the couple, but if it finds that this is not possible and that an irreconcilable antipathy exists, it must register the beginning of the year of waiting. The Assembly may meet with the couple together or separately in its attempts to reconcile them. If there are compelling reasons for doing so, the Assembly may set a date retroactively for the beginning of the year of waiting, but this date can in no case be earlier than the last day the couple separated with the intention of having a divorce.

"2. Attempts at reconciliation should continue during the year of waiting. Divorce, though permitted in the Bahá’í Faith, is abhorred and it is the hope that during the year of waiting the couple may become reconciled and divorce avoided.

"3. With this in mind, it is more within the spirit of Bahá’í Law for Bahá’ís to postpone the initiation of civil proceedings, (if the law of the country requires a civil divorce) until the end of the year of waiting. However, if such postponement gives rise to inequity or to a legal prejudice against the possibility of a civil divorce, it is, of course, permissible for the civil proceedings to be initiated during the year of waiting.

"4. In most countries a civil divorce is required and, where this is so, the Bahá’í divorce does not become effective until the civil divorce has been granted. If the year of waiting has run its course when the civil divorce is granted, the Bahá’í divorce becomes automatically effective on the date. If the couple become reconciled before the grating of the civil divorce, even if the year of waiting has already elapsed, they have merely to inform the Spiritual Assembly and resume their marital status.

"5. In case the civil divorce is actually granted before the end of the year of waiting and the couple become reconciled with that time between the granting of the civil divorce and the end of the year of waiting, they are, of course, still married in the eyes of the Bahá’í Law and need only a civil marriage to restore the marriage bond.

"6. The parties to a divorce must live apart in separate residences during the year of waiting. Any cohabitation of the parties stops the running of the year of waiting. If thereafter a divorce is desired a new date for the beginning of a new year of waiting must be set by the Assembly.

"7. It is the responsibility of the husband to provide support for his wife and children during the year of waiting.

"8. It is the responsibility of the Assembly to assist the divorced couple to arrive at an amicable settlement of their financial affairs and arrangement for the custody and support of the children rather than let these matters be a subject of litigation in the civil courts. If the Assembly is unable to bring the couple to an agreement on such matters then their only recourse is to civil court. "These are some of the general guidelines your Assembly should have in mind in divorce cases...

An Assembly is obliged to consider an application for a year of waiting from either party to a marriage, whether the other party wants the divorce or not. In this specific case you should therefore follow the usual procedure.

In some cases, usually those of Iranian believers whose marriage is not recognized in civil law and who, therefore, do not need and cannot have a civil divorce, the divorce must be entirely adjudicated by the Spiritual Assembly. We enclose a summary of points written on behalf of the House of Justice in answer to questions on this matter, which should be of assistance should such a case occur in Canada. In general, however, a Bahá’í couple in Canada who are obtaining a divorce must, in addition to the Bahá’í divorce, obtain a civil divorce, and the civil divorce decree will usually cover all such matters as division of property, provision of support and custody of children. The function of the Spiritual Assembly in such ancillary aspects of the divorce is thus advisory rather than judicatory. In order to prevent, if possible dispute between Bahá’ís in front of the law courts, the Assembly should attempt to bring the couple to an amicable arrangement about all such questions, which can then be submitted to the court for its endorsement. If the efforts of the Assembly are of no avail, then the matter must be left to the civil court to decide. Once the divorce decree with its related provisions has been handed down by the court, it is the obligation of both parties, as good Bahá’ís, to obey it and, if either is lax in so doing, the Assembly should advise him or her about his or her duties and press for their fulfilment. The wronged party, however, should at the same time be left free to apply to the civil authorities for the enforcement of the decision. Unfortunately such enforcement is notoriously difficult, especially when the parties subsequently reside in different countries. It is here that the action of the Spiritual Assembly, reinforcing the decision of the civil courts, can often be of help. Except in circumstances of unusual gravity or cases where the responsible party fails to obey a court decision to provide support for the children an Assembly should not contemplate imposing sanctions for lack of compliance in these matters. Actual enforcement should normally be left to the action of the civil courts. The House of Justice believes that the above should provide all the guidance you require in your collaboration with the National Spiritual Assembly of ... over the divorce of ... and ... In the case of ... and ... you state that there is unlikely to be a civil judgement covering the question of financial support of the wife by the husband following the divorce. The House of Justice states that there is no general requirement in Bahá’í Law for a husband to continue to support his former wife beyond the ending of the year of waiting and the granting of the divorce. Therefore, in the absence of a ruling by the civil court or of an agreement between the couple registered with the Spiritual Assembly, there is nothing further for your Assembly to do in this case.

The only provision in Bahá’í Law regarding the support of the wife is that which makes the husband responsible for her support during the year of waiting. This does not mean, however, that further support is prohibited; all such matters will require legislation in the future. At the present time it is the responsibility of the Assembly to arrange an amicable and just financial settlement between the couple, and any such arrangement must, obviously, take into consideration the financial situation of both parties and their relative responsibilities. While it is obvious that the Assembly should encourage the husband to honour his Bahá’í responsibilities in paying the required support money, matter of support may be covered by the civil courts when a civil divorce is applied for and, in such a case, the wife would, of course, be able to invoke whatever civil remedy is available. In any case, at the present time National Spiritual Assemblies should not normally apply sanctions in cases of failure to comply with support requirements.

There is no Bahá’í Law requiring the removal of voting rights for obtaining a civil divorce before the end of the year of waiting. If is, of course, preferred that civil divorce action be not instituted or completed before the end of the year unless there are special circumstances justifying such action. If a Bahá’í should marry another prior to the end of the year of waiting however, voting rights should be suspended as, under Bahá’í Law, he is still regarded as married whether or not the civil divorce has been granted. On the other hand, if a non-Bahá’í partner, having obtained a civil divorce, marries during the year of waiting, the Bahá’í partner is released from the need to wait further.

There should be no intervention into the marital affairs of individuals in a Bahá’í community unless and until the parties themselves bring a problem to the Assembly. Prior to that it is not the business of the Assembly to counsel the parties.