Marriage and Divorce Info
Content
Marriage Age:
Africa
Kenya: minimum 16 for statutory marriages under the Marriage Act. Senegal: minimum marriage age is 20 years for males and 16 for females; judicial
discretion for permitting underage marriages for serious reasons. Tanzania: under Marriage Act 1971 minimum age is 18 for males and 15 for females;
courts may permit underage marriage of parties who have reached 14 years of age if specific circumstances make marriage appear desirable; Penal Code provides that persons of "African or Asiatic descent" may marry or permit marriage of girl under 12 years of age in acco accord rdan ance ce wi with th thei theirr cu cust stom om or re reli ligi gion on if marr marria iage ge is not in inte tend nded ed to be consummated before she attains 12 years. Sudan: puberty, with requirement for willing consent of both parties. Somalia: minimum marriage age is 18 years for both parties; female party may marry at
16 with guardian’s consent; Court may grant exemption from minimum age requirements in case of necessity. Ghana: governed by classical or customary law. Ethiopia: Civil Code sets minimum marriage age at 18 for males and 15 for females,
regardless of whether marriage is civil, religious or customary; Family Law may have changed the age to 18 for both males and females. Middle East Egypt: 18 for males and 16 for females (lunar calendar).
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Tunisia: minimum marriage age is 20 for males and 17 for females; scope for judicial
wali’s discretion with wali ’s consent and for compelling reasons and apparent benefit for both parties; if wali if wali withholds consent and parties are adamant, matter must be taken to courts. Iraq: minimum age is 18 for men and women; judicial permission may be granted at 15
years if fitness, physical capacity and guardian’s consent (or unreasonable objections on part of guardian) are established. Morocco: minimum marriage age is 18 years for males and 15 for females; judicial
discretion for males under 18 if there is fear of immorality; compatibility of age in marriage is defined as wife’s right. Palestine: West Bank - 15 female, 16 male under the JLPS; Gaza Strip- LFR 1954
required puberty and made 9 (female) and 12 (male) minimum ages; Palestinian Qadi alQuda issued administrative decision in 1995 raising these to 15 female and 16 male. All ages by lunar years. Syria: mi mini nimu mum m marr marria iage ge ag agee is 18 ye year arss for for male maless an and d 17 fo forr fe fema male les; s; ju judi dici cial al
discretion for males of 15 years and females of 13 years; judge may withhold permission for marriage if court finds incompatibility in age between betrothed parties. Jordan: 16 for males and 15 for females, lunar calendar; court permission required for
females under 18 to marry men older by 20 years or more. Yemen: minimum marriage age is 15 for males and an d females. Kuwait: no substantive minimum marriage age identified; capacity to marry requires
parties to be of age (puberty) and of sound mind, however, no notarisation or registration of marriage permitted where female has not reached 15 years or male 17 years. Algeria: 21 for males and 18 for females, scope for judicial discretion if necessity or
benefit is established for marriage below that age.
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Libya: minimum marriage age is 20 years for men and women; judicial discretion for
marriages below that age on grounds of benefit or necessity and with wail ’s agreement. Asia:
Indonesia: min minimu imum m marria marriage ge age 19 for males and 16 for females; females; provisio provision n for marriage below minimum age, subject to judicial discretion and parental consent. Malaysia: minimum marriage age of 18 for males and 16 for females, with provision for
judicial permission for underage marriage. Singapore: minimum marriage age is 16 for both parties; kathi may permit marriage of
girl under 16 who has attained puberty under certain circumstances. Brunei: minimum marriage age is 20 years for men and women; judicial discretion for
marriages below that age on grounds of benefit or necessity and with wail ’s agreement. Philippines: minimum marriage age 15 years for males and puberty for females (female
is presumed to have attained puberty at 15 years); Shari’ a District Court may authorise
marriage of female between 12 and 15 years if she has attained puberty, upon petition of her wali wali;; khiya khiyarr al-bulugh al-bulugh:: marriage of minors to be defined as betrothal and may be annul ann ulle led d by eith either er pa part rty y wi with thin in 4 ye year arss of atta attain inin ing g puber puberty ty if marr marria iage ge was was no nott wali;; voluntarily consummated and neither father nor paternal grandfather served as wali penalty of imprisonment or fines or both for illegal solemnisation of marriage. 9
Background and Sources:
Amin, Ami n, Middle Middle East East Legal Legal System Systems, s, Glasgo Glasgow, w, 1985; 1985; Fluehr Fluehr-Lob -Lobban ban,, Isl Islami amicc Law and Society in the Sudan, London, 1986; Hale, Gender Politics in Sudan: Islamism, Socialism
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and the State, Oxford, 1996; Mahmood, "Sudan" in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; O'Fahey, The National Front, Its Opponents and the Shariaa Issue, Shari Issue, Islam Islam et societys au sud du Sahara, n. 11 (Nov. 1997): 55-65; Pearl, A Textbook Textbo ok on Muslim Muslim Law, 2nd ed., London, 1987; Redden, "Sudan" in Modern Legal Systems Cyclopedia, vol. 6, Buffalo, NY, 1990; Rubin & Cotran, eds. Annual Survey of African Law, vols. I-VI (1967-1972), London; Safwat, "Islamic Laws in the Sudan," in Isl Islami amicc Law: Law: Social Social and Histor Historica icall Contex Contexts, ts, alal-Azm Azmeh, eh, ed., ed., London, London, 1988 1988;; Safwat Safwat,, "Sudan," Yearbook of Islamic and Middle Eastern Law, vol. 1 (1994): 237-253; Women and the Law in Sudan: First and Second Reports, Women Living Under Muslim Laws, vols. I-III (1997) & vols. I-III (1999).
