Family Futures

[

] 34

dvancing

ocial

ntegration

and

ntergenerational

olidarity

repudiated wives of compensation or make it quite limited. By

contrast, these interpretations restrict the woman’s right to a

divorce to limited conditions. They require that a wife appeal

to a religious judge and prove that she has been harmed in

the marriage in order to obtain a divorce. Controversies in

recent history have centred on whether the husband’s unilat-

eral repudiation should be allowed to continue even with

compensation to the wife or, on the contrary, whether divorce

can only be decided in court by a judge, and whether men and

women should have equal rights to file for divorce.

Regarding custody, the issue is whether the husband has

a privilege or whether custody is decided primarily on the

basis of the best interest of the child, thus giving husbands

and wives an equal chance. Finally, concerning inheritance, in

most Muslim majority countries of the Middle East and North

Africa, a woman inherits half as much as a man in the same

kinship relation to the deceased. For example, a daughter will

inherit half as much as a son. Only minor modifications to

this rule have occurred. In contrast to the issues of marriage,

divorce and custody, which have given rise to a wide range of

regulations in the family codes of different countries, inher-

itance has proven resistant to change. One reason is that

although the original scriptures of Islam contain a sometimes

ambiguous language open to interpretation on several points

relevant to family matters, rules on inheritance are unam-

biguously stated in the very text of the Qur’an. As a result,

proposals to equalize inheritance between men and women

are often read as a rejection of Islam and a move towards

secularism, a risk that few reformers have been willing to take.

In the Islamic tradition, women have the right to own prop-

erty and to continue to do so after marriage. Their individual

property did not become part of the couple’s common assets,

which gave women of means a measure of security. These

are important rights. However, given the gender inequality

in several other dimensions of the law as outlined above, it is

not surprising that Asma Khadar, a lawyer and human rights

activist, once declared: “Family law is the key to the gate of

freedom and human rights for women.”

Without basic rights

in regard to family matters, women are vulnerable to the

whims of their husbands and sometimes their male relatives.

Diversity

A survey conducted by Freedom House and published in 2010

illustrates the extent to which countries in the region vary

on dimensions relevant to family law and gender. It ranked

Tunisia number one regarding gender equity in family law,

and Morocco number two. It ranked Saudi Arabia, Yemen

and Iran as the lowest. Out of a maximum five points, Tunisia

scores 3.6 in the categories of non-discrimination and access

to justice and 3.4 in autonomy, security and freedom of the

person. The first category, ‘non-discrimination and access to

justice’, assesses women’s equality under the constitution,

protection from gender-based discrimination and citizenship

rights. The second category, ‘autonomy, security and freedom

of the person’, refers to equality within marriage, freedom of

movement and freedom from gender-based violence.

Taken

together, the two categories capture the issues relevant to

family law. In a similar study conducted in 2005, Freedom

House also ranked Tunisia and Morocco highest with respec-

tive scores of 3.6 and 3.2 for Tunisia and 3.2 in both categories

for Morocco.

Given the diversity that pervades Islamic law, especially

after codification in the era of modern nation states, the topic

of family law in Muslim majority countries in the contem-

porary period should be considered in regard to specific

countries rather than in generic terms.

Reforms: Tunisia and Morocco

Tunisia and Morocco rank highest in the Freedom House

study because they made significant reforms of family law

that expand women’s rights in the family, the community

and society. It is important to note that in these countries,

reforms were made under the umbrella of Islam, as a new

interpretation of Islamic law and an adaptation of the law to

the conditions of modern times. In both cases, policymakers

presented the reforms as an expression of modernity within

Islam, as a form of legal innovation, and definitely not as a

rejection of the Islamic tradition.

Tunisia was a pioneer in the Arab Islamic world in making

major reforms in the 1950s.

As soon as the country became

independent from French colonial rule in 1956, the first

independent government of Tunisia promulgated the Code

of Personal Status, which transformed family law. To this

day, the Tunisian Code of Personal Status remains the most

progressive and boldest family law throughout the Arab

Islamic world in terms of expansion of women’s rights.

In a nutshell and looking only at major issues, the Tunisian

Code of Personal Status abolished polygamy altogether,

making it illegal and punishable by a fine and imprisonment.

Tunisia remains the only Arab Islamic country to have abol-

ished polygamy. Even though only a tiny minority in effect

practiced polygamy – about 3 per cent of marriages were

polygamous in the 1950s – its abolition has considerable

symbolic significance for women who used to see it as a sword

of Damocles ready to fall upon them.

Shakeela Hasan of the Islamic Shari’a Council in Leyton, East London

counsels a young woman with marital problems. Shari’a courts have

been operating in the British civil jurisdiction since the early 1980s

Image: Tom Pilston, 2009