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Personal status codes and development efforts

Personal status codes and development efforts *
Preparation: D. Ahmed Alkhmlishe **
Ideas emerged calling for a review of the provisions governing personal status or family since the beginning of last century. At about the same date issued modern drafting legislative texts, was the first of the Personal Status Code issued by the Ottoman Caliph in 1917, and dealt with marriage and divorce([1]).
And then relay the issuance of personal status codes in most Muslim countries with successive amendments to some articles, content varies from one code to another. This has resulted in This disparity popular intellectual trends in Islamic societies, which can be classified into:
-Conservative who clings to almost absolute provisions of the Personal Status as a blog in the doctrine applicable in the country concerned, and opposes even the possibility of quote some of the provisions of one of the other schools of Islamic jurisprudence.
-Reformist trend that sees in jurisprudence doctrinal heritage indispensable; However, the changing conditions of social life imposes advantage of all schools of Islamic jurisprudence and quotation apparently provisions investigator interest in the reality of life, as well as the possibility of overcoming all creeds and refer directly to the texts of the Qur'aan and Sunnah and interpreted without .
-Secular trend or اللائكي can rate established to Mustafa Ataturk after he styled 1922. This calls to sever the link completely idiosyncratic and even heritage texts of the Qur'aan and Sunnah, which received some of the family-related provisions that live, away from the guardianship of jurisprudence or religious authority.
And currents all three were present in the efforts to develop the personal status laws over the past century and in the past from the present century, though their impact has been uneven as applied by all Muslim countries from the provisions of the Family.
To bring the efforts in the development of the personal status laws offer briefly:
First: Examples of efforts to develop family laws.
Secondly: Why stumble Review family laws?
* * *
First: Examples of efforts to develop family laws([2])
Almost all Muslim countries have made efforts to review the provisions without which the jurisprudence of every doctrine of family planning; invited them to change the conditions of life, and relationships of coexistence among members of society, with the emergence of reformist ideas which called “Ijtihad” And review a lot of jurisprudence, which has become by virtue of changed circumstances do not achieve the highest values ​​and purposes for which it embarked.
The most important effort in the subject is completed collection provisions in personal status “Code” Wording generally accepted in the modern laws of advantages shortcut and clarity, and before that unify governance and to avoid the multiplicity of jurisprudence which is rarely without him any discretionary provision.
In addition to this effort regulatory provisions and procedures such as: Documenting decades of marriage, divorce and judicial rulings and adjust the devices help him …
The substantive provisions of the personal status, it can be classified about their right of review into three categories:
First: Stayed away from any review, and is found in countries that still apply the doctrine codified in the doctrine without any prejudice, this model may not be found outside the Kingdom of Saudi Arabia.
The second: Deep in the development, change sees many provisions of the constants is adjustable. An example of this breed Turkish law, which can be added to it despite the different objectives laws southern Somali and Yemeni([3]), Who handed down by the Communist revolution which in the two countries with the beginning of the seventh decade of the last century.
The third category, which includes the majority of Islamic countries caused the provisions discretionary review without prejudice constants and the peremptory norms, with a large disparity between the laws of these countries in the proportion of development and renewal. And the most important issues that touch amendment:
1 Definition of marriage and documented:
Exceeded legislation passed in the personal status idiosyncratic definition of marriage contract([4]), And considered it a consensual contract between the couple in order to form a stable family and affordable sponsored spouses([5]), Or sponsored by the pair([6]), Or Qguamth([7]), Or without reference to who should care([8]).
2 Civil marriage:
Which developed by family legislation determine the age of a civil marriage, and often between the ages range from 15 And 20; however allow most of them to the judge or the Crown([9]) Marrying off has not attained the age of eligibility, without specifying the age at which prevents down with him([10]).
3 State:
Drafting the provisions of the mandate of women in her marriage contract differed from one law to another. Tunisian law stipulates in Article 9 That “Husband and wife that Atula married Bonevshma, and Yukla Haoua …”. Conversely stated in Article V of the Act that the guardian of the Mauritanian “Pillars of the marriage contract”, And Article IX added that “Not true marriage of an adult woman without her consent, not to marry without her guardian, permission pristine silence”. And close to this article (19) Omani law, which says:
“The guardian of a woman holding her marriage with her consent”([11]) .
Between these two extremes, and find other formulas of the state such as Algerian law in. 11 Which states: “Complexity of adult women married in the presence of her guardian, a father or a relative or any other person of your choice”. Moroccan law, which decided in. 25 That: “Rational to hold her own marriage, or delegate it to her father or one of her relatives”([12]).
4 Polygamy:
Of thorny issues faced by the personal status legislation: To marry more than one wife; were differing attitudes towards it.
Some laws preferred to keep silent, leaving to eliminate the application of jurisprudence known, such as the law of Oman and Kuwait([13]); While others preferred to legalize, but as those codified in the doctrine([14]). And a third group - the most- Linked plurality judicial authorization in the general formula is clear indication such as Syrian law which came in Article 17 “The judge should not authorize the Married to marry his wife, except if it has a legitimate justification, and the husband was able to Nafqathma”([15]).
Finally we went Tunisian law which explicitly prevent pluralism, and punished all of breach
This prohibition; and will be circulated in. 18That: “Polygamy is forbidden. Both married in a state of marital and before removing the infallibility previous marriage shall be punished with imprisonment for a year, and a fine of two hundred and forty thousand francs (Dime), Or one of them - even if that new marriage
Has not entered into- Applied the provisions of the law”.
5 The role of the wife in the report in the affairs of the family and conduct:
Majority of the laws did not refer to the participation of the wife to the husband in the report and management for Family Affairs, which is consistent with the text of these laws that the husband is the pastor of the family or values, as well as to afford expenses([16]).
