Marriage and Divorce in Tunisia: Women’s Rights

FRIDAY FILE: Fifty four years ago, in 1956, Tunisia adopted its Personal Status Code, the most progressive legislation in terms of women’s rights in the Arab world. What provisions of this law safeguard women’s rights and interests within marriage and in the event of divorce? How does the Code promote equality between men and women?

By Massan d’Almeida

Marriage

“In Tunisian society, marriage is an institution for adults; and women on average get married around the age of 25,” states Dorra Mahfoudh, former president of AFTURD (Association des Femmes Tunisiennes pour la Recherche et le Développement – Tunisian Women’s Association for Research and Development). Lawyer Alya Chérif-Chammari, of the Tunis Bar adds:

“In practical terms, the overall status of women is relevant to discussions on marriage law since perspectives on marriage and the role of women reflect the specifics of their status. According to Tunisian law, the family is based on the 'conjugal family' which is formed by marriage. The Personal Status Code (PSC) brought about a substantial improvement in women’s legal status within the family, through the institutionalization of monogamous marriage, women’s right to consent to marriage, the elimination of repudiation, the right to a divorce in court, and in 1993, the abolition of the wife’s duty to obey her husband. These gains are fundamental, but the fact remains that the status of women within the family remains characterized by fewer rights than men have.”

Despite the indisputable progress on gender equality, some current Tunisian laws still contain discriminatory language. Legal reforms need to address the reality of women’s situations: It is only in a minority of families that there is joint decision-making and household tasks remain a female responsibility. Managing the budget and major household purchases are often a male prerogative and the wife is not always recognized as a full partner in decision-making. Dorra says that women may have taken on new responsibilities and conquered new spaces, but this has not always conferred new rights upon them.

According to Alya, in the PSC, the husband is the recognised head of the family since he pays a dowry to his wife and is obligated to provide for her needs. In exchange, she is expected to carry out certain ‘conjugal’ duties in accordance with practices and customs. The economic dependency of women is the foundation of their legally inferior status within the family.

Today, the evolution of Tunisian society, as well as women’s enhanced access to education, the world of work and information mean that women find their confinement to traditional roles harder and harder to take. They experience this status more and more as a disconnect; a source of anxiety and constant conflict within the household.

In actual practice in Tunisia, wives play a key role alongside their husbands in catering for the moral and material needs of the family. In addition they take on household tasks, and very often a significant share of the household’s expenses. In these material and non-material ways, they play a crucial part in enriching the household economy. Valuing women’s role within the family is therefore an essential condition for marital stability. This is why, as Alya says, in 1993 during the PSC reform, legislators established the concept of joint family leadership by both spouses in order to strengthen and promote women’s rights within the family.

However, no matter how advanced legislation may be, its success can only really be judged by how it is perceived by those it addresses.

Divorce

Prior the PSC, women could not initiate divorce. Generally, the Ulemas (experts in Islamic Law) did not completely deny women this right and in theory, a woman could call upon the Qadi to put an end to the conjugal bond. However, Islamic law required so many conditions and such high standards of evidence that it was difficult in practice for a woman to establish her case. The Qadi, who personified male patriarchal privilege, often portrayed prejudice against women. Legal procedures initiated by women dragged on for years and were only concluded in very rare cases, asserts Mohamed Charfi in his foreword to the AFTURD Guide on Divorce. (Le Divorce).

For this reason, battered wives or those suffering from other forms of domestic tyranny had, realistically, only one option: to flee their conjugal homes. However, even when a wife elected to escape in this way, her husband had the right to force her to return. Indeed, upon the husband’s request, the Qadi could order the wife to be sent to “Dar Joued.” This now-forgotten institution, a veritable “prison for wayward wives” reminds Tunisian women how far they have come. In creating such an institution, the Ulema may not have realised that they were infringing on women’s freedom and physical integrity, reducing their status to close to that of a slave. The Qadi was not averse to sending women to this prison to make them understand the extent of their “duty to obey”.

While in practice wives had hardly any recognised right to divorce, it was a kind of fundamental freedom for husbands. At any time, a husband could rescind his marriage upon a simple declaration before two notaries and without any kind of trial. It did not matter whether this repudiation was pronounced only a few days after marriage, or after several decades of life together. Whether or not there were young children, or valid grounds for a divorce mattered little. Nobody called the husband to account. He was in no danger of being sentenced to pay damages and interest or to pay a life pension. At most, he could be sentenced to pay alimony, and for a non-pregnant woman, this would only applied for a short three-month period: the time she had to wait before remarrying.

The ease with which men could rescind the marriage contract meant that divorce was common and families were plagued by a degree of instability.

The PSC established equality between men and women in terms of divorce and made it harder to obtain a divorce, which Charfi affirms, promoted family stability.

The PSC recognizes three types of divorce: divorce by mutual consent of the spouses, divorce upon the request of one of the spouses and divorce for prejudice. Grounds for a divorce decree are adultery, violence, and the failure to carry out conjugal obligations including the requirement for the husband to provide for his wife.

Today, women still encounter some practical problems in the event of divorce. However the objectives of the legislators to promote family stability and avoid separation have broadly been achieved. Spouses know full well that the divorce procedure is –like an obstacle course- an endeavour filled with many hurdles. In fact, according to Mohamed, Tunisia may have arrived at the opposite extreme where divorce is too frightening. In his opinion, there should not be so much emphasis placed on the negative impact of divorce.

To meet this need and to contribute to Tunisian women’s legal literacy, AFTURD has published two guides for women -and men- who seek to better understand their rights and duties in marriage and divorce. As they say, better a good separation than persistent discord.

These two guides, Le Mariage and Le Divorce (Marriage and Divorce) are published in Arabic and in French. To order a copy, write to : afturd@planet.tn