Family Law in Islamic Countries
Every Islamic nation has a different approach to treating women. This article is an enumeration on the legal status of women in some important Islamic Regions. Family law in Islamic countries generally follows the prescriptions of scriptures. The situation of women in Islamic countries is raising profound questions regarding women’s social roles and rights, resulting in conflicting opinions. In order to understand this diversity one needs to know the Islamic legal order particularly in matters of family and social life. Below is a brief elaboration on the provisions pertaining to marriage and divorce in some of the Islamic countries.
African and European Context
In Algeria, the minimum age of marriage is lower for women (18 years) than for men (21 years). There is inequality right at the stage of conclusion of a marriage contract. The conclusion of the marriage contract is impossible for a woman without the involvement of a guardian who is her father or close relative. Although there is a provision that no guardian can stop his ward from marrying if, she so wishes or compels her to marry against her consent. However, this provision is weakened by an additional clause permitting the father to prevent a marriage of his daughter if this is in her best interest. As per the Family Code of Algeria, the wife must obey her husband, regard him as the head of the family and respect his parents and relations. The wife also has a duty to obey and duty to seek permission before leaving the home. Husband’s duty is to provide maintenance and all amenities to his wife and this entitles him to prevent her from working. In matters of dissolution of marriage, the husband can dissolve the marriage without giving any reason or justification. Such dissolution shall take place from the time it is recorded with the court of jurisdiction of the locality if not effected before a judge. In case of abuse of this right by a husband, a judge shall award damages to a wife. However, a wife cannot dissolve the marriage. Nevertheless, wife can obtain separation from her husband in return for some compensation. However, she needs to obtain consent from husband for such dissolution of her marriage. In matters of child custody, mother has custody of the child until the age of 16 for boys and 18 for girls; the guardianship belongs to the husband who takes almost all decisions regarding the life of children. Moreover, a woman who remarries after a divorce usually loses her custody. These legal facts make it clear that the Algerian women are in an inferior position and hardly have any say over their husband.
On the other hand, Family Law of Egypt permits women to conclude her marriage contract herself, without the involvement of a guardian. The guardian has a right to apply for the annulment of a marriage on the ground of unsuitability of a husband, if no children are born out of this marriage. Polygamy still exists. The wife is obliged to obey her husband in return for maintenance, which is the obligation of a husband. Husband can unilaterally dissolve the marriage without requiring him to present a case before a judge or court. However, modern legislation nevertheless requires official registration of dissolution of marriage. Woman can also request for separation or divorce on certain grounds prescribed by law. In case of polygamous marriages, in order to obtain divorce a woman has to prove that the polygamy of her husband really results in moral or physical harm to her. Final decision however rests with the Judge. The custody of young children is usually given to women. However, a women’s right to custody terminates when a minor boy reaches the age of ten and when a minor girl reaches the age of twelve. After these ages, the judge may allow a boy, until the age of fifteen, and a girl until she marries, to remain in the custody of the woman without payment for custody, if it is in their interests. Thus, the legal position of women in Egypt is reformatory as per the changing social needs.
In Mauritania, marriage contract for a woman is not possible without a male guardian. In case of divorce, husband has a unilateral and unconditional right to dissolve marriage. Guardianship of the mother lasts till marriage for girls and till the age of majority for boys however if better interest of the child so require, the guardianship of the mother with respect to her son can be limited by a decision of a judge till the age of 7. Women do not have the same rights as men in the area of transfer of the nationality to children when they are married to foreigners so much so with regard to the possibility of conferring their nationality to their foreign husbands. Thus, the status of women is same as in Algeria.
In Morocco, men and women of 18 years can establish a marriage contract. Women do not have a right to choose her domicile since it is husband who decides about the place of the domicile. It also does not allow the woman married to a foreigner to transmit her nationality to her children as it is possible for a man. Woman can conclude her marriage contract without the intermediary of her guardian. Dissolution of marriage is possible for a woman only by a decision of a judge. On dissolution of marriage husband should pay maintenance. In contrast, the wife enjoys complete freedom of disposition of her property during the marriage and upon its dissolution without supervision by the husband, the husband having no jurisdiction over his wife’s property. The custody of the child is based on the principle of welfare of the child. Husband is no more declared the head of the family. These unique features make the position of women much more superior and higher especially in property matters. None of the Islamic Countries confer such liberal powers upon women.
In Niger, married women do not enjoy the right to choose their residence and domicile as in case of unmarried women. Husbands have an exclusive right to make a choice about the place of the marital home. The unilateral extra-judicial dissolution of marriage by a husband is not restricted in any way except for the requirement of registration, which at least allows divorced women to have definite knowledge about their status. Women can apply for a divorce only on certain restricted grounds or in return for compensation. The extra-judicial dissolution of marriage by husband without the interference of court is totally unfair and unjust since the wife is absolutely at the mercy of the husband.
Unlike Morocco, the Personal Status Code of Tunisia considers husband as the head of the family. However, both spouses have a common conjugal domicile, which does not prevent either of the spouses to have a distinct temporary domicile if necessary. In matters of dissolution of marriage, wife has custody of children and husband is the guardian of the children. Guardianship may be withdrawn from the father in favor of the mother if he abandons his home and has no known address or for any other reason likely to affect the interests of the child. Polygamy is prohibited. There is equality between men and women with regard to the dissolution of marriage.