And some guarantee “Care couple” Of the family, and”Consultation in decision-making related to the conduct of the affairs of the family and children and birth control” (ملحق بسير *الشماخي. 4 And 51 of the law المغ my M), And Abu Ammar Abdul Kafi”Consultation in the conduct of the affairs of the family and birth spacing” (ملحق بسير *الشماخي. 36 Algerian law).
But it seems that such statements have no real impact on the report in the affairs of the family as long as the pair is binding alimony, and jurisdiction over the children confined to the father as long as alive. (ملحق بسير *الشماخي. 231 Moroccan and 87 Algerian).
6 Termination of the marital relationship:
Because of the focus in the marital relationship building “Possession” Husband “Right” Sexual pleasure to the wife([17]), The termination of this relationship linking the absolute will of the husband; application of the principle of freedom of the owner the right to waive the right whenever he wants.
And amounts opinion in jurisprudence comes out divorce from regular voluntary behaviors, and is considered effective if it is contrary to a year or attached women did not yet absolute Atzojhen, or was drunk or coercion([18]), Or in jest([19]).
And other opinion to impose some restrictions on the absolute If Aralla not divorce was not effective; There sees unenforceable innovated divorce in all its forms or in some.
There requires a specific format and divorce other([20]).
But who defeated accordingly and spend is the first opinion; therefore was a strong criticism of some of the legislation that imposed procedures husband should do to sign divorce.
The position of the personal status laws of Multi ending pair of the marital relationship can be classified as a whole to:
1 Force divorce husband once it passed, without any judicial oversight. This is what we find, for example, in the Kuwaiti law, which only in the text. 102 That “Located divorce each pair sane, adult, Mukhtar, conscious of what he says …”([21]).
2 Into force of the husband's permission to divorce, with very limited intervention to eliminate. Examples of this approach:
– Omani law, which came in. 81 And 89 thereof:
” ملحق بسير *الشماخي. 81: 1 Divorce solve the marriage contract as set him religiously …
2 Divorce verbally or in writing, and when the deficit with them, understandable Fbalaharh”.
“ملحق بسير *الشماخي. 89: A proven divorce actually outside بالبينة Court or recognition.
B divorce with the permission of the husband before the judge.
A judge prior to the occurrence of a permit to try mending fences”.
– Mauritanian law which stated in Article 83:
” Divorce is an infallible solution by the individual will of the husband. The husband who wants to divorce to appear before a judge or reformer for codification; In this case involving the judge or reformer wife to attempt reconciliation between them.
If the husband insists on divorce record Judge or reformer divorce, and determines their agreement to Help Desk”.
3 Divorce is pronunciation of the pair, with the imposition of judicial involvement to prove or permission.
This decision of Algerian and Moroccan laws.
Algerian law recognizes the entry into force of divorce husband once pronouncement; this Yuhz of Article 50 Which says: “See his wife while trying Magistrate does not need a new contract”; Because irreversibility not only be divorced wife, but on the other hand prove inventory divorce in one way is the judicial ruling([22]) Issued after a failed reconciliation attempt, any: The pair can:
– To declare divorce and then ask the judge to prove his statement by virtue of.
– Or that the judge his intention to divorce, and ask him to sentencing to prove his statement divorce.
In both cases, being the judge attempt conciliation in accordance with Article 49. If you check Magistrate marital relationship continued in the second case, and resumed without a new contract in the first case. If the attempt fails reform proved to the judge in his divorce with its history, which was announced by the pair.
The Moroccan law, it avoided an explicit non-recognition of the pair's divorce once pronouncement([23]), But achieved the same result by requiring judicial authorization to accept a statement pair divorce before Aladelan charge of documentation; the text in. 79 That: “Must wants a divorce to ask permission from Court Balachhad when good character upright circle of influence the court that has the marital home, or the home of the wife, or her place of residence in which it is concluded the marriage contract in the order”.
We believe that the Moroccan legislator according to the way they handled the subject of divorce the husband, not forfeited his right to end the marital relationship, but being used to this right to obtain court authorization. This restriction project; because the aim is two things, two: Try mending fences, and in the case of failure to ensure that the reform absolute and children - if any - of the legitimate rights of the interview the husband's right to divorce. Justice imposed requiring those who wish to use their right to perform the corresponding obligations of this right; apparent injustice to allow the exercise of the right, without the performance of the corresponding commitments to accept the husband sign divorce, then said to the wife and children: You Ttaliboh your rights arising from this divorce, taking into account the difficulties and obstacles to women of litigation procedures, and lack of children to civil litigation, and the father is absolute legal Naúbhm.
So it looks just the requirements stipulated by the Family Code in Article 79, as well as the procedures prescribed in Articles 83 -88 If you can not reconcile the couple([24]).
4 Spouse is entitled to terminate the marital relationship, but permit divorce does not make him, but the court. This is stated in the Tunisian law, which came in. 30 And 31 thereof:
” ملحق بسير *الشماخي. 30: Divorce does not only with the court.
ملحق بسير *الشماخي. 31: Governs divorce:
1 Consent of the couple.
2 At the request of a spouse because of what happened to him from harm.
3 At the behest of the pair create a divorce or wife's claim.
And serving those affected by the couple compensation for material and moral damage caused by divorce in the case shown the second and third paragraphs above …”.
Under these texts are not divorce in all cases, except by a judicial. In the case create a husband may divorce the court after a failed attempt Magistrates obliged to respond to his wish, with sentencing compensation (Rations) Absolute than the right of damage due to divorce.
