Muslim Divorce in Tunisia

Muslim Divorce in Tunisia

By

Prof. Gabriel Sawma

 

 

Background

The Republic of Tunisia (al Jumhuriyyah al-Tunisiyyah) is a North African nation with population of approximately 11,000,000; its capital is Tunis. The country is bordered on the west by Algeria and by Libya on the south. The Sahara Desert lies in the southernmost part.

Tunisia became a republic in 1957, and Habib Bourguibas was elected yjr first president. He maintained a pro-Western foreign policy. During his term as president, Bourguiba issued a Code of Personal Status (CPS), called ‘majala’ in Arabic. The ‘majala’ is considered the most contemporary and advanced family law of all times in the Arabic world. CPS abolished polygamy, established legal equality between men and women in the case of divorce, banned marrying of minors against their will, abolished the right of a father to force his daughter to marry against her will, changed the legal age for marriage of a man to 20, and for woman to 17, improved the inheritance laws in order to protect the rights of women, made it legal for a Muslim woman to marry non-Muslim men and gave free education for both sexes.

On October 2, 1987, Bourguiba appointed Zine al Abidine Ben Ali, a 51-year-old former army general to be prime minister. A month later, the new prime minister argued that the president was unfit to lead the nation because of medical problems. Ben Ali ousted Bourguiba on November 7, 1987 in a bloodless coup on the bases of medical incompetency.

On January 14, 2011, following a month of protests against his rule, Bin Ali was forced to flee to Saudi Arabia with his wife and their three children.

 

Code of Personal Status (CPS)

The Code of Personal Status of Tunis (the Code), is based on Islamic Sharia with major amendments. Article 1 of the 1959 Constitution declares that Islam is the religion of the State, and Article 38 declares that religion of the President must be Islam.

The Code was promulgated in 1956 and has been amended on June 19, 1959 by law 59-77; April 21, 1964 by law 64-1; February 18, 1981 by law 81-7; and July 12, 1993 by law 93-74.

Notable features of the Code include Article 5 which sets the minimum age of marriage as 20 for males and 17 for females. Marriage below these ages requires special permission from the courts, which may be given only for pressing reasons and on the basis of a clear interest of the couples or benefit to be realized by the parties. Marriage below the legal ages stipulated by the law requires the consent of the guardian and since 1993, of the mother. In the event they both refuse, the judge will have final determination.

Another feature includes a provision whereby a marriage can be proven only by official document as prescribed by Article 4. Article 18 outlawed polygamy altogether. It stated unequivocally that polygamy was forbidden. An attempt at marrying again while one was still married was punished with imprisonment of a year and/or a fine of 240,000 Franks (approximately $500), which represented a huge amount for many Tunisians when the law was promulgated in 1956.

Article 23 states that during the marriage, both parties are to treat each other well, to fulfill their marital duties as required by custom and usage, and to cooperate in running family affairs, including the upbringing of their children. Being head of the family, the husband is responsible for the maintenance of his wife and children, while the wife is to contribute to family maintenance if she has the means to do so.

 

The Law of Divorce in Tunisia

The divorce procedures in the Code of Personal Status are covered by Chapter 2, Articles 29 to 33. Contrary to the rest of Muslim countries, whereby a divorce by man is accomplished without judicial act by simply pronouncing talaq, three times; divorce in Tunisia is strictly a judicial matter; extra-judicial talaq is not valid in Tunisia. Husband’s right granted by Islamic Sharia to announce a triple talaq is not legal in that country. However the Code kept the mahr provision in the Islamic marriage contracts. For more information about the mahr, see our article, http://muslimdivorceinusa.com/the-mahr-provision-in-islamic-marriage-contracts/

The court may grant divorce based on (1) agreement of the spouses (Art. 3-1); (2) a petition from one spouse by reason of injury caused by the other (Art. 3-2); (3) the will of the husband or the petition of the wife (Art. 3-3); (4) the court may award compensation for injury caused by the divorce. If the injured spouse is the wife, this may take the form of a lump sum or of regular alimony payments until she dies or remarries or otherwise her social circumstances change (Art. 3-4).  A woman was liable to pay compensation to her husband if necessary.

Article 23 of the Code made the wife responsible for contributing to the expenses of the household and to the financial support of children, if she had the financial means to do so. It expanded the right of mothers to have custody of their children. It made adoption of children legally valid, and modified the rules of inheritance for the spouse and female descendants over male cousin in some specific kinship configurations.

