Mixed Marriages: Selected Legal Issues Relevant to Swiss-Islamic Families

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Swiss Institute of Comparative Law Mixed Marriages: Selected Legal Issues Relevant to Swiss-Islamic Families

1 Swiss Institute of Comparative Law Islamic Law

Table of contents

Introduction �� 5

1. Classical Islamic Law �� 6

2. Marriage �� 9

3. Dissolution of Marriage �� 15

4. Children �� 18

5. Inheritance �� 21

6. National Law Distinctions �� 24

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Berne, May 2020

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Introduction In a mixed marriage, religion and Islamic law can become important points of discussion. While the law in an Islamic state can differ greatly from Swiss law (and from other European legal systems), it is important to recognize that there is not one single Islamic law or one Islamic codification but rather a multitude of different versions and opinions. Also important, every “Islamic” state has its own national legislation that may differ from classical Islamic law. This booklet only explains the law of some Arab states and Iran. Although Iran is an Islamic state but not an "Arab" state, where the text refers to "modern Arab states" or "Islamic states", Iran is included unless specifically noted otherwise. The booklet cannot and does not ex- haustively cover all of the questions that may arise or every legal rule. Instead, it outlines the pertinent rules in classical Islamic law (which still serves as a source of inspi- ration for today’s law) and the same rules in the national law of the state in focus.

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Classical Islamic Law has several sources. Hanbali, named after their respective Primary sources are the Quran and the founders. Among the Shia schools, the Sunna. The Quran treats various subjects in Ja’fari, Imamiyyah, or “Twelver”, school is its 114 “suras” and 6236 verses. These suras the most important one. No school or and verses include legal and moral norms. authority has a monopoly on the interpre- 1. Classical The Sunna [hadith] describes what the tation of Islamic law – therefore interpreta- Prophet Mohammed said and did during tions and views on the rules can differ vastly Islamic Law his life, as written down after his death. and may even be contradictory. These “traditions” are considered the second-most authoritative source of Islamic Family and Succession Law law after the Quran. Islamic family law is sometimes called the Secondary sources of Islamic law are core element of sharia and it is often seen as based on scholarly thought rather than on a part of Muslim identity. This is because texts. Of the secondary sources, the most family law (together with succession law) is important ones are the consensus of all one of the subjects treated most compre- Islamic legal scholars [ijma’] and the pro- hensively in the Quran and Sunna. These cess of deductive analogy [qiyas]. are primary sources for the law concerning The term “sharia” refers to the divine marriage, divorce, maintenance, and custo- law that cannot be altered. The content of dy. Note that Islamic family law, while often “sharia”, however, is considered differently criticized today, is a vast improvement on by different Muslims. At its most basic, sha- pre-Islamic rules – especially in its treat- ria covers all the religious, moral, and legal ment of women. values and norms to which a Muslim should Modern Arab states (with the exception conform his or her conduct. Human inter- of Saudi Arabia) have adopted their own pretation of the sharia is called fiqh (mea- family law codifications based on the prin- ning “comprehension”). ciples of classical Islamic family law as inter- Different Islamic legal schools have preted by the school of law predominant their own interpretations of the law and in the country. The codes may consist of thus of the applicable rules. The two main singular legal texts or a comprehensive schools are the Sunni (85% of all Muslims) codification. For matters not specifically and the Shia. Today, there are four main addressed, the law often refers to the classi- Sunnite schools, Hanafi, Maliki, Shafi’i and cal law.

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It must be emphasized that a Swiss over, the judge can only apply it if Swiss judge could never apply “Islamic law” as law has declared this foreign law to be such, but only a codified state law. More- applicable. 2. Marriage