Suffice with these models for the efforts that have been made in the direction of the development of codes of personal status, and make sure that development remained modest. Valkhash that can be drawn from a careful reading of those codes are:
-Limited number of them to copy those codified in the doctrine which was applied prior to the issuance of “Blog”.
-Blogs that have modified some jurisprudence was formulated inconsistent, such as: Put the family under the auspices of the couple and their consultations in the conduct of its affairs, with the obligation of the husband alone and competence of the state spending on children. Or characterized by generality and lack of clarity, such as: Formulation of the mandate and polygamy.
-Retention terms no longer have specific significance in the reality of life, such as: Efficiency, and Friendship ideals …
* * *
Secondly: Why stumble Review family laws?
In this paragraph are offering some of the facts confirmed the presence of faltering or hesitation in reviewing family laws, and the reasons for defaulting, and finally discuss these reasons.
1 Audit finds:
Initially rule out some cases where there has been undone Rules issued by political authority is keen to ideology far from the reality of its people and culture, such as what happened in South Yemen and Somalia in the period of communist rule, and some modifications were made to the Iraqi law after the coup on the monarchy in 1958.
Wide upgrading we mean is that is in the circle of respect for the peremptory norms, and read law texts in light of the objective of the of justice and mercy and avoid injustice and hardship.
In this area we can say that there reluctance and resistance to the introduction of any amendment to the provisions of the Family Code in references doctrine applicable in every Islamic country. Examples installed to say:
A majority of the Arab and Islamic countries did not issue the personal status laws only in the last three decades.
In Morocco, which issued the Code of Personal Status in 1957:
– Prepare a draft amendment 1961 Commission made up of the heads of some courts.
– Prepare another project following the release of unification of the Judiciary Act (26/01/65).
-In June 1979 Founded “Royal Commission to identify the” Which reviewed a preliminary draft consisted of (504) Material, and re-drafted in (336) Material, and the Minister of Justice announced on 5 May 1981 That the project will be released soon, but nothing has issued.
-Presented to Parliament earlier amendments to some articles on raising the age of marriage, and the placement of polygamy to judicial scrutiny, and stopped into force divorce statement before the judge, Parliament did not accept any amendment.
-In the early nineties has intensified the debate between advocates change Blog 1957 Among his opponents; King Hassan II intervened, and asked the two teams submit their applications to the Royal Court, and after the adjournment appointed committee took the study and presented the following suggestions:
  1. Wife's signature on the marriage contract.
  2. Rachida no father to conclude her own marriage contract.
  3. So the judge polygamy.
  4. So Judge documented divorce.
  5. The possibility of the integration of compensation in the fun if the judge determines that undue divorce.
  6. Order the father after the mother directly in entitlement to nursery.
  7. Authorization of the child's (12) Years for males and(15) Years of female right to choose who lives with relatives.
  8. Chapter in an emergency claims for alimony.
  9. Authorization mother guardianship of her children after the death of the father or lose eligibility.
10. Creation “Family Council” To assist the judge in charge of minors.
And passed on these proposals, issued by royal decree dated 10/09/1993.
This march tides in attempts amendment to the Personal Status Code throughout almost half a century, that has intensified the debate again in 2001; where she was appointed a committee of sixteen members embarked for two years, Astamt initially to dozens of associations and organizations, and received them proposals and prepared a draft code 03.70 Issued by royal decree dated 3 February 2004.
Jhlan عدون. In Egypt, Shaykh Muhammad Abu Zahra([25])God's mercy: It's in the early years 1915 The committee is composed of senior scientists, and prepared a project which took into account the four schools, and felt “Hassan put him on the population and scientists with the thought of the nation … Fjatha criticism and proposals, and hit on her storms with narrow chests both new, although it derives from the ancient elements of composition and authored units; since calculate that what they are alone is religiosity and taking the most trustworthy handhold. The Committee has difficult to reconcile work and intercept these objectors, and the conditions of the country in a timely manner to allow sanctioned action raised objections to six Boss religion … This Nam Project Committee and foldable in the records of the Ministry of Justice, until the case came and had the opportunity appeared a little part of it with a slight change in the law 25 For the year 1920″.
It was subsequently issued Law No. 56 For the year 1923 In articles “Their substance that you can not hear a case if the age of marital spouse less than sixteen years, and enact a pair less than eighteen years … Many have received cash and counterfeiting, and the diatribes pen where the hustle and Ljb and arguments and evidence … “.
Then draw “In October 1926 A committee composed of men with courage, mostly students from Professor Imam Sheikh Mohamed Abdou affected his calls; placed proposals were not restricted doctrines four not Taduha, but exceeded that range to the views of Muslim jurists in general, quoting them as it deems more beneficial to the family, but exceeded it and upgraded ”.
And than Strth was in its: -تقييد التعدد بإذن القاضي.
-Unenforceable drunken divorce and the impeller and the pending divorce.
-Divorce is associated with the number of rude or no signal is only one.
-Every divorce is revocable only supplementing the three, or money, or before entering, or by law.
-If the husband committed, provided the benefit of the wife and not contrary to the purposes of the contract, and then breached wife had a right to dissolution of marriage.
The Sheikh Abu Zahra: “Has quite a stir about this project responded to reverberate in the House prosecutors, had the impact of the Nam project in filing to the Department of Justice that he woke up in the year 1929, the Legislative Decree No. 25 (1929), and only in this law
What came in the four schools did not exceed”.
The succession in Egypt after that and in the past half century written by committees and complete projects formulation of the Personal Status Law, and could not reach the intended target because of the stubborn resistance of each change to the provisions of jurisprudence familiar.
In 1979 President of the Republic issued([26]) Decree No. 44/1979
This is guaranteed by Decree:
* Coupling pair another wife without the consent of the first considered damaging to the latter, conferred the right to petition for divorce, and the viability of the absolute in the marital home while preparing the nursery, and the possibility of her judgment for compensation in the case of arbitrary divorce.