Marriage Registration Africa: Kenya: sta statut tutory ory (incl (includes udes Christ Christian ian), ), custom customary ary,, Musli Muslim m and Hindu Hindu marria marriages ges
recognized as valid Polygamy: governed by classical law; a criminal offence to marry under civil regime (i.e. under terms of Marriage Act) and contract subsequent marriage under Islamic or customary law. Senegal: obl obliga igator tory; y; if marria marriage ge contra contracte cted d under under one of custom customary ary legal legal regime regimess
recognized in Senegalese law, parties must inform officer of civil status one month prior to marriage; non-registration is punishable by fine but does not determine validity. Tanzania: oblig obligatory atory;; non-regist non-registrati ration on punishable punishable by fine although does not render
marriage void; provision for licensing of religious functionaries as marriage registrars. Gambia: obligatory within one month of marriage (or divorce) although registration does
not determine validity. Somalia: marriage to be registered at neared District Court or authorised office within 15
days (40 days for residents of rural areas); failure to register punishable by fine; essential
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elements of marriage outlined in Article 6 are: proposal and acceptance by contracting parties before two witnesses; marriage contracted under compulsion is invalid. Ghana: Marriage of Mohammedans Ordinance provides for registration of marriage and
divorce among Muslims; marriage must be registered within one week. Ethiopia: Civil Code sets minimum marriage age at 18 for males and 15 for females, regardless of whether marriage is civil, religious or customary; Family Law may have changed the age to 18 for both males and females. Middle East Egypt: obligatory registration a legal requirement though it does not determine validity
of marriage, thus judges shall not hear cases in which parties have not reached minimum marriage age or in which matrimony is denied and parties have no documentation. Tunisia: obligatory under Civil Status Act 1957, only formal document shall prove
exist exi sten ence ce of marr marria iage ge;; unreg unregis iste tere red d marr marria iage ge deeme deemed d vo void id wi with th th thre reee ef effe fect cts: s: establishment of paternity; immediate onset of ‘idda ‘ idda from date of voidance voidance declaratio declaration; n; and creation of prohibited degree on basis of affinity. Iraq: obligatory court registration. Morocco: obligatory. Palestine: West Bank- see under Jordan. Obligatory and penal sanctions in criminal law
but failure to register does not invalidate the marriage; similarly in Gaza. Syria: obligatory; penal sanctions for failure to register . Jordan: penal sanctions for those in violation of the mandatory registration requirements
for marriage and divorce. Yemen: husband and wali responsible for registration of marriage within one week of
contract; penal sanctions for non-compliance.
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Kuwait: no notarisation or registration of marriage contract permitted where girl has not
reached 15 years or boy 17 at time of registration; no claim arising from marriage to be heard if parties are under-age at time of claim or if claim is not established by official documentation of marriage (except for paternity cases where decree of paternity shall be taken as decree of marriage). Algeria: obligatory registration governed by Civil Status Code; unregistered marriage
may be validated by court judgment. Libya: obligatory. Asia: Indonesia: obligatory; Marriage Registrar Office of Department of Religious Affairs is
responsible for registration of Muslim marriages and Civil Marriage Registrar Office of Department of Internal Affairs for all other marriages. Malaysia: required; both parties must apply to Registrar for permission to marry at least
7 days days before before wedding; wedding; marria marriage ge not to be solemn solemnise ised d except except in kariah masjid masjid of woman’s normal residence or special permission to marry elsewhere; Registrar records value of contents and value of items of dower given and promised at solemnisation; masjid ; no provi provisio sion n for appoint appointmen mentt of Regist Registrar rarss in public public office officess and kariah masjid nonnregist reg istrat ration ion punisha punishable ble by fine fine and/or and/or impris imprisonm onment ent althoug although h it does does not determ determine ine validity of marriage. Singapore: obligatory; all Muslim marriages must be registered with a kathi or naib
kathi;; non-registration of marriage or divorce itself does not determine validity. kathi Brunei: obligatory. Philippines: obligatory; penalty of fine for failure to register any change in civil c ivil status.10 Background and Sources:
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Hooker, Hook er, Islami Islamicc Law in SouthSouth-Eas Eastt Asia, Asia, Singapo Singapore, re, 1984; 1984; Ibrahi Ibrahim, m, Family Family Law in Malaysia and Singapore, Singapore, 1984; Kamali, "Islamic Law in Malaysia: Issues and Developments," Yearbook of Islamic and Middle Eastern Law, vol. 4 (1998): 158-179; Mahmood, Malaysia in Statutes of Personal Law in Islamic Countries, 2nd ed. New Delhi, 1995; Redden, Malaysia in Modern Legal Systems Cyclopedia, vol. 9, New York, 1990; Selango Sel angor, r, Admini Administr strati ation on of Islami Islamicc Law Enactm Enactment ent 1989 1989 and Isl Islami amicc Family Family Law Enactment 1984 (as at 15 th Septe September mber 1991), comp. by Legal Research Research Board, Kuala Lumpur, 1992; Siraj, Women and the Law: Significant Developments in Malaysia," Law and Society Review, vol. 28, no. 3 (1994): 561-581.
Marriage Guardians Guardianship hip Senegal: each party must give free consent, even minors, and parties under 21 require
parental consent; lacks of free consent or parental consent are grounds for nullification of marriage. Tanzania: Marriage Act 1971 provides that valid marriage requires free consent of
marrying parties; guardian's consent not required for parties who have attained 18 years. Sudan: Guardian is to marry the adult woman with her consent, although the qadi is
empowered to act in this capacity if her guardian refuses his consent without justification. Guardian retains Guardian retains entitlement entitlement to seek dissolution dissolution on grounds grounds of lack of kifa'a of kifa'a of husband (defined as kifa'a in religion and morals. Somalia: girl who has reached 16 years, but is under 18 years may be represented in
contract of marriage by father (in absence of father, guardians in order are: mother, grandf gra ndfath ather, er, elder elder brothe brother, r, uncle, uncle, CourtCourt-appo appoint inted ed guardia guardian n or judge) judge);; Court Court also also empowered to overrule objection of guardian to marriage of female ward between 16 and 18 years.