Libyan Personal Law
The Libyan Personal Law restricts the rights of guardian in as much as he is forbidden from forcing his ward to marry or prevent her from entering into a marriage. Husband has a duty to maintain his wife and wife should obey him. The husband has unilateral right to dissolve the marriage with courts permission and damages may be awarded to an arbitrarily divorced wife. A wife may seek divorce on such grounds as non-maintenance, disappearance of the husband or a defect in her husband, as well as if the marriage is unstable. However if she is unable to prove that she has suffered damage from her husband, she loses her right to maintenance. With regard to the custody and guardianship of children, the situation in Libya is the same as in many other Muslim countries. The woman has custody of young children upon divorce, but the guardianship goes to a man. Women will have the custody of boy child until puberty and girl child until the age of marriage. Thus, the situation in Libya is certainly not satisfactory and progressive.
In Turkey, the family is based on equality between spouses. Women are granted equal rights to property acquired during marriage. The minimum age for marriage is 18 (17 with parental consent). In cases of forced marriage, women have right to ask an annulment within the first 5 years of marriage. Turkish law allows divorce with a settlement agreement made between the husband and wife. Under Turkish law, the grounds for divorce are as follows: disloyalty, committing a crime against the life of the spouse, addiction to drugs or alcohol, cruelty/affront/insult, crime and infamous conduct, abandoning the spouse, mental illness, just and reasonable cause for divorce and domestic disturbance. With regard to child custody, right of non-custodial parent is limited to visitation rights, which are arranged by the court in most cases together with divorce verdict. However if things are not going well for the child, custody can be turned over to other parent. To contest custody there is no specific ground but every case is considered individually. Welfare of the child is considered a top priority. Thus, position of Turkish women is much better as compared to other countries.
Asian and the Middle East Context
From an Asian and Middle East context the situation is not much different as that in Africa and Europe. The Malaysian personal law prescribes minimum age of marriage for men at 18 and 16 for women. The low age of marriage can be exempted if a judge grants his written permission. Women can dissolve a marriage concluded by her guardian before she attained the age of 16, if she is below 18 years of age and the marriage was not consummated. Wife owes obedience to her husband in return for maintenance. There are restrictions on rights of women as to her freedom of movement, free choice of profession etc. Unilateral dissolution of marriage by husband outside the court and without the permission of the court can be approved by the court ex post facto. Women can request for divorce before a court on the following grounds prescribed by law. Husbands disappearance for over one year; failure to maintain for at least three months; failure to perform marital obligations for at least one year; continued impotency; mental illness lasting for at least two years; leprosy or transmittable venereal disease; cruel treatment; the husband’s refusal to consummate the marriage for four months; invalidity of the consent of the wife. Islamic law applicable in Brunei is quite similar to that in Malaysia. However, as compared to Malaysia, Brunei is more conservative.
In Pakistan, age of marriage is 18 for boys and 16 for girls. Pakistan reserves the right of the women to transfer their nationality to their foreign husbands. However, the inequality, which relates to the right of Pakistani women to transfer their nationality to children by women married to a foreigner, was abolished in 2000. The husband can unilaterally divorce his wife without courts intervention. Wife is entitled to maintenance. The wife’s right to apply to a court for divorce is quite large, as she can ask for divorce if she dislikes her husband. However, a wife who sues for divorce is not entitled to maintenance. With regard to the guardianship and custody of children, the wife is regarded as natural custodian, whereas the husband, the natural guardian of children. However, in all cases the deciding principle is the welfare of the child. Pakistan has thus adopted a unique approach as compared to other Islamic nations by conferring on women the right to divorce their husband in case if they do not wish to continue the marital bond.
In Bangladesh, the dissolution of marriage is possible for a man without showing any reason and without his wife’s consent while the wife can unilaterally dissolve the marriage only if she is delegated the authority to do so by her husband at the time of marriage generally in the marriage contract. The wife can also seek dissolution of marriage through a court on certain reasons prescribed by law The dissolution of marriage can only be effective if the husband agrees and actually grants the divorce to his wife. The role of a judge or court is merely limited to procedural aspects. With regard to child custody, mother is not regarded as the guardian of her children. She is only entitled to the care and custody of young children. However, welfare of the child is considered a subject of paramount interest. This makes the society more male dominant wherein the female has no say in family matters.
In Maldives, minimum marriage age for both men and women is fixed at 18 and husband can unilaterally dissolve the marriage but only before a court. Woman is given priority of guardianship of children until the age of seven in case of dissolution of marriage. However, the court can give the guardianship either to the father or to the mother taking into consideration the preference of the child. Women are free to choose a profession or occupation unlike in the case of Malaysia. The legal status of women in Maldives is stronger as compared to Malaysia and Algeria.
