Marriage Age:

Africa

Kenya: minimum 16 for statutory marriages under the Marriage Act.

Senegal: minimum marriage age is 20 years for males and 16 for females; judicial
discretion for permitting underage marriages for serious reasons.

Tanzania: under Marriage Act 1971 minimum age is 18 for males and 15 for females;
courts may permit underage marriage of parties who have reached 14 years of age if
specific circumstances make marriage appear desirable; Penal Code provides that persons
of "African or Asiatic descent" may marry or permit marriage of girl under 12 years of
age in accordance with their custom or religion if marriage is not intended to be
consummated before she attains 12 years.

Sudan: puberty, with requirement for willing consent of both parties.

Somalia: minimum marriage age is 18 years for both parties; female party may marry at
16 with guardian’s consent; Court may grant exemption from minimum age requirements
in case of necessity.

Ghana: governed by classical or customary law.

Ethiopia: Civil Code sets minimum marriage age at 18 for males and 15 for females,
regardless of whether marriage is civil, religious or customary; Family Law may have
changed the age to 18 for both males and females.

Middle East

Egypt: 18 for males and 16 for females (lunar calendar).

14
Tunisia: minimum marriage age is 20 for males and 17 for females; scope for judicial
discretion with wali’s consent and for compelling reasons and apparent benefit for both
parties; if wali withholds consent and parties are adamant, matter must be taken to courts.

Iraq: minimum age is 18 for men and women; judicial permission may be granted at 15
years if fitness, physical capacity and guardian’s consent (or unreasonable objections on
part of guardian) are established.

Morocco: minimum marriage age is 18 years for males and 15 for females; judicial
discretion for males under 18 if there is fear of immorality; compatibility of age in
marriage is defined as wife’s right.

Palestine: West Bank - 15 female, 16 male under the JLPS; Gaza Strip- LFR 1954
required puberty and made 9 (female) and 12 (male) minimum ages; Palestinian Qadi al-
Quda issued administrative decision in 1995 raising these to 15 female and 16 male. All
ages by lunar years.

Syria: minimum marriage age is 18 years for males and 17 for females; judicial
discretion for males of 15 years and females of 13 years; judge may withhold permission
for marriage if court finds incompatibility in age between betrothed parties.

Jordan: 16 for males and 15 for females, lunar calendar; court permission required for
females under 18 to marry men older by 20 years or more.

Yemen: minimum marriage age is 15 for males and females.

Kuwait: no substantive minimum marriage age identified; capacity to marry requires

parties to be of age (puberty) and of sound mind, however, no notarisation or registration
of marriage permitted where female has not reached 15 years or male 17 years.

Algeria: 21 for males and 18 for females, scope for judicial discretion if necessity or
benefit is established for marriage below that age.

15
Libya: minimum marriage age is 20 years for men and women; judicial discretion for
marriages below that age on grounds of benefit or necessity and with wail’s agreement.

Asia:

Indonesia: minimum marriage age 19 for males and 16 for females; provision for
marriage below minimum age, subject to judicial discretion and parental consent.

Malaysia: minimum marriage age of 18 for males and 16 for females, with provision for
judicial permission for underage marriage.

Singapore: minimum marriage age is 16 for both parties; kathi may permit marriage of
girl under 16 who has attained puberty under certain circumstances.

Brunei: minimum marriage age is 20 years for men and women; judicial discretion for
marriages below that age on grounds of benefit or necessity and with wail’s agreement.

Philippines: minimum marriage age 15 years for males and puberty for females (female
is presumed to have attained puberty at 15 years); Shari’ a District Court may authorise
marriage of female between 12 and 15 years if she has attained puberty, upon petition of
her wali; khiyar al-bulugh: marriage of minors to be defined as betrothal and may be
annulled by either party within 4 years of attaining puberty if marriage was not
voluntarily consummated and neither father nor paternal grandfather served as wali;
penalty of imprisonment or fines or both for illegal solemnisation of marriage.9

Background and Sources:

Amin, Middle East Legal Systems, Glasgow, 1985; Fluehr-Lobban, Islamic Law and
Society in the Sudan, London, 1986; Hale, Gender Politics in Sudan: Islamism, Socialism

16
and the State, Oxford, 1996; Mahmood, "Sudan" in Statutes of Personal Law in Islamic
Countries, 2nd ed., New Delhi, 1995; O'Fahey, The National Front, Its Opponents and the
Sharia Issue, Islam et societys au sud du Sahara, n. 11 (Nov. 1997): 55-65; Pearl, A
Textbook on Muslim Law, 2nd ed., London, 1987; Redden, "Sudan" in Modern Legal
Systems Cyclopedia, vol. 6, Buffalo, NY, 1990; Rubin & Cotran, eds. Annual Survey of
African Law, vols. I-VI (1967-1972), London; Safwat, "Islamic Laws in the Sudan," in
Islamic Law: Social and Historical Contexts, al-Azmeh, ed., London, 1988; Safwat,
"Sudan," Yearbook of Islamic and Middle Eastern Law, vol. 1 (1994): 237-253; Women
and the Law in Sudan: First and Second Reports, Women Living Under Muslim Laws,
vols. I-III (1997) & vols. I-III (1999).

