| Cite as: 5 Nw. U. J. Int'l Hum. Rts. 181 at http://www.law.northwestern.edu/journals/jihr/v5/n2/2 | JIHR Home > Volume 5 > Issue 2 (July 2007) |
¶ 1 Upon gaining independence, Egypt, Morocco and Tunisia all started a process of law reform in the area of family law.1 This resulted in a number of laws relating to family matters adopted in Egypt between the 1920's and 1950's.2 Morocco and Tunisia adopted a Code of Personal Status in 1957-1958 and 1956 respectively.3 Although Western law replaced shari'a in most areas, family law has remained the domain of traditional Islamic law.4 This partly has to do with the central position the family has in the life of a Muslim, partly with tradition, and perhaps to a certain extent with resisting the influence of European legal systems and a recent reinforcement of religious fundamentalist voices.5 All three countries have recently undergone significant law reforms, to which Tunisia is somewhat of an exception as it began with a fairly progressive legal framework.6 The aim of this article is to assess to what extent these law reforms have improved the position of women in family law, in particular women's rights related to entering into marriage, the obligations during marriage and the ability to obtain divorce.
¶ 2 In order to place the respective legislations in the proper context, this article first discusses the rules on marriage and divorce as prescribed by the Qur'an and sunna and how they compare to the rules in pre-Islamic Arabia. Naturally, the survey cannot amount to more than a general discussion, as examining the various views of the different schools of jurisprudence would amount to much too lengthy an expedition. Before looking into the reforms that have taken place in each country, a brief survey is presented on the position of women under the respective constitutions as well as the obligations with respect to family law under the major international human rights treaties. This is followed by a discussion of the reforms in the area of marriage and divorce and some comments on the possibility that reform on paper need not necessarily imply a change in day to day reality.
¶ 3 The Qur'an introduced a great improvement of the position of women as opposed to the situation in pre-Islamic Arabia.7 Although pre-Islamic poetry and some other sources point to the occurrence of women who owned property, conducted business and independently arranged their own marriage,8 such as Muhammad's first wife Khadijah, women were generally placed under the control of a father or husband.9 Under pre-Islamic society, when married, a woman became the property of her husband and so did the children she would bear him.10 In exchange, her tribe would be paid a dower the price of which depended upon a woman's virtue and chastity.11 By marrying, the woman forfeited all inheritance rights within her own family which ensured that property could not be transferred outside the tribe.12 She did, however, maintain the right to protection by her blood relatives in case her husband mistreated her.13 Polygamy was unlimited and divorce did not entail any maintenance obligations.14
¶ 4 The advent of Islam brought a shift in focus from the tribe as most important social unit to the family as the foundation of society.15 Women were held to be equally responsible in preserving the family unit as men and therefore this shift entailed acknowledgement of their rights.16 An important change was that women now received their dower themselves, and not their father or other male relatives, changing women's position from subject of the marriage contract to that of a legal partner.17 Polygamy was limited to a maximum of four wives, provided the husband was able to treat each wife in an equal manner.18 Divorce had to be followed by a waiting period in which reconciliation was possible and if that did not occur, provisions for maintenance could be made.19 Quranic inheritance rules allotted fixed shares of the property to designated heirs, including women who were excluded under the pre-Islamic system.20
¶ 5 Giving women full legal capacity to enter into civil transactions and to own property irrespective of their married status was a progressive step compared to the European-Christian21 laws, which until last century failed to give women their equal share of rights.22 For example, up to the 1960's and 1970's when the European codes were adjusted to fit modern time reality, French women needed permission from their husband to go to work.23 The Qur'an and the Islamic codes, discussed later on, may to some extent have lost their progressive edge since the Western codes developed further; however, what is currently considered to be the standard is the result of much more recent developments than is generally appreciated.24
¶ 6 The distinction Islamic culture makes between men and women is generally taken as a given.25 The compatibility between the condemnation of discrimination against women and the acknowledgement of certain (biological) differences is based on a classification on the basis of sex, stemming from what is considered men's greater responsibilities as providers and protectors in society.26 This may be understandable within a historical context, but it remains questionable whether this rationale can be applied with as much ease in modern day society.27 In addition, such classifications can have a detrimental discriminating effect on women's position within society.28
¶ 7 Islam is a way of life, which regulates the personal, spiritual as well as the physical and social aspects of everyday life.29 Marriage is recommended by the Prophet Muhammad and described by him as the 'perfection' of one's religion;30 yet it is not a sacrament under Islamic law.31 Marriage is a civil contract, legitimizing intercourse and procreation.32 It is a contract with a high spiritual content, an obligation any good Muslim not financially or physically impaired should fulfill.33 Moreover, as briefly mentioned in the preceding paragraph, "[M]arriage, in Islam, is truly the foundation for the family; and, the family, in turn, is truly the foundation for the Islamic social system."34 According to Islamic law scholar Mahmoud Hoballah, there are many legitimate reasons to get married35 but the most commonly referred to reason in the Qur'an is 'peace of mind', 'ease of mind' or 'tranquility and quietude in the other.'36
¶ 8 A marriage contract must satisfy certain requirements in order to be valid.37 First, the contracting parties must be of sound mind and free to act. There is no mention of an age suitable for marriage in the Qur'an, but under classical Islamic law, men are assumed to have attained puberty at the age of 12 and women at the age of 9.38 Men may contract their own marriage; women must typically have a guardian to act on their behalf.39 An exception to this rule is the Hanafi40 school, which allows an adult woman to contract her own marriage, provided this is with a man of equal social status.41 According to some Hanafi jurists, failure to demand a proper dower or the husband's negligence in paying it allows for the guardian to have the marriage dissolved.42
¶ 9 Second, there should be no impediment of relationship or religion which would interdict marriage between the parties. Under Hanafi law, a man may marry either a Muslim woman or a scriptural non-Muslim woman, meaning that she can be either Jewish or Christian.43 She can continue to practice her religion. Aside from religious difference, certain degrees of kinship bar a valid marriage as well.44
¶ 10 Third, the contract may not be limited in time.45 In pre-Islamic Arabia it was possible to conclude temporary marriages (mutah), but within the context of Islam, marriage is intended as a permanent institution.46
¶ 11 Fourth, the essential offer (ijab) by the one party and acceptance (qabul) by the other must take place before at least two male witnesses.47 An engagement is not legally binding and can be broken off without any legal implications, although from an Islamic point of view a promise made is a moral obligation and should be fulfilled.48
¶ 12 Finally, the wife must be given a dower.49 The purpose of the dower is to safeguard the economic position of the wife after marriage "so that she is not prevented for lack of money from defending her rights."50 The dower is an essential element of the contract; a marriage contract that stipulates the absence of a dowry is not valid.51 The dower is the wife's personal property.52 She is not required to share or use it to contribute to the household, but she may do so if she chooses.53
¶ 13 The number of marriages a person can enter into is limited.54 Polyandry (several husbands for one woman) is not allowed under Islamic law, polygyny (several wives for one husband) is.55 Hereinafter the more commonly used term "polygamy" will be used. Polygamy is limited to a maximum of four wives, provided that the husband is capable of treating all wives equally, both in provisions and in kindness.56 The possibility of having several wives regulated an existing practice under pre-Islamic customary law,57 and was originally intended to solve certain social problems, such as the care for widows and orphans after the death of many men in warfare.58 Although it is stated to not have been intended for "the satisfaction of anyone's sexual desires,"59 some authors appear to coincidentally see it as the perfect solution for venereal disease and adultery.60