With the revolution that took place in Tunis in the last two years, it is hard to determine whether this revolution will cause any changes to the Tunisian Code of Personal Status. If the current government determines to implement Islamic Sharia, then the current Code of Personal Status will be the first victim; and all the amendments during the last half a century to modernize the Code might be replaced by Islamic Sharia provisions.

 

DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author at gabygms@gmail.com or call (609) 915-2237.

 

Gabriel Sawma is a lawyer with Middle East background; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association. Lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State.  http://islamicdivorceinusa.com/about-2/

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

http://www.muslimdivorceinusa.com

Muslim Divorce in Bangladesh

Muslim Divorce in Bangladesh

By

Prof. Gabriel Sawma

 

Introduction to Bangladesh

Bangladesh lies on the northern coast of the Bay of Bengal; the country is surrounded by India, with a small common border with Myanmar in the southeast. Bangladesh is low-lying riverine land traversed by the many branches and tributaries of the Ganges and Brahmaputra rivers. Tropical monsoons and frequent floods and cyclones cause heavy damage in the delta region.

In ancient times, Bangladesh was a Buddhist country, but by the 10th century, but by the 10th century AD, it was ruled primarily by Hindu.  In 1576, Bengal became part of the Mongolian Empire, and the majority of East Bengalis converted to Islam. The country was ruled by British India from 1757 until Britain withdrew in 1947. And Pakistan was founded out of the two predominantly Muslim regions of the Indian subcontinent. And, for almost twenty five years following its independence from the British Empire, Bangladesh history was part of Pakistan’s. The two regions were known as West Pakistan and East Pakistan; they were united by the religion of Islam, but their people were separated by one thousand miles of Indian territory. On March 26, 1971, a Civil war broke out between the two regions that ended in the independence of Bangladesh in 1974.

 

Islamic Divorce Law of Bangladesh

The law of divorce for Muslims in Bangladesh is regulated by the Muslim Marriages and Divorces (Registration) Act, 1974 and by the Muslim Family Laws Ordinance of Bangladesh 1961).

The law of divorce in Bangladesh is based on Islamic Sharia according to the Hanafi School of Jurisprudence. Under the Muslim Family Laws Ordinance of Bangladesh, men may seek divorce by pronouncing talaq and giving notice to the Chairman of the Union (Parishad) or to other appointed official and a copy to his wife. The Chairman is then appoints an arbitration council, who attempts to reconciliation the conflict between the parties. If such efforts fail to resolve the marital dispute, then the divorce becomes effective after the iddat of three months is expired. If the wife is pregnant at the time of Talaq, the iddat expires when she gives birth to a child.

 

Divorce by Talaq

This is a right given to the husband by Islamic Sharia, to divorce his wife any time he chooses; with or without cause. Article 7 (1) of the Muslim Family Law of Bangladesh (1961) states that any Muslim man who wishes to divorce his wife, soon after the pronouncement of Talaq in whatever form he chooses, shall give a written notice of talaq to the Chairman of the Union. A copy of such notice is sent to the wife. Failure to do so will subject the husband to imprisonment up to one year or ten thousand taka, or both (Art. 7-2). When Talaq is done according to these provisions, it will take effect after ninety days from the day the notice was delivered to the Chairman.

After the Chairman receives the notice of Talaq, he will establish an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration Council “shall take all steps necessary to bring about such reconciliation.” (Art.7-4). If the wife is pregnant at the time of the notice, the talaq takes effect at the time she gives birth.

Once a divorce becomes final, the husband must record it before the Nikah Registrar.

 

Dissolution of Marriage by Wife

The mode of divorce initiated by women in Bangladesh differs from the right of divorce granted to Muslim men. In the previous segment we have seen that men can divorce their wives at will without court intervention. But when Muslim women initiate divorce, they have to go to court in order to get divorce decree. Following are the situation under which a Muslim woman in Bangladesh can divorce her husband:

The husband may delegate the right of talaq to his wife in the marriage contract. In the absence of a delegated right of Talaq, the Ordinance provides two grounds upon which women may seek dissolution of their marriage: nonpayment of mahr (dower) or failure to provide maintenance for a period of two years after a demand is made.

According to the 1939 Dissolution of Muslim Marriages Act, the wife is required to get a judicial divorce under the following grounds:

1-that the whereabouts of the husband have not been known for a period of four years;

2-that the husband has neglected or has failed to provide for her maintenance for a period of two years;

3-that he has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961;

4-that the husband has been sentenced to imprisonment for a period of seven years or more;

5-that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

6-that the husband was impotent at the time of the marriage and continues to be so;

7-that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

8-that the wife was given in marriage by her father or other guardian before she attained the age of eighteen then repudiated the marriage before attaining the age of nineteen;

9-that the husband treats his wife with cruelty, such as assaulting her by physical ill-treatment; he associates with women of evil repute; attempt to force her to leads a immoral life; dispose of her property or prevents her from exercising her rights over it; obstruct her from the observance of her religious rights; or if he has more wives than one, and he does not treat her equitably in accordance with the injunctions of the Quran.