Bahrain, Oman and the United Arab Emirates
The Middle East Countries viz., Bahrain, Oman and the United Arab Emirates do not have a codified personal law and hence there is no official publication of courts decisions. In Saudi Arabia, there is discrimination against women in almost all the spheres, such as politics, employment, education, family, private and public life. The Personal Law is not codified and hence it adopts the Islamic interpretation of laws from other States. This makes it more difficult and the complexity cannot be rectified even with recourse to other national legislations.
The Jordanian Family Law permits women in the marriage contract to reserve their right to freedom and not to follow their husband. The wife has an obligation to take care of the family, the children and home and it is the husband’s duty to maintain her. Wife also has a right to request separation from their husband on specific grounds. However, the right to terminate the marriage herself can be exercised by a wife if the marriage contract expressly provides for it. Custody of young children is with their mother until the age of puberty but guardianship is with the father. Women can also include in their marriage contracts provisions guaranteeing them the right to choose and exercise their profession without their husband’s consent. Women are allowed to obtain their passport without having to obtain consent of a father or guardian. This makes it clear that Jordan is more liberal as compared to Algeria.
In Syria, women have right to marry without a male guardian’s consent. However, the guardian has the power to request the annulment of a marriage concluded if the condition of suitability of the husband is not fulfilled. Syria approves unilateral divorce by the husband in exchange for maintenance. It also approves divorce on certain grounds on the request of the wife. Child custody is regulated. Polygamy is still allowed under some conditions. Thus in certain aspects Syria is still traditionally conservative.
Kuwait has established equality between men and women with regard to guardianship, ward ship, trusteeship and adoption of children. The minimum marriage age is 15 for girls and 17 for boys. The husband is obliged to maintain his wife and wife to obey her husband. The principle forms of dissolution of marriage known in other Muslim States are also available in Kuwait. The custody of children is attributed to their mother until the age of puberty for boys and age of majority or marriage for girls. However, the national legislation of Kuwait contains no procedural regulations, which are used in other Muslim States to protect women at least from gravest forms of misuse by a husband of his rights. Nevertheless, Kuwait seems to have a liberal legal structure for women.
In Iraq, nobody can compel any person whether male or female to marry against his / her consent. A marriage contract under compulsion is void if no consummation has occurred. Similarly, marriage of anyone who has the legal capacity for marriage cannot be prevented. The right to acquire, change or retain their nationality is not guaranteed to men and women on equal terms. The Nationality Law discriminates women with regard to the right of women married to a foreigner to transmit their nationality to their children and foreign husbands. In addition, residence of a married woman is with her husband and of an unmarried one with her father. The grounds for and procedures of the dissolution of marriage are not on equal terms. Man can have more than one wife. The husband can initiate divorce. Wife has the right to initiate divorce only if this right was giving to her in the marriage contract. Both men and women can request judicial separation. The age of marriage for men and women is fixed at 18 years. The wife is obliged to obey to her husband in return for maintenance. A wife leaving the marital home without her husband’s permission or lawful grounds is not entitled to maintenance as does an imprisoned wife or a wife who refuses to travel with her husband without a lawful cause. This clearly reveals the fact that a woman has no freedom to choose her own place of residence or domicile and further she has no freedom of movement. Men has a unilateral right to dissolve the marriage which needs to be confirmed by a court or at least registered by a judge and damages are awarded to an arbitrarily divorced wife. Either of the spouses can request a judge to dissolve the marriage if one of the spouses causes so much injury to the other or to their children and that the common life becomes impossible; if one of the spouses commits adultery; if the marriage was contracted before both spouses reached the age of 18 and without judicial authorization; if the marriage was concluded by force and outside of a tribunal and if the husband marries a second wife without an approval from a court. The following are the additional grounds allowing a request for separation by a woman: if the husband is sentenced to imprisonment for three years or more, even if he is able to provide for his wife and children during this time; if the husband abandons his wife without a justified cause for two years or more; if after a conclusion of marriage contract and before the consummation of a marriage the husband does not come to celebrate the marriage two years after the conclusion of marriage contract; if the wife discovers that her husband is unable to fulfill his marital duties (sexual incapacity); sterility of the husband; if the husband does not pay maintenance as required by a decision of a court; if the husband does not maintain his wife without a valid reason. The custody of children until the age of 10 is with the mother. During this time, the father has visitation rights and may supervise the conditions of living and education of his children. If the interests of children so require, the custody of the mother may be extended until the child completed the fifteenth year. A child of fifteen years of age shall choose him or herself to live with either of the parents, or with another relative. The actual guardianship is granted automatically to the father. Thus, although the Iraqi Personal Law contains some discriminatory provisions, it is relatively progressive as compared to the laws prevalent in other Muslim countries of the region.
In general, out of more than forty States of the world with legislation which incorporates or at least reflects to some extent Islamic laws and customs, thirty-six are parties to the Convention on the Elimination of All Forms of Discrimination against Women with substantive reservations. Any real improvement concerning the situation of women in the Islamic countries cannot be attained exclusively through constant legislative reforms. Today, Muslim women all over the Islamic countries face several challenges due to the strong influence and impact of westernization making it more difficult for them to realize their aspirations and desires to live in a liberal modern world. Hence, in order to bring a change, Islamic feminism and parallel changes in societal attitudes are as important as legal reforms.