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Developments in the Law of Marriage and Divorce in Libya Since the 1969 Revolution

Published online by Cambridge University Press:  28 July 2009

Ann Mayer
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Extract

How to reform traditional laws of marriage and divorce has proved to be one of the major legal issues facing contemporary Muslim societies. It is a sensitive issue that impinges on many domains—the social, religious, and political as well as the legal. The problems of reform turn more than anything else on the question of how to reconcile fidelity to Islamic law, the shari'a, which remains largely—if not exclusively—controlling on matters of personal status in many Muslim countries, with the demands for change prompted by the process of modernization.

Type
Research Article
Information
Journal of African Law , Volume 22 , Issue 1 , Spring 1978 , pp. 30 - 49
Copyright
Copyright © School of Oriental and African Studies 1978

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References

1 See for example Anderson, J. N. D., Law reform in the Muslim world, London, 1976, 43–85.Google Scholar

page 31 note 1 The law was first published in the Libyan Official Gazette, al-Jarida ar-rasmiyya (61) 23/12/72, 3076–82, with the explanatory memorandum at 3083–94.

page 31 note 2 Ages for marriage competence have been fixed in most countries of the Middle East. (Egypt, with no minimum ages fixed by law, is the great exception, but even Egypt has procedural rules designed to discourage marriages where the wife is under 16 or the husband under 18.) In North Africa 18 is everywhere the age for marriage competence for males— except in Tunisia, where it is 20—while for females it is 17 in Tunisia, 16 in Algeria, and 15 in Morocco. In addition absolute minimums below which no marriages may be contracted have been fixed in many countries. Ijbār has been eliminated in the Hanafī milieux of the Muslim world simply by virtue of the raising of the age limits for marriage, since the Hanafīs restricted its exercise to minors. Among Libya's neighbours, Algeria and Tunisia have eliminated ijbār, while Morocco and the Sudan have—much like Libya—restricted it to the exercise of a judicial prerogative to marry off a young female where this is necessary to keep her from immorality.

page 32 note 1 In Libya many young men are forced to delay contracting marriage out of practical considerations; bride prices have soared to a level where only the most affluent can pay them without many years of work and saving.

page 32 note 2 At least one important factor militating against legislating the substantive invalidity of marriages involving minor females is the example set by the Prophet Muhammad, who married his famous wife ‘Ā’isha when she was only 9.

page 32 note 3 The memorandum clarifies the nature of the empowering necessity at pp. 3083–84. It indicates that included in the category of cases left to the qādī will be the cases of female orphans, who may be married off regardless of their age “to prevent them from falling into that which will lead to their perdition and the corruption of society”.

page 33 note 1 Ibn Shubruma, d. 761, was a poet, wit, and rhetorician of Kúfa, as well as a transmitter and traditionist of modest repute. ‘Uthmān al-Battī, d. 760, is chiefly known as the recipient of a famous letter written by the eponymous founder of the Hanafī school, Abú Hanīfa.

page 33 note 2 Cf. the unequivocal support for ijbār in the classic, encyclopedic compendium of the sharī’a; Ibn Qudāma, al-Mughnī, vii, Cairo, 1969, 40–42.

page 33 note 3 Bellefonds, Y. Linant de, Traité de droit musulman comparé, ii, Paris, 1965, 61–65. I make extensive use of this work in my notes, not only because of the excellent exposition of the law that it contains but also because of its extensive references to classical sharī‘a law books, to which I refer the reader who wishes to consult the authoritative sources on any of the points discussed in this article.Google Scholar

page 33 note 4 For example, within the Mālikī school there was recourse to the subsidiary rule-finding criterion of the public weal, or maslaha, where the law was not certain.