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Ghana: Marriage of Mohammedans Ordinance specifies that marriage is solemnised in
wali,, and two witnes prese presence nce of bridegr bridegroom oom,, bride bride’s wali witnesses ses;; Crimin Criminal al Code Code identi identifie fiess causing someone to marry under duress as misdemeanour. Ethiopia: both Article 34 of Constitution and Civil Code state that consent to marriage
obtained by violence renders marriage invalid, but Civil Code provides that consent granted due to "reverential fear" of an ascendant or other person is not equivalent to consent obtained by violence. Middle East Egypt: governed by Civil Code; wali cannot prevent ward from marrying for reasons of
status, amount of dower, etc.; judge may authorise marriage if wali if wali refuses. Tunisia: marriage of males or females below legal age of discernment requires wali wali’s ’s
wali’s consent (or judicial decision overruling wali ’s refusal). Iraq: no relative or third party has power of compulsion; marriage contract concluded by
coercion is void if not consummated; likewise, no relative or third party may prevent person having legal capacity from marrying; ILPS provides penalties of fines and/or imprisonment for non-compliance. Morocco: no coerciv coercivee guardi guardians anship hip;; ward ward may take matter matter to court court if her guardian guardian
refuses refus es consent to her marriage; marriage; ward who has reached age of legal majority majority and has no father may contract her own marriage. Palestine: West Bank- see under Jordan. and in practice consent of guardian registered in
nearly every marriage; Gaza Strip- In Gaza the LFR assumes guardian gives consent and that where there is no guardian, the qadi exercises guardianship in marriage. Syria: under age of full capacity, both parties need permission of wali of wali;; wail ’s objection
to marriage of girl less than 17 years may be b e overruled by judge.
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Jordan: guardian's consent is required for marriage of a female under 18 years, but not
for a divorcee or widow over 18 years. Yemen: invalidity of marriage by coercion; judge can overrule guardian if his objection
to marriage of ward is considered unjust, with proviso that the wife receive her proper dower from husband of equal status. Kuwait: marriage concluded by wail ’s offer and groom’s acceptance; woman who has
been married previously or has attained 25 years has "freedom of choice" in marriage, wali); however howe ver,, cannot cannot conclu conclude de contra contract ct hersel herselff (must (must sti still ll be conclu concluded ded by her wali ); invalidity of marriage under coercion or intoxication. Algeria: guardian not permitted to marry his ward by compulsion or without her consent,
and may not withhold consent if marriage is in ward’s interests as judge is empowered to authorise such a marriage in case of guardian’s opposition. Libya: guardian may not force ward of either sex into marriage or prevent ward from
marry mar rying ing;; if guardi guardian an withhol withholds ds consen consent, t, ward ward may take take matter matter to court court to obtain obtain permission. Asia Indonesia: free consent of marrying parties required for validity, unless religious law
governing governi ng the parties directs otherwise; otherwise; Marriage Law 1974 defines as legal a marriage marriage "solemnised according to the laws of the respective religions and beliefs of each of the parties"; parties under 21 years need parental permission. Malaysia: valid marriage requires both parties consent as well as consent of wali or
syariah judge if no wali is available; compulsion compulsion of wards or unreasonable unreasonable objection objection to their valid marriage punishable by fine and/or imprisonment. Singapore: wali of bride may solemnise marriage according to Muslim law or may
request kathi to do so; kathi may serve as wali where woman has none or where kathi rules that wail ’s opposition to marriage is unreasonable; whether or not wail ’s agreement
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is required for validity of marriage is governed according to classical school of law applicable to parties; in all cases, kathi is directed to make inquiry to determine that there are no lawful obstacles to marriage under und er either Muslim law or Administration of Muslim Law Act. Brunei: guardian may not force ward of either sex into marriage or prevent ward from
marry mar rying ing;; if guardi guardian an withhol withholds ds consen consent, t, ward ward may take take matter matter to court court to obtain obtain permission. Philippines: free consent of marrying parties and presence and consent of wali are
requisites for marriage contract. 11
Background and Sources:
Redden, "Jordan" "Jordan" in The Modern Legal Systems Systems Cyclopedia, Cyclopedia, volume 5, Buffalo Buffalo NY 1990; Amin, "Jordan" in Middle East Legal Lega l Systems, Glasgow 1985; Mahmood, "Jordan" in Statu Statutes tes of Person Personal al Law in Islam Islamic ic Countr Countries ies,, New Delhi Delhi 1995; 1995; Hinchcl Hinchcliff iffee and Alami, "Jordan" pages 79-114 in Islamic Marriage and Divorce Laws of the Arab World, London 1996; Welchman, "The Development of Islamic Family Law in the Legal System of Jordan," ICLQ 37 1988 868- 886; Gallagher, "Women's Human Rights on Trial in Jordan: The Triumph of Toujan al-Faisal," pages 209-231 and appended translation of article by Toujan al-Faisal, "They Insult Us... and We Elect Them!" pages 232-237, in Afkhami, Faith and Freedom, London 1995.
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Judicial Divorce In many many co coun untr trie iess in the the Is Isla lami micc wo worl rld, d, men men ha have ve po poss sses esse sed d a unil unilat ater eral al and and unconditional right to divorce. In these same countries, women are often not only not afforded affor ded that right but, if they are allowed allowed the right of divorce at all, must must resort to the courts cour ts to divorc divorcee their their spouse spouses, s, where where they they confro confront nt innume innumerab rable le social social,, legal, legal, and bureauc bureaucrat ratic ic obstac obstacles les.. In many many Islam Islamic ic countr countries ies,, women women are often often at a massiv massivee disadvantage compared to men in such matters as financial support, child custody, child visitation and child guardianship, and subsequent remarriage . Africa
Kenya: governed by classical law Post-Divorce Maintenance/Financial. Senegal: either party may seek judicial dissolution on following grounds (preceded by
reconciliation efforts by judge): other party’s declared absence; adultery; sentencing for crime crime bringi bringing ng dishono dishonour ur to fam family ily;; failur failuree to fulfil fulfil legal legal conditi condition on sti stipul pulate ated d upon marriage; abandonment of family or conjugal home; maltreatment rendering continuation of marital life impossible; medically established sterility; grave and incurable illness disc discov over ered ed sinc sincee marr marria iage ge;; inco incomp mpat atib ibil ilit ity y maki making ng co cont ntin inuat uatio ion n of co conj njug ugal al li life fe intolerable; and for wife, failure to maintain on part of husband.
