W O M E N AND MUSLIM FA M I LY L A W S I N A R A B STAT E S A COMPA R AT I V E OVERVIE W OF T E X T UAL D E V E LO P M E N T AND ADV O C AC Y ISBN -13 978 90 5356 974 0 Lynn Welchman WO MEN AND MUS LIM FAMI LY L AWS IN ARAB STA TES LY NN W ELCH MAN Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy combines an examination of women’s rights in Muslim family law in Arab states across the Middle East with discussions of the public debates surrounding the issues that are raised in processes of codification and amendment. A number of states have recently either codified Muslim family law, or have issued significant amendments or new laws on the subject. This study considers these new laws along with older statutes to comment on patterns and dynamics of change both in the texts of the laws, and in the processes by which they are drafted and issued. It draws on original legal texts as well as on extensive secondary literature for an insight into practice; interventions by women’s rights organisations and other parties are drawn on to identify areas of the laws that remain contested. The discussions are set in the contemporary global context that ‘internationalises’ the domestic and regional discussions. W W W . A U P . N L Lynn Welchmann is senior lecturer in Islamic and Middle Eastern Laws, School of Law at SOAS (School of Oriental and African Studies) at the University of London. I S I M S E R I E S O N C O N T E M P O R A R Y M U S L I M S O C I E T I E S W O M E N A N D MUSLIM FA M I LY L A W S I N A R A B STAT E S A COMPA R AT I V E OVERVIE W OF T E X T UAL D E V E LO P M E N T AND ADV O C AC Y ISBN -13 978 90 5356 974 0 Lynn Welchman Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy combines an examination of women’s rights in Muslim family law in Arab states across the Middle East with discussions of the public debates surrounding the issues that are raised in processes of codification and amendment. A number of states have recently either codified Muslim family law, or have issued significant amendments or new laws on the subject. This study considers these new laws along with older statutes to comment on patterns and dynamics of change both in the texts of the laws, and in the processes by which they are drafted and issued. It draws on original legal texts as well as on extensive secondary literature for an insight into practice; interventions by women’s rights organisations and other parties are drawn on to identify areas of the laws that remain contested. The discussions are set in the contemporary global context that ‘internationalises’ the domestic and regional discussions. W W W . A U P . N L Lynn Welchmann is senior lecturer in Islamic and Middle Eastern Laws, School of Law at SOAS (School of Oriental and African Studies) at the University of London. Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy combines an examination. women’s rights in Muslim family law in Arab states across the Middle East with discussions of the public debates surrounding women’s rights in Muslim family law in Arab states across the Middle East with discussions of the public debates the issues that are raised. I S I M S E R I E S O N C O N T E M P O R A R Y M U S L I M S O C I E T I E S WO MEN AND MUS LIM FAMI LY L AWS IN ARAB STA TES LY NN W ELCH MAN Women and Muslim Family Laws in Arab States AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 1 i s i m s e r i e s o n c o n t e m p o r a r y m u s l i m s o c i e t i e s 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 2 WOMEN AND MUSLIM FAMILY LAWS IN ARAB STATES A COMPARATIVE OVERVIEW OF TEXTUAL DEVELOPMENT AND ADVOCACY Lynn Welchman I S I M S E R I E S O N C O N T E M P O R A R Y M U S L I M S O C I E T I E S am st er dam un iv ers it y pr es s AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 3 Cover design and lay-out: De Kreeft, Amsterdam I S BN 978 90 5356 974 0 N U R 741 / 717 © I SI M / 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 4 to Akram al-Khatib AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 5 AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 6 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 7 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 C O N T E N T S AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 8 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 9 [...]... substantial and developing literature on and broadening disciplinary approaches to women and Muslim family law in the Arab world, in historical and contemporary perspectives The valuable contributions of the work on historical sources have included illustrating the agency of women in accessing shariªa-based rights in legal dealings and shariªa courts in history, and equally illustrating the historical dealings... Status Law in Arab States: principle and processes 1 As the overview of recent legislation given in the following chapter indicates, the tendency towards national codification begun in earnest in the 1950s and continues today in Arab states as probably the major mechanism of state intervention in Muslim family matters Where there is no codification, there is activism from women s groups advocating for... comprising ‘scholars’ (ªulama’), ‘judges’ and women. ’22 The processes of democratisation and increased participation have led women s movements in different Arab states to seek inclusion in such drafting processes, and while arguments are still made for the exclusivity of sharªi expertise, it is increasingly usual to find members of the sharªi judiciary and other ªulama’ being joined in these appointed... capacity and at all stages of court procedure, and in ‘the law relating to the movement of persons and the freedom to choose their residence and domicile’; and requiring states to ‘take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations’.9 In the 1980s, shortly after the Convention entered into force, objections were filed to certain... Codifications and Women s Rights Advocacy in the Third Phase of Family Law Reform Patterns of consultation, exchange and borrowings in the drafting of Muslim family laws in the region are well established and were remarked upon in the ‘second phase’ literature This literature examined the texts and (in some cases) the application of the first national codes promulgated in the 1950s, which as noted drew in various... paid to Muslim family law developments in Arab states and elsewhere, both in Muslim majority states and in countries where Muslims are a minority At the same time, the particular focus on statutory expressions of the shariªa governing family relations has been a more consistent feature in recent history than that on certain other areas of state law Scholars in the Western academy have described family. .. undertake studies on the status of women under Islamic laws and customs and in particular on the status and equality of women in the family taking into consideration the principle of El Ijtihad in Islam’ Debates on these issues at the United Nations were heated; Connors reports allegations of ‘cultural imperialism and religious intolerance’ and warnings against ‘using the Convention as a pre35 ... UAE and Yemen Occasional consideration is made of a draft Palestinian text of 2005 Member states of the Arab League not included in the preceding list are Djibouti and the Comoros Islands, due to my lack of access to and information on legislative sources; Lebanon, due to the absence of a ‘national’ codification of Muslim personal status law applying to all Muslim sects;22 and Saudi Arabia and Bahrain... both insidious and rampaging Historically, they relate to the processes of codifi11 AUP-ISIM-IS-BW-Welchman-22:BW 24-04-2007 19:22 Pagina 12 INTRODUCTION cation of laws and reorganisation of judicial systems which began in the Middle East in the nineteenth century under the Ottomans and the Egyptians and continued in the twentieth century under European colonial powers and in the independent states. .. studies and women s and gender studies, and the changing profile of researchers have variously expanded, challenged and nuanced academic understandings of ‘Islamic family law’ in its pre-codification applications and social practice, its ‘translation’ by colonial powers, and its current meanings and practices.10 Recognition of the political contingency not only of institutions such as family and law but . AWS IN ARAB STA TES LY NN W ELCH MAN Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy combines an examination of women s rights in Muslim. examination. women s rights in Muslim family law in Arab states across the Middle East with discussions of the public debates surrounding women s rights in Muslim family law in Arab states across the. Oriental and African Studies) at the University of London. Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy combines an examination. women s