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Welchman Beyond the Codex BEYOND THE CODE: MUSLIM FAMILY LAW AND THE SHAR`I JUDICIARY IN THE PALESTINIAN WEST BANK LYNN WELCHMAN Published by Kluwer Law International, The Hague, 2000 ISBN 9041188592 Pre-publication text To my Nain, Jane Winter, and to Elsie and Geoff Knights 2 TABLE OF CONTENTS Contents List of Tables Preface Chapter One: Introduction: Courts, Codes and Cases Chapter Two: The Shari`a Courts: A Constant in a Changing World? Chapter Three: Getting Married: The Who and How of the Contract Chapter Four: Variations on the Theme: Dower, Stipulations and Polygyny Chapter Five: Married Life: Rights and Responsibilities that the Spouses Bring to Court Chapter Six: Getting Divorced: Deeds and Processes of Talaq and Khul` Chapter Seven: Litigating Divorce: Claims and Procedures for Tafriq and Faskh Chapter Eight: When it’s Over: Claims by Divorcées and Widows Chapter Nine: Conclusion: Towards a Palestinian Law of Personal Status? Appendices Glossary Bibliography Index 3 CONTENTS CHAPTER ONE INTRODUCTION: COURTS, CODES AND CASES 1.1 Legal Context and Contemporary Scholarship 1.2 Sources of Law in the Shari`a Courts 1.3 Courts and Case Material 1.4 Process and Procedure in the Shari`a Courts CHAPTER TWO THE SHARI`A COURTS: A CONSTANT IN A CHANGING WORLD? 2.1 Introduction 2.2 Ottoman Rule 2.3 British Rule 2.4 Jordanian Rule 2.5 The Shari`a Court System under Israeli Occupation 2.5.1 The 1967 occupation 2.5.2 The Shari`a Court of East Jerusalem 2.5.3 The Shari`a Court of Appeal in East Jerusalem 2.5.4 Shari`a courts outside East Jerusalem 2.6 The Shari`a Court System and the Palestinian Authority CHAPTER THREE GETTING MARRIED: THE WHO AND HOW OF THE CONTRACT 3.1 The Contract 3.1.1 Pillars of the contract 3.1.2 Conditions of conclusion 3.1.3 Conditions of validity 3.1.4 Conditions of implementation 3.1.5 Conditions of bindingness 3.1.6 Types of contract 3.2 Capacity of Bride and Groom 3.2.1 Sanity 3.2.2 Age 3.2.3 The role of the marriage guardian CHAPTER FOUR VARIATIONS ON THE THEME: DOWER, STIPULATIONS AND POLYGYNOUS UNIONS 4.1 Dower and Tawabi` 4.1.1 Basic rules 4.1.2 Prompt and deferred dower 4.1.3 The token prompt dower 4.1.4 Tawabi` 4.1.5 Receipt of the dower 4 4.1.6 Dower, law and society 4.2 Special Stipulations in the Contract of Marriage 4.2.1 Stipulations in law 4.2.2 Incidence 4.2.3 Stipulations against polygyny 4.2.4 Stipulations on place of residence 4.2.5 Stipulations on work 4.2.6 Stipulations on independent accommodation 4.2.7 Other stipulations 4.2.8 Stipulations, law and society 4.3 Polygyny 4.3.1 Polygyny in law 4.3.2 Incidence 4.3.3 Polygyny, law and society CHAPTER FIVE MARRIED LIFE AND THE LAW: RIGHTS AND RESPONSIBILITIES THAT THE SPOUSES BRING TO COURT 5.1 Introduction and Non-Petitionable Rights 5.2 Mahr , Tawabi` and Jihaz 5.2.1 Classification as prompt or deferred 5.2.2 Consummation and establishment of right to full dower 5.2.3 Amount of dower 5.2.4 Non-receipt of prompt dower 5.2.5 Claims for tawabi` and jihaz 5.3 Maintenance 5.3.1 Basic rules 5.3.2 Claims 5.3.3 Disobedience and disqualification from maintenance entitlement 5.3.4 Maintenance, disobedience and the wife who goes out to work 5.4 The ‘House of Obedience’ 5.4.1 Basic rules 5.4.2 Defence based on dower 5.4.3 Defence based on untrustworthiness of husband 5.4.4 Defence based on the matrimonial home 5.4.5 Procedural matters 5.4.6 Claims in the case material CHAPTER SIX GETTING DIVORCED: DEEDS AND PROCESSES OF TALAQ AND KHUL` 6.1 Introduction 6.2 Talaq and Khul` Compared 6.3 Talaq 6.3.1 Basic rules 6.3.2 The restriction of talaq in Jordanian legislation 6.3.3 Registration and out-of-court talaq 6.3.4 Points in practice 6.3.5 Revocation of talaq 5 6.3.6 Delegation of talaq to the wife 6.4 Khul` CHAPTER SEVEN LITIGATING DIVORCE: CLAIMS AND PROCEDURES FOR TAFRIQ AND FASKH 7.1 Introduction 7.2 Judicial Divorce ( Tafriq ) 7.2.1 Discord and strife 7.2.2 Absence and injury 7.2.3 Non-payment of maintenance 7.2.4 Other grounds for judicial divorce 7.3 Judicial Dissolution ( Faskh ) 7.3.1 Introduction 7.3.2 Age of spouses 7.3.3 Violation of the rules on rada` 7.3.4 Illegal remarriage by the wife 7.3.5 Requirements of religion 7.3.6 Technical irregularities 7.3.7 Coercion CHAPTER EIGHT WHEN IT’S OVER: CLAIMS BY DIVORCÉES AND WIDOWS 8.1 Introduction 8.2 The `Idda Period 8.3 Claims 8.3.1 Maintenance for the `idda period 8.3.2 Fees for the care of children 8.3.3 Dower 8.3.4 Compensation for arbitrary talaq CHAPTER NINE CONCLUSION: TOWARDS A PALESTINIAN LAW OF PERSONAL STATUS? 