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LIBYA1 OVERVIEW of MUSLIM FAMILY LAWS & PRACTICES (Updated As at 31 May 2017)

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LIBYA1 OVERVIEW OF MUSLIM FAMILY LAWS & PRACTICES (Updated as at 31 May 2017) Description Family Law Matter Legislative Framework Case Law Policy Procedure Practice Equality of spouses in marriage Article 6 of the Constitution states Libya has According to the that Libyans shall be equal before reservations to 2016 UNDP Human Is there a Constitutional provision the law, enjoy equal civil and Articles 2 and 16(d) Development on equality and are there excep- political rights, have the same of CEDAW and Report, Libya tions? Are there specific laws that opportunities in all areas and be states: ranked 102 on the recognise marriage as a partner- subject to the same public duties UNDP Human ship of equals i.e. are family laws and obligations, without distinction • Article 2 of the Development Index and/or other laws relating to mar- on various basis, including gender Convention will and 38 on the riage and family relations codified or familial adherence.2 be implemented UNDP Gender or uncodified? If codified, what with due regard Inequality Index.10 are the titles of all the applicable Article 5 of the Constitution for the perempto- laws? If codified, do these laws declares the family as the basis of ry norms of Sha- According to media apply to all citizens irrespective of society and obligates the State to ri’ah principles re- reports, women’s religion? If not, do these laws ap- protect it and encourage lating to inher- rights have been ply to all Muslims or are there dif- marriage. The State is also itance; severely impacted ferent codified laws for different obligated to guarantee the following the sects within Islam? If uncodified, protection of motherhood, • The implementa- overthrow of or if codified laws do not suffi- childhood and old age and look tion of Articles Muamar Gaddafi. ciently address a particular issue, after children, young people and 16(c) and (d) will The regressive 3 how is the issue addressed e.g. persons with special needs be without preju- amendments made what Muslim school of law is ap- dice to any of the to the MDL by Law plicable? Do these laws explicitly Law No. 10/1984 on Marriage and rights guaranteed No. 14/2015 reflect state gender-stereotypical roles Divorce (Marriage and Divorce to women by the this move towards between husbands and wives e.g. Law or MDL) is the main codified Islamic Shari’ah.8 pulling back the 1 This Musawah project to map Muslim Family Laws globally was led by Zainah Anwar and coordinated by Lead Researcher Sharmila Sharma, with substantive support from Salma Waheedi and students at the International Human Rights Clinic, Harvard Law School. For this Libya country table, we would also like to thank Alyssa Oravec from Harvard Law School, and Zahra Langhi for their inputs in its preparation. 2 Article 6 of Libya’s Constitution (2011), https://www.constituteproject.org/constitution/Libya_2011.pdf 3 Article 5 of Libya’s Constitution (2011), https://www.constituteproject.org/constitution/Libya_2011.pdf 1 the husband is the head of the law that governs matters relating hard-won household or the wife is the pri- to marriage and family relations of The Government of advancement of mary caregiver? the predominantly Muslim Libya in its 2009 women’s rights in population in Libya.4 In the report to the Libya that was made Applicable CEDAW Provision absence of codified laws that CEDAW Committee in the past.11 Article 16(1)(c) sufficiently address a particular said that the MDL Paras. 17-18 GR21 matter of personal status of does not provide for Paras. 54-55 GR29 Muslims, according to Article 72 equality in respect to of the MDL, the rules of the the rights and Islamic religion that are most responsibilities suitable apply.5 Generally, Islam during marriage and in Libya is influence by the rules at its dissolution. of Maliki jurisprudence (fiqh).6 Instead, Articles 17 and 18 of the MDL The MDL provides for a marital tasks the husband framework based on “reciprocal” and wife with or “complementary” rights (as different rights and opposed to “equal” rights) responsibility between the two spouses that in towards each other.9 turn is based on the concept of male guardianship over women and children. Thus:7 8 United Nations Treaty Collection Website, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&clang=_en 10 UNDP, “Human Development Report 2016”, Table 5, pp. 214-217, http://hdr.undp.org/sites/default/files/2016_human_development_report.pdf ﻗﺎﻧون رﻗم /Marriage and Divorce Law (1984), http://aladel.gov.ly/home/?p=1246 as amended by Law No. 14/2015, http://aladel.gov.ly/home/wp-content/uploads/2015/12 4 - - pdf.14 ﻟﺳﻧﺔ 2015م ﺑﺗﻌدﯾل ﺑﻌض أﺣﻛﺎم اﻟﻘﺎﻧون رﻗم 10 ﻟﺳﻧﺔ 1984م ﺑﺷﺄن اﻷﺣﻛﺎم اﻟﺧﺎﺻﺔ ﺑﺎﻟزواج واﻟطﻼق وآﺛﺎرھﻣﺎ - - - - - - - - - - - - - - - - 5 Article 72 of the Marriage and Divorce Law (1984), http://aladel.gov.ly/home/?p=1246; Lynn Welchman, “Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy”, (Amsterdam: Amsterdam University Press, 2007), p. 45, https://goo.gl/AeQSDU 6 Alison Pargeter, “Libya”, in Women’s Rights in the Middle East and North Africa: Progress Amid Resistance, eds. Sanja Kelly and Julia Breslin (New York, NY: Freedom House; Lanham, MD: Rowman & Littlefield, 2010), pp. 8, 10, https://freedomhouse.org/sites/default/files/inline_images/Libya.pdf 7 Articles 2, 17-18 of the Marriage and Divorce Law (1984), http://aladel.gov.ly/home/?p=1246 as amended by Law No. 14/2015, http://aladel.gov.ly/home/wp- pdf; Lynn Welchman, “Women and Muslim.