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Marriage as a union between a man and a rights associated with the union. Neverthe- Marriage contract systems does not hold for the Islamic mar- woman is an institution that exists in all less, because unofficial, or customary, mar- The concept of a «marriage contract» in riage contract. Islamic states. Whereas Sunni accept only riages are valid as a religious matter, the Islamic law is not comparable with that in The Islamic marriage contract can be marriages that have no fixed term, Shiite state may recognize the marriage of a mi- Western legal systems. An Islamic marriage concluded orally or in written form. It will belief permits a temporary marriage be- nor once it occurs if it is otherwise legal. contract, on the one hand, fulfils the always contain a dower agreement, even tween spouses. While a marriage between individuals of functions of a marriage certificate: the though such an agreement is not a con- The following overview concentrates on different nationalities may require addi- marriage is concluded with conclusion of dition on which the validity of the mar- the Sunnite view of marriage. tional administrative steps in modern Arab the contract. On the other hand, as condi- riage rests: if no explicit agreement is states, it is permitted. tions and clauses can be included in the made, the “customary” dower [mahr Who can marry? Inter-religious marriage, however, is document (at the least, the dower agree- almithl] applies. Modern Arab states continue the classical not always permissible in classical Islamic ment is generally included), it also fulfils the The contract may also include other Islamic law position that views marriage as law. Traditionally, a Muslim man could mar- functions of a Swiss marriage contract. As conditions of the marriage at the parties’ the union between a man and a woman. ry a Muslim, Jewish, or Christian woman. A the separation of property is the traditional discretion as long as they do not violate There is no homosexual marriage in any Muslim woman could only marry a Muslim and legal matrimonial property regime in Islamic law. For example, clauses may Arab state. man. Modern Arab states, with the excep- Islamic jurisdictions, the main reason to restrict the husband’s right to engage in In classical Islamic law, there is no con- tion of Tunisia, follow this rule. conclude a marriage contract in Western polygamy, may certify that the wife’s sensus regarding a minimum age for ei- Similar to Switzerland, family members ther spouse. Nevertheless, in many modern of a certain degree of relationship may not Arab states, there are efforts to combat un- marry each other. Islamic law lists those derage marriage. These states have intro- whom one may not marry, including: a par- The dower is (theoretically at least) an obligatory “gift” to the bride and her per- duced a minimum age as a requirement ent; an offspring; a sibling or half-sibling; an sonal property: it will be paid to her and not to any other third person. Generally, for a registered marriage and have made uncle or aunt; a niece or nephew; and a per- the amount of the dower will be discussed between the families before the underage marriage a criminal offence. son who was breastfed by the same wom- marriage and will depend inter alia on the social standing of the bride. While it is Fines are imposed on violators and barriers an. First cousins, it should be noted, may mostly financial, it may also be goods, a service, the funding of a pilgrimage, etc. have been erected to the enforcement of marry. The dower can be something with a symbolic value (e.g., a Quran and a mirror) or consist of a significant amount of money or gold coins. In practice, the dower will be paid in two tranches: one part will be immediately due when the contract is concluded and the second part will be due at time of divorce or death of the A temporary marriage [mut’a] contract is concluded between a (married or un- husband. Of the various functions a dower may fulfil, its main role is offering the married) man and an unmarried woman, for any fixed period of time and with the woman a certain financial security in case of divorce (since Islamic post-marital mandatory agreement of a dower. Mostly aimed at pleasure, temporary marriage maintenance rights are limited and properties remain separate). Women can use does not create a mutual right of inheritance for the spouses and most marriage their dower to build their own fortune, as traditionally they do not have to contri- rules do not apply. Any child born during the marriage, however, will be legitimate. bute to the costs of maintaining the family. Further, because the second part of As a result, the wife also has to respect the waiting period [idda’] after the marriage the dower becomes due with divorce, it may slow a husband from unilaterally ends (generally due to expiration). This form of marriage is recognized only in Iran divorcing his wife. At the death of the husband, any unpaid dower will be due to and for the Shiite population in Lebanon. the wife from the assets of the estate.

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children from a previous marriage can live nically legal) condition on grounds of it In modern Arab states, administrative A recent trend in modern Arab states with the couple, or may determine that the being against public policy. requirements insert state authority into is to provide a legal basis for couples to couple will live in a particular country or the ceremony. It is now common that a choose a communal property regime town. Moreover, conditions can equalize the Marriage: formal requirements state official or judge perform the marriage (Tunisia and Morocco, for instance offer this rights of the wife and husband in the mar- In classical Islamic law, there is only one and that a state-issued license be signed option). riage through provisions such as ones that requirement as to the form the marriage by the couple and certified. secure the wife’s right to unilaterally divorce ceremony must take: two witnesses must Marital Obligations the husband, the right to continue her edu- be present. The marriage does not need to Registration Under classical Islamic law, the obligations cation or employment, or the right to travel be performed by either a state official or a Under classical Islamic law, there is no need of the husband differ from the obligations without her husband’s permission. A viola- religious authority (Imam). Neither is there for a written marriage contract or registra- of the wife. The main obligations of the tion of the conditions set forth in the mar- any restriction on where or when the tion of a marriage. Modern Arab states have husband are to pay the dower and to main- riage contract may be grounds for divorce. marriage is concluded. The possibility of a instituted registration requirements to bet- tain his wife. From a practical point of view, the use of marriage by proxy means that there is not ter protect the spouses by providing con- The dower [mahr, sadaq] is payment conditions is rare and in certain communi- even a requirement that the bride and clusive evidence of their relationship. (generally cash or goods) from the man ties may even be seen as shameful. More- groom be present. Therefore, proof of In certain countries, registration may to the woman as a part of the marriage. over, a judge could refuse to uphold a (tech- marriage is relatively easy. occur in conjunction with a marriage cere- Although it is not a condition of marriage mony presided over by a state official. There and although a woman can agree to forego may be different registration requirements the dower, it is considered to be an obliga- that exist for two nationals of the same tory gift to the woman and therefore will be religion who marry than for marriages her property. between individuals of different religions The maintenance obligation [nafaqa] and/or nationalities. includes providing for the wife's clothing, shelter, food, and medical expenses. This, Marital property significantly, adheres to the husband inde- There is no concept of marital property pendent of his wealth and even if his wife is in classical Islamic law. Each spouse keeps wealthier than he. Legally, the maintenance the property (s)he brings into the marriage. is considered a debt – thus, non-payment While the husband has an obligation to can be a ground for divorce and/or prison provide for the wife’s subsistence needs (the latter only if the payment was finan- (shelter, food, clothing), his property re- cially possible but withheld). mains his and hers remains hers. Moreover, The wife’s obligations to the husband any dower given by the husband to the wife are non-financial. In traditional Islamic becomes her personal property and, con- law, the wife has a duty of obedience to her sequently, will not have to be returned in husband. This means that a husband may case of dissolution of the marriage (unless determine his wife’s movement, employ- the woman requests dissolution without ment, social relations, and other activities. grounds). She also has the obligation to care for the

