MUSLIM FAMILY LAW REFORMS IN JURISDICTIONS OTHER THAN THE INDIAN SUB-CONTINENT
Objectives and concept of the present study:
The study of Muslim family law (MFL), as the most widely applied family law system in the world today, has two main objectives: to verify and document the scope and manner of the application of MFL around the world; and to explore and substantiate possibilities of MFL reform within particular communities of Muslims in their specific cultural, theological, legal and institutional context. This study is also concerned with evaluating and promoting the practical consistency between IFL and international human rights, especially the rights of women and children. In pursuing these and other related objectives, this study seeks to apply an integrated approach: from research and analysis to policy and law reform proposals, to advocacy for change by groups and organizations within the country or local community.4
The goal of this project is to produce a concise, brief document that indicates “the reforms” in the application and implementation of family law in Muslim countries other than Indian sub continent in the world. Thereby, we wish to make the positive developments that are occurring in the Muslim world’s legislative and judicial practice better known and available to other states and practitioners that are grappling with the same issues. We hope this overview will be helpful to lawmakers, legal practitioners, and civil society groups.5
This document is not meant to be either prescriptive or an exhaustive record of all family law in all Muslim countries. Rather, it is a collection of “best practices,” touching on the issues that women and families have identified as being the most significant for their personal advancement and their quality of life and describing ways in which enlightened Islamic jurists have reconciled Islamic principles with contemporary ethical and social values to create forward-looking legislative practice. We reviewed the laws and family codes of different Muslim countries in the world including Algeria, Egypt, Indonesia, Iran, Jordan, Lebanon, Malaysia, Morocco, Syria, Tunisia, and Turkey etc. Referenced statistics and comparable data often extend beyond these countries; we have indicated the scope of those statistics when used, indicating whether comparisons are with the entire Middle East and North Africa (MENA) region, the Arab World, or countries with Muslim majority populations more broadly.
The first objective of the proposed project is to verify, understand and document the precise scope and nature of the application of MFL in a sample cross-section of Islamic countries and communities around the world. This “mapping process” will occur in two stages, an initial global survey during phase one of the project, coupled with in depth examination of three situations in the pilot study part of this first phase. The second phase will consist of in depth examination of five countries and two communities in the second phase of the project.
The second objective of the project is to explore and substantiate possibilities of MFL reform within particular communities of Muslims in their specific cultural, theological, legal and institutional contexts. With due regard to professional and scholarly standards, the goal is to influence policy and law reform in Islamic counties and communities regarding the status and rights of women and children. Once clarified and tested through the two phases of this project, this approach to MFL reform can be applied in other situations. Before turning to the operational side of these two phases, here is some justification of the proposed scope, followed by further elaboration on the rationale of the objectives of the project.
What is basically proposed here is a global survey to chart the field, to know who is doing what, how and what are the conclusions or results of their work. Despite the obvious need for this as an essential prerequisite to intelligent critical examination of the theory and practice of IFL with a view to its reform and positive development, no such study has been done yet. But for such a survey to achieve its objectives, it has to go beyond a mere review of formal legislation or occasional judicial pronouncements in various countries. A comprehensive and insightful survey must penetrate the facade of official legality to the realities of actual daily life for individual people, their families and communities. MFL is clearly too important to the individual and collective self-identity of most Muslims around the world for its role and significance to be appreciated from a formalistic survey of the law as it “ought to be.” That is why in depth studies of the type described below are necessary for truly understanding what is happening, in what respects it needs to be reformed and how to achieve that objective.
The proposed case studies are therefore integral to understanding the actual practice of MFL with a view to proposing and implementing effective reform as and when necessary. Only detailed and systematic study of how IFL affects the daily lives and social relationships of actual men, women and children, of how people adjust to and cope with the consequences of the application of the law will give us the insights we need for devising and implementing reform initiatives. Such studies are also necessary for testing the relevance and efficacy of reform initiatives already attempted in different parts of the world.
But since such studies cannot be undertaken all at once in every Muslim country and community, we have to begin with a select sample of situations. There is also the need to verify and refine the criteria of selection of appropriate situations, and to develop valid methodologies for the study of each type of situation. That is why this proposal suggests implementation of pilot studies in three situations during the first phase of the project. However, while three might be a manageable number of studies for a start, it is hardly sufficient for drawing legitimate conclusions for the wide variety of situations that exist on the ground. For that reason, we propose to add another seven detailed studies during phase two of the project. Though even a total of ten studies under this project will not cover the full range of possible situations, it will certainly give us better bases for understanding the nature and consequences of the implementation of MFL in Islamic communities around the world. Expanding the sample in this way will also enable us to develop and refine the methodology of research for similar studies in the future, to be undertaken by a larger number of researchers, each in her or his own setting.
This proposal is not premised on the claim that the theory and practice of IFL in various settings and contexts are not studied at all. On the contrary, this project presupposes the existence of such studies, and will draw upon their findings and recommendations, particularly those which have a similar or compatible orientation and methodology to what is proposed for this project. The proposal also assumes that there is a variety of reform initiatives undertaken in several Islamic countries and communities which should be examined in order to evaluate their efficacy and learn from their experiences. A close review of previously done work on both counts (studies and reform initiatives) in the field will be undertaken in the first phase of the project.
Pending further examination during phase one, the working hypothesis of this project may be summarized as follows:
- Existing studies of IFL tend to be largely theoretical, often theological or legalistic in conception and approach, with little reference to actual practice in cultural context.
- Some studies with a more practical orientation (such as those done under the auspices of Women Living under Muslim Law or other women’s rights/ human rights organizations) are critical of aspects of the theory and practice of IFL in certain situations. But such studies include little comparative analysis, and/or attempt to formulate reform proposals with particular regard to strategies for their local advocacy and implementation.
