MARRIAGE AND DIVORCE

Batoota — Sun, 03 Aug 2014 08:47:01 +0000

MARRIAGE AND DIVORCE. [To articulate religious values and traditions reflected in marriage and divorce in modern Islamic societies, this entry comprises two articles:
Legal Foundations and Modern Practice. For related discussions, see Family Law; Mut`ah; Polygyny; Women and Islam, article on Role and Status of Women.]
Legal Foundations
The Qur’an is the foundation of all Islamic laws, including laws of marriage and divorce. Where a matter is not addressed specifically there, or where the application of a verse to a certain situation permits several reasonable interpretations, jurists look to the sunnah of the Prophet (including hadith) for additional guidance. Where neither the Qur’an nor sunnah address a matter explicitly, jurists resort to ijtihdd, a system of reasoning and interpretation for which they have articulated several basic principles. Chief among these is the principle that laws vary with time, place, and circumstance. This principle was adopted to emphasize the fact that Islam is a religion for all times and all people, and that therefore each culture is permitted, within the bounds of Qur’anic injunctions, to have a reasonable degree of flexibility in interpreting and applying Islam to its own community.
The ijtihdd of jurists on matters of marriage and divorce was significantly influenced by their milieu. Often local gender, class, and political preferences filtered into Islamic consciousness and were incorporated as part of regional Islamic legal tradition.
Originally, Muslim family law was not codified. Judges who were faced with an issue relied directly on the Qur’an and hadith and, where necessary, on their own ijtihdd. As the schools of legal thought gained prominence, Muslim states began selecting the jurisprudence of one of these schools as the basis of their legal systems. There are significant jurisprudential differences not only among the schools, but also among scholars within each school.
Most Muslim countries today have codified their family laws. In each case, the code was based primarily on the jurisprudence of a single school; however, for a variety of reasons, a code sometimes combined this jurisprudence with that of other schools. Such an approach, when consistent and properly reasoned, is fully permissible in Islam because the Prophet stated that differences among the various jurists were a sign of divine mercy and that Islam is a religion of facilitation, not complication. Unlike the majority of Muslim countries, Saudi Arabia and some other Gulf states continue to follow an uncodified system of family law. Cases are not published, and, since the system relies in each case on the ijtihad of the individual judge, it is possible that similar cases there result in significantly different judgments.
Although in early Islam `A’ishah, the wife of the Prophet, and other Muslim women played a leading role in the interpretation of law, women were later increasingly excluded from the field of jurisprudence until they were finally declared unfit for judicial positions. This view has survived to the present in most Muslim countries, although recently it has again become the subject of debate. The barring of women from judicial positions, however, has significantly affected the development of Islamic jurisprudence, especially in the area of family law. Despite their differences, the various schools appear to base their jurisprudence on a traditional patriarchal view of males as rational, courageous, and firm and of females as emotional, weak, and rash. Consequently, many of the laws have been justified explicitly on this basis, although exceptions do exist.
For example, the major schools (Maliki, Hanbah, Hanafi, Shafi’i and Ja’fari) generally agree that a Muslim woman needs a wali (guardian, usually her father) to enter into a marriage, but they disagree significantly as to the extent, nature, and duration of the wali’s authority. Most major schools agree that a father acting as wali can force his virgin daughter to marry a man of his choice, regardless of her age. This position was justified on the basis that virgins lack experience in men and may be subject to emotion in making their marriage decision. However, if a father declares his daughter mature or if she was previously married, then under the Maliki view the daughter cannot be forced into marriage regardless of her age; in that case she must reach the marriage decision jointly with her wah.
A well-established Hanafi line of thought views the mature woman who has reached puberty as capable of contracting her own marriage, with the wali playing a merely advisory role. However, if the woman ignores the wali’s advice and marries someone “unsuitable,” then the wali immediately acquires remarkable powers. He can move to void the marriage if no pregnancy has occurred. Hanafis and Malikis imbued the notion of `suitability” with culturally based class distinctions that were not present in its original articulation, which was based on piety.
Jafaris view a mature woman who has reached puberty, whether a virgin or otherwise, as a full legal entity coequal with her male counterpart. She is considered legally competent to make her own marriage decisions and even to conclude her own marriage contract, regardless of her father’s approval and the social station of the prospective husband.
