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:
Contact Information:
Email:
gabrielsawma@yahoo.com
Tel.
(609) 915-2237
Or
visit our websites at the following links:
For more
information on the author, please see this link:
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