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Tanzania: except in extreme cases, no petition of divorce to be heard before marriage
has su subs bsis iste ted d for for tw two o ye year ars; s; eith either er sp spou ouse se may may ap appl ply y fo forr di divo vorc rcee on gr groun ounds ds of brea breakdo kdown wn,, bu butt no de decr cree ee of divor divorce ce ca can n be gr grant anted ed un unle less ss co cour urtt is convi convince nced d of irreparabl irrep arablee breakdown; breakdown; party seeking divorce must first apply to Marriage Marriage Conciliator Conciliatory y Board which must certify failure to reconcile parties before divorce suit can be initiated; evidence of breakdown of marriage for court's purposes must indicate following grounds: mental or physical physical cruelty; cruelty; wilful neglect; desertion; desertion; voluntary voluntary separation; separation; or change of religion dissolving marriage under religious law the parties were subject to at time of marriage; marri age; requirement requirement of recourse to Marriage Marriage Conciliatory Conciliatory Board can be waived under certain circumstances (desertion, mental illness, imprisonment, etc.). Sudan: wif wifee may seek seek judici judicial al divorc divorcee on follow following ing ground grounds: s: husband husband's 's incura incurable ble
physical or mental illness making it dangerous for the wife to continue to live with him; husband husb and's 's impote impotence nce not curabl curablee within within one year year (estab (establis lished hed by med medica icall report report); ); husband husb and's 's cruelt cruelty y or dis discor cord d betwee between n spouse spouses; s; husban husband's d's inabil inability ity to pay pay;; husband husband's 's absence for one year or more or his being sentenced to two years or more in prison; also, divorce by ransom, i.e., if wife is declared nashiza (disobedient) by court order, wife may waive her rights and if the man does not agree to the divorce, arbitrators must be appointed; if she proves that she suffers from remaining with him a talaq will be ordered by the court. Somalia: either party may seek judicial dissolution on following grounds: incurable
disease of other spouse making cohabitation disease cohabitation dangerous or impossible impossible;; disappearanc disappearancee of other party for period of over four years; habitual failure to maintain by other party; seri seriou ouss disa disagr gree eeme ment nt be betw tween een sp spou ouse sess maki making ng co conj njug ugal al li life fe im impos possi sibl blee (a (aft fter er reconciliation efforts of 60 days); perpetual impotence or sterility of other party; and other spouses sen senten tencin cing g to over four years years impris imprisonm onment ent.. Wi Wife fe is entitl entitled ed to seek seek dissolution if husband has been granted permission to marry polygamously by District Court, on condition that there are no children Ghana: possible to terminate customary law marriage by application to court under
Matrimonial Matri monial Causes Act, in which case grounds for divorce divorce include include those recognised recognised in
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personal law of the parties in addition to those enumerated in the Act; under Act, divorce may only be granted if court concludes irreparable breakdown; courts hearing suits for divorce among Muslims directed to apply Matrimonial Causes Act directing guidance by justice, equity and good conscience in determination of post-divorce reliefs and custody. Ethiopia: judicial divorce may be sought by either spouse for "serious causes" or "other
causes"; serious causes are: adultery; desertion of marital home without knowledge of that parties whereabouts for two years; a spouse’s confinement to lunatic asylum for minimum of two years; and judicial declaration of absence of a spouse; couples seeking divorce for either serious or other cause must first appoint family arbitrators who will attempt attempt to effect effect reconci reconcilia liati tion on and if effort effortss fail, fail, arbitr arbitrato ators rs can grant grant a divorc divorce, e, preferably prefe rably on mutually mutually agreed terms; if seri serious ous cause for divorce can be establish established ed for which one spouse bears burden of fault, family arbitrators may divide common property unevenly; if no serious cause is established, property is divided unevenly to disadvantage of spouse who petitioned for divorce; arbitrators decisions can be appealed to courts; Family Law may have placed jurisdiction for divorce with the courts from the beginning of the proceedings. Middle East Egypt: wif wifee may obtain obtain judici judicial al divorc divorcee on follow following ing grounds grounds:: seriou seriouss or incura incurable ble
defect of the husband (unless woman married in full knowledge of such defect or defect occurre occu rred d after after the contra contract ct and she implic implicitl itly/e y/expl xplici icitly tly accept accepted ed it) it),, harm harm making making cohabitation as husband and wife impossible, if harm is proved and reconciliation efforts fail, material or moral harm if husband marries polygamously and such harm makes cohabitation as husband and wife impossible (up to one year from date of her knowledge of the polygamous union), husband ’s absence for a year or more without reasonable justification; husband’s imprisonment for three years or more, after one year of sentence has passed, non-payment non-payment of maintenance; maintenance; and discord discord if reconciliation reconciliation efforts fail, with financial settlement proportionate to allocation of blame as determined by arbitrators; wife may also obtain a divorce on the grounds of incompatibility, but will not lose all
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financial claims against her husband; a divorce requested by wife on the grounds of incompatibility must be granted within six months. Tunisia: available (after reconciliation efforts) at request of either party; in issuing
decree of divorce, Court shall also assess maintenance, custody, housing and visiting rights. Iraq: wife entitled to request dissolution if husband does not fulfil any lawful condition