The Muslim Marriages and Divorces (Registration) Act provides for a mediation process over a period of three months before a divorce can become effective.

 

 

DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author at gabygms@gmail.com or call (609) 915-2237.

 

Gabriel Sawma is a lawyer with Middle East background; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association. Lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State.  http://islamicdivorceinusa.com/about-2/

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

http://www.muslimdivorceinusa.com

Muslim Men Marrying Non-Muslim Women

Muslim Men Marrying Non-Muslim Women

By

Prof. Gabriel Sawma

 

The Quran, a primary source of Islamic Sharia, permits a Muslim man to marry non-Muslim woman. It reads: “[be lawful to you in marriage] are chaste women from those who were given the Scriptures [i.e. Christian and Jewish women]”.

Early Muslim jurists ruled that the marriage of a Muslim man to a Christian or Jewish woman is considered “makruh” (not desirable) if both live in a non-Muslim country. In fact the second Caliph, Umar bin Al-Khattab (634-644), denied interfaith marriage for Muslim men during his term as “Amir al-Muminin” (Prince of the Believers, i.e. Muslims).

However, the majority of Muslim jurists in modern days do not prohibit a Muslim man from marrying a Christian or Jewish woman; this, in their view, ensures that over many centuries, the Islamic patriarchal society would gain more adherents to Islam relative to Christianity, Judaism and other co-existing religions. Additionally, a Christian or Jewish wife will face difficulty converting Muslim husband into their religion.

Following are the legal impacts of a Muslim man marrying Christian or Jewish wife:

 

1-Muslim Man’s Ability to Marry More than One Woman

Islamic Sharia does not prohibit a Muslim man, marrying a non-Muslim woman, from marrying more than one woman. Islamic Sharia allows a Muslim man to marry up to four wives at the same time. This means that, even though he is married to a Christian or Jewish wife, he can also marry up to four wives.

 

2-Children Born of Such Marriages are Considered Muslims

Under the rules of Islamic Sharia, children born of mixed marriages, involving a Muslim man and non-Muslim woman are considered Muslims. The religion of children born of a Muslim father always follows the religion of their father. It does not matter even if the child is baptized in the Christian faith; he will always be regarded as Muslim and governed by Islamic Sharia.

 

3-Custody of Children in Case of Divorce or Husband’s Death

In the event of divorce, or death of the husband, Islamic Sharia determines that in mixed marriages where the husband is Muslim and the wife is not, the wife will lose her custody to the children. Here is what the Sunni Schools of jurisprudence say on this matter: (1) The Hanafi School states that the “murtaddah” (i.e. one who converts from Islam to another religion) loses her custody immediately. According to this School, a non-Muslim woman loses her custody in the event of divorce or death of the husband. (2) The Shafi’i School forbids a “kafira” [infidel: Christian or Jewish woman] to have custody over a Muslim child; the text of this School reads: “no custody is given to “kafir” (non-Muslim, or infidel) over a Muslim”. (3) Hanbali School does not allow “ajnabi” [a foreigner, i.e non-Muslim] to have custody over Muslim. (4) In Maliki Jurisprudence, fidelity is in religion; this means a person outside the religion of Islam is not qualified to be “hadden” (Arabic, custody of children).

 

4-Wife Cannot Travel with her Children without Permission of the Husband

Islamic Sharia does not allow a divorced wife who has custody of the children to travel from a Muslim country with the children without permission of the husband. If the husband is dead, the wife can leave the country with the children provided that the guardian of the children, who has been appointed by the father before his death, or a guardian who has been appointed by a judge, permits the wife to travel with the children. Only then she can leave the country.

It is important to note here that the general rule in Islamic Sharia is that the wife cannot travel outside an Islamic country without permission of her husband.

 

5-Huband Traveling with the Children to an Islamic Country may decide to stay in his Home Country

Non-Muslim woman who is married to a Muslim man should know that if the husband travels with the children to his country and decides to stay with them in that country, she is not afforded protection of US law to bring the children back to the United States. If for example, husband travels with wife and children to any Muslim country in the Middle East and chooses to stay with the kids in that country, the wife may not be able to bring her children back to the US. The reason for that is the fact that Islamic Sharia will prevail by granting custody of the children to the husband in case of divorce or death of the husband.

