Abstract
Codification of the Law of Personal Status was divisive during Syria’s establishment as a nation state. Subsequent ‘state feminist’ legal reforms were forced through by the authoritarian Ba’ath regime. In 2005, Damascus hectic Shari‘a (family) Court One was routinely and efficiently applying Law No. 59/1953, allowing three types of divorce: repudiation (talāq), divorce for compensation (mukhāla’a), and judicial divorce (shiqāq or tafrīq). Only judicial divorce can be initiated by a wife without her husband’s consent, although it is used almost equally by women and men. It requires considerable input from the court through the aegis of professional arbiters, is granted on a wide range of gender-based grounds, and is hardly documented. It invariably results in divorce and financial compensation to even ‘transgressive’ wives.
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Notes
- 1.
There were six shari‘a (family) courts of First Instance operating in the courthouse in central Damascus in 2004 and additional courts served the suburbs of Mashroua Douma and Yarmouk.
- 2.
Although the appointment of female judges is not explicitly disallowed by law, Cardinal has argued that Syrian judges think such appointments would be inappropriate given their interpretation of the SLPS’s internal logic (Cardinal 2010).
- 3.
As a PhD student I didn’t fully appreciate how lucky I was to find myself in Court One. The Institut Francais du Proche-Orient secured an official research permit for me from the Ministry of Justice in ten days. The letting agent responsible for my flat in Damascus and the sister (who was herself a judge) of a friend of a friend both suggested that I try to contact Judge Rahim. As a result, accessing the court was unproblematic.
- 4.
This is a collection of formal provisions, which the Egyptian government commissioned from its Minister of Justice Qadri Pasha towards formulating a law of personal status. It was published in 1917, and although it was never codified, it has remained an important resource in several Arab states (El-Alami and Hinchcliffe 1996).
- 5.
Since my fieldwork, the Code of Personal Status for Catholic Communities Law No. 3/2006 has come into effect, making special provisions for Catholic marriage, inheritance, and adoption.
- 6.
In practice, the Court One clerk regularly facilitated husbands in postponing their payment of the registered sum of prompt mahr by registering it as a debt on marriage contracts (Art. 54). This meant that some husbands were potentially due to pay their wives both their immediate (mu‘ajjal or muqaddam) and postponed (mu’akhar) mahr in the event of divorce (Arts. 55 and 56).
- 7.
In addition, the SLPS outlines gendered rights and responsibilities for child-rearing.
- 8.
Women whose menstruation is interrupted but have not reached ‘the age of menopause’ have to observe a waiting period of a year (Art. 121:2). Postmenopausal women are required to observe a three-month wait (Art. 121:3).
- 9.
These statistics collate figures I received from the administrative staff working in the shari‘a section of the Hamidiyyeh courthouse and information noted down for me by an employee of the Ministry of Justice. This second set of figures were copied in 2006 from a ledger recording the number of cases heard in the shari‘a courts the previous year.
- 10.
‘If a husband pronounces a ṭalāq and it is apparent to the judge that husband has acted arbitrarily and without reasonable cause, and that the wife will suffer misery and hardship, the judge may make an award against him for compensation to the wife according to his circumstances and the degree of arbitrariness in an amount not exceeding three years’ maintenance for a woman of like social status. This shall be in addition to the maintenance for the waiting period. The judge may rule that this compensation be paid as a lump sum or in monthly instalments according to circumstances’ (El-Alami and Hinchcliffe 1996).
- 11.
‘Country Report—Syria’, Library of Congress: Federal Research Division, April 2005.
- 12.
These statistics relate to the profession of the husband; the wife’s profession is not recorded.
- 13.
Husbands have the option of negotiating a mukhāla‘a contract, but if wives resist the idea, the only out-of-court means of executing a divorce is ṭalāq.
- 14.
My fieldwork did not include finding out how successful wives were at getting their ex-husbands to pay their mahr and how frequently they had to use the courts to get these debts settled.
- 15.
Before Article 112:3 was amended by Law No. 34 (1975), it also stated that the judge should postpone the case for a month—regardless of whether harm was proved or not—if the claimant was the husband.
- 16.
Judge Rahim could only remember one case in his career involving non-professional arbiters that reached a successful conclusion. The husband, who was living in Egypt, requested the appointment of arbiters from his and his wife’s family. Much of the arbitration took place over the phone and the ruling was subsequently contested but upheld by the Court of Appeal.
- 17.
In response to spouses’ complaints about the duration of the judicial divorce process, the arbiters referred them to this condition, stating that decisions made within the 45-day limit could be overturned on appeal.
- 18.
The arbiters, however, made a point of refusing gifts from the spouses when I was present even after decision on a case had been submitted to the court. While I was attending the arbitrations, I became the recipient of any food (or flowers) brought by spouses that was not consumed during the sessions themselves.
- 19.
The importance of this procedural expectation is confirmed by the presence of copies of the court summons, which are sent out to respondents and kept in claimant’s files. If a case file lacks this evidence on the day of the judicial arbitration, the session will be suspended to give the court time to send out a summons.
- 20.
Spouses with lawyers may, of course, have been provided with prior information about the arbitration process.
- 21.