Marriage Registration

Africa:

Kenya: statutory (includes Christian), customary, Muslim and Hindu marriages

recognized as valid Polygamy: governed by classical law; a criminal offence to marry
under civil regime (i.e. under terms of Marriage Act) and contract subsequent marriage
under Islamic or customary law.

Senegal: obligatory; if marriage contracted under one of customary legal regimes

recognized in Senegalese law, parties must inform officer of civil status one month prior
to marriage; non-registration is punishable by fine but does not determine validity.

Tanzania: obligatory; non-registration punishable by fine although does not render

marriage void; provision for licensing of religious functionaries as marriage registrars.

Gambia: obligatory within one month of marriage (or divorce) although registration does
not determine validity.

Somalia: marriage to be registered at neared District Court or authorised office within 15

days (40 days for residents of rural areas); failure to register punishable by fine; essential

17
elements of marriage outlined in Article 6 are: proposal and acceptance by contracting
parties before two witnesses; marriage contracted under compulsion is invalid.

Ghana: Marriage of Mohammedans Ordinance provides for registration of marriage and

divorce among Muslims; marriage must be registered within one week.

Ethiopia: Civil Code sets minimum marriage age at 18 for males and 15 for females,
regardless of whether marriage is civil, religious or customary; Family Law may have
changed the age to 18 for both males and females.

Middle East

Egypt: obligatory registration a legal requirement though it does not determine validity
of marriage, thus judges shall not hear cases in which parties have not reached minimum
marriage age or in which matrimony is denied and parties have no documentation.

Tunisia: obligatory under Civil Status Act 1957, only formal document shall prove
existence of marriage; unregistered marriage deemed void with three effects:
establishment of paternity; immediate onset of ‘idda from date of voidance declaration;
and creation of prohibited degree on basis of affinity.

Iraq: obligatory court registration.

Morocco: obligatory.

Palestine: West Bank- see under Jordan. Obligatory and penal sanctions in criminal law
but failure to register does not invalidate the marriage; similarly in Gaza.

Syria: obligatory; penal sanctions for failure to register.

Jordan: penal sanctions for those in violation of the mandatory registration requirements
for marriage and divorce.

Yemen: husband and wali responsible for registration of marriage within one week of
contract; penal sanctions for non-compliance.

18
Kuwait: no notarisation or registration of marriage contract permitted where girl has not
reached 15 years or boy 17 at time of registration; no claim arising from marriage to be
heard if parties are under-age at time of claim or if claim is not established by official
documentation of marriage (except for paternity cases where decree of paternity shall be
taken as decree of marriage).

Algeria: obligatory registration governed by Civil Status Code; unregistered marriage

may be validated by court judgment.

Libya: obligatory.

Asia:

Indonesia: obligatory; Marriage Registrar Office of Department of Religious Affairs is

responsible for registration of Muslim marriages and Civil Marriage Registrar Office of
Department of Internal Affairs for all other marriages.

Malaysia: required; both parties must apply to Registrar for permission to marry at least
7 days before wedding; marriage not to be solemnised except in kariah masjid of
woman’s normal residence or special permission to marry elsewhere; Registrar records
value of contents and value of items of dower given and promised at solemnisation;
provision for appointment of Registrars in public offices and kariah masjid; non-
registration punishable by fine and/or imprisonment although it does not determine
validity of marriage.

Singapore: obligatory; all Muslim marriages must be registered with a kathi or naib
kathi; non-registration of marriage or divorce itself does not determine validity.

Brunei: obligatory.

