Family laws in Muslim majority and minority contexts
This page contains some examples of laws from Muslim countries and communities, whether majority or minority, that support the model Muslim marriage contract.
The information is mostly drawn from two publications which are based on research by local legal experts and activists in the Muslim community.
- Knowing Our Rights: Women, family, laws and customs in the Muslim world
- Home Truths: A Global Report on Equality in the Muslim Family
The topics covered by this page include:
1. Written Marriage Contracts & Registration of Marriage
2. The Right of an Adult Muslim Woman to Contract her own Marriage/the issue of wali
3. Gender Neutral Witnesses to a Marriage
4. Equal Rights and Responsibilities of Husband and Wife in Marriage
5. Giving Wives a Fair Share of Marital Property
6. A Complete Ban on Polygamy
7. Including Talaq-i-Tafwid (delegated divorce) in the Marriage Contract
8. The Rights of the Spouses to Add Other Conditions to the Marriage Contract
The vast majority of women live in situations where women’s marital rights are not as well protected as men’s. As the more vulnerable party in a marriage, a woman benefits from documentation of the marriage because it increases her chances of being able to access the inherent rights of a wife in a Muslim marriage as well as any rights the bride may have negotiated with the groom in the marriage contract.
With changes in society, earlier mechanisms of social control have broken down: families and communities can no longer bring effective pressure on men who do not respect their wives. Oral promises are nowadays not enough to ensure a smooth marriage. Women who lack marriage documents are even more vulnerable because oral contracts are difficult to enforce: who can prove she was married, when and with what contractual agreements? People move houses and towns, witnesses and the imam who celebrated the marriage are not always easy to trace.
In most Muslim countries, a marriage has to be registered and there are penalties such as light prison sentences and/or fines for failure to register the marriage. For example, in 1974 Bangladesh strengthened the marriage registration laws by passing the Muslim Marriages and Divorces Registration Act. In 2000 in Pakistan, the Federal Shariat Court upheld the registration of marriages as Islamic (Allah Rakha and another vs. Federation of Pakistan and Others PLD 2000 FSC 1). This shows how important marriage registration is in Muslim societies outside Britain. Muslim family laws for example in Bangladesh and Pakistan also regard the person who solemnized the marriage as responsible for registration.
The following are some of the countries whose laws require written marriage contracts and registration of marriage:
Algeria, Bangladesh, Egypt, Gambia (marriages under Muslim laws), Indonesia, Iran, Malaysia, Morocco, Pakistan, Philippines, Senegal, Sudan, Tunisia, and Turkey.
In Tunisia, under Article 9 of 1956 Code du Statut Personnel (Personal Status Code), both the husband and wife have the right to contract their marriage themselves or appoint proxies, and Article 3 regarding validity does not require the consent of the wali. Under Article 25 of the 2004 Moudawana (Morocco’s Muslim family law), a woman of legal majority may conclude her marriage herself, or delegate this power to her father or one of her relatives. In other words, both Morocco and Tunisia’s laws have made wali optional.
The laws that govern Muslims in the following countries do not require a wali at all for an adult Muslim woman getting married: Bangladesh, India, Kyrgyzstan, Pakistan, Senegal, Turkey, Uzbekistan. In Pakistan, the question of whether a Muslim marriage is valid without a wali has often been debated in the courts and the higher courts have consistently over many decades upheld an adult Muslim woman’s right to choice in marriage. Some of the most prominent cases include Mst. Humera Mehmood vs. The State and Others PLD 1999 Lahore 494 and Hafiz Abdul Waheed vs. Miss Asma Jehangir and Another PLD 1997 Lahore 301.
Even in countries where the law requires a wali, there are different interpretations about the wali’s role. For example, in Sudan’s law a wali is called a vakil and his role is simply as an agent whose duty is to convey the woman’s wishes.
In Malaysia, it is now very common for Muslim judges to authorise marriages opposed by the normal wali if the couple moves to another town. Section 13 of Malaysia’s Islamic Family Law (Federal Territories) Act 1984 (which was intended as a model for each of Malaysia’s 13 States) allows dispensation of the wali’s consent in favour of consent by the court if there are valid grounds for dispensation, “after due inquiry in the presence of all parties concerned”. In Azizah vs. Mat (1976) 2 Jurnal Hukum 251, the father of a young woman refused to give his consent to her marriage, wanting her to earn a living first. On her application to the Registrar, he (the Registrar) transferred the marriage guardianship to a wali raja (meaning the court). Her father was allowed to give evidence, and it transpired that his refusal to give consent was based on the fact that he wanted compensation for maintaining her. The consent to the marriage was given by the court.