* The Constitutional Court annulled this decree and Awad Law No. 100/1985 , Which fell for the critical provisions of the Decree 44/79.
Limit ourselves to these two models of the obstacles that stand in the way of the development of personal status codes. And move on to paragraph pro:
2 Reasons stumble:
Can be emphasized that the main reason is due to the “Culture” Which combines texts and interpret law; not distinguish between the provisions contained in the definitive texts roses and significance, and between the discretionary provisions institution possible to interpret the texts for more than a sign or a shootout among themselves. This is what describe reactions to a minor during its proposal until after approval.
To avoid prolongation suffice three examples: State, polygamy, divorce.
A state of women in the marriage contract:
Presented late Ibrahim Bin friend to the Commission to prepare a draft “Family Code” -That he was a member- Memorandum about the obligation to pay the guardian married women. It came in the note:
“The Messenger of Allah e: «There is no marriage without a wali, this hadith was narrated e accidentally frequency”.
The interview: «Any woman who gets married without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid and that he entered her portion of the dowry including hit them, the Achtgroa فالسلطان Crown has no guardian». Narrated by Abu Dawood Tayaalisi, and Ahmed, recaps, and Abu Dawud, Tirmidhi, and Ibn and Daaraqutni, and the Governor, and Bayhaqi, Abu Naim in jewelery and other … Ibn Hibbaan classed, and son Jaarood, and Abu Awana, governance and others. The above-Tahawi including arbitrarily considered apparent invalidity thereof, narrated by Ibn Hibbaan, ruler, and Bayhaqi and Ibn Hazm Vojedua … Has with evidence of recent group of companions talk is undoubtedly true”.
The note added that the state should be on women in her marriage contract is “Consensus of companions” And”Agreement scholars affiliated city” And “Considered the guardian of marriage which is not necessarily known to Muslims”.
Thus provides state of women in the marriage contract as a fixed frequency and the consensus of the companions and it is known of the religion and obviousness.
And published articles and opinions after issuance of the Family Code 2004 Confirms that the state health condition in the marriage contract, which is “Devotional work and comply with the orders of Allah Almighty, and this a legitimate destination
Great … “.
B polygamy:
Which criticized Egypt Decree Law 44/79, and led to the cancellation because it was stipulated that “Association is damaging to the wife her husband another without her consent”, Which conferred the right to request a divorce; but critics said: This prohibition of what Allah has permitted “As if our knees obvious evidence of production, and said it: Coupling pair another without her consent damage, and all damage is haram; permission coupling pair another without her consent is forbidden, and this … Lead … To the Caliphs and the companions and followers, and the Sacred after them as well as they did and damage, as it has not been proven that the nation - even in one case - accepted from the first divorce of marriage per second”.
The fatwa was published in a daily newspaper in Morocco on 28 January 2008 Responding to the question says the owner: It “Married for some time, did not help me God offspring valid due to low fertility have, making my father insists on marrying again, May God be a cause of livelihood Atomic, but my wife did not accept it, and declare they want a divorce if it took this step ”.
Answer Mufti: “Not entitled to this wife to ask for divorce because her husband wants to marry a woman again, this objection to the law of God, and especially if the physical conditions are appropriate and available, it is Rabbani no income for the creature”.
It is the strangest thing I have read about plurality written by Sheikh Abu Zahra God's mercy that the legalization of polygamy restricted on two conditions: Justice and the ability to alimony. Every marriage entered into married and he thinks the lack of justice and deficit spending may be haraam, however marriage is true, God يحاسبه unfair.
Then concludes by saying: “The meeting in Egypt was still impose the legalization of polygamy as long as entrenched desires, and as long as people did not learn, and as long as men are reluctant between defective and haram is no doubt, and I'm defective is married with multiplicity. Teach people and lift up the level of his life was not then the multiplicity”([27]).
How can marriage be haram and halal?
And how to be ignorance and poverty cause for the spread of pluralism, science and high quality of life Inheiana. However we say: The multiplicity is “Law of Islam”؟.
C divorce:
Says the late Abu Zahra in the introduction to his book “Marriage in Islam”: “Nan in a statement provisions Marriage in Islam statement Tunisian law, or what they called the Tunisian magazine; Because this count polygamy law offense, and put her punishment by imprisonment with nullity second marriage, if other than what Allah revealed. And also decided to prevent divorce and so-called punishment, and building on that divorce is not a reality meanwhile what Allah has forbidden.
It is a law but not Islamic, which is closer to be excommunicated; because the difference between church law and the law of Islam to marry is the legalization of polygamy and divorce in Islam passport, and prevent them in the church “.
Sheikh Qaradawi believes that “There is a range of men who agitate some modern women, these and those they want to impose on the Muslim community in the marriage and divorce laws non-Islamic. They are trying to enter this community Muslim marriage and divorce on the way which takes the form of European Christianity, which in fact pornographic not religious. They want to deny polygamy Abahawwa from behind multiple girlfriends. They want to restrict divorce for cohabiting men in from dislikes, and looking in the no man's land who loves, and they do not care haraam nor deny
Nor يسخطون, all they care to convey degenerative European traditions to Islamic environment to please their masters or feeling invisible in themselves”([28]).
How true this acerbic criticism in the name of Islam to any prejudice to the culture inherited from the state in marriage, polygamy and divorce? :
3 Debate:
We saw descriptions that give the state of women in marriage, polygamy, divorce, which we discussed.