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home and the children (including a duty to Recognition of Islamic marriage breastfeed). in Switzerland In modern Islamic law jurisdictions, The recognition of a foreign marriage by these duties have been relaxed and/or Swiss authorities will depend on whether equalized. The husband is now expected to the marriage has been validly concluded in consult with his wife on matters affecting that foreign state. While a religious mar- 3. Dissolution her and the family. In a number of coun- riage concluded in Switzerland has no legal tries, laws are being passed that provide for effects on its own, Swiss courts may rec- of Marriage the empowerment of women within the ognize such a marriage concluded in a family and strengthen the legal position of country where it was legal. the wife in relation to her husband. An exception to the general rule of rec- A growing area of attention is that of the ognition is the Swiss prohibition on rec- rights and obligations of wives regarding ognizing bigamy or polygamy. Even if such sexual relations. Many Islamic law jurisdic- a marriage is validly concluded abroad, tions now recognize common rights and Swiss law deems it contrary to Swiss public duties in such matters. Marital rape, there- policy and will refuse to recognize it in fore, may be grounds for divorce. It is not, Switzerland. The non-recognition of a po- however, expressly criminalized. lygamist marriage does not prevent a judge from enforcing obligations related Polygamy to the consequences of such a marriage, Classical Islamic law allows polygamy. A for example when examining questions man can have up to four wives if he is able to of succession or the legitimacy of children treat them all equally. Some scholars deem of such a union. this to be impossible and therefore a barrier to any second/multiple marriage. In most modern Islamic countries, polygamy is still allowed. It is, however, rare and it can also be a legal or contractual ground for divorce. Some states, like Tunisia, have forbidden polygamy.

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Procedures band refuses to consent) and by returning Modern Arab states have extended Recognition of Islamic Classical Islamic law has few formalities for a (a part of) the dower or giving another com- more equality to women in matters of di- unilateral dissolution of marriage dissolution of marriage: the procedure can pensation to the husband. vorce. Most importantly, in some states a in Switzerland take place without interference by the state There is judicial divorce in classical Is- judge may declare a no-cause divorce over Repudiation in classical Islamic law or in and can largely be determined by the lamic law as well. This is to the advantage of the objections of the husband. some modern Arab states is a marital pre- spouses themselves. the woman, as she can initiate such pro- rogative without procedural conditions. It is Marriages can be dissolved by nullity if, ceedings unilaterally. Property division based on a simple declaration of will of the for example, they are concluded in contra- In some modern Arab states, extra-judi- While the division of property upon di- husband to end the marriage, without tak- vention to legal provisions on impediments cial, or “private”, divorce is restricted or pro- vorce can be contentious for the parties, the ing into account the wishes or the consent to marriage (like blood-relation). If such a hibited. In those jurisdictions, dissolution basic legal rule is clear: there is no such of the wife. Even if a state authority was marriage has been consummated, it may can only be declared by a court. thing as “marital property”. Thus, each to be involved, classical repudiation mani- nevertheless engender obligations regard- person retains the property which is his/ festly violates Swiss public policy and can- ing filiation and payment of dower. Grounds hers. The property which the husband not be recognized by Swiss courts. Repudiation, or the divorce on initiative The grounds for which a (private or judicial) brings into the marriage will be taken by On the other hand, Swiss public policy of the husband (“private”, “unilateral”, or dissolution can be brought define impor- him if will not be violated if the wife gives her con- “oral”), is effectuated by speaking words that tant aspects of the classical Islamic law the marriage is dissolved and the property sent to – or wants – the repudiation and its indicate the will to dissolve the marriage approach to divorce. The divorce without the wife brings into the marriage will be recognition in Switzerland. Furthermore, a partnership. These words, for example, “anti ground and divorce for cause vary between taken by her if the marriage is dissolved. The repudiation abroad between two foreign taleq” (“You are divorced”) need not be spo- men and women as well as in the effects dower is considered property of the wife, Muslim spouses can be recognized in Swit- ken to the wife directly, but according to on property. and she will retain ownership of this at zerland for lack of a close link between some interpretations of the law (Shiite law), Men can express the will to divorce dissolution of the marriage unless she the couple and Switzerland and if a foreign it would require witnesses. Once the words without needing to show cause. Private, requests a no-cause divorce [khul’]. authority has, at least in some way, been have been spoken, a waiting period of three unilateral, no-cause divorce is therefore For property purchased during the involved. months begins during which the couple unlimited for men. marriage, the ownership is considered to can reconcile. If no reconciliation occurs Women do not have the option of a be the partner’s whose money was used within that time, the dissolution will be irre- private unilateral declaration of divorce if to purchase that item or to whom it was vocable and the original marriage contract the marriage contract does not provide gifted. Custom, another source of tradi- will terminate. for it. There must be either a mutual will tional Islamic legal rules, may determine The husband’s right to unilateral divorce to divorce or a judicial decision permitting the ownership of specific items when this [talaq] can also (generally or for certain situ- the divorce. Judges may recognize certain is disputed. ations) be delegated to the wife. The dele- grounds as justifiable for a dissolution of Contemporary laws of some Arab states gation may take place at the time of the marriage: unjustified prolonged absence may offer couples the option of agreeing to marriage or later. of the husband; imprisonment; severe a regime of shared marital property. Divorce on the initiative of the wife disability; failure to financially support the [khul’] is possible through the mutual con- wife; and harm (physical, mental, or emo- sent of the spouses (or, according to some tional abuse, possibly including marital interpretations, a judicial decree if the hus- rape).