This was usually to allow a single woman to act as a witness contrary to the Muslim family court rules of evidence stating that women must testify in pairs. One approach was to hear testimony from three women simultaneously, or to have two of them testify together and then ask one of the women to remain so that she was present during the testimony of a third.
- 22.
In circumstances in which a wife’s and her husband’s relatives might have been appointed to act as arbiters, this formulation of the final report would have protected the spouses from having their private marital problems documented in any meaningful detail.
- 23.
The arbiters believed that this threat does not have the same force on wives in Damascus as it did on wives in other parts of the country.
- 24.
Co-wives are entitled to separate accommodation under Article 67 of the SLPS, but this case demonstrated the extent to which social practice can divert from the legal rule. This wife married her husband and moved into his small home while his previous wife was still observing her waiting period following ṭalāq. The husband later revoked his divorce with his first wife and she moved back into the marital home. His second wife complained during the sessions that she had had to share a bedroom with her co-wife. The husband responded that he could not afford to rent a second home. The arbiters expressed some sympathy for his predicament.
- 25.
During a visit to Tariq and Fouaz by a court arbiter from outside Damascus, I was told that female claimants in the countryside always reconcile with their husbands under pressure from male relatives and due to their fear of social stigma. This claim was made during a discussion between the visitor, Tariq, and Fouaz about divorce rates in Damascus.
- 26.
None of the arbiters I knew personally could remember a case in which they had refused to award a divorce if a claimant had insisted on it.
References
Anderson, J N D 1955 ‘The Syrian Law of Personal Status’, Bulletin of the School of Oriental and African Studies, 17(1)34–49.
Atari, M (ed.) 2006 Qānūn Al-Aḥwāl Al-Shakhṣiyya (Law of Personal Status) Damascus: Mu’assasat Al-Nūrī.
Cardinal, M 2010 ‘Why Aren’t Women Sharī‘a Court Judges? The Case of Syria’, Islamic Law and Society, 17(2): 185–214.
El-Alami, D S & Hinchcliffe, D 1996 ‘Islamic Marriage and Divorce Laws of the Arab World’ The Hague: Kluwer Law International
Haddad, B 2013 Business Associations and the New Nexus of Power in Syria in Paul Aarts & Fancesco Cavatorta (eds) Civil Society in Syria and Iran: Activism in Authoritarian Contexts Boulder: Lynne Rienner Publishers: 69–91.
Hinnebush, R 2001 Syria: Revolution from Above London: Routledge
Jennings, R C 1993 ‘Divorce in the Ottoman Sharia Court of Cyprus, 1580–1640’, Studia Islamica, 78: 155–167
Kawakibi, S 2013 The Paradox of Government-Organized Civil Activism in Syria in Paul Aarts & Fancesco Cavatorta (eds) Civil Society in Syria and Iran: Activism in Authoritarian ContextsBoulder: Lynne Rienner Publishers: 169–186
Khatib, L 2013 Syria’s Civil Society as a Tool for Regime Legitimacy in Paul Aarts & Fancesco Cavatorta (eds) Civil Society in Syria and Iran: Activism in Authoritarian Contexts Boulder: Lynne Rienner Publishers: 19–37
Lawson, F H 2000 ‘Westphalian Sovereignty and the Emergence of the Arab States System: The Case of Syria’, The International History Review, 22(3): 529–556
Meshal, R A 2014 ‘Sharia and the Making of the Modern Egyptian: Islamic Law and Custom in the Courts of Ottoman Cairo’ Cairo: AUC Press
Neep, D 2012 Occupying Syria Under the French Mandate: Insurgency, Space and State Formation Cambridge: Cambridge University Press
Rabo, A 2011 ‘Legal Pluralism and Family Law in Syria’ in (eds.) Werner Zips and Markus Weilenmann The Governance of Legal Pluralism: Empirical Studies from Africa and Beyond Munster: Lit-Verlag: 213–234.
Robson, L 2017 States of Separation: Transfer, Partition, and the Making of the Modern Middle East Oakland: University of California Press
Seale, P 1965 The Struggle for Syria: A Study of Post-War Politics, 1945–58 Oxford: Oxford University Press.
Tucker, J 1997 In the House of the Law: Gender and Islamic Law in Syria and Palestine 17th–18th Centuries Berkeley: University of California Press
Van Eijk, E 2014 Family Law in Syria: Patriarchy, Pluralism and Personal Status Codes, London: I B Tauris
White, B T 2010 ‘Addressing the State: The Syrian ‘Ulama’ Protest Personal Status Law Reform, 1939’, International Journal of Middle East Studies, 42(1): 10-12.
White, B T 2011 The Emergence of Minorities in the Middle East: The Politics of Community in French Mandate Syria Edinburgh: Edinburgh University Press
Yazbak, M 2002 Minor Marriages and Khiyār al-Bulūgh in Ottoman Palestine: A Note on Women’s Strategies in a Patriarchal Society Islamic Law and Society, 9(3): 386–409
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Carlisle, J. (2019). The Damascus Shari‘a Court: The Judge, Arbitration, and Lawyers in 2005. In: Muslim Divorce in the Middle East. Gender and Politics. Palgrave Pivot, Cham. https://doi.org/10.1007/978-3-319-77007-9_2
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