A state:
For a term Enough answer below in the Code of Imam Malik, who is the largest militants say the state, so it is almost unique saying compulsory jurisdiction eldest daughter, but exceeded adulthood after two years. Which came in the Blog:
Asked denominator bug Maalik: The marriage of a woman without a crown dissolved by divorce, he replied:
“Because dissolution of the marriage if the owner is not on the face of the prohibition of marriage, he did not have interested Albin. (Said): I have heard the words of satisfied scholars is that every marriage where people disagree is not haraam of God nor His Messenger, people leave and people who hated him; divorced when necessary, such as women marry outside the Crown or woman married herself … Each marriage was forbidden by God and His Messenger, where divorces are not divorce, and dissolution is not a divorce”([29]).
Will hit the conversations that necessitated state ranking “Rhythm” Says late Bin friend, however, did not reach the owner who spent his life in the city learner and teacher, mufti?!
And how the state is fixed in the religion, however he says I'm denominator: The dissolution of a marriage without a guardian when the owner is not on the face of the prohibition of this marriage, and that, according to what he heard who pleases scholars falls within marriage “People disagree it is not haraam of God nor of His Messenger, people leave and people who hated him”؟!
Is it hard frequent text and information from religion necessarily accept that says his owner
“What dissolution Balpin but I like to”?
B polygamy:
Intuitive that it can discuss the issue of restriction or ban on polygamy to prove a preponderance of interest in keeping it unconditionally. This is what can not be reached only through the study of fact and analysis;: Case studies plurality of living, and the behavior of individuals who have a real desire in the multiplicity and prevented him([30]), And a reflection of all this on the public life of the community. This is what has not been done a critics to restrict pluralism or prevented.
-Koran explicitly restrict pluralism and prevent it once “Fear” Inability to justice, and the formulation of the verse does not need to be stated.
-Claim assignment is to pluralism will Raghib Him alone, and that there is validity to the community in the intervention, it seems unacceptable for more than one reason:
How is attributed to Islam that marriage to be held with the belief that disability is not justice and for alimony haram, yet it is a valid marriage? .
Multiplicity behavior affect the rights of others: Wives and children, and nothing in the law of Islam behavior affects the rights of others and left to the will of existing alone; how exclude pluralism and intervention alone will prevent it even hurting others, and was thus forbidden?.
Assuming that polygamy is permitted without conditions, pain combines jurisprudence that it is permissible to restrict the permissible; What evidence exception plurality of the total this principle?
C divorce:
No law prevents the one pair of the right to terminate the marital relationship through divorce([31]), And imposed several laws oblige the husband should refer the matter to the court is not in it “Prevent” For divorce,
But aimed at two things:
-Attempt to reform.
-Enable absolute and children - if any - of their rights due to the absolute pleasure and housing expense and compensation when appropriate.
All this imposed interest and the principles of justice and equity, Trying to restore harmony to reform a significant proportion of cases of domestic fissures of up to forty percent. The compel the husband to what rights do justice to the absolute physical and children, and protects them from carrying claim the length of judicial procedures and high costs, particularly for children who have is Mdenhm same legal Naúbhm.
Any legitimate caveat in this action taken for the benefit of a clear and indisputable?
It possible to say, for example,: These laws violated the law of marriage when imposed on wanting to make some documents, and obliging them documenting before the official organ director for this task?.
Conclusion: The provisions of the Personal Status not worship belonging to individual's relationship to his Creator and then characterized by private, non-reasoning, but concerning the organization of relations between individuals; thus fall within the provisions of the transaction-based reasoning, and the principles governing the relations of individuals among them of justice and charity, and to prevent injustice and injury to others without prejudice .
And in order to complete the above theoretical discussions conclude with statistics issued by the Moroccan Ministry of Justice are indicators of the effects of the amendments to the “Family Code” First 2004. And limit ourselves on the themes of marriage and divorce.
First: Marriage:
1) Marriages within ten years:
Years Marriages Percent Change
1998 217.662 ـــ
1999 216.920 – 0,34%
2000 227.741 4,99%
2001 230.384 1,16%
2002 246.206 6,87%
2003 263.553 7,05%
2004 236.574 – 10,24%
2005 244.795 3,48%
2006 272.989 11,52%
2007 297.660 9,04%
The table shows that the graph of marriage contracts resumed its upward trend after 2004([32]), Which confirms that the provisions made in the Family Code in favor of women and children have been no fear in men of new commitments that were placed on their shoulders, and is known to have high or low number of marriages is mainly due to the man who imposed norms and traditions that issued the request to marry him and not .
2) Cases contractors:
Marriage fees according to the cases below
Review (To renew the contract of marriage)
Total Marriage fees
Couple two adults Adult marriage held her own marriage Below

The age of eligibility
Multiplicity With a mental disability Adherents of Islam and foreigners
Proceeds Year 2007 196.559 62.162 29.847 875 27 6.156 268 1.766 297.660
Percentages 66,03% 20,88% 10,03% 0,29% 0,01% 2,07% 0,09% 0,59% 100,00%
Interestingly, in this table:
-The number of adult women Akdn marriages themselves as hit numbers (62.162), Versus (60.095) 2006; as a result of the text in the Family Code Article 25 That “Rational to hold her own marriage, or delegate it to her father or one of her relatives “.
-High number of married under the age of eligibility, and not least due to the specified age for civil marriage, a (18) Years, and the case that sexual maturity is already at this age.
3) Data on child marriage 2007:
Thread Number Ratios
Applications registered 38.710
Requests males 379 0,98%
Requests females 38.331 99,02%
Applicants living Balbadah 20.324 52,50%
Applicants living in the city 18.386 47,50%
Requests of workers 598 1,54%
Those requests without profession 38.112 98,46%
Years increasing student (E) In total orders recorded 1990 1991 1992 1993
Number 25767 9865 2730 348
Percentage 66,56% 25,48% 7,05% 0,90%
Controlled applications Number Ratios
Applications accepted * 33.596 86,79%
Rejected applications 4.151 10,72%
Applications ceded 963 2,94%
* The number of special fees married minors 29847 Fee.