stipulated stipu lated in marriage marriage contract; contract; either party may request request dissoluti dissolution on upon following following grounds: such harm as makes continuation of marriage impossible; marital infidelity; if marriage was contracted without judicial permission before either party attained 18 years; if marria marriage ge was concluded concluded outsid outsidee court court by coercio coercion n and was not consum consummat mated; ed; if husband marries polygamously without judicial permission; and if any of above grounds are not proven proven,, on ground groundss of discor discord d (in which which case case courts courts initia initiate te reconc reconcili iliati ation on procedures; proced ures; if reconcilia reconciliation tion efforts efforts fail and husband refuses refuses to pronounce pronounce talaq talaq,, courts may grant judicial divorce; if wife is found to be at fault, her financial rights are forfeit).? Wife may request judicial divorce upon following grounds: if husband is imprisoned for three or more years; if husband abandons wife for two or more years without lawful reas reason on;; if husba husband nd does does no nott consu consumm mmat atee marr marria iage ge wi with thin in tw two o ye year arss of co cont ntra ract ct;; husband’s impotence or affliction (if after consummation, must be confirmed by medical report); report ); husband’s infertility infertility if wife has no living living son by him; husband’s serious serious illness illness which would cause wife harm; non-maintenance after grace period of up to 60 days; nonmaintenance due to husband’s absence, disappearance, concealing his whereabouts, or imprisonment for more than one year; and if husband refuses to pay maintenance arrears after 60-day grace period; wife may also request judicial separation before consummation in return for any dower and proven expenditure on husband’s part for purpose of the marriage. Morocco: wi wife fe may may se seek ek ju judi dici cial al divor divorce ce on fo foll llow owin ing g gr grou ound nds: s: hu husb sban and’ d’ss no nonn-
mainte mai ntenanc nance; e; husban husband’s d’s grave grave and incura incurable ble or long-t long-term erm defect defect;; harm harm caused caused by husband making cohabitation impossible (after reconciliation efforts); husband’s absence for over one year without valid reason; husband’s oath of abstinence if he does not
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comply with judicial decision allowing four month grace period; all judicial divorces irrevocable except divorce granted because of husband’s oath of abstinence or inability to maintain. Palestine: West Bank- see under Jordan. Gaza Strip- the same, except that women may
petition for divorce on the grounds of injury and does not allow the husband to petition on grounds of 'discord and strife'. Syria: wif wifee may seek judici judicial al divorc divorcee on follow following ing ground grounds: s: defect defect in the husband husband
preventing preven ting consummation consummation (though such right is forfeit if wife accepted defect except in ca case sess of husb husban and d’s im impo pote tence nce); ); hu husb sban and d’s insa insani nity ty;; hu husb sban and d’s ab abse senc ncee with withou outt justification for one year; husband’s sentencing to three years imprisonment after serving one year of sentence; and husband’s non-maintenance, if non-maintenance is due to husband’s inability, judge shall grant grace period of up to three months; either spouse may ma y seek seek judi judici cial al divo divorc rcee on grou ground ndss of disc discor ord d ca caus usin ing g such such ha harm rm as make makess cohabitation impossible (after reconciliation efforts). Jordan: gro ground undss on which which women women may seek seek divorc divorcee includ include: e: failur failuree to mainta maintain, in,
physical desertion or husband's absence for one year or more, husband's prison sentence of three years or more; both spouses may petition on grounds of 'discord and strife', breach breac h of a binding binding stipulati stipulation on of the marriage marriage contract, and various various grounds associated with spouse's mental and physical health. Yemen: dissolution available to either spouse on grounds of defect (right is forfeit if
defect def ect was accept accepted ed explic explicitl itly y or implic implicitl itly, y, except except for insani insanity ty,, lepros leprosy y and other other communicable commun icable diseases difficult difficult to cure); cure); and inequality inequality of social social status; status; annulment effected if husband becomes Muslim and wife is not kitabiyya or if wife becomes Muslim and husband refuses conversion to Islam or on grounds of either party ’s apostasy; wife may request decree of dissolution (lesser irrevocable) on following grounds: husband ’s non-maintenance; husband’s absence or disappearance for one year if husband left no provision for maintenance or two years if he provided for wife ’s maintenance; husband’s imprisonment for three years or more after one year of sentence; husband ’s breach of
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maintenance maint enance or accommodati accommodation on obligation obligationss towards towards co-wives; co-wives; incompatibi incompatibility lity (after (after talaq,, in exchange for wife’s reconciliation efforts, and if husband refuses to pronounce talaq return of her dower); husband ’s proved addiction to alcohol or narcotics. Kuwait: wom woman an may seek seek judici judicial al divorc divorcee on follow following ing ground grounds: s: husband husband’s no nonn-
maintenance; ila ila;; husband’s absence of one year or more without good reason, giving rise to injury to wife; and husband ’s imprisonment for three or more years; either spouse may apply for judicial divorce on grounds of injury/prejudice caused by such word or action as makes continued matrimony impossible, established by testimony of two male or one male and two female witnesses (after reconciliation efforts, with possibility of award of appropriate compensation to aggrieved party); annulment available on following grounds: defect of either spouse such as makes cohabitation harmful or hinders conjugal relations (e.g., disease, impotence); and difference of religion arising after marriage that renders ’
marriage invalid according to rules of shari of shari a and either either party may demand dissolution dissolution on grounds of non-compliance with any valid stipulation recorded in marriage contract. Algeria: wi wife fe may may pe peti titi tion on for for divor divorce ce on fo foll llow owin ing g gr grou ounds nds:: no nonn-pa paym ymen entt of
maintenance; infirmity preventing conjugal relations; husband ’s abstinence from sexual relations for over four months; husband ’s imprisonment for over a year for offense that brings disgrace to his family; husband’s absence without provision of maintenance or valid reason for over a year; any legally recognised harm (e.g., relating to maintenance, treatment of CO-wives, etc.); and any grave moral impropriety. Libya: judicial divorce available on following grounds: husband ’s failure or inability to
maintai mai ntain n withou withoutt cause; cause; absenc absencee without without justif justifica icatio tion; n; grounds grounds of defect defect preven preventin ting g ila’ or hajr , after appropriate grace fulfilment of aims of marriage or other grave defect; ila’ or hajr period; most of above grounds available to husband as well; if parties do not agree to talaq by mutual agreement, court will appoint arbitrators; if reconciliation efforts fail and harm is established, judge issues decree of divorce with financial effects proportionate to relative fault; annulment effected due to difference of religion in cases of conversion after marriage where this affects validity of marriage according to shari’a.