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Citizenship their child by asserting that there had been Citizenship rules in modern Islamic a marriage prior to the birth. Importantly, states vary somewhat from one jurisdiction while acknowledgement of paternity does to the next. The basic rule is the principle of exist [iqrar], it presupposes a valid marriage. ius sanguinis, or passing of citizenship As a result, the acknowledgement func- through the parent(s). However, a number tions both as evidence of a marriage having 4. Children of jurisdictions refuse to allow citizenship to taken place between the mother and the pass through the mother, considering the claimant and as a claim of paternity. Courts child a citizen of the state of which the fa- have historically taken a pro-recognition ther is a citizen. As citizenship rules are de- standpoint, finding paternity where pos- termined by the countries from which citi- sible, even in cases with a lack of substan- zenship is claimed, a child born to a Swiss tial evidence of a marriage. There are also mother and a father from an Arab jurisdic- numerous exceptions to the harsh basic tion will carry both Swiss and the father’s principle. nationality. Dual citizenship is widely accepted in modern Arab states. Adoption Traditional Islamic law prohibits adoption. Establishment of Paternity There are, however, institutions that allow As sexual intercourse is not permitted for a modified version of adoption. One outside of wedlock, traditional Islamic law such is “kafala”, in which the father can bases paternity on the marital union. The accept responsibilities toward the child male spouse is the presumed father of without the child taking his name or be- any children born after six months of the coming a potential heir. Through “iqrar”, a marriage, and therefore any such child born man can acknowledge a child to be legiti- after these six months is considered legitimate and thus achieve the same result mate. Legitimacy also generally adheres to as with an adoption. In some countries, a child born within approximately one year customary alternatives for adoption exist. after the dissolution of the marriage. Most modern Islamic law jurisdictions A child born outside of wedlock will have maintain the strict rule against adoption no legal ties to his biological father, al- as a general principle. However, in some though it will retain all linkages (including jurisdictions, interpretations of the rule inheritance rights) to the mother. The se- modify its effects. In Tunisia, an adoption is verity of this rule, however, is reduced by the possible. informality of the marriage procedures. With no requirement of marriage registra- Custody tion, the biological parents of a child born Traditional Islamic law differentiates be- out of wedlock can claim the legitimacy of tween guardianship [wilaya] and custody

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[hadana]. Where guardianship implicates child may also determine the custodial financial and legal authority, custody- as rights, particularly if the mother is not of the signs caregiving. The general rule in tradi- same religion as the father. tional Islamic law grants guardianship to Modern Islamic jurisdictions are less strict the father and custody of the children to about the division of guardianship and cus- the mother. Therefore, the father remains tody, giving more weight to the “best inter- 5. Inheritance obliged to financially support the child est of the child” standard. There is a general throughout its childhood while the child trend to raise the age at which custody usually lives with the mother. The mother, ends and to shift some of the guardian's however, will generally lose her right to cus- decision-making rights to the custodian. tody if she remarries. She also loses the Many of the details of custody differ among rights of custody when the child reaches a the different jurisdictions, however. All juris- certain age. The views on the age at which a dictions now recognize visitation rights for child no longer requires custody varies the non-custodial parent as a principle, but among legal schools (ranging from 2 years the regulation of such rights (along with to majority for boys and 7 years to majority those of the grandparents) varies among or marriage for girls). The religion of the jurisdictions.

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In today’s Islamic law jurisdictions, inheri- testament beyond the capacity of the tes- However, where the deceased has both a Gifting tance law is an area of law that maintains a tator. In modern Arab states, other require- son and a daughter, the son will receive a In contrast to the quantitative limits on close resemblance to traditional Islamic ments might apply. share that is double that of his sister. If the testamentary bequeaths, there are no law. Numerous detailed rules make the only heirs of a deceased were two sons and a limitations on the amount gifted during precise division of assets difficult to set forth Legal heirs daughter, this would result in the sons each one’s lifetime. Neither is there a limit on the 2 as a general matter. Legal inheritance in- Legal heirs are family members (including receiving /5 of the legal inheritance, and the timing of such gifts (except in the case of cludes only assets – not debts – and is gen- the spouse) of the deceased. daughter receiving the remaining 1/5. a gift offered during a terminal illness). erally compulsory (the testator cannot dis- There is an exception to this general rule While some exceptions to this general inherit his legal heirs and the legal heirs under traditional Islamic law if there are framework exist, the concept remains va-lid cannot reject the inheritance). A legacy family members of a different religion. In in modern Islamic law jurisdictions. may be accepted or rejected. such a case, a non-Muslim may not be the heir of a Muslim and a Muslim may not Testaments / Wills be an heir of a non-Muslim. A testament Classical Islamic law on inheritance is liberal may, however, provide for the non-Muslim regarding testation, although certain re- spouse to receive part of the estate. strictions apply. The most important restriction is the limit placed on the amount of Fixed / Minimum share the estate that can be disposed of by the Traditional Islamic law promises female testament: one-third. Two-thirds of the de- family members, parents, and spouses a ceased’s property must be left to the legal set fraction (based on a separate set of heirs. The validity of dispositions of more rules) of a deceased individual’s estate. Male than one-third are subject to the heirs’ ap- heirs will generally receive twice as much proval after the death of the testator. as female heirs. The wife, for example, re- An individual may bequest his or her es- ceives ¼ of the estate if there are no off- tate through a testament to almost any spring, ⅛ if there are; and she may receive natural person (irrespective of religion), ⅓ if she is a non-Muslim and her husband group of natural persons, juridical person, leaves her one third of the estate in a testa- or other organization. The main exception ment. The husband receives ½ of the estate to this rule is that a bequest cannot be if there are no offspring, ¼ if there are. The made to a legal heir. That is, any individual remaining portion, independent of the size, who receives an inheritance by means of will go to the males of the paternal family. the law may not be named as a recipient in This includes the sons and grandsons, if any, the testament. of the deceased. In theory, even distant rela- tives of the deceased may inherit. Formalities If the only offspring is a daughter, she will In principle, classical Islamic law imposes receive ½ of the estate. If there are multiple no formal requirements on the making of a daughters, they will share ⅔ of the estate.

