Muslim Divorce in the Middle East

Contesting Gender in the Contemporary Courts

Jessica Carlisle

• Publisher: Palgrave Pivot
• Year: 2018
• Print ISBN: 9783319770062
• eBook ISBN: 9783319770079
• Topic: Politics & International Relations
• Subtopic: Middle Eastern Politics
• Index: Politics & International Relations

How have Muslim marriages legally ended around the turn of the 21st century? Who has the power to initiate and resist shari'a derived divorce? When are husbands and wives made to bear the costs of their marital breakdown? What does divorce law indicate about the development of gender regimes in the Middle East and North Africa? This book opens with a description of the historical development of Islamic divorce in the MENA. Subsequent chapters follow a Syrian male judge, a Moroccan female legal advice worker and a Libyan female judge as they deal with divorce cases in which husbands, wives, their relatives and lawyers debate gender roles in contemporary Muslim marriages. MENA 'state feminism' has increasingly equalized men's and women's access to divorce and encouraged discussions about how spouses should treat each other in marriage. The real life outcomes of these reforms have often been surprising. Moreover, as the last chapter explores, jihadi proto-states (such as Islamic State) have violently rejected state feminist divorce law reform. This accessible book will appeal to students, researchers and a general readership interested in Islamic law; Middle Eastern studies; gender and sexuality; and, legal and social anthropology.

© The Author(s) 2019

Jessica CarlisleMuslim Divorce in the Middle EastGender and Politicshttps://doi.org/10.1007/978-3-319-77007-9_1

Begin Abstract

1. Muslim Divorce in the MENA: Shari‘a, Codification, State Feminism, and the Courts

Jessica Carlisle¹

(1)

Centre for Science, Knowledge and Belief in Society, Newman University, Birmingham, UK

Jessica Carlisle

Abstract

The codification of shari‘a-derived Muslim family law was an important aspect of state-building in post-colonial Middle Eastern and North African states. This has included legislation specifying permissible divorce forms. Governments have subsequently pursued state feminist reform towards equalising men and women’s access to divorce and increasing the courts’ powers to rule on gendered behaviour in marriage. These reforms have been contested by conservative and Islamist critics who are opposed to political elites, arguing that they undermine the family and misinterpret the shari‘a. The legislation resulting from these debates is interpreted by Muslim family court judges in response to litigants’ claims during the legal process. This book discusses the production of gender regimes during Syrian, Moroccan, and Libyan divorce cases and assesses the impact of post–Arab Spring proto-states on divorce law.

Keywords

Islamic state feminismMuslim family lawfiqh codificationshari‘a divorceMENA judiciaryGender regimes

End Abstract

On 12 March 2000, two large demonstrations took a fierce public debate about divorce onto the streets of Morocco. Moroccan Muslim family law (the Mudawwanat al-‘Usra, or Moudawana) had not significantly changed since it had been enacted in 1957–58. Government plans to reform the law, including expanding women’s access to divorce, were consequently controversial and catalysed an unprecedented stand-off between advocates of two very different views of contemporary Morocco. The pro-reform lobby argued that the Moudawana lagged behind social and economic developments in Morocco, that it could be reformed within the bounds of the Islamic shari‘a, and that it discriminated against women. Anti-reformists countered that the existing law was already an authoritative interpretation of the shari‘a, that it preserved morality within the family, and that it was fair to both husbands and wives . This struggle over the rights of women and men within the Muslim family was intimately tied up with deeper disagreements about the state’s authority to determine political, social, religious, and economic policy. In this highly charged atmosphere different proposals for the law of divorce symbolised different ideas of how to be Muslim in Morocco at the turn of the millennium.

In Rabat, a coalition of women’s associations, human rights groups, and leftist political parties led an estimated 40,000–200,000 demonstrators in support of reform. This pro-reform coalition had a diverse membership, but broadly advocated for fresh understandings of the shari‘a based on the needs of contemporary Moroccan society . It supported a wide range of amendments, including a proposal to make men’s and women’s access to divorce more equal.

The decision to organise the march on International Women’s Day affiliated this pro-reform march with global movements towards women’s rights . However, the reform proposals had been spearheaded by the Moroccan monarchy and pro-reform protesters generally allied themselves with King Mohammed VI in applauding his proposals to adapt Muslim family law to changing social and marital dynamics. At least six government ministers joined the march, with some of the marchers chanting: ‘No to reactionaries’.¹ In particular, the protest organisers emphasised that the reforms would address domestic violence and female poverty as part of wider state programme to improve gender equality. Fatiha Sdass, an activist participating in the march, summed up a perception that the anti-reform demonstrators were supporters of inequality by claiming: ‘Women are taking part in the [other] march against their will after being forced by their husbands and male relatives.’²