ﻗﺎﻧون رﻗم 14 ﻟﺳﻧﺔ 2015م ﺑﺗﻌدﯾل ﺑﻌض أﺣﻛﺎم اﻟﻘﺎﻧون رﻗم 10 ﻟﺳﻧﺔ 1984م ﺑﺷﺄن اﻷﺣﻛﺎم اﻟﺧﺎﺻﺔ ﺑﺎﻟزواج واﻟطﻼق وآﺛﺎرھﻣﺎ/content/uploads/2015/12 - - - - - - - - - - - - - - - - - - Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy”, (Amsterdam: Amsterdam University Press, 2007), pp. 173-174, https://goo.gl/AeQSDU. Before 2015, Article 18(a) required a wife to provide her husband with financial maintenance if he is destitute and the wife is wealthy. 9 Libya State party report, U.N. Doc. CEDAW/C/LBY/5 (2009), pp. 36-37, http://www.ohchr.org/en/hrbodies/cedaw/pages/cedawindex.aspx 11 Jazya Gebril, “Women’s Rights in Libya: Preserving Past Gains, Fearing for the Future”, The Legal Agenda, 19 December 2015, http://legal- agenda.com/en/article.php?id=3113; Hanan Dakhil, “5 years after the revolution that toppled Muammar Qaddafi, Libya’s missing link is its women”, New York Times, 22 December 2016, http://nytlive.nytimes.com/womenintheworld/2016/12/22/5-years-after-the-revolution-that-toppled-muammar-qadaffi-libyas-missing-link-is-its-women/ 2 • Article 2 defines marriage as a contract between a man and a woman who is legally available to him based on the foundations of affection, compassion and harmony; • Article 17 provides that the wife is entitled to the following from her husband: (i) financial maintenance; (ii) non- interference with her personal properties; and (iii) not causing her physical or mental injury; • Article 18 tasks the wife with: (i) concern for the husband’s comfort and his emotional and mental stability; (ii) supervision of the marital house and organisation and maintenance of its affairs; (iii) raising, protecting and nursing her children, provided she is not prevented from doing so because of a medical impediment; (iv) refraining from harming the husband physically and psychologically. 3 Minimum and equal legal age The minimum legal age for According to Girls for marriage marriage is 18 for females and Not Bride, child males as per Article 6(a) of the marriages are Is there a minimum age of mar- MDL.12 However Article 6(b) relatively rare in riage? Are there exceptions to the provides that a judge may permit Libya. In 2006/07 minimum age (e.g. min. age at 18, girls and boys below 18 to marry if only 2% of women with exceptions to 16)? Is there it is beneficial to the parties or aged 20-24 were an absolute minimum age without there is a necessity and after the married by 18.14 exceptions? Is there equality in agreement of the guardian.13 However: the minimum age of marriage? Does the minimum age of mar- The law does not specific an ab- • According to a riage match the age of majority? solute minimum below which a media report, Is there a minimum age verifica- marriage cannot be authorised. following the tion process before the marriage overthrow of is concluded? Muamar Gaddafi and the Applicable CEDAW Provision deterioration of Article 16(2) the security Paras. 36-39 GR21 condition across the country, the problem of child brides is now emerging, with ISIS fighters reportedly forcefully marrying girls as young as 12;15 ﻗﺎﻧون رﻗم 14 ﻟﺳﻧﺔ 2015م ﺑﺗﻌدﯾل /Article 6(a) of the Marriage and Divorce Law (1984) as amended by Law No. 14/2015, http://aladel.gov.ly/home/wp-content/uploads/2015/12 12 - - - - - - pdf; Before 2015, the original Article 6(a) had 20 as the minimum marriage age.ﺑﻌض أﺣﻛﺎم اﻟﻘﺎﻧون رﻗم 10 ﻟﺳﻧﺔ 1984م ﺑﺷﺄن اﻷﺣﻛﺎم اﻟﺧﺎﺻﺔ ﺑﺎﻟزواج واﻟطﻼق وآﺛﺎرھﻣﺎ - - - - - - - - - - - - ﻗﺎﻧون رﻗم 14 ﻟﺳﻧﺔ 2015م ﺑﺗﻌدﯾل /Article 6(b) of the Marriage and Divorce Law (1984) as amended by Law No. 14/2015, http://aladel.gov.ly/home/wp-content/uploads/2015/12 13 - - - - - - pdf.ﺑﻌض أﺣﻛﺎم اﻟﻘﺎﻧون رﻗم 10 ﻟﺳﻧﺔ 1984م ﺑﺷﺄن اﻷﺣﻛﺎم اﻟﺧﺎﺻﺔ ﺑﺎﻟزواج واﻟطﻼق وآﺛﺎرھﻣﺎ - - - - - - - - - - - - 14 Farzaneh Roudi-Fahmi and Shimaa Ibrahim, “Ending Chid Marriage in the Arab Region”, (Girls Not Bride Policy Brief, 2013), Figure 1, p.1, http://www.prb.org/pdf13/child-marriage-arab-region.pdf 15 Heather Saul, “Isis in Libya: Families forced to marry girls as young as 12 to fighters for protection as clinics see growing number of miscarriages and STDs”, Independent, 12 May 2015, http://www.independent.co.uk/news/world/europe/isis-in-libya-families-forced-to-marry-girls-as-young-as-12-to-fighters-for-protection-as- clinics-10244257.html 4 • According to academic research, the minimum legal age for marriage of 18 is frequently violated in the rural areas.16 Women’s consent to marriage Regardless of their age, both pro- A marriage contract According to spective brides and grooms must must be registered information gathered Is a marriage valid without the consent to the marriage.
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