Most countries do not require a wali if the woman is re-marrying.
The role of the witnesses is to testify to essentials of the marriage: the age, capacity and consent of the parties, as well as the fixing of mahr and any other agreed conditions to the marriage. In essence the role of the witness is to protect against the violation of rights.
ince women are generally the more vulnerable party in a marriage, witnesses are particularly important for them. For example, witnesses should act as a protection against forced marriage by attesting to the age and consent of the spouses. If there is any subsequent dispute about the existence of a marriage, witnesses can attest to the validity of the marriage (or at least to the good faith of one or both of the spouses) so that a woman would be able to retain her economic rights and ensure the legal paternity of her children.
Marriage laws and procedural laws for Muslims in the following countries do not specify the religion or gender of witnesses for marriage; they just require two adult witnesses.
Article 9 of Algeria’s Code de la Famille (Family Code); Article 2(1) of Indonesia’s Marriage Act and Article 14 of the Compilation of Islamic Laws; Article 13(4) of Morocco’s Moudawana; Article 15 of the Code of Muslim Personal Law in the Philippines; Tunisia’s Code of Civil Procedure; Article 147(1) of Senegal’s Code de la Famille (Family Code); Turkey’s Civil Code.
In 2001 Turkey, which is a Muslim-majority country, amended its Civil Code which regulates marriage. The new Civil Code has taken a new approach to the family and women’s role in the family, and under Article 41, the family is based on equality between the spouses. The old legal approach, which assigned women a legislatively subordinate position in the family, with rights and duties defined in respect to the husband, has been abandoned in favour of an approach that defines the family as a union based on equal partnership. This new approach is reflected in the language of the new Code. The terms ‘the wife’ and ‘the husband’ are replaced by ‘the spouses.’ The new approach to the family is reflected in several other changes as well:
- The husband is no longer the head of the family; spouses are equal partners, jointly running the matrimonial union with equal decision-making power);
- Spouses have equal rights over the family residence, and deciding where to live;
- Spouses have equal rights over property acquired during the marriage;
- Spouses have equal rights to enter into work;
- Spouses have equal powers to represent the family.
Reforms since 2004 in Morocco, and to a lesser extent in Algeria in 2005, have focused on rebalancing the marital relationship, ending the gender discriminatory nature of the listed rights and responsibilities. Both laws require the couple to consult mutually on family planning and the running of the household. In the new 2004 Moudawana (family law) of Morocco, spouses have mutual duties and rights, including: cohabitation, mutual fidelity, respect and affection, the preservation of the interests of the family; mutual inheritance; the wife’s assuming with the husband responsibility for managing household affairs and the children’s education; consultation on decisions concerning the management of family affairs, children and family planning; good relations with each other’s relatives.
Indonesia is the country with the largest population of Muslims. Its marriage law states that the rights and responsibilities of the wife and husband are “equivalent …in the life of the household and in the social intercourse in society.” Spouses also have a duty of mutual support.
In some countries that do not have Muslim family laws but where there is either a majority or very significant minority of Muslims, the law may specify that the spouses have the right to mutual maintenance (as in the Central Asian Republics), or the duties of equally shared consortium which includes shared housework, child care, love, affection and sex, (as in Fiji).
Marital property means the goods and property that the couple acquired (whether purchased by one or other spouse) during the marriage, and any improvements made to the spouses’ separate property that was done through joint efforts during the marriage. The laws in many Muslim-majority and minority countries often allow a couple to negotiate in the marriage contract how this property is to be controlled during the marriage or divided upon divorce. This is called deciding a ‘property regime’. There are different types of arrangements, and a couple should choose one that suits their circumstances (for a detailed discussion, see Knowing Our Rights: Women, family, laws and customs in the Muslim world). Fortunately, Muslim laws in many countries permit this kind of negotiation.
For example, Morocco’s new Moudawana requires the two officials attending the marriage to inform the parties of provisions permitting the specification of a property regime. This is designed to address women’s ignorance of the possibility of negotiating a property regime.
The following are some extracts from the above book about the laws in different Muslim countries regarding property in marriage.
Getting a Fair Share: Muslim Women in Singapore
In addition to idda maintenance, mata’a (compensation for a divorced wife – see Holy Qur’an 2:241) and the recovery of mahr, women married under Muslim laws in Singapore are frequently able to recover a substantial share of matrimonial assets, even when they have not contributed to the family’s income through paid employment.
Following amendments to the Administration of Muslim Law Act 1966 (no. 27/66) in 1999, the definition of matrimonial assets was clarified and the factors that the courts could take into account while deciding the division of these assets was also elaborated.
