Polygamy and Family Law
Valentina M. Donini 17 April 2009

Within the modernisation process of legislation in the Arab world, which took place during the 19th and 20th centuries, Family Law has followed a far more gradual and slow route compared to other sectors, such as, for example, commercial or contractual law, due to its deep roots in the religious consciousnesses of Arabs and their societies. In this sector, in fact, a total abandonment of traditional law in favour of foreign models has never been on the cards. The civil law currently implemented, which is the result of this modernisation, does not regulate Family Law, which is instead based on special texts addressing “personal status”, al-ahwàl al-shakhsiyya

Countries in the Arabian Peninsula, with a few exceptions, have not codified Family Law, and hence continue to apply the shari‘a. In other Arab countries, from the Maghreb to the Mashreq, this subject is regulated by texts that, although sharing a common origin in the shari‘a, are different in style, contents and level of modernisation achieved. Kuwait, for example, which codified personal status in 1984, remains closely linked to shari‘a law, as does the law in Yemen, where Bill 20/1992 and amendments in 1998, 1999 and 2002, concedes little to reformist requests, unlike legislation in Southern Yemen that with its Bill 1/1974 established restrictions to polygamy and repudiation.

In Iraq by contrast, a first law enacted in 1959 had been approved for the definitely secular Personal Status Code, albeit not formally abrogating polygamy and repudiation it did, effectively, make both almost impossible. Following a legislative amendment dated 1978, polygamy was forbidden unless the first wife provided her explicit approval. Actually, according to a reformist interpretation, both polygamy and repudiation would not be admissible in the Arab world today, as the circumstances and reasons justifying them no longer exist in the current historical context. At the moment, however, there is a return to religious law in Iraq. In fact, in 2003 the ad Interim government abrogated the 1959 Personal Status Code, and Article 41 of the new Constitution refers all matters concerning Personal Status to denominational law. The law applied to Iraqi Muslims is therefore shari‘a, with different interpretations by Sunni and Shiite Muslims.

In Lebanon too, the Constitution refers this matter to denominational law, acknowledging 17 official religions. Here, however, the situation is significantly different. Sunni and Shiite Muslims are not subject to the shari‘a but to Ottoman Law from 1917 (the first example of modernisation of Family Law, still applicable in Palestinian Territories and in Israel for the Muslim population as well), the Druses are subject to an ad hoc Law dated 1948, with a few amendments dated 1962, while the various Christian communities follow their own denominational rules.

The Tunisian “revolution”

The most “revolutionary” results are those achieved in Tunisia, a country that, with its 1956 Personal Status Code, formally abolished both polygamy and repudiation, thanks to courageous work of ijtihad (interpretation), which resulted in the understanding that polygamy was implicitly forbidden by the Koran. In fact, a coordinated reading of verse IV, 3 of the Koran (“And if you fear that you cannot act equitably towards orphans, then marry such women as seem good to you, two and three and four; but if you fear that you will not do justice (between them), then (marry) only one”) with verse IV, 129 (“You can never be equitable in dealing with more than one wife, no matter how hard you try”), one deduces how it is effectively impossible to support many wives and treat them equally, and therefore polygamy cannot be practised.

Hence, Article 18 of Tunisian Personal Status Code not only contemplates a previous union among the obstacles to a marriage, but it also imposes a fine and a one year prison sentence, adding, in compliance with Article 21, that any second marriage entered into violates bigamy laws and it is to be considered invalid. As far as repudiation is concerned, an act that Islamic Law considers reprehensible (as stated in a hadith “God has permitted nothing more odious to Him than repudiation”), it has been abolished by Tunisian Law. Divorce – introduced in Tunisia almost twenty years before it became legal in Italy – is therefore the only way in which a marriage can be dissolved (Article 29 and following), and it is admitted only subsequent to the judge’s attempt to reconcile the parties involved.

