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Women and Muslim Family Laws in Arab States AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 2 Women and Muslim Family Laws in Arab States: A Comparative Overview of WOMEN AND MUSLIM FAMILY LAWS WOMEN AND MUSLIM FAMILY LAWS Textual Development and Advocacy combines an examination of women’s rights in Muslim family law in Arab states across the Middle East with IN ARAB STATES discussions of the public debates surrounding the issues that are raised in processes of codification and amendment. A number of states have A COMPARATIVE OVERVIEW OF TEXTUAL recently either codified Muslim family law, or Women and Muslim Family Laws in have issued significant amendments or new DEVELOPMENT AND ADVOCACY Arab States: A Comparative Overview laws on the subject. This study considers these of Textual Development and new laws along with older statutes to comment Advocacy combines an examination. on patterns and dynamics of change both in Lynn Welchman the texts of the laws, and in the processes by women’s rights in Muslim family which they are drafted and issued. It draws IN ARAB STATES law in Arab states across the Middle on original legal texts as well as on extensive East with discussions of the public secondary literature for an insight into practice; debates surrounding interventions by women’s rights organisations and other parties are drawn on to identify women’s rights in Muslim family areas of the laws that remain contested. The law in Arab states across the Middle discussions are set in the contemporary global East with discussions of the public context that ‘internationalises’ the domestic debates the issues that are raised. and regional discussions. ISIM SERIES ON CONTEMPORARY LYNN WELCHMAN MUSLIMISIM SERIES SOCIETIES ON CONTEMPORARY MUSLIM SOCIETIES Lynn Welchmann is senior lecturer ISBN-13 978 90 5356 974 0 in Islamic and Middle Eastern Laws, School of Law at SOAS (School of Oriental and African Studies) at the University of London. WWW.AUP.NL AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 1 Women and Muslim Family Laws in Arab States AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 2 isim series on contemporary muslim societies The ISIM Series on Contemporary Muslim Societies is a joint initiative of Amsterdam University Press (AUP) and the International Institute for the Study of Islam in the Modern World (ISIM). The Series seeks to present innovative scholarship on Islam and Muslim societies in different parts of the globe. ISIM was established in 1998 by the University of Amsterdam, Leiden University, Radboud University Nijmegen, and Utrecht University. The institute conducts and promotes interdisciplinary research on social, political, cultural, and intellectual trends and movements in contemporary Muslim societies and communities. Editors Annelies Moors, ISIM / University of Amsterdam Mathijs Pelkmans, ISIM / University College Utrecht Abdulkader Tayob, University of Cape Town Editorial Board Nadje al-Ali, University of Exeter Kamran Asdar Ali, University of Texas at Austin John Bowen, Washington University in St. Louis Léon Buskens, Leiden University Shamil Jeppie, University of Cape Town Deniz Kandiyoti, SOAS, University of London Muhammad Khalid Masud, Council of Islamic Ideology, Pakistan Werner Schiffauer, Europa-Universität Viadriana Frankfurt (Oder) Seteney Shami, Social Science Research Council AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 3 WOMEN AND MUSLIM FAMILY LAWS IN ARAB STATES A COMPARATIVE OVERVIEW OFTEXTUAL DEVELOPMENT AND ADVOCACY Lynn Welchman ISIMSERIESONCONTEMPORARYMUSLIMSOCIETIES amsterdam university press AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 4 Cover design and lay-out: De Kreeft, Amsterdam ISBN 978 90 5356 974 0 NUR 741 / 717 © ISIM / Amsterdam University Press, 2007 All rights reserved. Without limiting the rights under copyright reserved above, no part of this book may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without the written permission of both the copyright owner and the author of the book. AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 5 to Akram al-Khatib AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 6 AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 7 Contents Preface 9 1. Introduction 11 2. Codification of Muslim Personal Status Law in Arab States: principle and processes 19 Current debates: Bahrain and Iraq 22 Legislation, judicial discretion and political process 26 3. Arab State Codifications and Women’s Rights Advocacy in the Third Phase of Family Law Reform 33 International law and Muslim family law 34 Women’s rights advocacy 37 Recent legislative developments 40 4. Sharªi Postulates, Statutory Law and the Judiciary 45 Tunisia and the sharªi postulate 46 Judicial interpretation and legislative direction 48 5. Registration Requirements 53 Unregistered and ªurfi marriage 