With the 1999 Amendments, the factors that are to be taken into account are (Section 52(8)(a) ADMLA):
(a) The extent of contribution made by each party in money, property or work towards acquiring, improving or maintaining the property.
(b) Any debt owing or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage.
(c) The needs of the children, if any.
(d) The extent of contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependent of either party.
(e) Any agreement between the parties with respect to the ownership and division of the property made in contemplation of divorce.
(f) Any period of rent free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party.
(g) The giving of assistance or support by one party to the other party (whether or not of a material kind) including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business.
(h) The income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future.
(i) The financial needs, obligations and responsibilities which each of the parties has or is likely to have in the foreseeable future.
(j) The standard of living enjoyed by the family before the breakdown of the marriage.
(k) The age of each party and the duration of the marriage.
(l) Any physical or mental disability of either of the parties, the value to either of the parties of any benefit (such as a pension) which, by reason of the dissolution of the marriage, that party will lose the chance of acquiring.
The 1999 Amendment defines matrimonial assets as (Section 52(14) ADMLA):
(a) Any asset acquired before the marriage by one party or both parties to the marriage which had been substantially improved during the marriage by the other party or by both parties to the marriage.
(b) Any asset of any nature acquired during the marriage by one party or both parties to the marriage.
However, this does not include any asset (not being the matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage.
Malaysia: Under Section 58 of the Islamic Family Law Act, following divorce the court has power to order the division of assets or the division of the proceeds of the sale of any assets acquired by joint effort of the parties during a marriage. Under Section 58(2), the court must incline toward an equitable division, taking into account: the extent of the contributions made by each party in money, labour, or property toward acquisition of the assets; debts incurred by either party for their joint benefit; and the needs of any minor children of the marriage. Under Section 58(3) and (4), assets acquired by the sole effort of one party to the marriage may also be divided, taking into account: the extent of the contribution to the welfare of the family made by the party who did not acquire the assets and the needs of any minor children of the family. However, the division must be reasonable, and the party by whose efforts assets were acquired must receive a greater proportion. Under Section 58(5) assets to be divided can include assets owned before the marriage by one party but which have been substantially improved during the marriage by either the other party or by the parties’ joint effort.
Iran: The standard marriage contract includes an optional clause stating that wealth accumulated during the marriage will be divided in half on divorce.
Philippines: Article 38 of the Code of Muslim Personal Law provides that in the absence of any other written agreement between the spouses (either made in the marriage contract or subsequently), the couple shall be governed by a complete separation of property regime. Under Article 41, each spouse retains whatever property they brought in to the marriage, all income from employment or trade, any money inherited during the marriage, any income from their personal property, and nuptial gifts; the wife retains her mahr.
Under Article 43, each spouse also retains that household property which is customarily used by that spouse. Couples may choose a regime of absolute community of property, which would mean that on divorce all property brought into the marriage and acquired during the marriage is to be divided equally upon dissolution.
Morocco: Article 49 of the new Moudawana establishes a separate property regime as the norm but permits the spouses to make a written agreement on the investment and distribution of assets acquired during the marriage. Informing spouses of these provisions is part of the duties of the adouls (public notaries) present at the marriage. In the absence of such an agreement, recourse is made to general standards of evidence also taking into account the work of each spouse, the efforts made and the responsibilities assumed in the development of the family assets.
Turkey: Under Article 186-237 of the Civil Code, a couple has the option of choosing between three different property regimes upon marriage: separation of goods (each party owns the goods and property that are registered in his/her name prior to and throughout the course of the marriage), union of goods (all goods and property owned by each party prior to and during the marriage are considered joint property of the couple); aggregation of goods (through a prenuptial agreement both parties decide upon which goods will constitute the joint property of the couple). Under Article 170, where a couple has not specified a property regime applicable to their marriage union, they are automatically considered to have accepted the separation of goods property regime.
A few Muslim-majority countries have completely outlawed polygamy. These include: Tunisia, Turkey, and Uzbekistan. Algeria’s considerably amended Code de la Famille (Family Code) and Morocco’s new Moudawana (Family Law) (Articles 40-46) have both introduced greater regulation, extremely strict in the case of Morocco. New or amended family codes awaiting formal introduction in some francophone West African countries (Benin, Guinea, Mali, Niger) all seek to regulate polygamy.
In Tunisia under Article 18 of the Code du Statut Personnel (Code of Personal Status), any man who contracts a polygamous marriage is punishable with one year of imprisonment or a fine of 240,000 Tunisian francs or both. These provisions apply even if the new marriage is registered and even if the man continues to live with the first wife. A wife who knowingly enters a polygamous marriage is liable to the same punishments.