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The national laws of modern Arab states and Iran adhere to many of the traditional Islamic law rules, but diverge or provide exceptions to other traditional rules. The table below gives an overview of the most notable differences 6. National Law to the general rules set out above in five Arab states and Iran. Distinctions These charts are illustrative. They are not meant to provide a complete view of the legal frameworks in any of the countries addressed and should not be used in place of legal advice on any of the areas described.

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Egypt Lebanon Morocco Tunisia UAE Iran

Marriage

To whom does Marriage laws are different for Marriage laws are different for Marriage laws are different for Application of Tunisian law to Application of UAE law to all Marriage laws are different for the law apply couples of different religions; couples of different religions; couples of different religions; all citizens, independent of citizens and to any foreigner Shiite and non-Shiite couples; in case of a mixed (religion) a court may treat mixed in case of a mixed couple in religion; there may be diffe- who does not demand the for mixed couples, courts will couple, there may be a prefe- couples with its own law; which one spouse is Moroc- rent rules for foreigners application of his/her own apply the law of the husband rence for the law of the hus- generally the husband’s law can and Muslim, the Family law. For non-Muslim citizens, band and/or for Islamic law will apply Code, based on Islamic law, the rules of their respective will apply; Jewish family law is religion will apply separate

Who can marry Minimum age of 18 The different religions each Minimum age of 18, unless Minimum age of 18, unless Minimum age of 18, unless Minimum age of 13 (girls) have their own laws (18 reli- court authorization; a court court authorization. Polyga- court authorization and 15 (boys), unless consent gions, 15 personal status laws) authorization for polygamy my is prohibited of wali (legal guardian) and may be granted in exceptio- court authorization Sunni law: Minimum age of nal circumstances 17 (bride) and 18 (groom) unless court authorization

Marriage Generally dower agreement; Generally dower agreement; Dower is a condition for valid Generally dower agreement. Generally dower agreement, Generally dower agreement; contract conditions possible; the mar- conditions possible marriage; necessary content Marriage contract must be the law sets maximum values no minimum or maximum riage contract document in- of the contract set forth in the notarized for the dower; conditions pos- dower, however enforcement cludes an annex with a list of law; conditions possible sible independent of the hus- possible conditions to which Spouses can agree to take band’s solvency only up to the couple may agree Spouses can decide to con- advantage of the possibility 110 gold coins (bahar azadi); clude a separate contract to of the common property re- for temporary marriage, a do- take advantage of the com- gime (at the time of marriage wer is a condition for validity mon property regime for or after the celebration; nota- goods acquired during their rial deed necessary) Marriage offices issue mar- marriage riage certificate (booklet of 21 pages that includes stan- dardized clauses and infor- mation about the spouses, the dower and financial agreements). Each clause is signed by both spouses. Spouses can add individual clauses

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Egypt Lebanon Morocco Tunisia UAE Iran

Formal Performance of ceremony by The different religions each Oral or written marriage con- Performance by either 2 no- Generally notarization of the Declarations of groom and requirements state employee [mazun] re- have their own laws tract, 2 witnesses taries or the state registrar; marriage contract required bride must be oral; marriage quired for marriage between 2 honorable witnesses neces- (performed by state em- by proxy possible Muslims; or by an employee of No civil marriage system cur- Prior authorization by the fa- sary ployee [mazun] authorized Ministry of Justice [shahr aqa- rently mily court to issue the marria- to conclude marriages) ri] for marriage if one (or both) ge certificate (spouses must Marriage abroad may be spouse(s) is a non-Muslim or Sunni law: Public announce- submit a number of docu- performed in a consulate not an Egyptian; Christian ment 10 days before mar- ments); «homologation» of or embassy or according to marriage has its own legal riage, 2 witnesses, conclusion the judge is a necessary ele- local law (and notification to framework and registration by the judge ment of the contract the nearest consulate within 3 months) No marriage custodian Purely religious marriage not recognized; marriage by proxy possible if notarized power of attorney

Registration In principle, customary mar- The different religions each The 2004 reform has made No recognition In absence of notarization and The law requires registration. (of unofficial riages [urfi] are not recogni- have their own laws unofficial marriages invalid. registration, a marriage may This is not a condition of vali- zed During a transition period, Violation of the legal precon- be established by sharia law dity for the marriage but its marriages) unofficial marriages could be ditions makes a marriage proof under observance of violation leads to a criminal Registration is possible under subsequently registered until void; criminal sanctions pos- certain conditions sanction certain conditions 2019 sible Registration of temporary marriages only in case of pregnancy, spouses’ agreement, or marriage contract obligation

Marital property Separation of properties; no The different religions each Common property scheme Separation of goods Separation of goods Separation of goods; clear authority for common have their own laws possible for the goods acqui- property regime red during the marriage if set Option exists for common Spouses can contractually Sunni law: separation of pro- out in a document separate property regime, subject to agree upon rules for the perties from the marriage contract rules set forth in 1998 law on matrimonial property regime common spousal property

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Egypt Lebanon Morocco Tunisia UAE Iran