56 Overview 59 6. Capacity and Consent 61 Minimum age of marriage 62 The Jordanian debate on raising the minimum age of capacity for marriage 65 Guardianship in marriage 68 The role of the guardian 72 Overview 75 7. Polygyny 77 Constraints on polygyny in contemporary legislation 78 Lawful benefit and financial capacity 79 Notification requirements and consent of the wife 81 Divorce options and validity issues 83 Overview 86 AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 8 CONTENTS 8. The Marital Relationship 89 Dower 90 Maintenance and obedience 93 Special stipulations in the marriage contract 99 Misyar marriage 102 Overview 105 9. Divorce 107 Statutory approaches to unilateral talaq and judicial divorce 107 Judicial khulª in Egypt 112 Judicial khulª in Jordan 116 Other approaches to judicial khulª 119 Divorce as a judicial process 122 Compensation 125 Post-divorce rights to the marital home 130 Overview 131 10. Parents and Children 133 Period of custody 134 Allocation of custody 137 Paternity and adoption 142 Overview 149 11. Concluding Comment 151 List of Statutes Cited 157 Selected Statutory Provisions 161 1. Marriage Guardianship and Capacity 161 2. Polygyny 167 3. The Marital Relationship 170 4. Stipulations 180 5. Judicial Khulª and comparable divorce provisions 184 6. Compensation for injurious/arbitrary divorce 187 Notes 191 Glossary of Arabic Terms 229 Bibliography 233 Index 243 AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 9 Preface This book traces and compares the approaches of different Arab League mem- ber states to a set of issues in the family law codifications that apply to their majority Muslim populations as they appear in the early years of the twenty- first century ce. Looking at ‘text’ in this way has become rather unfashion- able in at least some parts of the Western academy. This is mostly due to disciplinary developments in the specialist fields and in the profiles of schol- ars joining them – which, as elsewhere in scholarship, serve to locate and date earlier scholarship not only by years but by approach and perspective. Some well-deserved criticism has been made of the positivist, state-centric and ‘Orientalist’ approach of certain prominent Western scholars of Islamic law of previous generations. This foreword is not meant to be a double bluff; I’m not going to say that like others in my field I am aware of the limita- tions of state-law-focussed analysis of the legal field but having shown my awareness, will do it anyway. It is rather to affirm the continuing signifi- cance and interest of statutory codifications of Muslim family law in the Arab states of the Middle East and North Africa to an English-reading audience other than practising lawyers and ‘experts’. It is abundantly clear that statu- tory law tells either only part of the story of ‘the law’, or only one story among many. That (part of the) story is still worth telling. Following critiques of colonial-era academia, a recognition of the politi- cal contingency of scholarship has happily led to ‘incentives to modesty’ on the part of some scholars currently working in the area. Such modesty is all the more in order in light of the neo-imperial nature of political engage- ments with the Arab region at the current time; the discourses of post-colo- nial scholarship do not always recognise the full implications of this framework for the contemporary academic enterprise. However they are po- sitioned, scholars in the Western academy need to be clear about the frame- work of ‘the West’s’ current engagement with these issues. Humility and personal rigour about the different limits within which we each work, along with aspirations to push them, remain helpful guiding principles. 9 AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 10 PREFACE This small book was written mostly in Ramallah, over the period 2005-2006. I would like to thank all my friends from there, not only for the recent times, but for the years of memories and friendship, and in hope of better times for the people of Palestine. In particular: Salwa Duªaybis, Susan Rockwell, Za- kariya Odeh, Mary McKone and Fateh Azzam, Rami and Haneen; Mahmoud and Helen Hawari, Tariq and Yara; Charles Shamas and Maha Abu Dayyeh, Raja and Diala; Majda Al-Saqqa, John Tordai, Raja Shehadah and Penny John- son, Rema Hammami and Alex Pollock. Special thoughts for Samia Shibli, Richard Sexton and Sireen: Richard, you are much missed. I would also like to thank friends and colleagues at al-Haq (especially Sha’wan Jabarin, Ellen Saliba, Nina Atallah and Naser al-Rayes), Mizan (especially Essam Younis), PCHR (especially Raji Sourani) and WCLAC (especially Soraida Hussein). Evenings with Sami and Doha Ayyad and with Usama and Amal Halabi and their families considerably brightened the difficult summer of 2006 when the book was being finished.
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