¶ 14 According to the Qur'an, women "have rights similar to the [husbands'] rights against them."61 The wife's rights are considered the counterpart of the husband's obligation of maintenance.62 This obligation of maintenance entails both material aspects, such as adequate housing, clothing and food as well as a right to general care and well-being.63 In addition to the previously discussed right to a dower, the woman can secure certain further rights by means of stipulations in the marriage contract under Hanbali law.64 This can be done at the moment of its conclusion or afterwards.65 These stipulations could include the prohibition of the man to take a second wife or the right of the woman to work outside the home.66 The only condition is that they are not contrary to the object of marriage.67 Such clauses are void, but leave the marriage contract itself intact.68 As mentioned before, the Qur'an enabled women to own property69 and neither partner acquires a right in the spouse's property upon marriage.70
¶ 15 In return for the husband's obligation to maintenance, the wife has the obligation to maintain a good household, care for the children and be faithful and obedient to her husband.71 The husband is allowed to restrict his wife's liberty of movement (for as far as his freedom to do so has not been limited by stipulations in the marriage contract) and to determine which visitors she may and may not receive.72 She must maintain an attractive appearance for him and may not "deny herself to her husband."73
¶ 16 Muhammad is reported to have said that "of all permitted things, divorce is the most abominable with God."74 But, as marriage is a contract and the forced cohabitation of two people who cannot live together in harmony would be even more harmful to these individuals, as well as to the purpose of marriage within society as such, there are ways of dissolving a failed marriage under Islamic law.75 Divorce is not to be resolved upon until all attempts to reconciliation have been made.76 To this end, a window of opportunity for the partners to reconcile is left during a certain period of time.77
¶ 17 Even though the Qur'an repeatedly makes clear that divorce is reprehensible and against the will of God, divorce can be sought when a couple can no longer live together as husband and wife.78 This is a very broad definition, leaving it open to the interpretation of jurists to define what type of marital discord could be grounds for divorce.79 The pronouncement of talaq (repudiation) by the husband must indicate an intention to divorce, along the lines of "you are divorced" or "I have divorced you."80 The actual intent does not necessarily have to agree with the verbal meaning.81
¶ 18 The talaq can be either revocable, which would allow a husband to reconcile with his wife, or irrevocable, which means that certain conditions need to be fulfilled before reconciliation is possible.82 A man can divorce his wife and reconcile with her two times; the third divorce becomes irrevocable and the man can only marry his ex-wife again after she has remarried, consummated the marriage and then was legally divorced or became a widow.83 The idea is that this will prevent the man from divorcing his wife frivolously and was a response to the pre-Islam practices in Arabia in which the repeated divorcing and remarrying of wives was used to push women into buying their final freedom by relinquishing their dower.84Talaq pronounced before the marriage was consummated is irrevocable as well.85
¶ 19 A revocable divorce remains so only for a specific period of time, the iddah.86 The purpose of the iddah is to allow for reconciliation and to ascertain whether the wife is pregnant or not.87 If the marriage was consummated, this period will take the time of three menstrual cycles.88 If she is pregnant, the iddah continues until she gives birth.89 The declaration of talaq should be made only during the period of thur, the time when the woman is not menstruating, and is valid only if a husband has not had sexual relations with his wife.90
¶ 20 The form of divorce in which talaq is uttered three consecutive times in order to become irrevocable is disapproved.91 "I divorce you; I divorce you; I divorce you" goes against Quranic prescriptions,92 but the only safeguard or restriction provided for its use is the man's conscience and God's punishment in the hereafter.93
¶ 21 The Qur'an confers basic rights of divorce upon the wife as well, but in practice her ability to obtain one is very limited.94 One option is the delegated divorce, or talaq al-tafwid, in which the woman is delegated the power to divorce by her husband ("divorce yourself").95 Another option is to have the marriage dissolved by a judge upon petition by the wife.96 In contrast to the husband, who is not required to state any grounds for his decision to divorce, Muslim jurists allow the wife to file her petition only in limited circumstances.97 There is no consensus among the Sunni schools of jurisprudence on which specific grounds have to be submitted.98 The most liberal is the Maliki99 school, allowing divorce on the grounds of cruelty, refusal of maintenance, desertion or a serious disease or ailment on the husband's side that would be potentially harmful to the wife.100 The most restrictive is the Hanafi school, which allows divorce only on grounds of physical defects,101 and the absence or incapacity of the man to consummate the marriage.102 One should note here in particular that under the Hanafi school noncompliance with the main duty of the husband in marriage—maintaining his wife—is not mentioned as grounds for divorce.103
¶ 22 Divorce by mutual consent is possible at the wife's instigation if she is able to buy her freedom.104 She can do so by paying her husband a sum of money, or by relinquishing part (or all) of the dower that has not yet been paid.105 This payment is not prescribed, the Qur'an even explicitly forbids men from pushing their wives into divorce by treating them badly and thus getting back some of the dower.106 Mutual divorce on instigation of both husband and wife is possible as well.107 The man then proposes dissolution and the woman accepts it.108 This type of divorce is irrevocable.109
¶ 23 Finally, pursuant to the Hanafi teachings, when a woman renounces Islam and converts to another religion, the bond of marriage is dissolved automatically.110 For women lacking the means to redeem themselves from an undesirable marriage and the possibility to have their marriage annulled by a judge, this can be the last resort.111
¶ 24 As previously mentioned,112 husband and wife do not obtain a legal interest in the other person's property upon marriage, so each party leaves with their pre-marital property.113 Whether or not the wife keeps her dower after divorce depends mainly on whether the marriage has been consummated.114 If the marriage was not consummated, she may receive part of the dower or a "suitable gift".115 When the marriage has been consummated, she is to keep her dower irrespective of who instigated the divorce.116 The wife also has a right to maintenance during the period of iddah.117 If she is pregnant, her maintenance rights continue until childbirth.118 When the wife has a young child, the father must maintain both her and the child during the two years that she is nursing.119
¶ 25 Children are generally considered to be better off with their mothers until males are seven years old and females are nine years old.120 According to the Hanafi school, the children, regardless of age, should go to the family of the father if the woman remarries, displays "immoral" behavior, or takes care of the child in a poor manner.121 A prominent scholar, John Esposito, points out that the family emphasizes the paternal line of ancestry, thus the children "belong" more to the father than to the mother.122 This leaves women, "whose roles of wife and mother [are] the main source of a woman's status in a traditional society" at risk of having their children taken away from them "even though [they were given] no choice in the divorce action."123
¶ 26 In order to provide a legal context in which to place the comparison of the current and former laws of personal status, this article will first briefly discuss the constitutions of Egypt, Morocco and Tunisia as well as these countries' obligations under international law. This is not intended as a comprehensive discussion of all relevant issues; this section is focused on aspects related to religion and equality for men and women within the respective constitutions as well as the obligations pertaining to equality and the family as codified in the most important human rights treaties.124 In particular the issues of international human rights and Islamic law as well as the permissibility of reservations to human rights treaties could call for a far more extensive discussion than is provided here.125 But as this will quickly lead us into the heart of a cultural relativism discourse and the aim of this article is to provide an analysis of the recent law reforms, this article will not digress too much on the topic.