Actions taken in the applications accepted Number Ratios
Search 10.430 31,25%
Experience 14.610 43,49%
Experience and research together 8.556 25,47%
Years increasing student (E) Total Requests accepted 1990 1991 1992 1993
Number 23.346 8.229 1.862 159
Percentage 69,49% 24,49% 5,54% 0,47%
Attorney position Number Ratios
MP accepted position 37.453 96,75%
MP's position rejected 1.257 3,25%
-That requests for civil marriage under the age of belonging mainly girls, and this is linked to the traditions inherited wants both parents and some couples as well as.
-The concerned Baltazoaj at an early age almost all without a profession, it does not need to comment.
-The suitors before eighteen, mostly in the seventeenth year, and a few of them (0.90%) At the age of fifteen.
-A very small percentage (3.25%) Is requesting permission to marry without the consent of the legal guardian.
Secondly: Divorce:
1) Evolution of divorce cases:
Years Divorces Percent Change
1998 50.763 ــــ
1999 42.069 -17,13%
2000 38.438 -8,63%
2001 37.593 -2,20%
2002 41.450 10,26%
2003 44.922 8,38%
2004 26.914 -40,09%
2005 29.668 10,23%
2006 28.239 -4,82%
2007 27.904 -1,19%
Confirms table that curve detector for cases of termination of the marital relationship divorce is not fixed in its pace, and what concerns us is that it is going generally in the direction of decline since the Code in 2004, and this seems due to some new commitments become absolute borne; therefore avoids many couples divorce, and Iltjion .
The result is that cases of divorce, which amounted 1998 (763 50) Decreased 2007 To (904 27) Or about half([33]). In contrast divisive divorce which did not exist in 1998 Released by 2007 (562 18) Judgment, part of it at the request of the husband.
2) Requests a divorce and ended conciliation:
Recorded during the year 2007 (599 40) Request authorization divorce Balachhad, ended the Court (8512) Request conciliation([34]), Documented (27904) Drawing divorce; distributed as follows:
Reactionary (6330), And Alkhlaa (8253), And pre-construction (4862), And the Convention (8243), And the Kingdom (129), And supplementing the three (87).
Thirdly: Divorce:
Reasons for seeking divorce Applications registered Ended conciliation Provisions for divorce Rejection of the application
Discord 40728 5847 562 18 9046
Breach of the condition or damage 788 141 447 438
Not spending 928 106 703 316
Backbiting 2162 132 1362 502
Defect 54 1 12 24
Alela abandonment 53 17 42 30
Total 44723 6244 21328 10356
And what they can comment on this table is that judicial decisions divorce became convergence of divorces issued by the pair (27904) Case 2007.
The reason is due to the inclusion of the Family Code reason for divorce was not in effect, a rift that has pleased the wife to resort to it, having had access to divorce because of the damage rarely succeed in access to the difficulty of proof; even pair resort to petition for divorce divisive to avoid the costs of divorce or . Over the years 2007 Foot (728 40) Asked divorce divisive: Wife made them (547 26)And gave the pair (14181) Application; any rate 34.82%.
Finally: Should be stressed that the family happy and tranquil not prescribed by the law alone, but that proves this construction essentially they both ends: Husband and wife, in addition to the social milieu and the prevailing culture. It is painful that all these husband and wife and the weakness of community hold them to the costs and responsibilities of family material and moral, which will make it back to whatever the law which governs reference: Religious or secular or even communism.
In fact, the human civilization today threatened by a decline of the family system, without which we do not know what remains of the concept “Human society”؟.
And it may be that he wakes conscience, and life is exceeded moment and think about the fate and destiny.

*Rationing and innovation in contemporary Islamic jurisprudence held during the period (28-2) April 1429 / ( 5-8) April 2008 – Lectures Hall Sultan Qaboos Mosque.
**Director of the Dar al-Hadith Hassania Kingdom of Morocco
[1]) It did not apply this magazine because of the outbreak of the First World War, then known Mustafa Ataturk revolution.
[2]) I apologize for what may be wrong in some of what I offer from the provisions of various laws as a result not be found on the amendments to the Haktha. There is an affordable way to keep up with all the emerging amendment to the personal status codes.
[3]) It came in the provision of the law of South Yemen: “For the sake of the state on the need to regulate family relations structured in line with the principles and objectives of the program of the national democratic revolution, and end forever all the old relationships that ruled Yemeni family and has been hampered for playing a positive role in building community … “. The two laws together canceled after the end of communist rule in Somalia and unification.
[4]) Maalik Ibn Arafa knows saying: “Held on just savoring the Badme fun is a positive value is brought before him” Lumberjack owner Khalil, 3/403. When Ibn Abidin in his entourage (2/258): ” Contract that king of fun; any solution for a man to be of a woman who was prevented from marrying her mind legitimate”. And when الكاساني in Badaya (2/234): “Marriage netting invasive money”.
[5]) ملحق بسير *الشماخي. 4 Moroccan law.
[6]) ملحق بسير *الشماخي. 4 Omani law.
[7]) ملحق بسير *الشماخي. 1 Mauritanian law.
[8]) ملحق بسير *الشماخي. 4 Algerian law.
[9]) ملحق بسير *الشماخي. 7 Mauritanian law.
[10]) Under Kuwaiti law, in. 26 That ” Prevents the marriage contract or approved unless the girl fifth session, and is the seventh boy years of age at the time Documentation “.
