Wednesday, April 07, 2010

Divorce by SMS in Arab countries and the validity of electronic documents

There has been some noise in the cyberspace referring to the so called “electronic divorce”, which seems is making waves in some places, like Jordan. The issue relates to husbands terminating their marriage via a SMS, and the “fashion” has pick up quickly. According to Islamic judges there were 450 divorces via SMS in Jordan in 2009.

Moral questions aside, the legal problems are various and permeate other civil relations beyond the Islamic world. Although according to some interpretations of Islamic law a husband can divorce his wife by openly telling her that he does not want to keep the marriage three times (the triple Talaq), there are issues about certainty of intention and the mental state of the one issuing the statement. Accordingly, many Islamic jurisdictions have introduced the need to document the wish of the husband, not forgetting that the practice usually includes a month between each Talaq in order to ensure that the husband has thought the matter properly and that he is not acting irrationally or under pressure, which brings us back to divorcing via SMS.

There are many, if not most, jurisdictions that recognize the validity of civil documents regardless the mean of transmission, as clearly exemplified by the EC Electronic Commerce Directive, which for commercial contracts says that they cannot be “deprived of legal effectiveness and validity on account of their having been made by electronic means”. It is true that the same Directive has a provision allowing member states to exclude from the previous requirements “contracts governed by family law”, but the practice has become to not deny validity to documents and expressions of intent solely based on them being in electronic form. Thus, the practice of divorcing via SMS only follows, and exacerbates, an existing trend.

The reactions from Jordan’s society have been varied, going from those that deny validity to divorcing via SMS, like the Jordanian Women Union, to those like the Ministry of Justice of Jordan that put forward a bill requiring probe that the text message has been sent by the husband and that he was not under pressure to send it.

The issue may seem esoteric or relevant to a particular area of the world, but the characteristics of electronic transactions around the globe would be completely changed if the rebuttable presumption that a message originates from the sender and that he/she has acted without pressure or duress is changed into the need of probing that ab initio...