- To the extent that reform proposals are made in studies of the first or second type, they are made in broad theoretical terms, and without the involvement of local groups and organizations which might pursue practical implementation within the country or community in question.
These remarks are not, of course, intended as final criticism of existing studies in such a wholesale and generalized manner, or to dismiss them as totally lacking practical utility. Rather, these remarks are offered by way of hypothesis, subject to verification and clarification through the work of the proposed project. It is only reasonable to expect, for example, individual researchers to focus on their specific academic objectives which have to be achieved with very limited time and resources. Women and human rights organizations are also constrained by such factors as the mandate of their particular organization, and the expectations or orientation of their own immediate constituency regarding the priorities and/or strategies of the organization.
While this project has its specific objectives too, we believe that they are significantly different from those of purely academic efforts in that they seek to develop an integrated model of reform oriented research as explained below. This project also has its constraints, but we believe them to be sufficiently consistent with its objective as to enable it to make a valuable and unique contribution. That is, our claim is that the objectives and methodology of this project supplement the work being done by others in ways they are unable or unwilling to do. In particular, we believe that what we propose to achieve through this project is unlikely to even be attempted by international women’s and human rights organizations for the following reasons.
It should be recalled here that the current model of women’s and human rights organizations evolved in Western societies where such organizations tend to focus on generating political pressure for change, rather than themselves adopting specific reform proposals or solutions for political and legal problems. The latter role is normally played by political parties or other civil society organizations and the public at large. This is particularly true when such specific advocacy activities involve what and human rights organizations perceive to be delicate or complex theological considerations, as is the case with IFL. International women and human rights organizations, such as Women Living under Muslim Law, have emerged out of this Western model, and came to define their role in similar terms. Such organizations should be appreciated for what they do so well — and they do play a vitally important role — but they should not be expected to do what they are not equipped and inclined to do.
But why is this also true of local chapters based in Islamic countries and even indigenous organizations like the Pakistan Human Rights Commission? The reason for this is what I call “the dichotomy of secular versus religious discourse.” Partly due to the Western model they adopt, but also because of their own experiences in the past, human rights advocates in Islamic societies insist on a strictly secular universalist approach for two main reasons: First, they are concerned that once they engage in a religious discourse about the rights of women or human rights in general, they will be drawn into a relativist paradigm that repudiates the foundations of the principle of universality of human rights itself. Secondly, rights advocates, who almost always have a secular education and liberal lifestyle, feel that they lack the conceptual and terminological tools, or personal orientation, for effectively engaging in an Islamic discourse.
Whatever may be the reasons for this reluctance, its clearly unfortunate consequence is that the Islamic public at large, and women as the beneficiaries of the advocacy of rights in particular, are faced with what appears to be a stark choice between Islam and internationally recognized human rights of women. Regarding the subject of this proposal in particular, instead of arguing for equality for women under IFL as a matter of Islamic principle, women’s human rights are presented as the product of international treaties, whose implementation is demanded by international organizations based in the West, in opposition to Islamic norms and institutions, as articulated by conservative and fundamentalist forces in society.
In light of these remarks and earlier-mentioned tentative hypothesis, I would emphasize that the ultimate objective of this project is to generate and promote credible and sustainable internal possibilities of MFL reform in Islamic societies and communities. In seeking to do so through the efforts of local researchers and advocacy organizations in the situations it covers during its two phases, the project will also be developing a model for implementation in other situations.6
Study of Muslim Family Law Reforms:
General principles of Shari’a are supposed to govern such matters as marriage, divorce, maintenance, paternity and custody of children for more than a billion Muslims around the world. This does not mean that identical principles apply everywhere or in the same manner. Clear variations are to be expected not only because of significant theological, legal, and other differences among and within Muslim societies and communities, but also because Shari’a principles are often in practice modified by customary practices, or as a matter of state policy. The first objective of this Project is to verify and document the scope and manner of the application of IFL around the world, including Muslim communities living within predominantly non-Muslim countries.
Marriage Age:
The Quran does not define the minimum marriage age precisely, merely mentioning puberty as the permissible minimum. This has led to considerable divergence of legislative views on the proper minimum marriage age, particularly in the last century. Young women are at particular physical and psychological risk from early marriage. Setting a reasonable, not too low, minimum marriage age for both partners and especially for the female is important for a number of reasons. First, pregnancies in very young women are associated with increased complications and elevated mortality rates both for the mother and the child. Second, marriage often terminates a young woman’s school attendance. Third, a girl or very young woman is not in a position to give informed consent to a marriage.8
Africa
Kenya: minimum 16 for statutory marriages under the Marriage Act.
Senegal: minimum marriage age is 20 years for males and 16 for females; judicial discretion for permitting underage marriages for serious reasons.
Tanzania: under Marriage Act 1971 minimum age is 18 for males and 15 for females; courts may permit underage marriage of parties who have reached 14 years of age if specific circumstances make marriage appear desirable; Penal Code provides that persons of “African or Asiatic descent” may marry or permit marriage of girl under 12 years of age in accordance with their custom or religion if marriage is not intended to be consummated before she attains 12 years.
Sudan: puberty, with requirement for willing consent of both parties.
Somalia: minimum marriage age is 18 years for both parties; female party may marry at 16 with guardian’s consent; Court may grant exemption from minimum age requirements in case of necessity.
Ghana: governed by classical or customary law.
Ethiopia: Civil Code sets minimum marriage age at 18 for males and 15 for females, regardless of whether marriage is civil, religious or customary; Family Law may have changed the age to 18 for both males and females.
Middle East
Egypt: 18 for males and 16 for females (lunar calendar).