Marital Besides financial obligations The different religions each Principle of equal treatment Obligation to conjugal life; re- The law provides for several Duty to support and to treat obligations (providing maintenance), have their own laws since marriage law reform; spect and support; (family) mutual rights of the spouses, each other kindly the husband has obligations still husband’s obligation to maintenance mainly duty of as well as rights and obligati- to treat the wife kindly; the Sunni law: husband’s obliga- provide maintenance and a the husband; wife must con- ons of each spouse, principal- Husband: management of law still stipulates a duty of tion of maintenance; judicial home tribute if she has the means ly maintenance provided by the family and maintenance obedience for the wife determination of appropriate to do so the husband and obedience Wife: right to maintenance maintenance possible; wife’s Adultery is a crime (complaint by the wife. and obedience if the hus- Marital rape is not crimina- duty of obedience of other spouse necessary) Adultery is a crime band fulfils his duty; right to lized the dower Marital rape is not crimina- Marital rape is not expressly Marital rape is not expressly Adultery is a criminal offense lized criminalized (a lower court, criminalized but can be pro- (complaint of other spouse however, has deemed rape secuted necessary) Adultery is a criminal offense within a marriage as a criminal act)

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Egypt Lebanon Morocco Tunisia UAE Iran

Dissolution of Marriage

To whom does Dissolution laws are different Dissolution laws are different Dissolution laws are different Application of Tunisian law Application of UAE law to all Dissolution laws are different the law apply? for couples of different reli- for couples of different reli- for couples of different reli- to all citizens; there may be citizens and to any foreigner for couples of different religions; in case of a mixed (religions; court may treat mixed gions; in case of a mixed different rules for foreigners who does not demand the gions; for mixed couples, gion) couple, there may be a couples with its own law couple in which one spouse is application of his/her own courts will apply the law of preference for the law of the Moroccan and Muslim, the law; for non-Muslim citizens the husband husband and/or for Islamic Family Code, based on Isla- special provisions of their law mic law, will apply; Jewish community or confession family law is separate may apply

Procedures Private divorce [repudiation] The different religions each Private divorce is prohibited; Private divorce is prohibited; Repudiation [recorded by Private divorce no longer per- is permissible; husbands have their own laws conciliation procedure prior judicial divorce permitted on judge]; judicial divorce; khul’ missible; either spouse can must register announce- to divorce condition of conciliation pro- [rescission by agreement]; apply for a judicial divorce; ment at a religious notary of- Sunni divorce: private divorce cedure prior to divorce conciliation procedure conciliation procedure if non- fice [mazun]; judicial divorce; [repudiation] is permissible; amicable divorce khul’ judicial divorce (conciliation procedure prior to divorce); Registration necessary (recon- khul’ ciliation certificate and divorce decree lose their validity without registration) and marks the start of the waiting period

Grounds for Women may request divorce The different religions each Different forms of divorce; Women and men have same Judicial grounds: defects, non- Husband does not need judicial divorce for defects, imprisonment, have their own laws each always needs a judicial rights regarding grounds for payment of the dower or sup- grounds, only formalities are absence, non-payment and decision (on initiative of the divorce (mutual agreement, port, prejudice and discordan- to be fulfilled prejudice; no-cause divorce Sunni law: impotency or husband or the wife or break- application of the aggrieved ce, absence and disappearance, over objections of husband grave illness, absence, non- down of marriage or mutual spouse, breakdown of mar- imprisonment, oath Wife: legal (absence, refusal to permissible payment of maintenance, agreement) riage); wife can apply for a di- pay maintenance and hard- intolerability of cohabitation vorce if her husband fails to Judge may declare no-cause ship) or contractual grounds provide maintenance divorce if husband is “unduly obstinate in his rejection” of Mutual/amicable divorce pos- khul’ sible

Property division Separation of goods The different religions each Separation of goods in prin- Separation of goods in prin- Separation of goods Separation of goods have their own laws ciple; possibility to opt for com- ciple; since 1998 spouses can munal property as well as consi- opt for communal property Possible remuneration for the Sunni Law: separation of deration of reciprocal contribu- (for immovable property) wife for her work in the house du- goods tions of the spouses (work, ring the marriage (ojrat ol-mesl) efforts and expenses incurred), rapprochement to community Possible contractual financial of acquisitions rights (standard clause)

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Children

To whom does Laws regarding children are Laws regarding children are Laws regarding children are Application of Tunisian law Application of UAE law to all Generally, the Iranian Civil the law apply? different for couples of dif- different for couples of diffe- different for couples of diffe- to all citizens; there may be citizens and to any foreigner Code applies ferent religions; in case of rent religions; court may treat rent religions; in case of mixed different rules for foreigners who does not demand the mixed (religion) couple, there mixed couples’ children with couple in which one spouse is application of his/her own may be a preference for the its own law Moroccan and Muslim, the Fa- law; for non-Muslim citizens law of the husband and/or for mily Code, based on Islamic special provisions to their Islamic law law, will apply; Jewish family community or confession law is separate may apply

Citizenship Ius sanguinis in principle Ius sanguinis in principle Ius sanguinis in principle (fa- Ius sanguinis in principle Ius sanguinis in principle Ius sanguinis in principle (father or mother); presumed (Lebanese father; through ther or mother) (father or mother) supple- (father; or mother if father (mother or father Iranian, mar- citizenship if child is born in mother only exceptionally) mented by elements of ius unknown) riage), some exceptions; birth Egypt to unknown parents Presumed citizenship if child is soli: birth in Tunisia (1) to un- in Iran to unknown parents born in Morocco to unknown known parents or (2) father Acquisition of citizenship parents and grandfather have also granted by a law been born there Children born abroad to un- Naturalization known parents may acquire the citizenship shared by their foster parents after five years of foster care (kafala)