[11]) Came in. 8 Of Kuwaiti law: “Marriage shall favorably of the wife's guardian and acceptance of the husband or who their deputies”. He added in. 29 “With. Meeting requires the opinion of the guardian and Mawla “. The reference in these laws to the satisfaction of married does not have any effect as long as it did not impose its presence to declare her consent before the notary contract; to be married women, in many cases without their consent, even though its opposition in a few cases.
[12]) According to statistics of the Ministry of Justice the number of women who Akdn married 2007 Themselves (62.162) Girl. And that of the marriage contracts concluded during the year and number (559 196) Contract.
[13]) And two Egyptian law, which merely providing that “The wife may, who married her husband to ask him for a divorce if the right material or moral damage, can not be with him between ten time like them, even if you have not stipulated in the contract not marry “.
[14]) Mauritanian law which provided. 28 And 29 that the wife who required not to marry them, have the right to claim divorce if the pair breached the requirement that committed. He added in. 45 That he: “Allows polygamy if the terms and intent of justice, and this is done after the flag of each of the ex-wife and that there was a subsequent requirement “.
[15]) Came in. 3 From Iraqi law:
… 4 May not marry more than one wife without the permission of the judge, and required to give permission to the following conditions are true:
A be financial adequacy pair to support more than one wife.
B to be there a legitimate interest.
5 If there is the fear of lack of justice between wives, it is not permissible diversity, and leave it to the judge.
6 Both had a contract to marry more than one wife Contrary to what is stated in paragraphs 4 And 5 punishable by imprisonment for a term not exceeding one year, or a fine not exceeding one hundred dinars or their.
7 Notwithstanding the provisions of paragraphs (4) And(5) Of this article: Permissible to marry more than one, if you want to marry a widow”. A. 8 Algerian law: “Allowed to marry more than one wife in the limits of Islamic law when found legitimate justification, and conditions are available intention of Justice. Your husband should tell the ex-wife, and the woman who accepts to marry her, and to submit a license application to marriage to the President of the Court to place the marital home. =
== President of the Court can be authorized new marriage if you make sure their consent, and spouse proves legitimate justification and its ability to provide justice and the necessary conditions for married life”.
“ملحق بسير *الشماخي. 8 Repeater: In the case of fraud, each wife may file a lawsuit against the husband to claim divorce”.
“ملحق بسير *الشماخي. 8 Bis 1: New marriage annulled before entering if the husband did not obtain an authorization from the judge and in accordance with the conditions stipulated in Article 8 Above”.
Moroccan law devoted to the theme plurality seven articles (40 ـ 46) Detailed substantive and procedural provisions.
“ملحق بسير *الشماخي. 40: Prevents diversity if there is the fear of lack of justice between wives, it also prevents the case of a condition of the wife not to marry”.
” ملحق بسير *الشماخي. 41: Not authorize the court plural:
– If you do not prove her extraordinary objective justification.
-If you are not to the applicant sufficient resources to provide for their families, and ensure that all rights of the expense of housing and equality in all aspects of life”.
“ملحق بسير *الشماخي. 42: In the absence of a requirement to refrain from pluralism, wishing it shall submit an application for permission to court.
Application must contain a statement of the reasons justifying special, and be accompanied by the adoption of material for the nines”.
“ملحق بسير *الشماخي. 43: Court warrant wife want to marry them to attend. If found personally did not attend or abstained from the receipt of the call, go to the court by Aoun clerk warning She تشعرها they if you do not attend the meeting specified history in warning the pair will decide on the request in the absence.
Can also be deciding on the request in the absence of the wife want to marry them if reported prosecutors could not get at home or place of residence can be called the.
If the cause of the failure of the wife Balastdaa result of the pair - in bad faith- To an incorrect address or distortion in the wife's name, applied to the pair punishment stipulated in Chapter 361 Of criminal law, at the request of the affected spouse”.
” ملحق بسير *الشماخي. 44: Under discussion in chambers in the presence of the parties. And listen to them to try to reconcile and reform, after a survey of facts and provide the data required.
The court to authorize polygamy reasoned decision is subject to any appeal, if it is proved exceptional objective justification, and it meets all the conditions of legitimacy, with restricted conditions for the benefit of married and her children”.
” ملحق بسير *الشماخي. 45: If the court determines that through the discussions could not be the continuation of the marital relationship, and the wife insists is meant to marry them to claim a divorce, the Court fixed amount to meet all the rights of the wife and their children binding spend on them.
Pair must deposit the amount specified in the order does not exceed seven days. The court once deposit a divorce judgment, and this provision is subject to any appeal judge at its end the marital relationship.
Is not deposit the said amount within the deadline retreat from seeking permission polygamy. =
== If the husband is stuck request permission polygamy, wife did not agree to be getting married, and did not ask for divorce court applied automatically ruler discord stipulated in Articles 94 To 97 After”.
“ملحق بسير *الشماخي. 46: If permission plural, not contract with you want to marry her only after notification by the judge that who wants to marry her married other and satisfaction so.
This ensures that the notice and express satisfaction in the official record”.
Came the texts of these laws drafted to deduce the contrasting cultural background that control the direction of the legislator.
On the one hand there is a clear desire to chip is a few of the community seeking to end the total polygamy for reasons not permitted field its statement, on the other hand, we find the speech jurisprudence often considered plurality of Sharia which can not be compromised even once restriction or put some conditions, we'll see some .
This is what makes the legislator is trying to satisfy the first team by linking judicial pluralism authorization, and the second team to respond to a request plurality When found “Legitimate justification” Or ” Meets all the conditions legitimacy ” Or “Legitimate justification”.