Modern family codes sometimes present new permutations of old positions. For example, the Syrian Personal Status Code (1953, as amended), which is basically Hanafi, modifies the Hanafi position by limiting the wali’s ability to unfairly block, delay, or cause the avoidance of the marriage of a daughter who has reached majority. The Moroccan Personal Status Code (1957), which is basically Maliki, departs from the traditional Maliki position by prohibiting a wali from forcing his female ward into marriage, whether she is virgin or otherwise, if she has attained the age of majority. It does, however, instruct the woman to delegate her right to contract a marriage to her wah. Maliki and other jurists have explained the need for such delegation as emanating from a desire to shield the woman from the indignity of being present among men to negotiate and execute her own marriage contract.
The Tunisian Personal Status Code (1956, as amended), which is also basically Maliki, departs more fundamentally from such jurisprudence by abandoning the notion of wali altogether and adopting a position akin to that of the Ja’faris. Once the prospective parties reach the age of majority, they may contract their own marriage or delegate that power to another, at their option. The consent of both husband and wife is required for a valid marriage, and the notion of “suitability” is absent from the code.
All schools of thought have interpreted the Qur’an as permitting polygyny as long as certain conditions of fairness are observed. The Tunisian code prohibits it. This prohibition, along with other departures like the ones discussed above, has been viewed by many as a reflection of Western colonial influences. Tunisian jurists in fact relied on the Qur’an and other basic sources in developing their arguments for prohibiting polygyny, but it is probably true that their desire to reexamine past ijtihad on this issue was motivated by external Western influences. Still, even under a traditional analysis of polygyny, there are legal approaches that enable a woman to guard against it in her own marriage.
One such method is for the woman to specify in the marriage contract that her prospective husband may not marry a second wife. Unfortunately, the validity of this condition varies with the school. Ja`faris and Shafi`is, for example, reject it as, respectively, contrary to Islamic law and contrary to marital rights flowing from the marriage contract; but in either case, both schools view the rest of the contract as valid. This result is quite harsh for a woman bent on protecting her marriage from polygyny.
Hanafis also regard this condition as null and void; but as an inducement for women to marry, they recognize the validity of a condition in the marriage contract that reserves for the woman the right to divorce her husband at her option. Malikis accept the condition not to take a second wife as valid, but they discourage it. The condition giving the woman the right to divorce is also acceptable to them, but it is so bound to various formal and procedural requirements that it is hard for the average woman not to forfeit (or even fail initially to acquire) such right inadvertently. In all jurisdictions, a woman may obtain divorce by giving up her dower (khul’), quite a hardship for a woman of modest means. She can also request a judicial divorce, which can be a lengthy procedure.
The attitude of one line of thought among Hanbalis toward a marriage condition preventing the husband from taking a second wife is closest to that of the Prophet, who stated that one’s `uhud (promises or undertakings) must be fulfilled and that the `uhud most worthy of fulfillment are those of the marriage contract. Not only do Hanbalis view as valid this and all other conditions which are not incompatible with Islamic law or the object of marriage; they also signal the seriousness of violating such `uhud by giving the party whose marriage condition has been violated the option of voiding the marriage (faskh). By contrast, Hanafis, for example, specify a limited monetary remedy for such violations.
Other laws relating, for example, to mut`ah marriage (a form of temporary marriage accepted by Shi’is), spousal maintenance, the ability of the wife to work outside her home, the role of the husband in the family, the duties of the wife in a marriage, and child custody, have posed challenging questions to Muslim jurists in modern societies. In response, a movement to reinvigorate ijtihad and modernize family law in accordance with the Qur’an and sunnah is taking root around the Muslim world.
[See also Family; Family Law; Mut’ah; Polygyny; and Women and Islam, article on Role and Status of Women.]
BIBLIOGRAPHY
Abu Zahrah, Muhammad. Muhadarat ft `aqd al-zawaj wa-atharuh. Cairo, 1971. Excellent modern work on marriage in Islam.
Bardisi, Muhammad Zakariya al-. Al-ahkam al-Islamiyah fi al-ahwil al-shakhsiyah. Cairo, 1965.