page 34 note 1 In the strict legal sense marriage in the sharī‘a was reducible in its essence to a contract for the wife's sexual services in return for certain financial obligations undertaken by the husband: Linant de Bellefonds, ii, 23–24; Bousquet, G. H., L'éthique sexuelle de l'Islam, Paris, 1966, 101–10. Ijbār does not conflict with the purpose of marriage as conceived in the sharī‘a as it might with the purpose of marriage as described in the memorandum.Google Scholar

page 34 note 2 The Arabic for the legislators' conclusion is, laysa lī 'l-ijbār sanad sarīh min ash-sharī‘a. This would seem to be an instance of the phenomenon of concordism, discussed in M. Rodinson, “Problématique de l'étude des rapports entre l'Islam et communisme”, in Actes du Colloque sur la Sociologie Musulmane, Brussels, 1961, 130–39. A reaction to the cultural crisis brought about by the pressures of modernization, concordism involves a re-interpretation of classical Islamic culture in the light of contemporary Western ideas, values, and sciences; it conditions Muslims' perception of their own cultural legacy. Thus igbār, perceived to be at odds with Western-inspired notions of justice and humanity, is discovered not to have been mandated by the sharī‘a.

page 34 note 3 The memorandum at p. 3085 speaks of the practice of ijbār as though it had been limited in the sharī‘a to a father's right to force his virgin daughters into marriage, with preference for his consulting their opinions. In fact, depending on the school, it could be more far-reaching a right than they imply; cf., sources cited above.

page 34 note 4 Abu Bakr al-Asamm, d. 815/16, was a member of the rationalist mu‘tazilī school, the fortunes of which declined after the early Abbasid era, of whom little seems to be recorded.

page 35 note 1 This contrasts with Algerian law, which requires consent to the marriage to be given verbally, publicly, and in person, with the official presiding over the marriage ceremony to verify the reality of the consent.

page 35 note 2 For example, Egypt and Algeria have dispensed with the requirement of a wālī‘s consent, while Tunisia and Morocco only require it in the interval before the ward reaches full legal adulthood.

page 36 note 1 For examples of the criteria that may be used, consult Linant de Bellefonds, ii. 56–57.

page 37 note 1 For background on the traditional Mālikī system of divorce for prejudice see: de Bellefonds, ii. 462–63; D. Santillana, Il Muhtasar O sommario del diritto malechita di Halil ibn Ishaq, ii, Milan, 1919, 67.

page 37 note 2 This contrasts with the traditional system where, even if the fault was found to be mutual, it was the wife who would be called on to pay an indemnity. Previously, she alone was entitled to initiate these suits, and with the extension of the right to the husband and, indeed, the possibility of a simultaneous suit by both spouses, it makes for a fairer settlement if, upon a finding of mutual fault, the indemnity is apportioned on principles of relative fault. This rule constitutes an appropriate re-adjustment of the sharī‘a rules in the light of the new elements which the Libyan law has injected therein.

page 38 note 1 Traditionally, judicial dissolution of the marriage at the wife's instance resulted in an irrevocable divorce. As the court is effectively standing in the husband's shoes when it issues a divorce at his request—since he would otherwise automatically obtain the same result merely by a repudiation of his wife—it is logical that a divorce at his behest has the same quality as a repudiation; that is, that it should be revocable.

page 39 note 1 While it is true that a wife might forfeit precisely those claims that she would otherwise be entitled to make against her husband in the event that he divorced her by talāq when she sued for divorce for prejudice and was held to be at fault for the discord in the marriage, this was a situation that was under her control. It is only under the new law that she is subjected to this loss in a situation where she has no control over whether a suit for divorce for prejudice is initiated. Law 18 of March 18th, 1973, somewhat mitigates the harsh impact of this new rule by providing that the payment of the compensation can be delayed by a court where the wife is in distress and the husband's refusal is out of harassment.

page 39 note 2 It is not possible to say without more information than is presented in the memorandum just how harsh the impact of the new rule will be. In the traditional Mālikī law the standards of prejudice were naturally concerned with the types of wrongs suffered by a wife. Now that the husband may sue for divorce for prejudice, new standards will have to be evolved. If the standards for a husband's proof of prejudice by reason of the wife's conduct are lenient ones, many wives can be expected to suffer under the new rule.