¶ 27 Egypt adopted its first constitution in 1923 and revised it in 1971, 1980 and 2005.126 Article 2 of the constitution declares that Islam is the State religion and Islamic jurisprudence the principal source of legislation.127 Of all three constitutions, the Egyptian constitution is the only one that mentions both equality and family life.128 The principle of equality is first mentioned in article 8, in which equal opportunity for all citizens is guaranteed by the State.129 Article 40 declares all citizens equal before the law, bearing equal public rights and duties without discrimination on grounds of sex, ethnic origin, language, religion or creed.130 The Egyptian family as "the basis of the society founded on religion, morality and patriotism" is described in article 9 of the constitution.131 Under article 11 the Egyptian State is to guarantee a proper coordination of a woman's duty towards her family and her duties towards society.132 In the fields of political, social, cultural and economic life she should be considered equal with men, but without violation of "the rules of Islamic jurisprudence."133
¶ 28 Morocco's constitution was first enacted in 1972 and subsequently revised in 1992 and 1996.134 In its preamble it has a noticeable reference to the adherence to international human rights as "arising from" the charters of international organizations.135 Article 6 declares Islam to be the State religion and guarantees freedom of worship for all.136 In article 5 general equality before the law of all Moroccan citizens is promulgated137 and article 8 states that men and women shall enjoy equal political rights, including the right to vote.138
¶ 29 The oldest constitution is that of Tunisia. First enacted in 1959, it was revised several times since, latest in 2002.139 The preamble makes both a United Nations Charter style reference to the "common heritage of peoples attached to human dignity, justice and liberty"140 and a reference to adherence to Islam.141 Article 1 declares that Islam is the State religion.142 That the president must be a Muslim is codified in article 38.143 According to article 6, all citizens are equal before the law and have equal rights and obligations.144 However, these rights can only be enjoyed within the boundaries set by law and in so far as their enjoyment is not restricted by a law enacted for the protection of certain purposes.145 These include the protection of others, the respect for the public order, the national defense, the development of the economy, and social progress.146
¶ 30 On grounds of the United Nations Charter ("Charter") all member nations of the United Nations ("UN") - including Egypt, Morocco and Tunisia - are bound by the minimum standards with respect to human rights as set out in the Charter.147 The Charter mentions women's equality alongside the promotion of international peace and security.148 Article 56 of the Charter states the pledge of all Member States to take joint and separate action for the achievement of the observance of human rights without distinction on the grounds of sex as embodied in article 55(c).149 This means that there is both a duty to cooperate with the UN in observing and promoting human rights, and that Member States may not undermine the object and purpose of the Charter by their actions.150
¶ 31 Which human rights exactly enjoy protection under the Charter can be subject to debate.151 The narrowest interpretation acknowledges only those rights that are considered ius cogens, thus those norms prohibiting genocide, slavery, the murder or disappearance of individuals, torture or other cruel, inhuman or degrading treatment or punishment, prolonged arbitrary detention, and systematic racial discrimination (apartheid).152 However, it can be argued that it also includes the prohibition of discrimination on the basis of sex, considering the consistent promulgation of this principle by the UN and affirmations by its Member States.153
¶ 32 The Universal Declaration of Human Rights ("UDHR") is clear about the rights of men and women with regard to marriage: men and women "are entitled to equal rights as to marriage, during marriage and at its dissolution."154 Under international law, however, this is not synonymous with identical treatment in every case; distinctions that are reasonable, just, proportionate, and based on objective criteria are permitted.155
¶ 33 The Charter makes no connection between religion and human rights, except for the prohibition of discrimination on grounds of religion.156 This prohibition is listed on equal footing with other forbidden criteria such as race and sex; therefore religion does not have privileged protection in comparison to other grounds on which discrimination may occur.157
¶ 34 The goal of the UDHR is to secure the observance of the rights enumerated in it for all peoples regardless of gender, race, sex or nationality.158 "All human beings are born free and equal in dignity and rights," according to article 1, and article 2 states that everyone is entitled to the rights in the UDHR without distinction of any kind, such as race, sex or religion.159 Men and women are both entitled to equal recognition before the law and to equal protection of the law without discrimination.160
¶ 35 Article 16(1) declares that men and women of legal age are entitled to equal rights161 in marriage, during marriage and with respect to divorce.162 Limitations on the rights embodied in the UDHR are only allowed for the purpose of securing due recognition and respect for the rights and freedoms of others and when meeting the "just requirements of morality, public order and the general welfare of a democratic society."163 The mention of religion in the UDHR was expressly rejected by the drafters.164
¶ 36 The International Covenant on Civil and Political Rights ("ICCPR") and International Covenant on Economic, Social and Cultural Rights ("ICESCR") further elaborate on the principles embodied in the Charter and UDHR.165 All three countries have signed and ratified both treaties.166 Egypt signed both covenants in 1967 and ratified them in 1982.167 Morocco did the same in 1977 and 1979 respectively, and Tunisia signed both treaties in 1968 with ratification following one year later.168 Morocco and Tunisia signed and ratified both treaties without making any declarations or reservations.169