Dardir, Ahmad al-. Al-sharh al-Saghir. Vol. i. Cairo, 1962.
Dijwl, Muhammad al-. AI-ahwal al-shakhsiyah lil-Misriyin al-Muslimin fiqhan wa-qada’an. Vol. i. Cairo, 1969.
Hibri, Azizah al-. “A Study of Islamic Herstory.” In Women and Islam, edited by Azizah al-Hibri. Oxford, 1982. Feminist discussion of certain Islamic laws and principles relating to women.
Hibri, Azizah al-. “Marriage Laws in Muslim Countries.” Family Law and Gender Bias: International Review of Comparative Public Policy 4 (Fall 1992): 227-244.
Hooker, M. B. The Personal Laws of Malaysia: An Introduction. Kuala Lumpur, 1976. Orientalist but comprehensive study of family laws in Malaysia.
Jaziri, `Abd al-Rahman al-. Kitab al -fiqh `ala al-madhahib al-arba`ah. Vol. 4. Beirut, 1969. Rich classical source of information on family law under Hanafi, Shafi’i, Maliki, and Hanbali jurisprudence. Khamlishi, Ahmad al-. Al-ta’liq `old Qanun al-ahwdl al-shakhsiyah. Rabat, 1987.
Maghniyah, Muhammad Jawad al-. AI-filth `old al-madhahib alkhamsah. Beirut, 196o. Excellent presentation of the position of each of the five major schools of Islamic jurisprudence on a host of issues.
Mahmasam, Subhi. AI-awda` al-tashri’iyah ft al-duwal al-`Arabiyah. Beirut, 1981.
Nasir, Jamal J. The Status of Women under Islamic Law and under Modern Islamic Legislation. London, 1990.
Rahman, Fazlur. “A Survey of Modernization of Muslim Family Law.” International Journal of Middle East Studies 11 (1980): 451465
Shalabi, Muhammad Mustafa. Ahkam al-Usrah ft al-Islam. 4th ed. Beirut, 1983. Good source for Ja’fari jurisprudence.
Zuhayli, Wahbah al-. Al-filth al-Islami wa-Adillatuh. Vol. 7. Damascus, 1984.
AZIZAH Y. AL-HIBRI
Modern Practice
Rules and procedures regarding marriage and divorce are stipulated in the Qur’an and regulated through the shari’ah. Laws relating to marriage and divorce are thus part of the body of Islamic personal status law, the only aspect of shari`ah law that has been retained nearly intact at the close of the twentieth century.
Marriage in Islamic law is formalized by a contract (nikah) between the legal guardian of the bride-always a male and usually the bride’s father-and the prospective husband. By custom, marriage partners are usually determined by arrangement through families: women work through social alliances to seek out suitable wives for their sons and to introduce unmarried daughters to the mothers of eligible sons. Men who are guardians of women assume the formal arrangements for a marriage, which include the offer and acceptance and the drawing up of the marriage contract, specifying such conditions as the amount of the mahr (see below), the location of the marital home, or the right of the wife to divorce should the husband take a second wife.
In shad `ah law, the legal guardian of the bride has the power to contract his ward in marriage to any man of his choice without her knowledge or permission, and he can also refuse to allow her to marry at all. In practice, parents usually ask their daughter whether or not she agrees with their choice of a spouse. To a large extent, in the Middle Eastern Muslim world, the realities of modern life have superseded the traditional mode of arranged marriages, as men and women now meet and choose each other through contact in universities, in the workplace, through mutual friends, or during travel abroad. Modern legislation in most countries has further eroded the prerogatives of the guardian by forbidding compulsion in marriage. Even among professional and well-educated groups, however, the desire to preserve parental guidance in the choice of a marriage partner remains strong. Among Pakistani Muslims in the United States, for example, arranged marriages continue to take place even in the American-born younger generation. Arranged marriages also persist among tribal groups that insist on marriages back into the family, and among economically or politically powerful families for whom marriage alliances are viewed as an extension of family interests.
The marriage contract usually stipulates the mahr, an amount of money or property that must be given by the prospective husband in order legally to validate the marriage. The mahr may be given all at once or may be divided into two parts, one to be paid before consummation and the other stipulated for future payment in the event of divorce or death. Ideally and by law the mahr is intended as a gift to the bride from her husband for a purpose of her choice, whether to furnish her marital home or to establish her financial independence. In practice, however, the mahr has sometimes been assumed by the guardian for his own use. In bedouin communities especially, women almost never receive the mahr or even know its amount.