page 40 note 1 The fact that where the husband alone requests a divorce without specifying grounds he will not be granted one accords with the general scheme of the law, which avoids duplicating rights that he already enjoys by virtue of his prerogative to exercise talāq.

page 40 note 2 The Libyans could in theory have resorted to Shāfi‘ī law, where khul‘ is similarly well developed, but for historical reasons—their familiarity with Hanafī law, which the Ottomans brought with them to Libya—it was practical and natural for them to refer to Hanafī doctrine.

page 41 note 1 For the traditional rules, see Linant de Bellefonds, ii, 423–29.

page 41 note 2 Only among the Shāfi‘ī jurists was there an overwhelming consensus that compensation was required for the effectiveness of a khul‘. In the memorandum at p. 3090 the rule is ascribed to a Hanafī source. While there was a Hanafī view that compensation was required, there was also strong support for the opposing position. That the authors nonetheless chose to attribute this rule to a Hanafī rather than Shāfi‘ī source may be seen as a conscious effort to stay within the boundaries of one school.

page 41 note 3 Law 18 of March 18th, 1973, referred to above at p. 39, n. 1, provides that the khul‘ exchange can be delayed where the wife is in distress and the husband refuses (to agree to the delay) out of harassment. Before this amendment to the law was enacted, the requirement that compensation be paid in a khul‘ effectively allowed the husband to block a khul‘ simply by refusing to accept delayed payment of the compensation.

page 41 note 4 The wording of the provision itself is misleading, calling as it does for both parties to possess the qualifications required in a talāq, qualifications that are not the same as those required to execute donative transactions. However, the memorandum at p. 3091, apparently a gloss on the text of the provision, makes it clear that the wife must have the capacity of a donor.

page 41 note 5 Ibid., 430–31.

page 41 note 6 The memorandum at p. 3091 does not broach the subject of a possible conflict with the sharī‘a principles.

page 41 note 7 Some Libyan wives may be below the minimum age at which the sharī‘a would allow them to contract a khul‘ because the new law does not, as noted, fix an absolute minimum age for contracting marriages.

page 42 note 1 Traditionally, khul‘ was seen as a remedy for the situation where marital discord had reached a level that there was fear that the couple might exceed God's bounds—that is, that the wife might be driven to disobedience and the husband to mistreat her. This view of khul‘ rested on the Quranic principle that no blame attached to the husband for accepting that which the wife offered for her freedom where there was fear that the couple might exceed God's bounds (Sūra II, 229).

page 42 note 2 One can read the entire chapter on khul‘ in al-Mughnī, vii, 323–62, for example, without uncovering any instance where it is treated as a transaction where a court is permitted to intervene against the wishes of the husband—this despite the fact that al-Mughnī is cited below as one of the authorities for the rule that a court may intervene in a khul‘ (see p. 43, n. 1 below).

page 43 note 1 The memorandum baldly states that this was the position of the Hanbalīs, the Shāfi‘īs, and the Hanafīs. (The Arabic is: dhahabat ilā dhālika al-hanābila wa'sh-shāfi‘ iyya wa'l-hanafiyya.) Without further explanation of the authors' reasoning, it would be impossible to say on what this argument can have been based; certainly it must rest on inferences that they have drawn from the texts, rather than their explicit wording. The references in the memorandum to Mālikī and Zaydī authority are similarly difficult to account for. The memorandum relates these positions which it attributes to the schools to the Quranic verse; “But if they of their own accord remit unto you a part thereof, you are welcome to absorb it,” (Sūra IV, 4). This verse merely signals that the husband, who is ordinarily enjoined from taking back from his wife what he has given her, may do so where she voluntarily offers it to him to purchase her freedom. How the authors of the memorandum conceive of this as support for the principle that a judge can force a khul‘ settlement on a husband is not explained, and without an explanation the connection is far from obvious. One cannot be sure whether the vagueness of the memorandum here on the subject of what would seem to be a controversial new rule is accidental.