Fifty miles away, in Casablanca, Islamist political parties opposed to the monarchy led at least twice as many people against legal reform , estimated as 200,000–500,000 demonstrators. The movement in defence of the legal status quo generally countered that the 40-year-old Moudawana should not be reformed to accommodate ‘Western’ lifestyles and argued that it enshrined sound interpretations of the shari‘a, which intrinsically protected both women’s and men’s rights. Women and men marched in separate columns, publicly demonstrating their understanding that Islam mandates gender segregation, chanting: ‘We defend Islam with our bodies and our souls!’ The organisers of this demonstration included members of previously banned organisations, some of whom had been imprisoned for opposing the monarchy . These opposition figures had frequently been critical of the ruling elite surrounding Mohammed VI, emphasising the elite’s control of state resources and their lack of connection with the general Moroccan population, particularly in respect of religious belief. The anti-reform demonstrators accused the government of threatening to destabilise the foundations of Muslim marriage under pressure from secular interests. Strongly objecting to top-down declarations in support of a reform they perceived as widely unpopular, they argued that the king’s authoritarian intervention in the issue was evidence that his government were unfit to govern. Nadia Yassine, the daughter of an active opponent of the government and a driving force in calling for the protest, told a journalist: ‘Moroccan women reject these [reform] plans imposed by the West, because shari‘a recognises women's rights and protects them.’³

Despite the rancour between these opposing movements , both sides agreed that this debate was about the content and not the existence of shari‘a-derived family law in Morocco. Although it vigorously opposed the existing Moudawana, the pro-reform Rabat march was not actively calling for the secularisation of Moroccan family law, even if some of its organisers might ultimately aspire to secular legislation. Instead reformists demanded legal modernisation of the Moudawana through a rereading of the shari‘a. The Casablanca demonstrators countered that the existing Moudawana was already true to the shari‘a’s ethical standards and consequently preserved the Moroccan family from falling apart.

This debate reflected deep-seated differences existing across the Middle East and North Africa (MENA) about how Muslim family law should be interpreted and applied at the start of the twenty-first century. Almost all nation states in the region have some form of state-codified Islamic law governing Muslim marriage, divorce, child custody and guardianship , spousal and child maintenance, and inheritance. These codifications have been a part of post-colonial MENA state-building with governments enshrining some interpretations of Islamic law (fiqh) on the family into written legislation. The tendency of MENA governments over time to pass legislation that has increasing levelled-out husbands’ and wives’ marital rights and their capacity to divorce within the parameters of the shari‘a has been part of a project of ‘Islamic state feminism’ (Badran 2009).⁴ However, these legal reforms have been criticised as being half-heartedly pursued by authoritarian or semi-authoritarian regimes that have instrumentalised ‘women’s rights’ as a diversion from undemocratic practices and human rights abuses .⁵

There is currently no political prospect throughout the MENA of the secularisation of family law, including the legislation of divorce. Debates are primarily about who has the authority to draft and codify Islamic law, how the shari‘a is interpreted and rendered into state law, and what resulting rules and norms are applied in court. This makes for very lively discussion. It is often said that there are as many interpretations of Islam as there are Muslims and there is a majority consensus that ‘no individual scholar can claim a definitive view on Islamic law encompassing all possible perspectives’ (Sardar Ali 2016). This can be seen in the plethora of religious opinions expressed during satellite TV shows, online, in mosques and through state law .

Much of this debate and discussion is about the role of women and men in society, their duties to God, and the ways in which the genders should interact in public and at home. The legal construction of the modern family in the Muslim majority MENA has been founded on variations of male guardianship (qiwa¯ma) over women and children, who are expected to obey the male head of the household (Sardar Ali 2016). In this domestic arrangement a father is obliged to shelter and provide for his family (Sardar Ali 2016). The initial post-colonial codification of Muslim divorce law was predicated on this highly gendered conception of marital roles . MENA states have subsequently reformed family legislation defining divorce and this has increased wives’ and husbands’ to challenge and complicate the gender regimes enforced in family courts .

Disputes about divorce in MENA Muslim family courts discursively construct the appropriate gendered behaviours within a successful marriage and acceptable responses to marital difficulties. Court hearings encourage husbands and wives to make specific claims about gender roles in marriage by asserting idealised masculinities and femininities (i.e. ‘The basis of a good marriage is ...’, ‘A good wife should not ...’, ‘A loving mother should...’, ‘I am a decent m...

Table of contents

• Cover
• Front Matter
• 1. Muslim Divorce in the MENA: Shari‘a, Codification, State Feminism, and the Courts
• 2. The Damascus Shari‘a Court: The Judge, Arbitration, and Lawyers in 2005
• 3. A Legal Aid Centre in Marrakesh: Civil Society Activists and the Court in 2007
• 4. Tripoli’s Family Court: The Judge in Post-Revolution 2013
• 5. Challenges to State Feminism in Conflict-Afflicted Syria and Libya
• Back Matter