The amount of the mahr is individually determined and traditionally is commensurate with the economic or social standing of the bride’s family. Among many westemized and especially two-income couples, however, no money is transferred at all, as the mahr is considered as only a token payment to be stipulated in the contract in order to satisfy the terms for a legally validated marriage. For most other people, the mahr remains a considerable factor in determining marriage alliances, and in some regions the cost has risen to the point that the mahr now constitutes a barrier to marriage. In the Gulf region, where value of the average mahr may be from U.S. $10,000 to $25,000, private Muslim charities and government agencies offer contributions toward the mahr for the benefit of men who would otherwise have no hope of marriage. The rationale for these donations is that marriage is considered a religious duty in Islam.
In shad `ah law rules concerning divorce favor the interest of males. A man is entitled to repudiate his wife without cause in talaq divorce, by which a man repeats the formula “I divorce you” three times before witnesses, constituting a formal termination of the marriage relationship. Repudiation by a husband does not entitle the wife to financial compensation other than the mahr as designated in the marriage contract, and maintenance for a period of time (`iddah) during which she may not contract a new marriage-the purpose being to establish paternity in the event the former wife finds herself pregnant in the months immediately following divorce.
Women do not have the same right of repudiation, but they are entitled to two other kinds of divorce, one costly and the other potentially humiliating for the woman and her family. Khul` divorce, also known as divorce through ransom, entitles a woman to buy herself out of the marriage by paying her husband an agreedupon sum of money, by returning the mahr, or by waiving her right to the delayed mahr. The second type of divorce that can be initiated by the wife, known as tafriq, entitles the wife to petition the court for divorce, but such divorce is allowable on very limited grounds, such as impotence on the part of the male or desertion. Modern legislation in some countries has codified and slightly expanded the grounds on which a woman may petition for divorce to include injury or discord, a physical defect on the part of the husband, failure to pay maintenance, and absence or imprisonment of the husband.
Women are at a disadvantage not only by virtue of legal impediments to obtaining a divorce but also in regard to obtaining custody of their children. In shari`ah law custody of children goes first to the mother, but only during early childhood; custody then reverts to the father, since as a man he is deemed better qualified to oversee the child’s education. Schools of law vary on the exact age at which a mother’s right to custody of her children terminates in favor of the father, but the age range in Sunni practice is seven to ten for a boy and nine to the onset of puberty or time of marriage for girls. Shafi’i law grants children the right to choose the custodial parent at age seven. In Twelver Shi’i law the father gains custody of a boy at age two and of a girl at age seven. In all schools of law, if the mother remarries at any time while her children are in her care, she jeopardizes her right to retain custody. Modern legislation in most countries codifies but does not significantly alter these custody arrangements that favor the father: the principle that custody should be determined according to the best interests of the child has been explicitly incorporated into modern legislation in a few countries, but courts tend to presume that the child’s best interests are served in applying shari`ah rules.
With the exception of Turkey, where the shari`ah was abrogated in 1926 and replaced by a Swiss civil code, the most far-reaching reforms in family law in the Middle East are to be found in Tunisia. A Tunisian Code of Personal Status was enacted in 1956 that provided for a minimum age for marriage, abolished polygyny and the right of guardians to contract marriage without the woman’s consent, abolished male taldq divorce outside of court, and granted court-registered talaq to women. More recently the minimum age for marriage has been raised to seventeen for women, and mothers have been granted automatic guardianship over their children in the event of the father’s death. In 1992 further reforms guaranteed child-support payments for divorced women and granted mothers the right to be considered legal guardians of minor children along with the father, so that the marriage of a minor daughter cannot proceed without her mother’s consent.