page 43 note 2 In contrast, the sharī‘a does deal with the situation where the khul‘ is concluded against the wife's wishes, but this does not involve the intervention of a court. The sharī‘a is concerned with the situation where the wife is forced to agree to a khul‘ for compensation under pressure from her husband. Such a khul‘ is invalid and the wife is entitled to the return of the compensation that she has been forced to give: cf. al-Mughni, vii, 327.

page 43 note 3 That the khul‘ was in the nature of a bilateral contract, known as mu‘āwada in Arabic legal terminology, was the view of the Mālikīs, Shāfi‘īs, and Hanabīs. (The Hanafīs analysed it as an offer of repudiation by the husband and a donative transaction by the wife.): Linant de Bellefonds, ii, 425–28.

page 43 note 4 The grounds on which a Muslim wife could seek divorce outside the Mālikī school included impotence, obnoxious physical conditions like leprosy, prolonged absence, failure to support, failure of the husband to convert to Islam (after her conversion), etc. The precise grounds varied among the three schools. The Hanafīs offered a wife the slimmest hopes; her case for divorce must be grounded either on her husband's impotence (and then only under narrow conditions) or his failure to convert to Islam: Linant de Bellefonds, ii, 454–70.

page 44 note 1 The new right to sue for khul‘ in court will only rarely affect a wife's ability to obtain a divorce. Indeed, the wife will only need to resort to khul‘ where she has sued for a divorce for prejudice and the three arbitrators are unable to resolve the case and refer it back to the court, which may reject the wife's complaint where she fails to establish her claim of prejudice. Even then, she will only be able to get the khul' where it is shown that the husband's refusal to the khul‘ was for harassment motives and that it is to be feared that the couple will not observe God's bounds. One would expect that there would be few cases where the wife could not get a divorce for prejudice but could qualify for a khul‘ on these terms.

page 44 note 2 See the widely commented-on cases, Balquis Fatima v. Najm al Ikram al Qureshi. 6 P.L.D. 1959. Lah. 566. and Khurshid Bibi v. Muhammad Amin. 9 P.L D. (1967) S.C. 97. The decision in these cases did not purport to rest on a right of a court to impose a khul‘ against a husband's wishes that had traditionally been recognized. Instead, the judges went back to the Quran (S016B;ra II, 228–29) and the example of the Prophet Muhammad in reinterpreting the requirements for khul‘. Anderson, Law Reform, 80. These cases and their impact on the law of khul‘ are discussed in a publication of the Islamic Research Institute; K. M. Ahmad, The Muslim law of divorce, Islamabad, 1972, 226–44. Although justifying the rule that a court can order a husband to comply with the wife's demand for khul‘ where there is fear that the couple may exceed God's bounds on the basis of actions taken by the Prophet and the early Caliphs, the author acknowledges that Muslim jurists have not generally been of the opinion that courts might impose a. khul‘ over the husband's objections.

page 45 note 1 A related provision, Art. XVIII, provides on the basis of a reference to a Hanafī source that the husband is not relieved of support obligations to a child of his by reason of a debt owed to him by its mother (from whom he has been divorced by a khul‘).

page 45 note 2 The Hanafī and Mālikī rules in this area are neatly set forth and contrasted in a useful reference volume Lā'iha majallat al-ahkām ash-sharī‘a mustammada min usul al-madhabayni al-hanafi wa'l-māliki azzakiyayni; qism ahkām al-ahwal ash-shakhsiyya, Tunis, n.d., 170. For the Māliki rule alone see Santillana, Muhtasar, ii, 74.

page 45 note 3 The memorandum at p. 3094 tries to analogize the Hanafī rule to an exception to the Mālikī 0rule, that derogations from the sharī‘a custody scheme in a khul‘ agreement were ineffective where these caused harm to the child; but this does not really prove that the Hanafī and Mālikī rules are similar. The apologetic tone of the memorandum on this point leads one to suspect that the legislators may be bracing themselves for some popular resistance to the implementation of the new rule.

