Friday, July 12, 2013

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.


As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend clients, successfully, by submitting legal opinions and affidavits in their support on issues related  to Islamic divorce to State and Federal Courts and to Immigration Boards. Some of these cases have been reported by major U.S. law journals.

Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. The honorable Court agreed with our argument and granted the client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Supreme Court on the following link:


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.

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children; 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.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S. He also travelled to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:


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