Tunisia: minimum marriage age is 20 for males and 17 for females; scope for judicial discretion with wali’s consent and for compelling reasons and apparent benefit for both parties; if wali withholds consent and parties are adamant, matter must be taken to courts.
Iraq: minimum age is 18 for men and women; judicial permission may be granted at 15 years if fitness, physical capacity and guardian’s consent (or unreasonable objections on part of guardian) are established.
Morocco: minimum marriage age is 18 years for males and 15 for females; judicial discretion for males under 18 if there is fear of immorality; compatibility of age in marriage is defined as wife’s right.
Palestine: West Bank – 15 female, 16 male under the JLPS; Gaza Strip- LFR 1954 required puberty and made 9 (female) and 12 (male) minimum ages; Palestinian Qadi al-Quda issued administrative decision in 1995 raising these to 15 female and 16 male. All ages by lunar years.
Syria: minimum marriage age is 18 years for males and 17 for females; judicial discretion for males of 15 years and females of 13 years; judge may withhold permission for marriage if court finds incompatibility in age between betrothed parties.
Jordan: 16 for males and 15 for females, lunar calendar; court permission required for females under 18 to marry men older by 20 years or more.
Yemen: minimum marriage age is 15 for males and females.
Kuwait: no substantive minimum marriage age identified; capacity to marry requires parties to be of age (puberty) and of sound mind, however, no notarisation or registration of marriage permitted where female has not reached 15 years or male 17 years.
Algeria: 21 for males and 18 for females, scope for judicial discretion if necessity or benefit is established for marriage below that age.
Libya: minimum marriage age is 20 years for men and women; judicial discretion for marriages below that age on grounds of benefit or necessity and with wail’s agreement.
Asia:
Indonesia: minimum marriage age 19 for males and 16 for females; provision for marriage below minimum age, subject to judicial discretion and parental consent.
Malaysia: minimum marriage age of 18 for males and 16 for females, with provision for judicial permission for underage marriage.
Singapore: minimum marriage age is 16 for both parties; kathi may permit marriage of girl under 16 who has attained puberty under certain circumstances.
Brunei: minimum marriage age is 20 years for men and women; judicial discretion for marriages below that age on grounds of benefit or necessity and with wail’s agreement.
Philippines: minimum marriage age 15 years for males and puberty for females (female is presumed to have attained puberty at 15 years); Shari’ a District Court may authorise marriage of female between 12 and 15 years if she has attained puberty, upon petition of her wali; khiyar al-bulugh: marriage of minors to be defined as betrothal and may be annulled by either party within 4 years of attaining puberty if marriage was not voluntarily consummated and neither father nor paternal grandfather served as wali; penalty of imprisonment or fines or both for illegal solemnisation of marriage.9
Background and Sources:
Amin, Middle East Legal Systems, Glasgow, 1985; Fluehr-Lobban, Islamic Law and Society in the Sudan, London, 1986; Hale, Gender Politics in Sudan: Islamism, Socialism and the State, Oxford, 1996; Mahmood, “Sudan” in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; O’Fahey, The National Front, Its Opponents and the Sharia Issue, Islam et societys au sud du Sahara, n. 11 (Nov. 1997): 55-65; Pearl, A Textbook on Muslim Law, 2nd ed., London, 1987; Redden, “Sudan” in Modern Legal Systems Cyclopedia, vol. 6, Buffalo, NY, 1990; Rubin & Cotran, eds. Annual Survey of African Law, vols. I-VI (1967-1972), London; Safwat, “Islamic Laws in the Sudan,” in Islamic Law: Social and Historical Contexts, al-Azmeh, ed., London, 1988; Safwat, “Sudan,” Yearbook of Islamic and Middle Eastern Law, vol. 1 (1994): 237-253; Women and the Law in Sudan: First and Second Reports, Women Living Under Muslim Laws, vols. I-III (1997) & vols. I-III (1999).
Marriage Registration
Africa:
Kenya: statutory (includes Christian), customary, Muslim and Hindu marriages recognized as valid Polygamy: governed by classical law; a criminal offence to marry under civil regime (i.e. under terms of Marriage Act) and contract subsequent marriage under Islamic or customary law.
Senegal: obligatory; if marriage contracted under one of customary legal regimes recognized in Senegalese law, parties must inform officer of civil status one month prior to marriage; non-registration is punishable by fine but does not determine validity.
Tanzania: obligatory; non-registration punishable by fine although does not render marriage void; provision for licensing of religious functionaries as marriage registrars.
Gambia: obligatory within one month of marriage (or divorce) although registration does not determine validity.
Somalia: marriage to be registered at neared District Court or authorised office within 15 days (40 days for residents of rural areas); failure to register punishable by fine; essential elements of marriage outlined in Article 6 are: proposal and acceptance by contracting parties before two witnesses; marriage contracted under compulsion is invalid.
Ghana: Marriage of Mohammedans Ordinance provides for registration of marriage and divorce among Muslims; marriage must be registered within one week.
Ethiopia: Civil Code sets minimum marriage age at 18 for males and 15 for females, regardless of whether marriage is civil, religious or customary; Family Law may have changed the age to 18 for both males and females.
Middle East
Egypt: obligatory registration a legal requirement though it does not determine validity of marriage, thus judges shall not hear cases in which parties have not reached minimum marriage age or in which matrimony is denied and parties have no documentation.
Tunisia: obligatory under Civil Status Act 1957, only formal document shall prove existence of marriage; unregistered marriage deemed void with three effects: establishment of paternity; immediate onset of ‘idda from date of voidance declaration; and creation of prohibited degree on basis of affinity.
Iraq: obligatory court registration.
Morocco: obligatory.