¶ 37 Each covenant states in its preamble that all enumerated rights are applicable to men and women in equal fashion.170 The ICCPR compels States Parties to ensure the equal right of men and women to the enjoyment of all civil and political rights set out in the Covenant.171 This means equality before the law as prescribed in article 26172 and equality of marital rights, rights during marriage and in divorce under article 23(4).173 Article 3 of the ICESCR mirrors the same article of the ICCPR by stating that parties to the Covenant should ensure "the equal right of men and women to the enjoyment of all economic, social and cultural rights [set forth in the Covenant]."174 What follows is mostly an elaboration on the rights to employment and education, but in article 10(1) the family is mentioned.175 According to this article, "[t]he widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society [...]. Marriage must be entered into with the free consent of the intending spouses."176
¶ 38 As mentioned above, Morocco and Tunisia signed the covenants without making any declaration or reservation.177 Egypt made a general declaration upon ratification of both treaties, stating that: "[T]aking into consideration the provisions of the Islamic Shari'a and the fact that they do not conflict with the text annexed to the instrument, we accept, support and ratify it [...]."178 It has been called into question whether religious reservations to treaties are compatible with obligations under the UN Charter and perhaps the same question could be raised with respect to such declarations.179
¶ 39 The Convention on the Elimination of All Forms of Discrimination Against Women180 ("CEDAW") is the most progressive and comprehensive international instrument dealing with women's rights, and at the same time one of the most heavily reserved human rights treaties.181 CEDAW takes its provisions from the International Bill of Human Rights, applies them to women, and while doing so tries not only to regulate State behavior, but also that of private entities.182 CEDAW also explicitly states that one of its aims is the eradication of sexual stereotypes in both the public and private sphere.183
¶ 40 All Muslim countries ratifying CEDAW, except Mali and Tajikistan, made reservations based on perceived conflicts between the Convention and the shari'a.184 Most of these reservations were substantive and it has been stated that of all UN human rights treaties, CEDAW "has attracted the greatest number of substantive reservations with the potential to modify or exclude most, if not all, of the terms of the treaty."185 Although CEDAW allows for reservations consistent with its object and purpose,186 it can be questioned whether all reservations stand the test of article 19(c) of the Vienna Convention on the Law of Treaties, which states that reservations may not be contrary to the purpose of a treaty or beyond the limits set by the treaty itself.187
¶ 41 All three countries are party to CEDAW188 and have made reservations to articles 2 and 16 of the Convention.189 Article 2 sets out how States should enforce CEDAW domestically.190 It requires amongst others that States "adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women"191 and that "all appropriate measures, including legislation" be taken so as to "modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women."192 Both Egypt and Morocco have made a reservation stating that they will do nothing that conflicts with the shari'a, thereby limiting their commitment to the full implementation of the article.193 Tunisia has made a general declaration stating that it will not adopt legislation conflicting with the first chapter of the Tunisian constitution, which declares Islam to be the State religion.194
¶ 42 Article 16 deals with the family in particular.195 It lays down the equal freedom of men and women to enter into marriage and choose a spouse,196 the equal duties during marriage and divorce197 and equal rights with respect to children, including the right to decide the number and spacing of children.198 Also, States Parties must set a minimum age for marriage in order to prevent child marriages.199
¶ 43 Egypt and Morocco have made a reservation based on the concept of complementarity of the rights and duties of both spouses.200 The reservations are based on the rationale set out in section II.C, according to which the rights and duties of husband and wife are each other's counterparts.201 From this point of view, the fact that the wife receives a dower as her personal property upon marriage and can receive maintenance after divorce, gives her a degree of leverage and independence that should balance out her husband's unrestricted right to divorce.202 This has been referred to as an "innovative 'separate but equal' argument,"203 portraying the Islamic concept of women's equality in terms of complementary rights. According to Rebecca Cook, a preeminent human rights scholar, framing the roles of men and women as different but of equal value may very well satisfy the requirements of the Convention.204
¶ 44 Tunisia makes no such elaborate argument; it simply has declared that the majority of the provisions of article 16205 must not conflict with its Law of Personal Status.206 This is arguably in contravention of the norm that forbids States to invoke their domestic legislation to excuse non-compliance with a treaty.207
¶ 45 Some criticism can be applied to all three countries' reservations. Although cultural relativism is argued to be allowed up to a certain extent under CEDAW,208 religion may not be used to derogate from universal rights, as discussed with respect to the International Bill of Human Rights.209 One suggested solution is a narrower formulation of the reservations,210 which would make the domestic regulations more compatible with the requirements of CEDAW, taking "a certain amount of cultural relativity" into account in its enforcement.211
¶ 46 Having discussed in broad lines the Islamic rules on marriage and divorce as well as the constitutional and international legal provisions on the position of women in family law, this article will now discuss the law reforms in Egypt, Morocco and Tunisia.