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Asia Indonesia: either spouse may seek judicial divorce (preceded by reconciliation efforts by
judge) on following grounds: other spouse’s adultery, alcoholism, addiction to narcotics, gambling or "any other vice that is difficult to cure"; abandonment for two years without valid reason; cruelty or mistreatment endangering life; physical disfigurement or malady preventing performance of marital duties; sentencing to prison p rison term of five years or more; and constant disputes without hope of resolution. Malaysia:
wife wife may may ap appl ply y for for diss dissol olut utio ion n on fo foll llow owin ing g gr grou ound nds: s: hu husb sban and d’s
disappearance for over one year; failure to maintain for three months; sentencing to three years or more in prison; failure to perform marital obligations for one year; continued impotence, if wife was unaware of it upon marriage; mental illness lasting two years or lepros lep rosy, y, vital vital go or commun communica icable ble venere venereal al diseas disease; e; wife wife’s repudi repudiati ation on of marria marriage ge concluded by father or grandfather before she attained 16, if she is below 18 years and marriage was unconsummated; cruel treatment; husband’s refus refusal al to consumm consummate ate for four months; invalidity of her consent (obtained under duress, mistaken, etc.); and any other grounds for dissolution or nullification recognised in hukm shar’. Singapore: wife may be granted judicial dissolution with husband ’s consent and Court
Cour urtt wi will ll as asse sess ss amou amount nt of wi will ll gran grantt appli applica cati tion; on; if husba husband nd agree agreess to a khul Co ’ ’
compensation to be paid by wife according to means and status of both parties; wife may also als o apply apply for faskh for faskh on following following grounds: husband’s failur failuree to mainta maintain in for three months; imprisonment for three years or more; failure to perform marital obligations for one year; year; contin continued ued impote impotence nce since since marri marriage; age; insani insanity ty or seriou seriouss ill illnes nesss making making cohabitation injurious to wife; and cruel treatment (defined as habitual physical abuse or cruelty of conduct, associating with women of ill-repute, obstruction of wife ’s religious observance, unequal treatment of co-wives, cohabiting with another woman, or trying to force wife to lead immoral life); before making decree of divorce or nullity, Court may appoint arbitrators to attempt reconciliation.
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Brunei: judicial divorce available on following grounds: husband ’s failure or inability to
maintai mai ntain n withou withoutt cause; cause; absenc absencee without without justif justifica icatio tion; n; grounds grounds of defect defect preven preventin ting g ila’ or hajr , after appropriate grace fulfilment of aims of marriage or other grave defect; ila’ or hajr period; most of above grounds available to husband as well; if parties do not agree to talaq by mutual agreement, court will appoint arbitrators; if reconciliation efforts fail and harm is established, judge issues decree of divorce with financial effects proportionate to relative fault; annulment effected due to difference of religion in cases of conversion after marriage where this affects validity of marriage according to shari’a. Philippines: wife may seek judicial divorce on following grounds: in cases of husband ’s
oath oat h of absti abstinenc nencee (ila ila), ), zihar (liken (likening ing wife wife to his relati relations ons within within the prohib prohibite ited d degrees), li’an (imprecation of adultery); wife may seek decree of faskh of faskh on following grounds: husband’s failure to maintain for six months; husband’s sentencing to one years imprisonment; husband’s impotence or abstention from conjugal relations for six months; husband’s insanity or affliction with incurable disease injurious to family; husband ’s cruelty (defined in Code); and any other cause valid under Muslim law; until the passage of the Family Code, Muslims were the only Filipinos with the possibility of legally ending a marriage.13 Background and Sources:
Hooker, Hook er, Islami Islamicc Law in SouthSouth-Eas Eastt Asia, Asia, Singapo Singapore, re, 1984; 1984; Ibrahi Ibrahim, m, Family Family Law in Malaysia and Singapore, Singapore, 1984; Kamali, "Islamic Law in Malaysia: Issues and Developments," Yearbook of Islamic and Middle Eastern Law, vol. 4 (1998): 158-179; Mahmood, Malaysia in Statutes of Personal Law in Islamic Countries, 2nd ed. New Delhi, 1995; Redden, Malaysia in Modern Legal Systems Cyclopedia, vol. 9, New York, 1990; Selango Sel angor, r, Admini Administr strati ation on of Islami Islamicc Law Enactm Enactment ent 1989 1989 and Isl Islami amicc Family Family Law Enactment 1984 (as at 15 th Septe September mber 1991), comp. by Legal Research Research Board, Kuala Lumpur, 1992; Siraj, Women and the Law: Significant Developments in Malaysia," Law and Society Review, vol. 28, no. 3 (1994): 561-581.
