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WLUML Knowing Our Rights Women Family Laws and Customs in The KNOWING OUR RIGHTS Women, family, laws and customs in the Muslim world This handbook is an essential resource for those taking a critical and questioning approach to rights, laws, and constructions of womanhood in Muslim countries and communities and beyond Third edition © Women Living Under Muslim Laws, 2006 First published 2003 in paperback by Women Living Under Muslim Laws PO Box 28445 London N19 5NZ, UK Printed and bound by The Russell Press, Nottingham, UK Cover design by [email protected] & [email protected] Typography and layout by [email protected] The use of any material from this publication is to be acknowledged. ISBN 0-9544943-4-2 Women Living Under Muslim Laws Women Knowing Our Rights: Women, family, laws and customs in the Muslim world 1 CONTENTS page: page: Update 2003-2006 Chapter 6: 2 a) Introduction to the 2006 Edition Types of Marriages 2 b) Major Legal Reforms 2003-2006 197 a) Polygyny 3 c) Family Law Reform Trends 2003-2006 213 b) Mut’a, Concubinage, and Common Law Marriage 7 Acknowledgements Chapter 7: Living Under Muslim Laws Women 217 Maintenance 8 Glossary Chapter 8: 13 Abbreviations 229 Status of Children 14 List of Statutes Chapter 9: Dissolution of Marriage 243 a) Dissolution of Marriage – An Overview Chapter 1: 249 b) Muslim Laws on Dissolution – An Overview Introduction 251 c) Mubarat and Divorce by Mutual Agreement 15 a) Women Living Under Muslim Laws and the Women 255 d) Talaq & Law in the Muslim World Programme 267 e) Talaq Tafwid (‘Esma and the Delegated Right of 19 b) International Synthesis of the W&L Programme Divorce) 273 f) Khul’ 281 g) Other Forms of Dissolution for Women Chapter 2: 293 h) Dissolution on Equal Grounds for Women and Men Laws, Legal Systems and Change 27 a) Our Defi nition of Terms 31 b) Constitutional Law, CEDAW and International Chapter 10: Human Rights Laws and Norms Matters Related to Dissolution of 33 c) Laws and Social Contexts Marriage 36 d) Constitutional and Legal Frameworks 301 a) Idda and The Waiting Period 311 b) Financial Rights and Settlements Chapter 3: 331 c) Hilala (Intervening Marriage) 337 d) Custody and Guardianship of Children Marriage Requisites 59 a) An Overview 65 b) Capacity Annexe 1: 77 c) Consent 348 Countries covered by the W&L Research 87 d) Forced Marriage and Choice in Marriage 95 e) Capacity to Marry - Other Prohibitions Annexe 2: 109 f) Witnesses and Mahr (Dower) 349 List of Organizations Chapter 4: 352 Bibliography 117 Child Marriage 358 Index Chapter 5: Marriage Contracts 133 a) Registration and Validity 147 b) Marriage Contracts and Registers 153 c) Inherent Rights and Responsibilities 167 d) Negotiated Rights and Responsibilities 179 e) Mahr (Dower) 189 f) Other Payments and Exchanges UPDATE 2003 - 2006 introduction to the 2006 edition major legal reforms 2003 – 2006 Just like the societies that they shape and refl ect, Five countries included in the original Handbook laws are constantly changing in both their texts stand out as having made signifi cant changes to and implementation. WLUML cannot undertake a family laws: Algeria, Egypt, Fiji and Morocco have fresh Women & Law in the Muslim World action- seen largely positive reforms, while amendments research Programme (W&L) (see p. 15) every few in Malaysia have been severely criticized by local years but we recognize that to be truly useful for women’s rights activists. Minor changes have taken women’s rights activists, we need to make sure place in Iran, Nigeria and Sri Lanka, all positive. major changes are accommodated. This edition Algeria: In February 2005, a Presidential Ordinance covers major changes in the period 2003-2006. We introduced numerous changes to the 1984 Code are currently examining the possibility of making de la Famille which amended, supplemented and this Handbook available electronically, which repealed about 35 previous provisions on major would also allow us to update it without the cost aspects of family law following recommendations of printing new editions. Meanwhile, the Handbook from the offi cial Boutern Commission, and a major is now being translated into several languages, public campaign by the 20 ans Barakat! (20 Years including Arabic, Bahasa Indonesia, Farsi, French is Enough!) coalition of women’s organizations. and Russian indicating that it has proved a useful resource for those who are promoting positive Egypt: The Egyptian Parliament passed Law No. reforms in family laws as well as those who are 1 of 2000, introducing a number of procedural resisting regressive change. amendments in matters of child maintenance, family courts, access to divorce for customary In this updated edition, we have focused on marriage (al zawaj al urfi ) and, most controversially, significant changes in texts of laws in some women’s right to divorce by khul’. Inexplicably, countries where the original W&L took place. We the government has not gazetted accompanying have included changes in Egypt because although guidelines. The disappointing