page 46 note 1 Algeria, Iran, and Tunisia have provided that courts must take a child's interests into account in ordering custody arrangements (these countries have all eliminated extrajudicial talāq). Egypt, Iraq, Jordan, and Syria also allow the sharī‘a scheme of custody arrangements to be altered.

page 46 note 2 Death sickness is a term of art in the sharī‘a: see Coulson, N., Succession in the Muslim family, Cambridge, 1971, 259–66.CrossRefGoogle Scholar

page 46 note 3 In the absence of ratification the Libyan law limits the husband to the amount of the khul‘ exchange or one third of his wife's net estate, whichever is less. This accords with the sharī‘a principle that the exercise of testamentary freedom is limited to a maximum of one third of the net estate, the remaining two thirds to be distributed according to fixed principles among the relations of the deceased.

page 46 note 4 It is probably because this rule is seen as part of the law of succession, which in Libya is Mālikī, that the law refers to Mālikī and Hanabī sources rather than Hanafī ones on this point.

page 47 note 1 For example, extra-judicial divorce has been denied legal effect in Algeria, Iran, Iraq, Morocco, and Tunisia, and in Iran the husband cannot divorce his wife without cause. The so-called triple talāq, where a final repudiation is achieved by pronoucing the divorce formula three times on one occasion, has only the force of a single repudiation in Egyptian, Iraqi, Jordanian, Moroccan, and Sudanese law. Conditional talāq has been regulated in the wife's interests in Egypt, Jordan, Morocco, the Sudan, and Syria. Rules denying the repudiation binding force in various circumstances (e.g., where the formula is pronounced in anger or intoxication, under duress, or as an oath or threat) have been adopted in Egypt, Iraq, Jordan, Morocco, the Sudan, and Syria. Morocco, Syria and Tunisia force the husband to pay the wife an indemnity where he divorces her without adequate cause or in a way that causes harm to her.

page 47 note 2 Polygamy is only incidentally affected by a Libyan law of May, 1973, that restricts marriages of Libyans (in practice this will mean Libyan men) to foreigners. The purpose of the law is to curb the disruption and dissension that was occasioned by the introduction of foreign women in the Libyan family after the Revolutionary Command Council modified the former legal restrictions on Libyans' marrying foreigners to facilitate marriages with other Arabs. A result of the 1973 law is that while a man who marries only Libyans enjoys the traditional right of polygamy, a man who marries a foreign woman must remain monogamous, because he is prohibited from marrying a second wife, whether Libyan or foreign.

page 47 note 3 Libya's neighbour Tunisia has prohibited polygamy altogether. Iran, Iraq and Syria require the husband planning on a polygamous marriage to apply to a court for permission, setting various conditions for the court's approval of the prospective second marriage. Iran allows the first wife to use the second marriage as grounds for divorce. Pakistan requires the husband to get permission from his local arbitration council, failing which the first wife is entitled to a judicial divorce. Iraq, Jordan and Morocco allow stipulations in the marriage contract that the marriage will be monogamous, and the last also requires that the second wife be told that her husband is already married and allows the first wife to obtain a judicial divorce if she proves to the court that injustice is to be feared from the second marriage.

page 48 note 1 The Islamic fundamentalism of Colonel Qaddhafy, who has so dominated the Libyan scene since the 1969 Revolution, has little sympathy with demands for reform of the sharī‘a law affecting women's status. Colonel Qaddhafy has publicly defended the sharī‘a as the optimum system for regulating family life and attributed the unhappiness of Muslim wives to ignorance of the sharī‘a or failure to observe its precepts: see his speeches in M. Qadhdhāfi, as-Sijill al-qawmi, bayānāt wa khutab wa ahādith al-‘aqid Mu‘ammar al-Qadhdhāfi, Tripoli, 1973, 554–57. 1248–89.

page 48 note 2 Different committees have been at work on legislation based on the sharī‘a in Libya. This committee has been more conservative in its use of sources than some of the others. For example, the 1972 Libyan law reinstating Islamic penalties for theft and brigandage exhibits a freewheeling use of takhayyur.