¶ 47 Egypt started codifying its reformed family law early in the twentieth century.212 Prior to that, Egyptian personal status law was based primarily on the Hanafi school of jurisprudence.213 Although the first laws combined elements from different schools, the Hanafi teachings were considered to be default rules in case no textual provision was available.214
¶ 48 Although most of Egyptian law was secularized during the second half of the twentieth century, family law remained the domain of Islamic rules.215 The secularization can mainly be attributed to the reception of European laws216 and partly be considered as the legacy of British colonization from the end of the nineteenth and early twentieth centuries.217 In its turn, the secularization process has perhaps led to a more tenacious adherence to Islamic jurisprudence in family law.218 Not only does the fact that the family plays a pivotal role in Muslim society make the reform of family law a controversial issue, it also has a symbolic meaning as the last bastion of more traditional principles in contrast to the sacrifice of traditional values for European concepts of law in other areas.219
¶ 49 The most important laws on matters dealing with issues of personal status are Law No. 25 of 1920,220 Law No. 56 of 1923221 and Law No. 25 of 1929.222 These have been amended by Law No. 100 of 1985223 and recently by Personal Status Law No. 1 of 2000.224 As will be discussed shortly, an attempt in 1979 to more drastically amend the laws of 1920 and 1925 was declared unconstitutional on procedural grounds by the Supreme Constitutional Court in 1985.225
¶ 50 Law No. 25 of 1920 codified the rules on maintenance and the wife's petition for a judicial divorce in case of non-payment of maintenance or serious physical or psychological conditions of the husband.226 Maintenance was due even if the wife was sick or wealthy.227 That maintenance included not only food, clothing and accommodation but also medical treatment was an innovation; under traditional law medical expenses were not explicitly recognized as maintenance.228 The entitlement to maintenance was lost in case the woman ceased to be a Muslim, either by choice or forced by circumstances, or if she left the matrimonial home without a valid reason and without "permission of her husband."229
¶ 51 If the man was ill or had any other impediment that would interfere with his sexual functions, the wife could petition for divorce.230 Another possibility was given in Law No. 25 of 1929.231 If the wife claimed that her husband had caused her harm or injury which made their living together as a couple impossible and no reconciliation was possible, she could request judicial divorce from a judge.232 Even though the concept of talaq left the decision on divorce mainly with the husband, these laws can be considered progressive to some extent as they deviated from a number of Hanafi teachings.233
¶ 52 During the following decades, law reform took on a particularly slow pace.234 Several attempts were made to restrict polygamy and the man's unilateral decision to divorce, but with no success.235 The 1952 revolution under leadership of Gamal Abdel Nasser finally catalyzed a number of reforms, among which the recognition of equal rights of women and their right to vote in the 1956 constitution.236 The 1959 Labor Law acknowledged women's equality and women obtained positions in the cabinet.237 However, efforts to extend these reforms to the field of family law proved to be very difficult.238 Several proposals were made, but never accepted due to either great religious and political resistance or external circumstances.239 Finally, President Anwar al-Sadat issued a decree in 1979, promulgating Personal Status Law No. 44240 without prior approval of the people's assembly.241 The law was confirmed 14 days later by an assembly in which the president's party had the majority.242 The law met great praise from liberals and feminists as well as critique from both conservatives and those who did not object as much to the content of the law but more to the way it was adopted.243
¶ 53 Personal Status Law No. 44 provided a number of significant changes for women's position in marriage and divorce.244 For example, a wife's right to maintenance was no longer affected when she went to work without her husband's consent, unless the work was against the interest of her family.245 A wife who otherwise refused to obey her husband still forfeited her right to maintenance, but the use of force to make her obey was prohibited.246
¶ 54 The polygamous marriage of her husband was now also considered an injury for which the wife could petition for divorce.247 This was irrespective of whether she had stipulated anything in the marriage contract and the rule applied to both the first wife and the new wife from whom the fact that her husband was already married had been hidden.248
¶ 55 Talaq was restricted in the sense that a divorce had to be properly registered and did not take effect until the wife had been notified.249 If a wife was repudiated without her consent or any apparent cause on her part, she could receive an indemnity in addition to the legal maintenance.250
¶ 56 A divorced woman received custody of her male children until the age of ten and her female children until they reached the age of twelve, with the possibility of extension up to fifteen for a son and until her marriage for a daughter.251 Custody of the children entailed the exclusive right to the matrimonial home for as long as the former husband had not provided for other suitable accommodation.252
¶ 57 Personal Status Law No. 44 was abolished by the Supreme Constitutional Court in 1985 on grounds that the law had been declared by presidential decree during a period when the people's assembly was not in session and had not been presented for approval when parliament reconvened, as required by the constitution.253 This meant a return to the laws of the 1920's, a situation quickly remedied by the adoption of Law No. 100 of 1985.254 In great lines, the 1985 law resembled Personal Status Law No. 44, but the setback for women on certain issues was significant.255
¶ 58 The right of a wife to go out and work was restricted considerably;256 she could still go out and work, but only if it did not "appear that her use of this right [was] corrupted by abuse of the right" or that her husband had not asked her to refrain from exercising her right.257 Also, the injury caused by a husband marrying an additional wife was no longer considered a legal presumption; the injury now had to be proven.258 The standard given to prove such injury was very subjective: a woman had to show that 'women like her' could no longer live together with her husband under the circumstances.259Talaq would now take effect from the date it was uttered, but when a husband concealed the divorce from his wife, consequences in the area of inheritance and other financial rights took effect only from the day she obtained knowledge of it.260
¶ 59 Over the years, the Egyptian government came to consider the law of 1985 as a "considerable embarrassment" on the international level and in the building of international economic relations.261 In addition, the Egyptian feminist movement did not stand for the situation and in 1998 a special committee was formed to draft a proposal of law reform.262 Law No. 1 of 2000 was adopted in January 2000.263
¶ 60 Under Law No. 1 a wife has the right to petition for divorce without having to prove injury by returning the dower given to her.264 No injury or incompatibility needs to be proven, but she must affirm that there is no way for them to continue married life.265Talaq only takes effect as opposed to the wife when it can be confirmed by witnesses and documentation.266 It is expressly stated in the explanatory memorandum, however, that this only pertains to its legal effects; the talaq may still have its religious effect.267 As Lynn Welchman, a prominent Islamic and Middle Eastern law scholar, points out,268 this may very well place women in a difficult position. A man may divorce his wife without the presence of witnesses, not register the talaq and thereby prevent her from marrying someone else after her iddah has passed.269 He may even deny having divorced her all together.270