[16]) Some of them recipe sponsor or values, stick to the wife to obey her husband and the implementation of orders such as the Yemeni law, which came in
ملحق بسير *الشماخي. 37 It: ” A husband to his wife the right of obedience in the interest of the family and in particular as follows: …
3 Comply with his order and carry out its work in the marital home, like other … “.
[17]) Supports what we have said the definition of marriage contract, which has been said in the margin (3), As well as the definition of divorce that “Raise the solution that became subject to fuck wife” As says Sarkhasi in Mabsoot (6/2). Or it “Recipe judgmental flying fun ornament pair his wife”. Lumberjack Khalil summary (4/18).
[18]) Ibn Rushd says divorce dispute over the force of the violator for the year: “It is almost divorce acts required in the health and the fact that conditions legitimacy, Kalnkah and sales said: Not required. It is likened vows and oaths that what a person adheres to them, he has no recipe was committed absolute divorce whatever is required to himself, and the audience was overwhelmed the rule التغليظ in divorce dam excuse ” The beginning of the industrious 2/61.
[19]) Based on the interview “Three matters grandfather, and joking is serious: Marriage, divorce and taking back”, Who says his Shawkaani in Awtaar (7/20): “Isnaad Abdul Rahman bin Habib Ben Ozdk a debatable. Women: Evil talk, and Othagh other”.
[20]) From this view: Ibn Hazm: “Located divorce only the wording of one of the three words: Either divorce, either large, either parting like: Say: You are divorced, or say: Divorced or had your shot … You dramatization or may Sarhtk or you large, or you leave or have left you or you parting …, And except these words does not count as a divorce at all nuclei divorce or did not intend to” Local 10/185 And 186.
What is mentioned in the ” Jurisprudence of Imam Jafar Sadeq ” (6/8) Mohammad Jawad Mughniyah: ” The third pillar formula, and also that the marriage contract is not only the wording is located “Your wife and Onkank” Street تعبدا; well as divorce does not take place only with the wording “Divorced” تعبدا from the street. If he said: You divorce with the ground and the harvest, or divorced, or your shot or divorce and so had to Goa”.
[21]) Likewise, Egyptian law, which came in. 5 Repeater 2 It: “The absolute certification divorce documents to the competent notary within thirty days of the divorce”.
[22]) States. 49 That “Divorce does not prove only by virtue of reconciliation after several attempts conducted by a judge without exceeding three (3) Months from the date of suit”.
[23]) Sure he did it in mind to popular belief, which still sees the end of the marital relationship as soon as the phrase or a pair of signal explicitly stating divorce or a metaphor.
[24]) This material provides the following:
” ملحق بسير *الشماخي. 83: If you are unable to reconcile the spouses, the Court fixed amount deposited pair left the settings Court within no later than thirty days to perform the dues wife and children spend on them binding under articles Moalitin “.
” ملحق بسير *الشماخي. 84: Including dues wife: Dowry backside if any, and the expense of preparing, and fun that take into account the appreciation of the marriage and the financial status of the husband, and the grounds for divorce, and the arbitrariness of the pair signed.
Inhabit the wife during the kit in the marital home, or to the need for adequate housing and physical status of the husband, and if not, the court identified the housing costs in the amount deposited as well as within the left adjust receivables Court “.
” ملحق بسير *الشماخي. 85: Determine entitlements children Bnafqathm binding in accordance with Articles 168 And 190 beyond, taking into account the situation of living and learning that they were before the divorce “.
” ملحق بسير *الشماخي. 86: If the husband had not filed the amount stipulated in article 83 Above, within the time limit him, take it down from his desire to divorce, and are certified by the court “.
” ملحق بسير *الشماخي. 87: Once the deposit amount required to pair, authorize him to divorce court documented in Aladelan within the sphere of influence of the same court. =
== The judge as soon as his divorce document send a copy of the court that issued the permission to divorce “.
” ملحق بسير *الشماخي. 88: After the court reached a version referred to in the previous article, issued a reasoned decision containing:
1 The names of the couple and the date and place they were born, their marriage and their home or place of residence.
2 Summary claim the parties and their requests, and feet of the arguments and defenses, and actions completed in the file, and Mstantjat Public Prosecution.
3 Date certification divorce.
4 What if the wife is pregnant or not.
5 Names of children and their age and entrusted with the custody and regulate the right of visit.
6 Determining entitlements stipulated in Articles 84 And 85 above, and taxi custody after preparing.
Court's decision is subject to appeal in accordance with the normal procedures.
[25]) Book: Personal Status, p 10 and Beyond.
[26]) Decree issued between two parliament convenes, it was not feasible to obtain consent if he was offered a bill format.
[27]) Book: Personal Status, p 103 and 108.
[28]) Book: Islamic Solution duty and necessity - p 85.
[29]) Imam Malik blog 4/32.
[30]) Did the denial of pluralism to take Alkhlaúl? .
[31]) He who speaks before a judge or a binder, with the exception of Tunisian law which authorized the elimination announcement of divorce by judgment; but the court is bound to declare a divorce when he insisted upon the pair, even without reason.
[32]) Decline in marriage contracts 2004 Probably due to the issuance of the Family Code in its infancy, where accompanied this publication claims that the new text man was stripped of many of their rights, and even his money imposes divided with his wife upon divorce or death, but soon realized the truth and life resumed its march.
[33]) Note that this figure includes divorce Alkhlaa (8253), Divorce Convention (8243) Who Akunan desire of both spouses or one of them.
[34]) (4012) If the couple without children. And(4500) Couple had children.
Magistrate reached the court directly in (3364) Case, or by provisions in (1037) Case, or by the Family Council (573) Case, or by other means in (3538) Case.
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