Palestine: West Bank- see under Jordan. Obligatory and penal sanctions in criminal law but failure to register does not invalidate the marriage; similarly in Gaza.
Syria: obligatory; penal sanctions for failure to register.
Jordan: penal sanctions for those in violation of the mandatory registration requirements for marriage and divorce.
Yemen: husband and wali responsible for registration of marriage within one week of contract; penal sanctions for non-compliance.
Kuwait: no notarisation or registration of marriage contract permitted where girl has not reached 15 years or boy 17 at time of registration; no claim arising from marriage to be heard if parties are under-age at time of claim or if claim is not established by official documentation of marriage (except for paternity cases where decree of paternity shall be taken as decree of marriage).
Algeria: obligatory registration governed by Civil Status Code; unregistered marriage may be validated by court judgment.
Libya: obligatory.
Asia:
Indonesia: obligatory; Marriage Registrar Office of Department of Religious Affairs is responsible for registration of Muslim marriages and Civil Marriage Registrar Office of Department of Internal Affairs for all other marriages.
Malaysia: required; both parties must apply to Registrar for permission to marry at least 7 days before wedding; marriage not to be solemnised except in kariah masjid of woman’s normal residence or special permission to marry elsewhere; Registrar records value of contents and value of items of dower given and promised at solemnisation; provision for appointment of Registrars in public offices and kariah masjid; non-registration punishable by fine and/or imprisonment although it does not determine validity of marriage.
Singapore: obligatory; all Muslim marriages must be registered with a kathi or naib kathi; non-registration of marriage or divorce itself does not determine validity.
Brunei: obligatory.
Philippines: obligatory; penalty of fine for failure to register any change in civil status.10
Background and Sources:
Hooker, Islamic Law in South-East Asia, Singapore, 1984; Ibrahim, Family Law in Malaysia and Singapore, Singapore, 1984; Kamali, “Islamic Law in Malaysia: Issues and Developments,” Yearbook of Islamic and Middle Eastern Law, vol. 4 (1998): 158-179; Mahmood, Malaysia in Statutes of Personal Law in Islamic Countries, 2nd ed. New Delhi, 1995; Redden, Malaysia in Modern Legal Systems Cyclopedia, vol. 9, New York, 1990; Selangor, Administration of Islamic Law Enactment 1989 and Islamic Family Law Enactment 1984 (as at 15th September 1991), comp. by Legal Research Board, Kuala Lumpur, 1992; Siraj, Women and the Law: Significant Developments in Malaysia,” Law and Society Review, vol. 28, no. 3 (1994): 561-581.
Marriage Guardianship
Senegal: each party must give free consent, even minors, and parties under 21 require parental consent; lacks of free consent or parental consent are grounds for nullification of marriage.
Tanzania: Marriage Act 1971 provides that valid marriage requires free consent of marrying parties; guardian’s consent not required for parties who have attained 18 years.
Sudan: Guardian is to marry the adult woman with her consent, although the qadi is empowered to act in this capacity if her guardian refuses his consent without justification. Guardian retains entitlement to seek dissolution on grounds of lack of kifa’a of husband (defined as kifa’a in religion and morals.
Somalia: girl who has reached 16 years, but is under 18 years may be represented in contract of marriage by father (in absence of father, guardians in order are: mother, grandfather, elder brother, uncle, Court-appointed guardian or judge); Court also empowered to overrule objection of guardian to marriage of female ward between 16 and 18 years.
Ghana: Marriage of Mohammedans Ordinance specifies that marriage is solemnised in presence of bridegroom, bride’s wali, and two witnesses; Criminal Code identifies causing someone to marry under duress as misdemeanour.
Ethiopia: both Article 34 of Constitution and Civil Code state that consent to marriage obtained by violence renders marriage invalid, but Civil Code provides that consent granted due to “reverential fear” of an ascendant or other person is not equivalent to consent obtained by violence.
Middle East
Egypt: governed by Civil Code; wali cannot prevent ward from marrying for reasons of status, amount of dower, etc.; judge may authorise marriage if wali refuses.
Tunisia: marriage of males or females below legal age of discernment requires wali’s consent (or judicial decision overruling wali’s refusal).
Iraq: no relative or third party has power of compulsion; marriage contract concluded by coercion is void if not consummated; likewise, no relative or third party may prevent person having legal capacity from marrying; ILPS provides penalties of fines and/or imprisonment for non-compliance.
Morocco: no coercive guardianship; ward may take matter to court if her guardian refuses consent to her marriage; ward who has reached age of legal majority and has no father may contract her own marriage.
Palestine: West Bank- see under Jordan. and in practice consent of guardian registered in nearly every marriage; Gaza Strip- In Gaza the LFR assumes guardian gives consent and that where there is no guardian, the qadi exercises guardianship in marriage.
Syria: under age of full capacity, both parties need permission of wali; wail’s objection to marriage of girl less than 17 years may be overruled by judge.
Jordan: guardian’s consent is required for marriage of a female under 18 years, but not for a divorcee or widow over 18 years.
Yemen: invalidity of marriage by coercion; judge can overrule guardian if his objection to marriage of ward is considered unjust, with proviso that the wife receive her proper dower from husband of equal status.
Kuwait: marriage concluded by wail’s offer and groom’s acceptance; woman who has been married previously or has attained 25 years has “freedom of choice” in marriage, however, cannot conclude contract herself (must still be concluded by her wali); invalidity of marriage under coercion or intoxication.
Algeria: guardian not permitted to marry his ward by compulsion or without her consent, and may not withhold consent if marriage is in ward’s interests as judge is empowered to authorise such a marriage in case of guardian’s opposition.
Libya: guardian may not force ward of either sex into marriage or prevent ward from marrying; if guardian withholds consent, ward may take matter to court to obtain permission.