On the whole, modern legislation regarding marriage and divorce has had limited effect in altering the inequalities between men and women in shad `ah family law. The first reason is that modern legislation may be difficult to implement where there is a lack of desire or ability to comply. Many countries, for example, have established a minimum age for marriage. Some countries, such as Syria, Jordan, and Morocco, have also made attempts to control the contracting of marriages between very young girls and much older men by setting limitations on the allowable age difference between the bride and prospective husband. In Jordan, for example, marriage contracts cannot be validated if a woman under eighteen is to be married to a man more than twenty years her senior. However, especially in rural areas, enforcing conditions of age on marriage contracts is difficult since the age of either party may be undocumented; moreover, government intervention in what are considered private family matters may be viewed as unacceptable and therefore may be ignored. Another reason that modern legislation has done little to correct the inequalities between men and women is the fact that, for the most part, modern legislation tends to codify shad `ah law rather than to modify it. In most countries today, for example, legislation on divorce requires that talaq divorces be registered in a government court. Legal documentation of a divorce assures the wife that she will be informed that she has in fact been divorced, and it provides the legal structure through which she can petition for child custody, payment of maintenance, or the delayed mahr. Court registration, however, in no way impedes the husband’s absolute right of repudiation without any grounds, as allowed in the shariah.
Similarly, the practice of polygyny, which among Middle Eastern countries has been abolished only in Tunisia and Turkey, is now subject to certain government-imposed conditions. In Egypt, for example, the first wife must be notified through the courts if a second marriage has taken place, and the wife is then entitled to apply for a divorce if she feels that the new marriage has caused her to suffer “a material or moral injury.” She is not, however, entitled to any additional financial compensation that would make divorce feasible for her and costly for the husband. Thus the man’s right to take up to four wives at a time, as granted in the shari `ah, remains virtually unfettered in modern legislation.
As another example, the shari ah provision that a Muslim woman cannot marry a non-Muslim man, even though a Muslim man is entitled to marry a Christian or a Jew, is codified in all modern Muslim legislation. Furthermore, in some countries this principle is extended into the realm of nationality of prospective spouses. In Kuwait, for example, a Kuwaiti man who marries a non-Kuwaiti woman retains all the privileges of citizenship, whereas the children of a Kuwaiti woman who marries a foreign national are not entitled to Kuwaiti citizenship. In Saudi Arabia, a male citizen may petition the government for permission to marry a nonSaudi, but that right is absolutely denied to women. In Tunisia, by contrast, a new provision of the Tunisian Code of Nationality allows a Tunisian woman married to a foreigner to give Tunisian nationality to her children, where previously the privilege of citizenship for the children of mixed marriages was granted only to those whose father was Tunisian.
A third reason that modern legislation has not diminished the inequalities between men and women in marriage is that in codifying shari`ah, modern legislation also codifies and thus helps to preserve traditional attitudes that reinforce men’s power over women. For example, the Moroccan Code (article 35) states that a wife has the right to visit her parents, which is considered a special privilege because in traditional practice a wife does not have the right ever to leave her home without her husband’s permission. The implication of the code, however, is to recognize and confirm in law that the wife does not otherwise have the right to leave the home whenever she wishes.
As another example, in the shari`ah, a man is obligated to provide maintenance for a legally contracted wife, but only under two conditions: that she be physically available to him at all times, and that she obey him in all lawful things. The obligation of the husband to maintain his wife, as well as the conditions of absence or disobedience on the part of the wife that terminate his obligation, are recognized in modern legislation in most countries. This poses a dilemma for working women. Does absence due to working without the husband’s permission constitute a failure to make oneself available to one’s husband? Jordanian, Syrian, Iraqi, and Egyptian legislation says that it does and releases the husband from the obligation of maintenance, even if the wife went to work because she has a profession that cannot be interrupted at will, or because the family is in need of her income. Modern legislation, therefore, rather than allowing traditional attitudes to evolve along with changing conditions, can have the opposite effect of imposing on men’s power over women a seal that is impervious to women’s individual achievement or rising expectations.
The effect of contemporary Islamist political movements has been to limit further reforms in family law. All these movements, including those in Pakistan, Algeria, Egypt, and Sudan-and in both strictly shariatic Saudi Arabia and secularizing Tunisia–call for strict application of shari`ah family laws. In Iran, the fundamentalist government of Ayatollah Ruhollah Khomeini abrogated what had been one of the most progressive family law codes in the Muslim Middle East. The Family Protection Act put into effect under the shah in 1975 set limits on a man’s right to contract a second marriage, gave the spouses equal right to divorce by removing the man’s right to taldq, raised the minimum age for marriage, and placed the decision for child custody at the discretion of the courts to be determined on the basis of the child’s best interests. One of Ayatollah Khomeini’s first acts on coming to power in 1979 was to lower the minimum age for marriage from eighteen to thirteen and to reenact Twelver ShN law, by which fathers and paternal relatives regained the right to have custody of children in case of divorce or death of the father, and husbands the right to polygyny and divorce will.