In Bangladesh, a 1999 judgment by the High Court Division strongly discouraged polygamy and ordered that a recommendation be sent to the Law Ministry so that they could scrutinize whether or not polygamy could actually be banned. The recommendation suggested that the same line of reasoning used in Tunisia to ban polygamy could be used in Bangladesh (Elias vs. Jesmin Sultana, 51 DLR (AD) (1999).
In systems based on Muslim laws, a husband may delegate his unilateral right to talaq to his wife. He still retains his right of talaq but then also permits his wife to pronounce talaq upon herself. This agreement can be made through the marriage contract, or it can be negotiated subsequently. Talaq–i-tafwid is also commonly referred to in Arabic-speaking communities as ‘esma, which simply means ‘the permission,’ or ‘the option’.
In the absence of legislation and social practices that grant women equity and security in their marriages, talaq-i-tafwid can correct that part of the imbalance in marriage that is caused by a husband’s power to unilaterally terminate the marriage.
Since at least the 16th century, contracts containing talaq-i-tafwid have been recognized in the Indian subcontinent. The topic is thoroughly discussed in local Hanafi texts, and a whole chapter is devoted to this subject in the Fatawa-e-Alamgiri, which was prepared during Mughal Emperor Aurganzeb’s rule (1658-1707) and promulgated by the Mughal Emperor at that time.
The possibility of delegating talaq to the wife is specifically recognized in the Muslim laws of countries such as: Bangladesh, Iraq, Jordan, Morocco, Pakistan, Philippines, and Syria. Other systems may recognize talaq-i-tafwid also if spouses are permitted to negotiate rights through their marriage.
Bangladesh & Pakistan: In Bangladesh talaq tafwid procedures are governed by Section 6 of the Muslim Marriage & Divorce Registration Act and in Pakistan by Section 8 of the Muslim Family Laws Ordinance. An optional clause in the standard marriage contract form in both countries asks ‘whether or not the husband has delegated the power of talaq to the wife, and, if so, under what conditions.’
India: Although Muslim family laws are not codified (written down) in India, the courts do recognize talaq tafwid. A relevant case is Mangila Bibi vs. Noor Hossain All India Reporter, 1992 Calcutta 92
Philippines: Under Article 51 of the Code of Muslim Personal Law, if the husband has delegated (tafwid) to the wife the right to effect a talaq (at the time of the celebration of the marriage or thereafter), she may repudiate the marriage and the repudiation would have the same effect as if it were pronounced by the husband himself.
Iraq: Divorce terminates the bond of marriage when pronounced by the husband or by the wife who has been assigned or delegated an authority in that regard or by the Qadi. No divorce shall be effective except when pronounced through the legally prescribed formula (The Code of Personal Status of 1959 (amended in 1980), Section 34).
Morocco: Under Article 89, the new Moudawana clarifies that procedure for talaq tafwid follows the procedure for talaq and that the court shall rule upon the financial rights of the wife and children as for talaq. A husband cannot prevent his wife from exercising the right of repudiation that he has earlier delegated to her.
Muslim marriage is a contract, and therefore the spouses have the right to negotiate conditions to the marriage, as long as they are not contrary to the meaning of marriage (for example, that the spouses will live separately). This right is recognised in the laws of many Muslim countries and communities.
In Muslim communities across the world, couples negotiate a wide range of conditions to the marriage such as levels of maintenance, place of residence, employment options, educational options, freedom to travel or visit relatives, division of household responsibilities, standards of living, breastfeeding options, control of property, restrictions on polygamy, access to divorce, and standards for the husband’s emotional treatment of the wife. Women may negotiate where they will live to ensure that they will not have to live far away from their families. They can also ensure that the couple will live separately from the husband’s family (as is often negotiated in Saudi Arabia). For example, spouses may negotiate the terms of study for both partners and include in these further conditions to accommodate the time and resources required for their studies (Egypt, Jordan).
Negotiating household responsibilities can help to ensure an equitable sharing when both partners are employed. Negotiations on this issue may also serve to address and challenge assumptions regarding gender roles in the household.
In Saudi Arabia negotiations occur amongst the men, but there is significant room for the mothers and the bride to intervene, and negotiations are vigorously and seriously attended to. In Egypt the bride is party to the negotiations and can give significant input into the process.
In contexts where negotiations take place long before the wedding, rather than actually at the time of the marriage ceremony, there may be more space for negotiators to address controversial conditions and convince any unwilling party. This does not, however, prevent others from obstructing the agreed conditions at the last moment. It is not uncommon for imams who are solemnizing a marriage to ignore or object to conditions that the couple and their families have agreed to.