Asia
Indonesia: free consent of marrying parties required for validity, unless religious law governing the parties directs otherwise; Marriage Law 1974 defines as legal a marriage “solemnised according to the laws of the respective religions and beliefs of each of the parties”; parties under 21 years need parental permission.
Malaysia: valid marriage requires both parties consent as well as consent of wali or syariah judge if no wali is available; compulsion of wards or unreasonable objection to their valid marriage punishable by fine and/or imprisonment.
Singapore: wali of bride may solemnise marriage according to Muslim law or may request kathi to do so; kathi may serve as wali where woman has none or where kathi rules that wail’s opposition to marriage is unreasonable; whether or not wail’s agreement is required for validity of marriage is governed according to classical school of law applicable to parties; in all cases, kathi is directed to make inquiry to determine that there are no lawful obstacles to marriage under either Muslim law or Administration of Muslim Law Act.
Brunei: guardian may not force ward of either sex into marriage or prevent ward from marrying; if guardian withholds consent, ward may take matter to court to obtain permission.
Philippines: free consent of marrying parties and presence and consent of wali are requisites for marriage contract.11
Background and Sources:
Redden, “Jordan” in The Modern Legal Systems Cyclopedia, volume 5, Buffalo NY 1990; Amin, “Jordan” in Middle East Legal Systems, Glasgow 1985; Mahmood, “Jordan” in Statutes of Personal Law in Islamic Countries, New Delhi 1995; Hinchcliffe and Alami, “Jordan” pages 79-114 in Islamic Marriage and Divorce Laws of the Arab World, London 1996; Welchman, “The Development of Islamic Family Law in the Legal System of Jordan,” ICLQ 37 1988 868- 886; Gallagher, “Women’s Human Rights on Trial in Jordan: The Triumph of Toujan al-Faisal,” pages 209-231 and appended translation of article by Toujan al-Faisal, “They Insult Us… and We Elect Them!” pages 232-237, in Afkhami, Faith and Freedom, London 1995.
Child Custody and Guardianship
Muslim countries often restrict the rights of mothers to raise or even to have the right to visit their own children in the event of a divorce. Instead, these countries cite a “natural right” of fathers to have guardianship over their children; custody defaults to the father after a child reaches a particular (often very young) age. Paternal grandfathers or other male relatives of the father have preference in the event of his death, irrespective of the wishes or needs of the child. Loss of their children is a powerful threat, keeping women in otherwise unendurable marriages.
Africa
Kenya: Kadhis’ Courts generally grant custody to mother until 7 years for boys and 14 for girls at which point custody reverts to father; regular court system generally grants longer periods of custody to divorced Muslim mothers.
Senegal: custody is determined by judgement of court and may be granted to either party or to third party according to best interests of ward; whichever parent has custody, the father is the guardian unless he is unable to fulfill this role.
Tanzania: first consideration of court in ruling over custody matters is welfare of the ward; rebuttable presumption that children should remain with mother until age of 7; courts also directed to consider: customs of community to which parents belong; economic circumstances of both parents; housing that both parents can provide; and behaviour of mother and whether she contributed to marital breakdown Succession: governed by classical law; under Non-Christian Asiatic Succession Ordinance, personal law applicable to deceased (Hindu, Muslim, etc.) will apply; in case of conflict of laws between Islamic and customary laws are applicable to succession, thus Courts directed to consider intention and mode of life of deceased in determining which regime should apply.
Sudan: divorced mother has custody over boys until 7 years and girls until 9 years; custody may be extended if proved to be in best interests of ward; until the male reaches puberty and the female consummates her marriage.. Court has some discretion to allow a woman who re-marries a man not within the prohibited degrees of relationship to the child (i.e., a mahram) to retain custody if the interests of the ward so demand. The custody of a woman of a different religion to the father ends when the child is five years old, or earlier in it is feared that the child will take another religion. Child support considered father’s duty until girl is married and until boy is of age able to earn his own living. Succession: Radd extended to include spouse.
Somalia: mother entitled to custody of male children until age of 10 and female children until age of 15, with court empowered to extend custody until age 18 for male or female ward if s/he is not able to look after him/herself; if mother remarries and husband is within prohibited degrees to ward(s), or in case she is widowed and remarries, she may retain custody; maintenance of children is duty of both parents until age of majority for sons and marriage or financial independence/gainful employment for daughter.
Ghana: Matrimonial Causes Act provides that courts may grant custody according to ward’s best interests, and order provision for his/her education and maintenance out of assets or income of either or both parent and courts adjudicating Muslim divorces directed to apply terms of Act in matters of maintenance and custody.
Ethiopia: Civil Code provides that child custody and maintenance arrangements are to be made only with consideration for interests of ward; provision states that in absence of any “serious reason”, wards are to remain with mother until age of five.
Nigeria: Matrimonial Causes Act 1970 applicable to custody suits arising out of dissolution of civil, customary and Islamic marriages; in all custody matters, Act directs that interests of child shall be paramount.
Middle East
Egypt: divorced mother’s custody ends at 10 years for boys and 12 years for girls; judge may extend custody to 15 years for boys or until marriage for girls if ward’s interests so require.
Tunisia: divorced wife has right of custody over boys until age of 7 and girls until age of 9, after which custody reverts to father if he requests it, unless judge considers child (ren)’s mother better suited to maintain custody.
Iraq: divorce entitled to custody of boys or girls until age of 10 years, extendible to 15 years at which time ward may choose with which parent s/he wishes to live.
Morocco: divorced mother has right of custody until puberty for sons and until marriage for daughters.
Palestine: West Bank- see under Jordan; Gaza Strip- classical Hanafi rules allowing limited extension of mother’s custody of girl up to eleven years and boy up to nine.