Establishment Marriage; acknowledgment The different religions each Engagement can be basis Valid marriage/cohabitation Valid marriage, acknowledg- In general: marriage of Paternity (iqrâr); possibly court action have their own laws for a judicial determination of (presumption of paternity ment, proof or unambiguous for determination of paterni- paternity after 6 months), acknowled- scientific method (if mar- Illegitimate children can be ty and proof (witnesses, Sunni law: marriage; if paternity gment or testimony of two riage exists) regarded as marital in relati- blood/DNA test after a court is denied or the mother unmar- Marriage, acknowledgment, honorable witnesses; gene- on to one or both parents in order) ried, the child is a legitimate and, in the case of “erroneous tic testing (since 1998) allows exceptional cases if parents child of the mother. The mother sexual relations”, by judicial establishment of paternity had erred, e.g. concerning a can decide if she wants to ack- determination or legally ad- for natural children, a refusal marriage nowledge an illegitimate child; missible evidence or testimo- of the father to submit to the A man or woman can acknow- ny of two adoul (notary) testing may be seen as an Acknowledgment of paterni- ledge a child whose ancestry is implicit acknowledgment of ty only if relationship is legally unknown; similarly, a child may paternity (if multiple recognition po- acknowledge a man or woman tentially medical test) and as his father or mother factually possible and confir- mation by the child (if adult)

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Adoption Not allowed The different religions each Not allowed Full adoption possible since Not allowed; Married couples living in Iran have their own laws 1958; besides, foster care /in- may adopt a child (court de- Only foster care [kafala] pos- Only foster care [kafala] formal guardianship [kafala]) Only foster care of orphans cision necessary, the court sible Adoption is only possible in is possible and children of unknown an- will give a final decision after the Jewish and Christian Circular from 2012 limited cestry [kafala] possible a trial period of 6 months); In Christian community, community, no full adoption the possibilites of adoption this kind of adoption general- adoption is possible if the ad- for foreigners; fostering [kafa- ly does not lead to succession opting parent is 40 years old la] is now restricted to people rights and childless; no mutual legal domiciled in Morocco right of inheritance

Custody Age of end of custody: 15; may Age of end of custody: The Age of end of custody: majo- Age of end of custody: 18 or Age of end of custody: 11 (m) Age of end of custody: 7 years be extended until age 21/ different religions each have rity (18); custody rights shared marriage; during marriage and 13 (f) years; judicial exten- (majority: 18) completion of education/ their own laws during marriage both parents share guardi- sion possible (majority: 21, from marriage (majority: 21) anship age 18 facilities are possible) Loss of custody: By court or- Sunni law: Age of end of cus- Loss of custody: if mother re- der if well-being of the child Loss of custody: if mother re- tody: 12 marries and special circums- Loss of custody: not depen- Loss of custody: if require- endangered (e.g., mother marries tances do not exist, from age dent on religion of mother or ment no longer fulfilled (same neglects the child or loses her Loss of custody: if mother re- 15, the child can decide if the remarriage; if custodian tra- religion as child; mother’s mental capacity); in case of a Does non-custodial parent marries (unless exceptions mother or father should have vels/ moves and guardian new husband must not be a divorce, generally the father is have visitation rights: yes, apply); father has right of (cor- custody, father remains guar- cannot exercise rights over man who is not in a marriage- appointed custody from the Choice of the child after rea- poral) punishment, but if he dian the child, custody ends exclusive relationship with age of 2 (boys) and 7 years ching 15 years which parent endangers the health of the the child) (girls) it wants to live with child, the judge may declare Rights of guardian/custo- Rights of guardian/custod- loss of custody; judges may dian: guardian may ask court ian: custodian may travel Rights of custodian: Custod- Rights of custodian: custo- make custody decisions ba- to prohibit custodian from with child to the extent the ian may travel abroad only dian may not limit the other sed on best interests of the traveling with child outside of travel does not infringe on with consent of the guardian parent’s visitation rights, child Morocco guardian’s exercise of rights; especially by moving without father may not remove the Does non-custodial parent court authorization Rights of guardian/custod- Does non-custodial parent child from mother’s place of have visitation rights: yes, as ian: father may not remove have visitation rights: visita- residence without mother’s ordered by a judge Does non-custodial parent child from the mother’s tion rights exist, details can consent have visitation rights: yes, as place/ travel without her con- be mutually agreed upon, part of the divorce procee- sent otherwise the court will de- Does non-custodial parent dings, the court decides on cide have visitation rights: yes visitation Does non-custodial parent have visitation rights: yes

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Succession/Inheritance

Applicable Law Application of the law of the Muslims and non-Muslims Generally, the national law of Application of Tunisian law to Application of UAE law to all For Iranians, the religious law deceased person, whether have their own laws the deceased applies all Tunisian citizens irrespec- citizens and to any foreigner of the deceased applies to in- Egyptian or foreign tive of their religion; for fo- who does not demand the heritance; for foreigners, the If deceased is a Muslim, the reigners the applicable law is application of his/her own national law of the deceased Impediment to inheritance Moroccan law will apply irre- determined alternatively by law applies in case of different religions: spective of nationality. Jewish their nationality or their last Muslims and non-Muslims succession law is separate domicile or the location of the No inheritance between per- «Forced successions»: disin- may not inherit from each estate at the time of death sons of different religions heritance of legal heirs not other respectively, non-Mus- For Moroccan nationals of possible except in case of an lims of different religions can. other religion, Moroccan law Court ruling allows non-Mus- impediment applies in principle; in case of lim women to inherit from doubt, the law of the husband their Muslim husbands or father will apply