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Talaq Africa Kenya: governed by classical law. Senegal: extra-judicial divorce not permitted. Tanzania: does not automatical automatically ly dissolve dissolve marriage, but consti constitutes tutes compelling compelling ground
for Court to issue decree of divorce if talaq if talaq was pronounced after failure of reconciliation efforts by Marriage Conciliatory Board. Sudan: Regionally standard reforms affecting validity of talaq of talaq accompanied by a number
in word or sign, talaq in the form of an oath, talaq phrased and intended to induce someone to do something. The wife must be informed of the husband's revocation of a revocable talaq during her `idda `idda period in order for the revocation to be valid. Somalia: Family Code provides that right of talaq belongs to husband "subject to the
author aut horis isat atio ion n by the the co comp mpet etent ent court court"; "; co cour urtt may may au auth thor oris isee di divo vorc rcee only only af afte ter r reconciliation efforts (of 60 days) have failed, and court may not authorise more than one talaq at a time; divorce by a minor, insane person, or pronounced under compulsion is invalid. Ghana: governed by classical or customary law. Ethiopia: abolished; under Civil Code, all divorce law is uniform regardless of whether
marriage was civil, religious or customary. Middle East Egypt: talaq expressed indirectly, while intoxicated or under coercion, or conditionally
with coercive intent is ineffective; repudiation to which a number is added verbally or by gestur ges turee effect effective ive only only as single single revoca revocable ble talaq (ex (except cept third third of thr three) ee);; writte written n and notarised certification of talaq of talaq must be obtained within 30 days of repudiation and notary
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must forward copy of certificate certificate to wife; certain certain financial financial effects of talaq suspended on her knowledge thereof if husband is found to have concealed it. Tunisia: ext extrara-jud judici icial al div divorc orcee prohib prohibite ited; d; irrevoc irrevocabl ablee divorc divorcee become becomess perman permanent ent
impediment to remarriage between divorced spouses. Iraq: talaq must be confirmed by Shari?a Court?s judgement or registered with Court
during ?idda ?idda period; talaq by man who is intoxi intoxicat cated, ed, insane insane,, fee feeble ble-mi -minded nded,, under under madhush), coercion, coerci on, enraged (madhush ), or seriously ill or in death sickness ineffective, as is talaq that is not immediate or is conditional or in form of an oath; all talaqs deemed single revocable (except third of three); wife may obtain khul? From husband in return for consideration that may be more or less than her dower. Morocco: talaq must be registered at court, normally in presence of wife; if talaq is
found to have been exercised while wife is menstruating, judge shall oblige husband to revoke it; talaq uttered while intoxicated, under coercion, enraged, upon condition, by oath or with intention to coerce not effective; talaq to which a number is attached effective as single revocable only (except third of three). Palestine: West Bank- see under Jordan. Gaza Strip-standard reforms to Hanafi rules as
implemented in Egypt in 1920's, reducing effect of many forms of triple talaq to a single revocable and denying effect to others (eg those spoken as an oath). Extra-judicial talaq valid but registration is mandatory. Syria: talaq uttered while intoxicated, disoriented/enraged, under coercion, during death
sickness or grave illness, or in order to coerce deemed ineffective; talaq to which number is attached shall be considered single irrevocable (except third of three). Jordan: talaq utter uttered ed while asleep, asleep, drunk, in a faint, overwhelmed overwhelmed (madhush ( madhush), ), or under
coercion have no effect; oaths on talaq and conditional talaq intended to coerce someone into committing or refraining from a particular act are invalid; talaq accompanied by a number in word or gesture, or repeated in a single session, gives rise to a single revocable repudiation.
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Yemen: talaq ineffective if uttered while intoxicated or with intent to coerce; talaq to
which number is attached only effective as single revocable (except third of three). Kuwait: talaq uttere uttered d by man who is insane, insane, feeble feeble,, under under coercio coercion, n, intoxi intoxicat cated, ed,
mistak mis taken, en, disori disorient ented, ed, or enrage enraged d shall shall not be effect effective ive;; statem statement ent of talaq must be immediately effective; talaq to which a number is attached effective as single revocable only (except third of three); rules on khul khul include include explicit prohibition of coercion in khul and invalidate any condition by father stipulating his custody over children from the marriage. Algeria: only established by judgement of the court; judgement must be preceded by
reconciliation efforts by the judge; wife may obtain a khul khul in in return for compensation (not to exceed proper dower) if husband consents. Libya: Article 28 states "[i]n all cases divorce shall not be established except by a decree
by the relevant court" whether by talaq talaq,, mutual consent or judicial divorce; talaq uttered by a minor, insane, demented or coerced husband or without deliberate intent is invalid, as is suspended or conditional talaq talaq;; talaq to which a number is attached considered single revocable (except third of three); wife may also obtain khul’ from husband for appropriate compensation, which may include deferred dower or custody over children; if husband retracts retracts offer of of khul’ khul’ "due to obstinacy" court is empowered to rule a khul’ khul’ in in return for appropriate compensation. Asia Indonesia: Marriage Law provides that divorce shall be carried out only before Court of
Law, after Court has endeavoured to reconcile the parties; husband married under Islamic law may submit letter notifying religious court of his intention to divorce and giving his reasons; if husband’s reasons accord with any of six grounds for judicial divorce outlined in Marriage Law and determines that reconciliation is not possible, court will grant session in order to witness divorce.
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Malaysia: extra-judicial repudiation punishable by fine and/or imprisonment, and courts
adjudi adj udicat catee on validi validity ty of talaq on basis basis of classi classical cal Isl Islami amicc law althoug although h origin original al legislation is silent on the matter; husband wishing to pronounce talaq required to apply for judicial permission, permission, outlining outlining his reasons reasons as well as amounts of payments payments of nafkah edah (‘idda period maintenance), mutaah (consolatory gift) and maskahwin (dower (dower)) he intends to make and provisions for division of harta of harta sepencarian (matrimonial property); if court hearing determines consent of other party and irretrievability of breakdown, court advises husband’s pronouncement of single talaq and registers divorce; if other party disagrees or court is not convinced of irretrievable breakdown, court begins conciliation efforts of no longer than six months; if conciliation committee fails to effect conciliation, issu is sues es cert certif ific icate ate of its its fa fail ilur uree and an any y an and d re reco comm mmen endat datio ions ns re rega gard rdin ing g cu cust stod ody, y, maintenance, division of property, etc.