The formulation of marriage and divorce laws in the contemporary Middle East is inseparable from an ongoing debate that has persisted since the late nineteenth century over the perceived need for progress and reform in Muslim society and the role of women in shaping the future of that society. In the nineteenth century Western critics of Muslim society, most notably colonial rulers and Christian missionaries, targeted the condition of women as the central cause of the perceived degradation and backwardness of Muslim society.
Indigenous spokesmen held similar views. Muhammad `Abduh, mufti of Egypt, recognized in the late nineteenth century that the unrestricted right to polygamy and divorce created an unstable home life and an inauspicious environment for raising children. In The Liberation of Women, published in 1899, Qasim Amin brought the question of women’s rights and Muslim family law into public discussion. Amin argued that a transformation in the role and status of women was a necessary prerequisite for the Muslim world to progress; he called for primary school education for girls, the abolition of the veil, and reform in laws regarding polygyny and divorce. Other writers, including women, took up the same call. Malak Hifni Nasif (1886-1918), for example, worked toward reform in marriage laws, denouncing polygamy, early marriage for girls, talaq divorce, and the custom of marriage between older men and young girls; the feminist activist Huda Sha`rawi called in 1935 for the abolition of polygamy. Even the Muslim Brotherhood, founded as a movement to reassert religious tradition in the face of British occupation, sought reform in shari`ah laws of marriage and divorce, arguing that polygyny was incompatible with both the Qur’anic view of marriage-an institution created for love and mercy between two people-and the Qur’anic directive to treat one’s wives equally. The brotherhood also opposed the abuse by men of the absolute right to divorce, on the grounds that unfettered divorce was incompatible with the moral premises of true Islam.
To a considerable extent, the goals of both traditionalists and westernizing secularists who sought reforms in family law were the same, although one sought reform within Islamic tradition and the other change in emulation of Western values. Even though the desire for reform has been articulated within a religious tradition as well a secular one, and by indigenous voices as well as by Western critics, the feminist movement has never been able to extricate itself from the taint of its origins in colonial discourse. Today calls for reform tend therefore to be associated with foreign occupation and cultural imperialism. With the Islamist revival gaining strength, those who advocate family law reform run the risk of being labeled “secularist” or “infidel,” and are thus silenced. At the same time, Middle Eastern governments, with few exceptions, appease Islamist sentiment by reasserting controls over women enshrined in family law. In 1993 liberalization in marriage and divorce laws in the region as a whole does not look promising.
[See also Family Law; Polygyny.]
BIBLIOGRAPHY
Abderrazak, Moulay R’chid. La femme et la loi au Maroc. Casablanca, 1991.
Ahmed, Leila. Women and Gender in Islam: Historical Roots of a Modern Debate. New Haven, 1992. Discusses family law and legal reform in historical perspective and social context, including the effects of fundamentalism.
Chamari, Alya Cherif. La femme et la loi en Tunisie. Casablanca, 1991. Esposito, John L. Women in Muslim Family Law. Syracuse, N.Y., 1982.
Fluehr-Lobban, Carolyn. Islamic Law and Society in the Sudan. London, 1987. Excellent discussion of Islamic family law in theory and in practice, based on actual court cases.
Mayer, Ann Elizabeth. Islam and Human Rights: Tradition and Politics. Boulder, 1991.
Nasir, Jamal J. The Status of Women under Islamic Law and under Modern Islamic Legislation. London, 1990. The title aptly describes the contents; a manual, with select reference to legal concepts and countries in the Middle East.
Saadi, Nouredine. La femme et la loi en Algerie. Casablanca, 1991.
ELEANOR ABDELLA DOUMATO

MARRIAGE AND DIVORCE – Hybrid Learning

MARRIAGE AND DIVORCE