Impediment of inheritance in case of different religions

Testaments No classical testament with Muslims and non-Muslims No classical testament with No classical testament with No classical testament with No classical testament with appointment of heirs, merely have their own laws appointment of heirs, merely appointment of heirs, merely appointment of heirs; merely appointment of heirs; merely bequests over up to one third appointment of one or more appointment of one or more last will with bequests up to appointment of one or more of the estate (beneficiaries Non-Muslims: freedom of the persons with tasks and a gu- persons with tasks and be- one third of the estate (unless persons with tasks and may be legal heirs; different testator limited by the legal ardian for the children and quests over “free third” (ex- consent of other heir(s), let- bequests over “free third” religion is no impediment; shares of the legal heirs bequests over “free third” (except heirs consent); benefi- ters of consent can be esta- (unless consent of the heirs); execution of a part that except heirs are of age and con- ciary of bequest may have blished with the will); benefi- irrespective of the general ceeds one third only if heirs Sunni law: heir may not be sent); beneficiary may not be different religion but may not ciary may not be an heir impediment to inheritance, agree after the death of the beneficiary of a bequest; be- an heir be a legal heir unless all other major heirs the testator may also bequest testator) quests limited to one third of consent non-Muslims or his legal heirs the estate

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Formalities Testator must be of age and Muslims and non-Muslim de- Testator must be at least Testator must be of age and Two male adult Muslim wit- Last will can be established in full possession of his men- ceased have their own laws 18 years old and have power in full possession of his capa- nesses with legal capacity re- personally (handwritten, da- tal capacities of discrimination cities quired to confirm the will ted and signed), officially or Non-Muslims: public docu- secretly (by the testator or a Form: public document or ment or written by the tes- Beneficiary must be a person Form: written form, either as Testator must have mental third person; testator must written and signed by the tator and given to notary; if and no legal heir a public document or dated capacity and have attained sign) testator or document with established abroad, the testa- and signed by the testator the age of majority authenticated signature ment must be given to a no- Bequest is a contract (oral, tary or Lebanese consul written or implied), public Form: by words or in writing, Validity depends on the ac- (with witnesses) or secret or by recognizable sign ceptance of the beneficiary Testator must be of age, of sound mind and capable Beneficiary must accept a will Sunni Law: no specific form, can be established orally, testator must be of age

Legal heirs Blood relation or marriage; Muslims and non-Muslims Blood relation or marriage; Order of succession manda- Through blood relation or Through blood relation or Quranic [fard], agnatic [aceb] have their own laws State’s right to succeed to tory for Muslims: blood remarriage marriage and cognatic [zawou al-ar- heirless property lation, marriage or state’s ham] heirs Non-Muslims: right to succeed to heirless Inheritance may be Quranic Generally “first order” heirs Legal heirs inspired by prin- Quranic [fard] heirs take pre- property [fard] or agnatic [aceb] (or (parents and children, partial- Legal legacy [wasseya wajba] ciple of representation per cedence over agnatic heirs both, then cognatic [zawou ly as quota-heirs) will inherit for children of a pre-deceased stirpes Differentiation between pri- al-arham]) alongside the spouse (quota- son or daughter of the decea- Legal legacy [wasseya wajba] mary statutory Quranic heirs heir) sed who do not have own Sunni law: agnatic [aceb] and for children of a pre-deceased and agnatic heirs Legal legacy [wasseya wajba] right of succession (prece- Quranic [fard] heirs son or more distant male de- for children of a pre-deceased dence over testamentary le- scendants Legal legacy [wasseya waj- son or daughter gacy) ba] for children of a pre-deceased son of the deceased who do not have own right of succession

Daughters take precedence over remote agnatic heirs

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Fixed share Fixed quotas for Quranic Muslims and non-Muslims Fixed quotas for Quranic Fixed quotas for Quranic Fixed quotas for Quranic Exact quota depends on 1 1 1 1 heirs (½, ⅓, ⅔, ¼, /6, ⅛), exact have their own laws heirs (½, ⅓, ⅔, ¼, /6, ⅛) , exact heirs (½, ⅓, ⅔, ¼, /6, ⅛), exact heirs (½, ⅓, ⅔, ¼, /6, ⅛); exact constellation quota depends on constel- quota depends on constella- quota depends on constella- quota depends on constella- lation; primary heirs (son, Non-Muslims: obligatory share tion; primary heirs exclude tion tion father, mother, daughter, for descendants of 50%, for other heirs husband/wife) exclude other the spouse of 30% and the heirs parents of 30%

Muslims: Quota depends on constellation

Gifting A lifetime gift (donatio inter Muslims and non-Muslims Deathly sick persons (if the ill- A lifetime gift (donatio inter A lifetime gift (donatio inter Gifts among living persons vivos), even in anticipation of have their own laws ness leads to their death) are vivos), even in anticipation of vivos), even in anticipation of cannot be revoked after ei- death, will generally be valid limited in legal capacity, do- death, will generally be valid death, will generally be valid ther the death of the donor or and not affected by the suc- Non-Muslims: for lifetime gif- nations are regarded as be- and not affected by the suc- and not affected by the suc- the gifted cession (death of the donor) ting, the civil law on dona- quests and can only be made cession (death of the donor) cession (death of the donor) except if the donor suffers tions applies up to ⅓ of the estate and not except if the donor suffers except if the donor suffers from an incurable illness lea- for the benefit of an heir, un- from an incurable illness lea- from an incurable illness lea- ding to his death: deathly sick Muslims: No limit for lifetime less the (other) heirs consent ding to his death: deathly sick ding to his death: deathly sick persons are limited in legal gifting (discussed in jurispru- persons are limited in legal persons are limited in legal capacity, donations are re- dence) capacity, donations are regar- capacity, donations are regar- garded as bequests ded as bequests ded as bequests

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