¶ 61 A woman may try and prove her husband's revocation of talaq by any means.271 If she is the one to deny the revocation, her husband can however only prove his claim if he has informed her with an official document of revocation within the iddah period.272
¶ 62 In both talaq and judicial divorce, the court has to attempt to reconcile spouses before ruling on a divorce.273 When the couple has children, the court is to offer reconciliation at least two times, which have to be at least thirty and not more than sixty days apart.274
¶ 63 As in the case of Egypt, Morocco's family law is the only part of its code that is still based on Islamic law.275 A comprehensive codification and law reform project was first undertaken in 1957 and 1958, when a special commission set down the rules developed within the shari'a courts during colonization.276 The Law of Personal Status or Mudawwana consisted of six books. 277 It was mainly based on the Maliki school and the first two books dealt with marriage and divorce.278 Over the years, some reforms have been made but none as dramatic as the adoption of the new Moroccan family law in 2004.279 One of the driving forces behind the development of the code was the Moroccan royal house.280 The process of reform, set into motion by King Muhammad VI's father King Hassan II in the late 1990's, was given an unexpected impetus by the bomb attacks in Casablanca in 2003.281 In October 2003, the King delivered a speech to the Moroccan parliament in which he showed his determination to present an alternative version of the radical Islam connected to the bombings.282 He laid out the main points of the new law, referring to Quranic verses to underline its compatibility with the shari'a and also made it quite clear that his authority was supreme, implying that parliament better not set aside his urging to adopt the new law.283
¶ 64 The family code starts with a preamble which incorporates the eleven fundamental reforms King Muhammad laid out before parliament: 1) the adoption of a modern form of wording and the removal of degrading and debasing terms for women; 2) the freedom of women to arrange their own marriage (thus abolishing the mandatory intervention of a wali or guardian); 3) equality between men and women with respect to the minimum age for marriage; 4) allowing polygamy only under stringent restrictions; 5) the simplification of marriage procedures for Moroccans living abroad; 6) making divorce equally available to men and women; 7) the expansion of a woman's right to divorce when the husband does not fulfill the conditions in the marriage contract; 8) protection of children's interests with respect to custody; 9) the acknowledgement of paternity of children born out of registered marriage; 10) equality in matters of inheritance; 11) the possibility to make arrangements for property acquired during marriage.284
¶ 65 Under the new law, the family is the joint responsibility of both spouses,285 while under the previous legislation the family was the responsibility of the husband.286 This included full financial responsibility.287 In return, the wife was held to obey her husband.288 In the new code the stipulation that the wife should obey her husband has been removed and she must now also contribute to household expenses.289 A wife can also no longer request a divorce on the basis of lack of financial support if she has sufficient means to support herself and her husband has no financial means.290
¶ 66 Polygamy is forbidden when there is a risk of inequity between the wives.291 Authorization from the court is needed and is refused if "an exceptional objective justification is not proven" or if the man does not have the sufficient resources to support both families.292 When the husband makes his petition to the court, his first wife is informed and invited to attend the hearing.293 If the court grants permission for the second marriage, this may not take place before the future wife has been informed about the fact that her husband to be is already married.294 The current wife may request a divorce and the court can award her a sum of money as compensation.295 If the husband does not pay the sum, this is considered as a withdrawal of the petition for authorization of polygamy.296 The former legislation did not require the authorization of a judge; however, a husband was required to inform his wife of his decision to marry again and tell his potential bride that he was already married.297
¶ 67 The conclusion of her marriage contract by anyone else is something the woman has to delegate expressly.298 As opposed to the former legislation, under which a woman needed the consent of her guardian,299 the new law states that "marriage tutelage is the woman's right, which she exercises upon reaching majority according to her choice and interests."300
¶ 68 Talaq is made conditional upon the court's consent.301 This is a considerable limitation as opposed to the virtually unrestricted right of the husband to repudiate his wife under the previous legislation.302 As under the Egyptian law, the law prescribes the adherence to the Quranic principle that the court should attempt to have the spouses reconcile.303 Before the divorce can be registered the husband must pay all the money he owes his wife, including any delayed dower, maintenance for the iddah and a so-called "consolation gift" which is assessed on the basis of the length of the marriage, the financial position of the husband, the reason for the repudiation and the extent to which the husband has abused his right.304 During the period of iddah the wife is to stay in the marital home or suitable alternative accommodation.305 Otherwise, the court determines a fixed sum to cover the housing expenses.306
¶ 69 Either spouse or both spouses together may petition for divorce on the grounds of irreconcilable differences.307 Divorce by mutual consent under judicial supervision did not exist under the old law.308 A reconciliation effort should be undertaken by two arbitrators or two other persons fit for the task, but the suit has to be settled within no more than six months after the petition for divorce was filed.309
¶ 70 Under the old family law a wife could only petition for divorce on limited grounds: harm caused by her husband—which was very difficult to prove in court—non-maintenance, a defect in her husband, absence of the husband for more than a year in an unknown location and without valid justification, or an oath of abstinence taken by the husband.310 The other option would be for her to buy herself free from the marriage by returning (part of) the dower or by other means of compensation.311 The new family law allows petition for divorce also if the husband does not comply with any one of the conditions in the marriage contract;312 failure to comply with any condition in the marriage contract is considered to constitute a harm that justifies a divorce request.313 A harm can be established by any means of proof and if the wife does not succeed, she can resort to the irreconcilable differences procedure.314
¶ 71 Finally, an innovative feature with respect to custody is that under certain circumstances a woman can retain custody of her children if she remarries or moves away from the area where her former husband lives.315 Custody is exercised until both sons and daughters reach the age of legal majority.316 Also, it is specifically stipulated that children should get suitable accommodation, consistent with the living conditions when the parents were still married.317 This is a separate arrangement from the maintenance obligations.318
¶ 72 In sum, the new family law provides for some progressive changes as opposed to the old legislation. It remains to be seen, however, how great the practical effect of the reform will be. Much depends on the acceptance and application of the new law by the judiciary as well as the use that will be made of loopholes such as article 400319 which allows religious principles to be applied under certain circumstances. Such issues will be addressed further in Part V.