Singapore: registration of divorce and revocation of divorce is compulsory, and noncompliance is punishable by fine; kathi may not register divorce without an inquiry
establishing both parties consent; kathi may not register register any divorce divorce by triple talaq and case must be referred to Shari Court. Brunei: Article 28 states "[i]n all cases divorce shall not be established except by a
decree by the relevant court" whether by talaq talaq,, mutual consent or judicial divorce; talaq uttered by a minor, insane, demented or coerced husband or without deliberate intent is invali inv alid, d, as is suspend suspended ed or condit condition ional al talaq talaq;; talaq to which a number is attached considered single revocable (except third of three); wife may also obtain khul’ from husband for appropriate compensation, which may include deferred dower or custody khul’ "due over children; if husband retracts offer of of khul’ "due to obstinacy" court is empowered to rule a khul’ khul’ in in return for appropriate compensation. Phillipines: divorce may be effected by: talaq talaq,, ila ila,, zihar , li’an li’an,, khul’ , tafwid tafwid or or faskh, faskh, as
enumerated in Family Code; divorce by talaq must be effected by husband in single repudiation during wife’s tuhr ; talaq to which any number is attached counts only as single revocable until expiry of ‘idda.14
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Polygamy Muslim countries are addressing the issue of polygyny in different ways. One group of countries, including Tunisia, Turkey, and in part Lebanon, simply bans the practice outright. A second group restricts the practice, applying conditions conditions that, in some cases, are quite rigorous to deter a frivolous exercise of multiple marriages. Africa Senegal: pe perm rmit itte ted; d; groo groom m mu must st re regi gist ster er his his op opti tion on fo forr monog monogam amou ous, s, li limi mite ted d
polygamous or polygamous (up to four wives) regime upon registration of first marriage, and option is for life; wives entitled to equal eq ual treatment in polygamous unions. Tanzania: permitted with consent of first wife; upon registration, parties are to declare
whether marriage is polygamous, potentially polygamous, or monogamous, and marriage may be 'con onv verted' to po pollyga gam mou ouss or mon ono ogamous by joi oin nt declarat atiion Obedience/Maintenance: maintenance of wife or wives is husband's duty; becomes wife's duty in cases where husband is incapacitated and unable to earn a living; Courts may order maintenance under limited circumstances where husband refuses or neglects to maintain wife. Sudan: classical rules apply.
Somalia: man may not contract second marriage marriage without without written written permission permission of District District Court; Court’s aut author horisa isati tion on requir requires es ascert ascertain ainmen mentt of one of follow following ing conditi conditions ons::
sterility of wife of which husband was not aware at time of marriage, attested by panel of doctors; incurable chronic or contagious illness of wife, certified by a doctor; wife ’s sentencing to more than two years in prison; wife ’s unjustified absence from matrimonial home for more than one year; or existence of social necessity (not defined). Ghana: governed by classical or customary law; all customary marriages potentially
polygamous under Ghanaian law. Ethiopia: abolished, backed by sanctions provided in Penal Code.
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Middle East Egypt: notification of existing and intended wives required; existing wife can petition for
divorce if she sustains such harm as makes cohabitation as husband and wife impossible (up to one year from date of her knowledge of the polygamous marriage). Tunisia: prohibited; penal sanctions for polygamous husband and wife who knowingly
enter into polygamous marriage are one year’s prison sentence and/or fine. Iraq: only permitted by judicial permission, to be granted on two conditions: financial
ability and lawful benefit; permission not to be granted if judge fears unequal treatment of co-wives; ILPS provides penalties of imprisonment and/or fines for non-compliance. Morocco: polygamy not to be permitted in case of fear of unequal treatment; requirement
of notification of prospective and existing wives; woman who did not insert stipulation limiting husband’s right to marry polygamously in marriage contract and whose husband does so may seek judicial divorce on grounds of harm. Palestine: governed by classical law. Both laws specifically permit a woman to stipulate
in contract that husband will not take another wife while married to her and to petition for divorce on the basis of this stipulation if he proceeds to break the terms of the stipulation. (Muslim Palestinians in East Jerusalem cannot marry polygamously under the terms of Israeli law). Syria: judge may refuse permission for polygamous marriage unless husband establishes
lawful cause and financial capacity. Jordan: no constraints aside from classical injunctions that a man must treat all co-wives
equitably and provide them with separate dwellings; man must declare his social status in marriage contract. Yemen: permitted subject to equitable treatment of co-wives, financial means, lawful
benefit, and notification of prospective co-wives.
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Kuwait: governed by classical law; may be subject to stipulations in marriage contract. Algeria: rea reason son for contra contracti cting ng polyga polygamou mouss marri marriage age must must be justif justified ied and prior prior
notification of existing wife/wives required; any co-wife may petition for divorce on grounds of harm if her consent was not obtained. Libya: per permit mitted ted with with prior prior judici judicial al permis permissio sion n based based on grounds grounds of fi financ nancial ial and
phys physic ical al capac capacit ity; y; wr writ itte ten n agree agreeme ment nt of wi wife fe may may au auth thor oris isee hu husb sban and d to marr marry y polygamously or authorisation may be given by court for certain reasons. Asia Indonesia: basis of marriage is considered monogamy, but Marriage Law does not
prohi prohibit bit polyga polygamy my for those those religi religions ons that that allow allow it (Islam (Islam,, Hin Hindui duism, sm, Buddhis Buddhism); m); permitted with consent of existing wife or wives and judicial permission, by fulfilling conditions specified by law, i.e., proof of financial capacity, safeguards that husband will treat wives and children equally; and court inquiry into validity of reasons for wishing to contract polygamous marriage (e.g., existing wife ’s physical disfigurement, infertility, incurable disease). Malaysia: allowed allowed with with judici judicial al permis permissio sion; n; con contin tingent gent upon applica applicati tion on and court court
hearing with existing wife or wives; court requires proof of necessity (e.g., sterility physical infirmity, willful avoidance of restitution order, etc.), proof of financial capacity; guarantee of equitable treatment of co-wives; proof that proposed marriage will not lower standard of life of existing wife or wives and dependants; contravention of application and permission requirements punishable by requiring immediate payment of outstanding dower to existing wife or wives and by fine and/or imprisonment. Singapore: permitted, but marriage by a man who is already married must be solemnised
by kathi or with Kathy with Kathy’s written permission.
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Brunei: per permit mitted ted with with prior prior judici judicial al per permi missi ssion on based based on grounds grounds of financ financial ial and
phys physic ical al capac capacit ity; y; wr writ itte ten n agree agreeme ment nt of wi wife fe may may au auth thor oris isee hu husb sban and d to marr marry y polygamously or authorisation may be given by court for certain reasons. Phillipines: no Muslim man may take more than one wife "unless he can deal with them
with equal companionship and just treatment as enjoined by Islamic law and only in exceptional cases"; determination of exceptional cases not specified.
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