9.1 Context 9.2 The Status of Shari`a and Shari`a Courts in Draft ‘Constitutional’ Texts 9.3 The Model Parliament and Associated ‘Texts’ 9.4 Fall-out and Follow-up NOTES APPENDICES Appendix I: Breakdown by year and court of material from the court records used for this study Appendix II: Breakdown of subject matter of claims in litigation before the courts 6 Appendix III: Breakdown of material from the court records used in WCLAC study Appendix IV: Proportions of prompt to deferred dower by court and year Appendix V: Items registered as tawabi` by court and year Appendix VI: Polygynous contracts by court and year Appendix VII: Proportions of Talaq to Khul` by court and year GLOSSARY BIBLIOGRAPHY INDEX 7 LIST OF TABLES Table 4.1 Percentage of contracts in the sample registering a token prompt dower Table 4.2 Number and percentage of contracts registering tawabi` of the prompt dower, by court and year Table 4.3 Number of stipulations registered in marriage contracts, by court and year Table 4.4 Subject matter of stipulations in the contract Table 5.1 Claims including maintenance by year and beneficiary Table 5.2 Successful defences to ta`a actions by year and defence Table 5.3 Actions for ta`a by year and result Table 6.1 Unilateral talaq by type, year and court Table 7.1 Applications for judicial divorce and dissolution by year and grounds 8 PREFACE This book started as my Ph.D. thesis at the School of Oriental and African Studies at London University, based on research in the records of the West Bank shari`a courts of Bethlehem, Hebron and Ramallah, and funded by a grant from the British Academy. It has since undergone substantial updating and has also had the benefit of subsequent research carried out by a Palestinian women’s rights organisation, the Women’s Centre for Legal Aid and Counselling, in the records of the courts in Nablus, Dura, Gaza City and Rafah. Many acknowledgments are due to friends, family and colleagues who, over the course of my Ph.D. research and in subsequent years, have helped my work in many different ways. Amongst the shar`i judiciary, I am indebted to then Acting Qadi al-Quda , the late Shaykh Sa`ad ad-Din el-`Alami, for his permission to work for an extended period in the shari`a court records, and to the judges and staff of three courts who were extremely generous in giving time and space while I was researching. In particular, Shaykh Taysir al-Tamimi, at the time judge at Bethlehem and later the Hebron court, and currently Deputy Qadi al-Quda in Palestine, and Shaykh Hiyan Hilmi al-Idrisi, then judge at Ramallah court and currently in Jerusalem, were unfailingly welcoming and helpful, contributing greatly to my education in matters shar`i, and providing me with texts, documents and on occasion figures which were enormously helpful in my study. Shaykh Taysir Tamimi also made time to meet me to discuss developments in the shar`i system after the arrival of the Palestinian Authority. In Jordan, the Qadi al-Quda , Shaykh Muhammad Mheilan, also made time to meet with me and similarly provided me with documents as well as giving me the benefit of his insights. I was also helped enormously by a number of lawyers working in the shar`i system, and would like in this regard to thank Saadi al-Qishta and Ragheb al-Qasem in Jordan, and Fouzi al-`Amleh and especially Ala al-Bakri and Hanan Rayan in Palestine. Other lawyers who deserve particular thanks include, in Jordan, Firas Bakr and Reem Abu Hassan, for their friendship and their assistance in the more recent stage of the work; and Asma Khadr, for her help and her efforts down the years. In Palestine, I would thank all the friends and colleagues at al-Haq and elsewhere, with special thanks to Charles Shamas, Salwa Du`aybis, and Susan Rockwell and, at the earlier stages, Muhammad and the Da`is family. In recent years I have been privileged to work on a research project with the WCLAC and would like to thank Maha Abu Dayyeh for both organising this and for being consistently supportive; and friends and colleagues at the Women’s Studies Centre at Birzeit University, especially Rema Hammami, Penny Johnson and Fadwa Labadi, for making the final bits of writing much more interesting.
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