¶ 73 Tunisia adopted a Personal Status Law right after independence.320 The Majalla was first adopted in 1956321 and was based on both Maliki and Hanafi principles.322 Its last major reform was in 1993.323
¶ 74 The two most progressive features of the Tunisian Personal Status Law are its abolition of polygamy and extrajudicial divorce.324 No restrictions or conditions are given to permit polygamy under any circumstances, it is simply stated that "polygamy is prohibited,"325 followed by the punishment by law incurred when acting contrary to this provision.326
¶ 75 The rationale behind the abolition of polygamy finds its roots in the Quranic verse stating that one can only marry several wives if they receive equal treatment.327 According to the legislature this condition is humanly impossible to fulfill.328 Hence, polygamy is forbidden.329
¶ 76 In similar simple fashion article 30 provides that "Divorce shall only take place in court,"330 thereby restricting the use of unilateral talaq by the husband.331 The same article in the 1957 law read: "Divorce outside a court of law is without legal effect."332 The different choice of wording may imply an attempt to prevent a situation as suggested could happen under the current Egyptian law - a man divorcing his wife in the religious but not judicial sense, thus making her situation practically impossible.333
¶ 77 Divorce can be granted upon request of either the husband or wife on grounds specified in the law, by mutual agreement of the spouses, or if one of the spouses insists on grounds other than those specified in the Personal Status Law, in which case the court determines the compensation to be paid by the insisting spouse.334 As in the two codes discussed before, the court first has to ascertain that no possibility of reconciliation between the spouses exists.335 If there are minor children, at least three reconciliation hearings must be held.336 Upon divorce, custody can be awarded to either spouse, keeping the best interest of the child in mind.337
¶ 78 Although the provision on the mutual duties of husband and wife of the 1957 law already included the obligation of the wife to contribute to the household if she had private means - considered in fair balance with "the advantages assured to her by the new legislation,"338 including that the husband had no rights over his wife's property339 - it took until 1993 for the obligation of obedience to be removed from the code and be replaced by "a mutual duty between husband and wife" in managing family affairs.340
¶ 79 The main rationale behind this reform was the suppression of domestic violence, a grave problem in Tunisia.341 Considering the otherwise progressive approach taken in the codification of family law and the way Islamic rules have been interpreted in the process, it seems surprising that it took so long for this amendment to take place.342 The delay can possibly be ascribed to the difficult socio-economic situation in the country, in combination with the growing strength of the conservative and religious factions.343
¶ 80 The question first and foremost should be by which standard to assess the extent to which these recent law reforms have improved the situation of women in their respective countries. As we are dealing with family codes based on shari'a, it would hardly make sense to measure it against current Western models of family law, for these codes are based on a different type of philosophy as has been set out earlier. The argument made by countries like Egypt and Morocco with respect to their reservations to CEDAW, in that balance can be found in other ways than a strict interpretation of formal equal treatment, is worth consideration.344 However, this argument is also potentially dangerous as it could negate the extent to which social patterns, patriarchal structures and sexual stereotypes influence our views on what is considered so inherently different between men and women, besides a number of biological characteristics.
¶ 81 A reassessment of what defines "balance" and complementarity between marriage partners should be possible. After all, a lot has changed since these countries first codified their family law, both on the national and international plane. By no means does this article argue that the standards shared among a great number of what are referred to as Western States are the only guidelines to go by, but if we have any belief in what is written in the Universal Declaration of Human Rights - to which, after all, the majority of countries adhere - that human rights are inalienable and universal, a "separate but equal" doctrine just falls short.
¶ 82 From this point of view, both the Egyptian and the Moroccan code fall short where it comes to the possibility of both husband and wife to obtain divorce.345 Although the restrictions the Egyptian and Moroccan legislature placed upon the use of talaq is a step in the right direction, the Tunisian code, which makes divorce equally accessible to men and women under the same conditions, would be preferable.346 Naturally, it all depends on how such regulations work out in practice, but merely looking at the legal provisions the Tunisian legislation seems to offer the highest degree of equality.347 There is little problem in the fact that divorce is only allowed on specific grounds.348 Besides the fact that the so-called no fault divorce is a relatively recent development and its merits have not yet been fully assessed, the critical point of discussion here is that the options are equally available to both marriage partners, not so much what the exact options are.349 By contrast, the possibilities offered to a woman under Egyptian and Moroccan law—the possibility to buy her way out of a marriage, or request a divorce within a stringent set of limitations when the consent of her spouse cannot be obtained—cannot be equated with the husband's unfettered discretionary ability to get a divorce, even if he has to do so officially before a court.350
¶ 83 All codes have placed restrictions on marital age and none explicitly require consent from a father or guardian.351 Again, this says nothing about the practical reality, especially since the minimum age for marriage in Egypt and Tunisia is lower for women than for men.352 Even if women are allowed to conclude their own marriage contract, the difference in age could constitute a significant distortion in the balance of bargaining power with the possible result of a disadvantageous content of the marriage contract. Many factors could cause this, such as the fact that the girl is insufficiently aware of her options due to her young age, inexperience with the process of negotiation, or dependence on the advice of elders who may not necessarily have the interests most important for the girl in mind. It is hard to see how it might occur to a 16 year old girl that she may want to work at some point in her life or to resist the pressure of her family and peers not to include a corresponding clause in her marriage contract. This is not to underestimate the maturity of mind some people may have at a young age, but it will already be difficult for an 18 year old to make decisions concerning what should be a life-long commitment, let alone for someone of a younger age facing a bargaining partner who is at least some years her senior.
¶ 84 When it comes to rights and duties during marriage and upon divorce, Tunisia and Morocco are at the forefront although striking out the wife's obedience requirement in Tunisia as late as 1993 was a bit tardy.353 The lack of clarity as to whether a wife can go to work without her husband's consent under the current Egyptian law354 is a serious defect, even though the formal requirement of obedience can no longer be found in the law.355 Morocco is behind on Tunisia though, when one accepts the argument that polygamy ipso facto results in unequal treatment of multiple wives.356 The requirement of permission from the court does make the procedure more onerous for a husband wanting to marry a new wife and gives the existing wife the opportunity to "opt out," but this does not change the fact that the wife will always have this possibility looming over her.357 She may be able to get out of the marriage, but this does not mean the situation is favorable for her, losing the status of a married woman as well as possibly the comfort of her home and custody over her children.358 The situation under Egyptian law, requiring the wife to request the divorce herself, even if the second marriage is assumed to be a harm, is even more adverse for her.359
¶ 85 The award of custody on the basis of the best interest of the child, as found in the Tunisian legislation, leaves the judge more flexibility to determine what is better for the children after the divorce instead of the automatic assignment of custody to either the mother or father.360 The Moroccan law has the advantage of allowing the children to stay with their mother until they are mature, in some cases including when the mother remarries.361
¶ 86 Keeping in mind the principle of balance between the spouses, a wife's right to work while adhering to the husband's obligation to provide maintenance might be regarded as problematic. The Tunisian and Moroccan law attempt to restore balance by requiring the wife to contribute to the household when she has the means to do so.362 A possible solution might be to express the maintenance obligations in a gender-neutral fashion or to qualify them so as to have each spouse contribute according to their capacity. It would fit well with the mutual obligations for the family as formulated so explicitly in the Moroccan code and would still leave ample room for the traditional division of roles. If the wife's main task is to take care of the children and the household, the man's is to provide financial maintenance. Naturally, this division of responsibility could also be made part of the marriage contract. There would need to be ample safeguards, however, to ensure that women do not end up shouldering both the burden of the household and maintenance.