outcome of the there was no W&L project in that country, we amendments regarding khul’, particularly the included Egypt and its laws in the original edition as remaining scope for patriarchal judicial discretion, they have long been regarded by other systems as has been documented by women’s groups (see a benchmark in family law. We have incorporated Bibliography, p. 352). new provisions in both the narrative overviews and law tables as well as updating the section on Fiji: Fiji’s Family Law Act 2003 entirely replaced constitutional and legal frameworks (see p. 38). previous scattered provisions under the colonial But we have not changed information regarding Matrimonial Causes Act and English Common customary practices (which requires an intensive Law relating to annulment and divorce as well as process of fi eld research) and implementation of maintenance and property settlements, with a laws, nor have we changed currency exchange strong focus on protecting children’s rights. The rates. passage of the Bill was delayed by some three years following the 2000 coup d’etat. The new law Additionally, there have been many developments came into effect only in December 2005 and it is in Muslim contexts not covered by the original W&L therefore too early to assess its impact and how (as well as migrant contexts such as Canada), the courts are implementing it. which we are including below as part of our discussion on important recent trends in family Malaysia: In 2001, the Malaysian government law reform. proposed a standardized Islamic Family Law for all of Malaysia’s 13 States. Between 2003-2005, various States used this as a basis to amend family Women Living Under Muslim Laws Women 2 Knowing Our Rights: Women, family, laws and customs in the Muslim world 3 laws, ignoring protests from deeply disappointed of the relationship between the spouses and women’s rights activists. Although passed by the between parents and children. Because ultimately Senate in December 2005, the IFL has not been all aspects of family law are interlinked (see p. 34), gazetted in the Federal Territories following these mere tinkering with even numerous amendments protests, and fresh (more positive) amendments could not bring about suffi cient change. This are now being discussed with representatives of understanding also underpins reform efforts in women’s groups. Women’s groups have already South East Asia, for example. In Indonesia, in documented the injustices suffered by individual October 2004 the Indonesian Department of women due to the amendments. Religious Affairs produced an alternative draft to the Compilation of Islamic Laws (KHI) that Living Under Muslim Laws Women Morocco: Morocco’s new Moudawana, introduced embraced gender equality. by Parliament in February 2004, is an entirely new law, completely repealing the previous 1957 family But in many contexts, complete overhauls have not code. The reforms had strong support from King yet been possible, and modifi cations have varied Mohamed VI and saw widespread public debate from very substantial (Algeria), to signifi cant and mobilization by women’s groups. The success (Egypt, Malaysia), to those focused on single issues of the reforms now depend upon changing the (Iran – age of marriage; Sri Lanka - mata’a; Syria attitudes of judges and adouls (public notaries) – custody). In some systems where reform has yet who implement family law, and offi cial guidelines to happen, single-issue campaigns continue such about the new provisions have yet to be released as the growing public debate in Yemen regarding although the King has promised a public awareness raising the age of marriage. In other systems, campaign. major reforms have been introduced in areas indirectly linked with family laws, such as the federal Child Rights Act of 2003, which has raised Family law reform trends 2003 - 2006 the age of marriage. Across Muslim contexts, both majority and Where new codes or major changes have been minority as well as those governed by laws based introduced, all have been justifi ed by referring on Muslim laws or laws based on other sources, to changed social conditions. King Mohamed several clear trends have emerged in the period VI, while addressing Parliament on the new 2003-2006, which no doubt share features with Moudawana, stated that it responds to the family law reform globally. legitimate expectations of the Moroccan people, Overall, there is a trend towards codifi cation and and takes into consideration the spirit of the the sweeping overhaul of the previous basis for modern era and the imperatives of development. adjudication in family law. From Morocco to Fiji, The Algerian Ministry of Justice, in a public from the Gulf States of the UAE and Bahrain to explanation of the motives behind the reforms, francophone African countries such as Benin, commented that the family code must mirror the Chad, Mali, and Niger, entire new codes have social, economic and cultural development of the been introduced or await final passage.
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