Syria: divorced mother has right to custody over boys until age of 9 and girls until age of 11; qadi may order wards to stay with mother if guardian is not father, until marriage for girl or until boy or girl reaches rushd; qadi may also order children to remain with mother if court finds that father is not to be trusted with them.
Jordan: divorcee is entitled to custody of her children until they reach puberty, subject to classical conditions; other custodians till 9 and 11 males and females.
Yemen: mother’s custody ends at 9 years for boys and 12 years for girls; unlimited (i.e., undefined) possibility for extension of mother’s custody if it is deemed in wards best interests, and wards may choose which parent they wish to live with once period of custody ends.
Kuwait: divorced mother’s right to custody ceases at puberty for boys and majority or marriage for girls.
Algeria: divorces right to custody ceases at age 16 for boys (or 10 if she remarries) and until legal age of marriage (18 years) for girls (so long as mother remains single or marries someone within prohibited degrees to the daughter), with proviso that decision to terminate custody is subject to ward’s best interests; full guardianship reverts to mother upon father’s death unless his will provides otherwise.
Libya: governed by Maliki principles; mother’s custody ends at marriage for daughters and puberty for sons.
Asia
Indonesia: Marriage Law simply provides that in case of dispute over custody, Court shall render its judgment; father shall have responsibility for maintenance expenses, unless he is unable to bear such responsibility in which case Court may order mother to share expenses.
Malaysia: divorced mother entitled to custody of boys until 7 years and girls 9 years, subject to classical conditions; court may extend custody to 9 and 11 years respectively upon hadinah’s application; after expiry of hadinah’s custody, father becomes custodian, with proviso that ward having reached age of discernment may choose with which parent to live, unless court directs otherwise.
Singapore: under terms of Guardianship of Infants Act 1961, Courts directed to consider religious and customary practices of community, but best interests of ward are paramount consideration; regular court system has jurisdiction over all custody cases.
Brunei: governed by Maliki principles; mother’s custody ends at marriage for daughters and puberty for sons.
Philippines: divorced mother has right to custody over sons and daughters until 7 years after which age ward may choose to reside with either parent; custody of unmarried female ward who has reached puberty reverts to father while son in same circumstance resides with mother.12
Background and Sources:
Amin, Legal System of Kuwait, Glasgow, 1991; Amin, Middle East Legal Systems, Glasgow, 1985; Ballantyne, Commercial Law in the Arab Middle East: The Gulf States, London, 1986; El Alami & Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World, London, 1996; “Kuwait,” Civil Society, vol. 8, issue 90 (June 1999): 10-11; Mahmood, “Kuwait” in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; Nasir, The Islamic Law of Personal Status, 2nd ed., London, 1990; Pearl, A Textbook on Muslim Personal Law, 2nd ed., London, 1987; Redden, Kuwait in Modern Legal Systems Cyclopedia, vol. 5, Buffalo, NY, 1990.
Judicial Divorce
In many countries in the Islamic world, men have possessed a unilateral and unconditional right to divorce. In these same countries, women are often not only not afforded that right but, if they are allowed the right of divorce at all, must resort to the courts to divorce their spouses, where they confront innumerable social, legal, and bureaucratic obstacles. In many Islamic countries, women are often at a massive disadvantage compared to men in such matters as financial support, child custody, child visitation and child guardianship, and subsequent remarriage.
Africa
Kenya: governed by classical law Post-Divorce Maintenance/Financial.
Senegal: either party may seek judicial dissolution on following grounds (preceded by reconciliation efforts by judge): other party’s declared absence; adultery; sentencing for crime bringing dishonour to family; failure to fulfil legal condition stipulated upon marriage; abandonment of family or conjugal home; maltreatment rendering continuation of marital life impossible; medically established sterility; grave and incurable illness discovered since marriage; incompatibility making continuation of conjugal life intolerable; and for wife, failure to maintain on part of husband.
Tanzania: except in extreme cases, no petition of divorce to be heard before marriage has subsisted for two years; either spouse may apply for divorce on grounds of breakdown, but no decree of divorce can be granted unless court is convinced of irreparable breakdown; party seeking divorce must first apply to Marriage Conciliatory Board which must certify failure to reconcile parties before divorce suit can be initiated; evidence of breakdown of marriage for court’s purposes must indicate following grounds: mental or physical cruelty; wilful neglect; desertion; voluntary separation; or change of religion dissolving marriage under religious law the parties were subject to at time of marriage; requirement of recourse to Marriage Conciliatory Board can be waived under certain circumstances (desertion, mental illness, imprisonment, etc.).
Sudan: wife may seek judicial divorce on following grounds: husband’s incurable physical or mental illness making it dangerous for the wife to continue to live with him; husband’s impotence not curable within one year (established by medical report); husband’s cruelty or discord between spouses; husband’s inability to pay; husband’s absence for one year or more or his being sentenced to two years or more in prison; also, divorce by ransom, i.e., if wife is declared nashiza (disobedient) by court order, wife may waive her rights and if the man does not agree to the divorce, arbitrators must be appointed; if she proves that she suffers from remaining with him a talaq will be ordered by the court.
Somalia: either party may seek judicial dissolution on following grounds: incurable disease of other spouse making cohabitation dangerous or impossible; disappearance of other party for period of over four years; habitual failure to maintain by other party; serious disagreement between spouses making conjugal life impossible (after reconciliation efforts of 60 days); perpetual impotence or sterility of other party; and other spouses sentencing to over four years imprisonment. Wife is entitled to seek dissolution if husband has been granted permission to marry polygamous by District Court, on condition that there are no children
Ghana: possible to terminate customary law marriage by application to court under Matrimonial Causes Act, in which case grounds for divorce include those recognized in personal law of the parties in addition to those enumerated in the Act; under Act, divorce may only be granted if court concludes irreparable breakdown; courts hearing suits for divorce among Muslims directed to apply Matrimonial Causes Act directing guidance by justice, equity and good conscience in determination of post-divorce reliefs and custody.