 

6-Conversion of One Spouse to Islam

Under Islamic Sharia, if a non-Muslim woman is married to a non-Muslim man, and she converts to Islam, the marriage is suspended until her husband converts to Islam. In theory, she could leave the non-Muslim husband and marry a Muslim man. This is based on the Quran, which reads: “O ye who believe! [i.e. Muslims] When there come to you believing women refugees, examine them: Allah knows best as to their faith; if ye ascertain that they are Believers, then send them not back to the unbelievers [i.e. Christians and Jews]. They are not lawful [wives] for the unbelievers, nor are the [unbelievers] lawful [husbands] for them.” (Quran 60: 10).

If the non-Muslim husband converts to Islam, a new marriage is not needed. He can marry up to four women at one time.

 

7-Inheritance

The general rule in Islamic Sharia is that women inherit half the shares of men who have the same degree of relation to the deceased. For example, where the deceased has one son and one daughter, a son’s share is double that of his daughter’s.

A Christian or Jewish woman married to a Muslim man does not inherit from her husband because she is not Muslim. Only Muslim widow inherit from her Muslim husband. A non-Muslim wife does not inherit from her Muslim husband unless she is mentioned in his will as a beneficiary.

 

8-Muslim Women are prohibited from marrying non-Muslim Men

Every single country in the Middle East allows Muslim men to marry Christian or Jewish women but Muslim Women cannot marry Christian or Jewish men. Turkey is the only country in the Middle East that allows Muslim women to marry non-Muslim men through secular laws. In Islamic Sharia, a non-Muslim man must convert to Islam in order to marry a Muslim woman. The offspring of such unions are automatically Muslims and all Muslims are, by virtue of the Islamic Sharia, prohibited from leaving Islam.

In Islamic countries, a Muslim man or woman who converts from Islam to another religion will be subject to stiff penalties. In certain Muslim countries, the penalty can be death by execution.

 

DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author at gabygms@gmail.com or call (609) 915-2237.

 

Gabriel Sawma is a lawyer with Middle East background; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association. Lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State.  http://muslimdivorceinusa.com/about-us/

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

http://www.muslimdivorceinusa.com

Islamic Marriage Contracts in USA and Canada

Islamic Marriage Contracts in USA and Canada

By

Prof. Gabriel Sawma, Esq.

 

Definition

Islamic marriage is defined as a contract whose purpose is to start sexual relationship between man and woman, and legalizing of children. The Qur’an calls it “nikah”. Muslim scholars define Islamic marriage as “haqq al tamattu”, the right to enjoy sexual relationship between husband and wife. Being a contract, Islamic marriage brought about under coercion or fraud may be set aside at the request of the party whose consent was so caused.

Every Muslim of sound mind, who has attained puberty, may enter into a contract of marriage. The exact age of puberty may vary, based on physical and mental development of the child, but is generally reached by the age of fifteen.

 

Elements of the Islamic Marriage Contract

It is essential to the validity of the Islamic marriage contract that there should be a proposal (Arabic, ijab), and acceptance (qubul) made at the same meeting with the object of establishing immediate marital relation between the parties. Before the acceptance is pronounced, either party may withdraw from the negotiations.

An Islamic marriage must be accomplished with the presence of two male or one male and two female witnesses. A marriage contracted without witnesses is only invalid, and not void. An invalid marriage may be terminated by a mere repudiation on either party. Children born during the continuance of the contract are regarded as legitimate.

It is necessary to the validity of a marriage that the woman must not be the wife of another man, and that the man must not be the husband of four wives, that being the full number of wives permitted by Islamic Sharia. It is important to note that Islamic Sharia allows the husband and wife to have an agreement at the time of marriage that the wife should be at liberty to divorce herself from the husband, if he married another wife.

Another important component of the marriage contract is the mahr, amount of money or equivalent that the husband promises to pay his wife in the event of divorce or his death. For more on the mahr see, http://gabrielsawma.blogspot.com/2009/07/mahr-provision-in-islamic-marriage.html

A marriage with a widow or a divorce woman before the expiration of the period of iddat, which it is incumbent upon her to observe on the death of her husband or on divorce, is void. The iddat of a woman arising on divorce is three courses, if she is subject to menstruation; if not, it terminates at the expiration of three months from the date of divorce. The iddat of a woman arising on widowhood is four months and ten days. But if the woman be pregnant, the period of iddat does not terminate until after delivery.

DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author at gabygms@gmail.com or call (609) 915-2237.

 

Gabriel Sawma is a lawyer with Middle East background; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association. Lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State.

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com