¶ 87 The reform in each country reflects a step forward to a certain degree. In the case of Egypt, steps are taken most cautiously; the autonomy of women is still not very great although the situation significantly improved as opposed to previous legislation.363 The fact that the law reform was the result of an extensive debate within society and the government alike may offer potential for future reforms. Morocco's form of government allows more dramatic changes to take place, as has been pointed out above when discussing the role the royal house has played in the law reform.364 There are still some significant improvements to be made, but the new family law is an important step forward.365 Tunisia's family law remains the most progressive in the aspects discussed here.366 However, the momentum for further progress seems to have been lost after the proclamation of the first personal status law.367 In addition, there is the issue of discrepancy between practice and theory, discussed in the following section.
¶ 88 The practical effect of these law reforms has not been easy to assess. A number of factors could hamper their implementation.
¶ 89 First, courts in all three countries are known to fall back on the shari'a in case the law does not provide ample rules to deal with the situation at hand.368 This opens the door to revert to those rules the new legislation aimed to override. How great this risk is, would depend on the familiarity of judges with the contents of the new legislation and perhaps even a willingness to apply it.
¶ 90 A second issue is the familiarity of women with their position under the law. Issues such as illiteracy and more generally the availability of information - which is more likely to play a role in rural areas than in big cities - can prevent women from claiming whatever rights they have under the law due to the mere fact that they are unaware of their existence.369 Human rights lawyer Michelle Brandt and founder of the ePolicy Group Jeffrey Kaplan cite that in 1981 at least 51% of Tunisian women were unaware of the country's family code.370 This has been followed up with an extensive program to combat illiteracy in the country, so the numbers may very well have improved since.371
¶ 91 Third, the influence of societal structure and traditional role patterns should not be underestimated. Expectations within the immediate family and ideas formed by one's upbringing are hard to negate. Issues such as economic underdevelopment and resurgence of Islamic fundamentalism can also have a detrimental effect on the choices available or the liberty in making them. Tunisian lawyer Alya Cherif Chamari stresses the discrepancy between the perceived emancipated position of Tunisian women as it is laid down by law and their real position in society. She questions whether in such case there really can be talk of 'emancipation' of women:
"A l'evidence, les lois regissant le statut des femmes dans la famille sont beaucoup plus protectrices qu'egalitaires. Si le legislateur a supprime les inegalitees les plus flagrantes, tels la polygamie, la repudiation, le «djabr», il n'en a pas moins conforte les rôles traditionnels de l'homme et de la femme dans la sphere familiale.
D'ailleurs, le discours politique officiel qui a accompagne les reformes «emancipatrices» a toujours rappele a la femme que son «emancipation» ne devait pas lui faire perdre de vue le rôle traditionnel d'epouse et de mere, tous les autres rôles qu'elle serait amenee a avoir en tant que citoyenne, travailleuse, syndicaliste ne pouvant être que secondaires.
C'est ainsi que le legislateur tunisien a conforte les structures familiales, conformement au modele patriarcal traditionnel, en instituant la famille legitime dominee par l'hegemonie masculine et mettant la femme en situation de dependance permanente, qu'elle soit fille, epouse ou mere. Dans ces conditions, comment peut-on encore parler d'emancipation?"372
¶ 92 Finally, there can be several issues that pertain to the countries specifically. The uncertainty regarding the limits of the marriage contract in Egypt, previously discussed would be one example.373 A frequent criticism on the Moroccan reform is the creation of separate family courts in too small a number to be able to adequately deal with all matters brought before them.374 It has been suggested that this separation from the general courts could result in a lower standard of justice in cases of family law.375 The validity of this argument is hard to assess as specialization can have its advantages with respect to speed and efficiency. It is also not uncommon to have courts divided up in specialized chambers. Nevertheless, this is something that should be closely monitored.
¶ 93 As far as the letter of the law is concerned, the law reforms do represent a step forward for women when it comes to marriage and divorce. A number of caveats have to be kept in mind with respect to the effect these reforms may have in reality, but as interesting and urgent a question as this may be, it falls outside the scope of this article.
¶ 94 Tunisia may be the only exception when it comes to reforms quantity-wise, but the deletion of the obedience principle is a qualitative improvement and its code was already quite advanced to begin with.376 Morocco has made the greatest stride forwards compared to its old family law, although the establishment of a separate family court system may or may not contribute very positively.377 Egypt has made some improvement, placing certain restrictions on polygamy and the uncontrolled use of talaq.378 However, there are serious loopholes in the law and divorce is still not as easily accessible for women as it is for men. This applies to Morocco as well.379
¶ 95 All in all, "early reformer"380 Tunisia comes out best when looking at the freedom of women to enter into marriage, their obligations during marriage, access to divorce and their position upon divorce.381 However, both Tunisia and Egypt make a distinction between men and women in marital age that could negate much of the positive developments in the law, as it constitutes an inequality in bargaining power with respect to the marriage contract.382 All three countries no longer mention the wife's duty of obedience, which is a positive development, but the possible restrictions that can be placed on the wife's movement by forbidding her to work, as can be done under Egyptian family law, are negative.383
¶ 96 The fact that the reforms are moving in the right direction does not mean that the codes as they stand - in particular those of Egypt and Morocco - do not leave much to be desired. Tunisia was right to abolish polygamy completely since the reasons why it was encouraged are no longer valid today.384 The restriction placed on it by the Moroccan code is commendable, but should be the prelude to abolishment.385 Egypt should do the same.
¶ 97 The Tunisian divorce arrangement can be a model for other countries. Both Egypt and Morocco have increased the possibilities for a woman to obtain a divorce and restricted the husband's use of talaq,386 but the systems for men and women remain separate and disadvantageous for women.387 As set out above, a separate but equal doctrine does not appear to work.
¶ 98 It should be possible to amend the law and still adhere to the Quranic principle of balance between the spouses. If awarding the wife equal footing when it comes to freedom of movement during marriage, access to divorce, and right of custody of the children is considered to distort the balance of mutual duties and obligations, an option could be created for the wife to "counterbalance" her increased independence by, for example, requiring her to contribute to the household expenses if she goes out to work. Such a regulation could leave ample room for the traditional arrangement the drafters of the original codes had in mind, in which the wife took care of the house and the family and the husband provided her with the money to do so. But it could also allow for a somewhat more modern arrangement in which both spouses work and contribute to the household costs according to their ability. This should be provided solely as an option, not a general rule; there can be many reasons why a woman would choose not to work,388 but should she want to, she should be able to make that choice. Tunisia's and Morocco's provisions on the woman's obligation to contribute financially if she has the means to do so allude to this,389 and it is an idea that should be taken into consideration in future law reforms.
| © Copyright 2007 by Northwestern University School of Law, Northwestern University Journal of International Human Rights | Volume 5 Issue 2 (July 2007) |