Ethiopia: judicial divorce may be sought by either spouse for “serious causes” or “other causes”; serious causes are: adultery; desertion of marital home without knowledge of that parties whereabouts for two years; a spouse’s confinement to lunatic asylum for minimum of two years; and judicial declaration of absence of a spouse; couples seeking divorce for either serious or other cause must first appoint family arbitrators who will attempt to effect reconciliation and if efforts fail, arbitrators can grant a divorce, preferably on mutually agreed terms; if serious cause for divorce can be established for which one spouse bears burden of fault, family arbitrators may divide common property unevenly; if no serious cause is established, property is divided unevenly to disadvantage of spouse who petitioned for divorce; arbitrators decisions can be appealed to courts; Family Law may have placed jurisdiction for divorce with the courts from the beginning of the proceedings.
Middle East
Egypt: wife may obtain judicial divorce on following grounds: serious or incurable defect of the husband (unless woman married in full knowledge of such defect or defect occurred after the contract and she implicitly/explicitly accepted it), harm making cohabitation as husband and wife impossible, if harm is proved and reconciliation efforts fail, material or moral harm if husband marries polygamously and such harm makes cohabitation as husband and wife impossible (up to one year from date of her knowledge of the polygamous union), husband’s absence for a year or more without reasonable justification; husband’s imprisonment for three years or more, after one year of sentence has passed, non-payment of maintenance; and discord if reconciliation efforts fail, with financial settlement proportionate to allocation of blame as determined by arbitrators; wife may also obtain a divorce on the grounds of incompatibility, but will not lose all financial claims against her husband; a divorce requested by wife on the grounds of incompatibility must be granted within six months.
Tunisia: available (after reconciliation efforts) at request of either party; in issuing decree of divorce, Court shall also assess maintenance, custody, housing and visiting rights.
Iraq: wife entitled to request dissolution if husband does not fulfill any lawful condition stipulated in marriage contract; either party may request dissolution upon following grounds: such harm as makes continuation of marriage impossible; marital infidelity; if marriage was contracted without judicial permission before either party attained 18 years; if marriage was concluded outside court by coercion and was not consummated; if husband marries polygamously without judicial permission; and if any of above grounds are not proven, on grounds of discord (in which case courts initiate reconciliation procedures; if reconciliation efforts fail and husband refuses to pronounce talaq, courts may grant judicial divorce; if wife is found to be at fault, her financial rights are forfeit).? Wife may request judicial divorce upon following grounds: if husband is imprisoned for three or more years; if husband abandons wife for two or more years without lawful reason; if husband does not consummate marriage within two years of contract; husband’s impotence or affliction (if after consummation, must be confirmed by medical report); husband’s infertility if wife has no living son by him; husband’s serious illness which would cause wife harm; non-maintenance after grace period of up to 60 days; non-maintenance due to husband’s absence, disappearance, concealing his whereabouts, or imprisonment for more than one year; and if husband refuses to pay maintenance arrears after 60-day grace period; wife may also request judicial separation before consummation in return for any dower and proven expenditure on husband’s part for purpose of the marriage.
Morocco: wife may seek judicial divorce on following grounds: husband’s non-maintenance; husband’s grave and incurable or long-term defect; harm caused by husband making cohabitation impossible (after reconciliation efforts); husband’s absence for over one year without valid reason; husband’s oath of abstinence if he does not comply with judicial decision allowing four month grace period; all judicial divorces irrevocable except divorce granted because of husband’s oath of abstinence or inability to maintain.
Palestine: West Bank- see under Jordan. Gaza Strip- the same, except that women may petition for divorce on the grounds of injury and does not allow the husband to petition on grounds of ‘discord and strife’.
Syria: wife may seek judicial divorce on following grounds: defect in the husband preventing consummation (though such right is forfeit if wife accepted defect except in cases of husband’s impotence); husband’s insanity; husband’s absence without justification for one year; husband’s sentencing to three years imprisonment after serving one year of sentence; and husband’s non-maintenance, if non-maintenance is due to husband’s inability, judge shall grant grace period of up to three months; either spouse may seek judicial divorce on grounds of discord causing such harm as makes cohabitation impossible (after reconciliation efforts).
Jordan: grounds on which women may seek divorce include: failure to maintain, physical desertion or husband’s absence for one year or more, husband’s prison sentence of three years or more; both spouses may petition on grounds of ‘discord and strife’, breach of a binding stipulation of the marriage contract, and various grounds associated with spouse’s mental and physical health.
Yemen: dissolution available to either spouse on grounds of defect (right is forfeit if defect was accepted explicitly or implicitly, except for insanity, leprosy and other communicable diseases difficult to cure); and inequality of social status; annulment effected if husband becomes Muslim and wife is not kitabiyya or if wife becomes Muslim and husband refuses conversion to Islam or on grounds of either party’s apostasy; wife may request decree of dissolution (lesser irrevocable) on following grounds: husband’s non-maintenance; husband’s absence or disappearance for one year if husband left no provision for maintenance or two years if he provided for wife’s maintenance; husband’s imprisonment for three years or more after one year of sentence; husband’s breach of maintenance or accommodation obligations towards co-wives; incompatibility (after reconciliation efforts, and if husband refuses to pronounce talaq, in exchange for wife’s return of her dower); husband’s proved addiction to alcohol or narcotics.