Most negotiations occur prior to a marriage. However, it is socially or legally possible for new conditions to be attached to an existing marriage contract, provided these are written (as opposed to oral) and attested to by witnesses.
The following are some extracts from Knowing Our Rights: Women, family, laws and customs in the Muslim world (http://wluml.org/english/pubsfulltxt.shtml?cmd%5B87%5D=i-87-563155), about the laws in different Muslim countries regarding conditions in the marriage contract.
Bangladesh & Pakistan: The standard marriage contract under the Rules of the MFLO carries provisions for talaq tafwid and allows the couple to enter any restrictions on the husband’s right of divorce (columns 18 & 19). There is no restriction on including any additional conditions, provided there is mutual agreement between the two parties. Column 17 allows for any special conditions. Column 20 allows for recording the details of any other documented stipulations relating to dower, maintenance, wife’s pocket money, etc. Case law establishes which conditions can be negotiated. Custody of children may be negotiated, but no such negotiation will have legal effect, as the court will decide custody on the basis of the child’s welfare (rather than on the basis of contractual conditions).
In Pakistan courts may accept contractual stipulations even when these deviate from traditional Muslim jurisprudence. For example, if lifelong maintenance for a divorced wife has been incorporated as a stipulation in the marriage contract, courts have supported the wife’s right to such maintenance. In one famous pre-Independence case (which is still applicable in Bangladesh, India, and Pakistan), the court ruled that ‘the marital rights ended with the divorce, but the contract subsists until the plaintiff dies or breaks it’ (Muhammad Muinuddin vs. Jamal Fatima, 1921, 43 All.650).
Iran: Article 1119 of the Civil Code allows either spouse to negotiate conditions to the marriage contract, provided the conditions do not go against the principles of marriage, and the standard marriage contract has room for additional conditions such as unconditional talaq tafwid. It is not legally valid to impose conditions that the law assumes encroach on the rights of third parties. For example, custody of children is thought to be the right of paternal grandfathers, as well as parents, and therefore, a wife cannot validly negotiate custody (in the event of dissolution) through her marriage contract. The standard marriage contract form introduced in 1987 contains 11 conditions under which the wife has access to talaq tafwid. These conditions are all related to some failure of or defect in the husband and include: his failure to pay maintenance; his failure to perform sexual obligations, his failure to reproduce, his failure to behave morally, his becoming insane, his developing a life-threatening disease, his imprisonment, his disappearance, and his failure to treat his wife justly. Both spouses sign each clause of the contract, signifying their acceptance of the agreed terms and conditions. The contract also offers the option that wealth accumulated during the marriage may be divided in half in the event of divorce. The wife benefits from these conditions only if she is not found to have failed in observing her obligations, specifically her obligation to ‘obey’ her husband.
Malaysia: Although the Islamic Family Law Act does not specifically recognise the possibility of negotiating the terms and conditions of a marriage contract, it does recognize ta’liq, a suspended talaq available to the wife in the event that the husband fails certain obligations. Each state has a standard ta’liq agreement (which varies from state to state), and additional conditions may be entered into this document, which is signed separately from the marriage contract. Both the contract and the ta’liq are recorded with the Marriage Registrar.
Morocco: Under Article 47 of the Moudawana, all conditions are binding except those contrary to the terms and objectives of marriage and to compulsory legal rules; such conditions are void while the contract remains valid. Case law recognizes stipulations that the wife may work, provided her working serves the general interest of the country. Under Article 48, the court may waiver or modify a condition if facts or circumstances make it difficult to meet that condition. However, reference to Article 40 appears to state that an agreement for the marriage to remain monogamous cannot be altered. Under Article 49, the spouses may draw up a separate document regarding management of assets acquired during the marriage, and the parties are to be officially informed of this possibility at the time of marriage. Under Article 67(8), conditions agreed upon by both parties are to be recorded in the marriage contract.
Algeria: Under amended Article 19 of the Code de la Famille (Family Code), the parties may specify in the marriage contract or any subsequent witnessed document, any conditions they choose, particularly concerning polygyny and the wife’s employment, provided these do not conflict with the provisions of the Code itself.
Sudan: Under Section 42 of the Muslim Personal Law Act, women have the right to stipulate any condition that neither prohibits a legitimate right nor legitimizes a prohibited right. Conditions that are stipulated in the contract are obligatory on the husband.
Tunisia: Under Article 11 of the Code du Statut Personnel (Personal Status Code), conditions can be stipulated in the notarized contract, and contravention of or failure to meet these conditions allows both spouses to apply for dissolution. Conditions can relate to persons or property.