Tunisia then continued its reforms, envisaging the possibility of adoption (Bill 27/1958) and persisting to reform its Personal Status Code. With Bill 74/1993, Article 23 was amended so as to guarantee equal rights for the bride and the groom, abolishing the wife’s duty to obey and establishing the obligation for a couple to cooperate in managing family life. More recently, in March 2008, Article 56 of the Code has been changed, introducing Article 56 bis, which addresses the custody of minor children and the right to housing paid for by the husband for the mother or the person having custody of the children (Bill 20/2008).

Although Tunisia is now the only country that has formally forbidden polygamy and repudiation, many other Muslim countries are attempting to establish procedural obstacles to these practices. For example, codification in Syria (which in 1953 was the first Arab country to promulgate a general law on Personal Status, later reformed with Bill 34/1975), Jordan (with a first codification in 1956, reform in 1976 and other legislative interventions in 2001), and to a lesser extent Libya and Algeria (both dated 1984) have all established the possibility of including in the marriage contract a clause for monogamy, or require consent from the first wife or authorisation from a judge, both for polygamy and repudiation, thereby diminishing the traditionally preeminent position attributed to men.

Progress in Morocco

Morocco too recently changed its Family Law, promulgating in 2003 a new Personal Status Law, the Mudawana, which replaces the previous Code dated 1958 and the modest reforms implemented in 1993. The new text makes no explicit reference to polygamy, although Article 39 considers as one of the reasons for a marriage being declared invalid: “a number of wives higher than the number authorised by the shari‘a”, referring, hence, to religious law. Polygamist marriage, however, must be authorised by a judge, and authorisation is subordinated to the existence of an objective and exceptional justification as well as the petitioner having sufficient financial resources (Article 41). A second marriage may take place only on condition that the second wife understands and accepts the polygamist characteristics of the marriage. Furthermore, Article 40 establishes that authorisation cannot be provided if there is a risk that wives will not be treated fairly, and above all, if the first wife has included a monogamy clause in the marriage contract. In all events, the first wife has the right to ask for a divorce in case of a second marriage (Article 45).

Although the Moroccan Mudawana includes the possibility of divorce, it is important to bear in mind that repudiation still exists (Articles 78-93), basically however in the form of divorce, since it must be authorised by a court following a written petition from either the husband or the wife. It would therefore appear that the right to unilaterally terminate a marriage has also been extended to women (Article 78). Actually, nonetheless, this is not automatic, but rather subordinated to the husband acknowledging such a right to the wife (Article 89).

The situation in Egypt

Finally, Egypt presents a particularly interesting case. This is a country that has always been torn between reformist desires and attempts to reinstate Islamic traditions. The main characteristic of Egyptian reforms remains, however, the lack of a general codification of Family Law. Direct legislative interventions have been addressed at regulating a number of limited aspects, such as for example, the wife’s right to financial support (Bill 25/1920), minimum age required for marriage (Bill 25/1929) or the dissolution of a marriage (Bill 25/1929).

Encouraged by Sadat, reforms continued during the Seventies with Bill 44/1979, which restricted polygamy, considered damaging to the first wife and hence grounds for divorce in the event of a second polygamist marriage. The conservative surge that followed Sadat’s assassination resulted in a pause. The Bill was abrogated and then replaced by Bill 100/1985, which was however less liberal. In fact, the equation polygamy/damage to the wife vanished and to obtain a divorce it is now necessary to prove that one has suffered economic or emotional damage due to polygamy.

The approval of Bill 1/2000 marked an important step forward in the modernisation of Egyptian Family Law. This law in fact not only made more accessible khul‘, i.e. the wife’s right to petition for a divorce directly to the judge when renouncing financial benefits arising from the dissolution of marriage. It also envisages divorce for ‘urfi marriages (traditional non-registered marriages) and imposes restrictions on repudiation. This obviously resulted in strong reaction from those supporters of shari‘a who consider a greater emancipation of women as a threat to family solidity. In spite of this, the modernisation process did not stop. Not only in 2003 did the Bill 1/2000 achieve constitutional legitimacy, but in 2004 the first secular courts specialised in Family Law opened in Egypt.

Valentina M. Donini is a Researcher in Comparative Private Law at the Higher School of Economy and Finance in Rome and a professor of Comparative Private Law at the Teramo University Faculty of Law.

Translation by Francesca Simmons



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