Kuwait: woman may seek judicial divorce on following grounds: husband’s non-maintenance; ila; husband’s absence of one year or more without good reason, giving rise to injury to wife; and husband’s imprisonment for three or more years; either spouse may apply for judicial divorce on grounds of injury/prejudice caused by such word or action as makes continued matrimony impossible, established by testimony of two male or one male and two female witnesses (after reconciliation efforts, with possibility of award of appropriate compensation to aggrieved party); annulment available on following grounds: defect of either spouse such as makes cohabitation harmful or hinders conjugal relations (e.g., disease, impotence); and difference of religion arising after marriage that renders marriage invalid according to rules of shari’a and either party may demand dissolution on grounds of non-compliance with any valid stipulation recorded in marriage contract.
Algeria: wife may petition for divorce on following grounds: non-payment of maintenance; infirmity preventing conjugal relations; husband’s abstinence from sexual relations for over four months; husband’s imprisonment for over a year for offense that brings disgrace to his family; husband’s absence without provision of maintenance or valid reason for over a year; any legally recognised harm (e.g., relating to maintenance, treatment of CO-wives, etc.); and any grave moral impropriety.
Libya: judicial divorce available on following grounds: husband’s failure or inability to maintain without cause; absence without justification; grounds of defect preventing fulfilment of aims of marriage or other grave defect; ila’ or hajr, after appropriate grace period; most of above grounds available to husband as well; if parties do not agree to talaq by mutual agreement, court will appoint arbitrators; if reconciliation efforts fail and harm is established, judge issues decree of divorce with financial effects proportionate to relative fault; annulment effected due to difference of religion in cases of conversion after marriage where this affects validity of marriage according to shari’a.
Asia
Indonesia: either spouse may seek judicial divorce (preceded by reconciliation efforts by judge) on following grounds: other spouse’s adultery, alcoholism, addiction to narcotics, gambling or “any other vice that is difficult to cure”; abandonment for two years without valid reason; cruelty or mistreatment endangering life; physical disfigurement or malady preventing performance of marital duties; sentencing to prison term of five years or more; and constant disputes without hope of resolution.
Malaysia: wife may apply for dissolution on following grounds: husband’s disappearance for over one year; failure to maintain for three months; sentencing to three years or more in prison; failure to perform marital obligations for one year; continued impotence, if wife was unaware of it upon marriage; mental illness lasting two years or leprosy, vital go or communicable venereal disease; wife’s repudiation of marriage concluded by father or grandfather before she attained 16, if she is below 18 years and marriage was unconsummated; cruel treatment; husband’s refusal to consummate for four months; invalidity of her consent (obtained under duress, mistaken, etc.); and any other grounds for dissolution or nullification recognised in hukm shar’.
Singapore: wife may be granted judicial dissolution with husband’s consent and Court will grant application; if husband agrees to a khul’ Court will assess amount of compensation to be paid by wife according to means and status of both parties; wife may also apply for faskh on following grounds: husband’s failure to maintain for three months; imprisonment for three years or more; failure to perform marital obligations for one year; continued impotence since marriage; insanity or serious illness making cohabitation injurious to wife; and cruel treatment (defined as habitual physical abuse or cruelty of conduct, associating with women of ill-repute, obstruction of wife’s religious observance, unequal treatment of co-wives, cohabiting with another woman, or trying to force wife to lead immoral life); before making decree of divorce or nullity, Court may appoint arbitrators to attempt reconciliation.
Brunei: judicial divorce available on following grounds: husband’s failure or inability to maintain without cause; absence without justification; grounds of defect preventing fulfillment of aims of marriage or other grave defect; ila’ or hajr, after appropriate grace period; most of above grounds available to husband as well; if parties do not agree to talaq by mutual agreement, court will appoint arbitrators; if reconciliation efforts fail and harm is established, judge issues decree of divorce with financial effects proportionate to relative fault; annulment effected due to difference of religion in cases of conversion after marriage where this affects validity of marriage according to shari’a.
Philippines: wife may seek judicial divorce on following grounds: in cases of husband’s oath of abstinence (ila), zihar (likening wife to his relations within the prohibited degrees), li’an (imprecation of adultery); wife may seek decree of faskh on following grounds: husband’s failure to maintain for six months; husband’s sentencing to one years imprisonment; husband’s impotence or abstention from conjugal relations for six months; husband’s insanity or affliction with incurable disease injurious to family; husband’s cruelty (defined in Code); and any other cause valid under Muslim law; until the passage of the Family Code, Muslims were the only Filipinos with the possibility of legally ending a marriage.13
Background and Sources:
Hooker, Islamic Law in South-East Asia, Singapore, 1984; Ibrahim, Family Law in Malaysia and Singapore, Singapore, 1984; Kamali, “Islamic Law in Malaysia: Issues and Developments,” Yearbook of Islamic and Middle Eastern Law, vol. 4 (1998): 158-179; Mahmood, Malaysia in Statutes of Personal Law in Islamic Countries, 2nd ed. New Delhi, 1995; Redden, Malaysia in Modern Legal Systems Cyclopedia, vol. 9, New York, 1990; Selangor, Administration of Islamic Law Enactment 1989 and Islamic Family Law Enactment 1984 (as at 15th September 1991), comp. by Legal Research Board, Kuala Lumpur, 1992; Siraj, Women and the Law: Significant Developments in Malaysia,” Law and Society Review, vol. 28, no. 3 (1994): 561-581.
Talaq
Africa
Kenya: governed by classical law.
Senegal: extra-judicial divorce not permitted.
Tanzania: does not automatically dissolve marriage, but constitutes compelling ground for Court to issue decree of divorce if talaq was pronounced after failure of reconciliation efforts by Marriage Conciliatory Board.
Sudan: Regionally standard reforms affecting validity of talaq accompanied by a number in word