Philippines: obligatory; penalty of fine for failure to register any change in civil status.10

Background and Sources:

19
Hooker, Islamic Law in South-East Asia, Singapore, 1984; Ibrahim, Family Law in
Malaysia and Singapore, Singapore, 1984; Kamali, "Islamic Law in Malaysia: Issues and
Developments," Yearbook of Islamic and Middle Eastern Law, vol. 4 (1998): 158-179;
Mahmood, Malaysia in Statutes of Personal Law in Islamic Countries, 2nd ed. New Delhi,
1995; Redden, Malaysia in Modern Legal Systems Cyclopedia, vol. 9, New York, 1990;
Selangor, Administration of Islamic Law Enactment 1989 and Islamic Family Law
Enactment 1984 (as at 15th September 1991), comp. by Legal Research Board, Kuala
Lumpur, 1992; Siraj, Women and the Law: Significant Developments in Malaysia," Law
and Society Review, vol. 28, no. 3 (1994): 561-581.

Marriage Guardianship

Senegal: each party must give free consent, even minors, and parties under 21 require
parental consent; lacks of free consent or parental consent are grounds for nullification of
marriage.

Tanzania: Marriage Act 1971 provides that valid marriage requires free consent of
marrying parties; guardian's consent not required for parties who have attained 18 years.

Sudan: Guardian is to marry the adult woman with her consent, although the qadi is
empowered to act in this capacity if her guardian refuses his consent without justification.
Guardian retains entitlement to seek dissolution on grounds of lack of kifa'a of husband
(defined as kifa'a in religion and morals.

Somalia: girl who has reached 16 years, but is under 18 years may be represented in
contract of marriage by father (in absence of father, guardians in order are: mother,
grandfather, elder brother, uncle, Court-appointed guardian or judge); Court also
empowered to overrule objection of guardian to marriage of female ward between 16 and
18 years.

20
Ghana: Marriage of Mohammedans Ordinance specifies that marriage is solemnised in
presence of bridegroom, bride’s wali, and two witnesses; Criminal Code identifies
causing someone to marry under duress as misdemeanour.

Ethiopia: both Article 34 of Constitution and Civil Code state that consent to marriage
obtained by violence renders marriage invalid, but Civil Code provides that consent
granted due to "reverential fear" of an ascendant or other person is not equivalent to
consent obtained by violence.

Middle East

Egypt: governed by Civil Code; wali cannot prevent ward from marrying for reasons of
status, amount of dower, etc.; judge may authorise marriage if wali refuses.

Tunisia: marriage of males or females below legal age of discernment requires wali’s
consent (or judicial decision overruling wali’s refusal).

Iraq: no relative or third party has power of compulsion; marriage contract concluded by
coercion is void if not consummated; likewise, no relative or third party may prevent
person having legal capacity from marrying; ILPS provides penalties of fines and/or
imprisonment for non-compliance.

Morocco: no coercive guardianship; ward may take matter to court if her guardian
refuses consent to her marriage; ward who has reached age of legal majority and has no
father may contract her own marriage.

Palestine: West Bank- see under Jordan. and in practice consent of guardian registered in
nearly every marriage; Gaza Strip- In Gaza the LFR assumes guardian gives consent and
that where there is no guardian, the qadi exercises guardianship in marriage.

Syria: under age of full capacity, both parties need permission of wali; wail’s objection
to marriage of girl less than 17 years may be overruled by judge.

21
Jordan: guardian's consent is required for marriage of a female under 18 years, but not
for a divorcee or widow over 18 years.

Yemen: invalidity of marriage by coercion; judge can overrule guardian if his objection
to marriage of ward is considered unjust, with proviso that the wife receive her proper
dower from husband of equal status.

Kuwait: marriage concluded by wail’s offer and groom’s acceptance; woman who has
been married previously or has attained 25 years has "freedom of choice" in marriage,
however, cannot conclude contract herself (must still be concluded by her wali);
invalidity of marriage under coercion or intoxication.

Algeria: guardian not permitted to marry his ward by compulsion or without her consent,
and may not withhold consent if marriage is in ward’s interests as judge is empowered to
authorise such a marriage in case of guardian’s opposition.

Libya: guardian may not force ward of either sex into marriage or prevent ward from
marrying; if guardian withholds consent, ward may take matter to court to obtain
permission.

Asia

Indonesia: free consent of marrying parties required for validity, unless religious law
governing the parties directs otherwise; Marriage Law 1974 defines as legal a marriage
"solemnised according to the laws of the respective religions and beliefs of each of the
parties"; parties under 21 years need parental permission.

Malaysia: valid marriage requires both parties consent as well as consent of wali or
syariah judge if no wali is available; compulsion of wards or unreasonable objection to
their valid marriage punishable by fine and/or imprisonment.

Singapore: wali of bride may solemnise marriage according to Muslim law or may
request kathi to do so; kathi may serve as wali where woman has none or where kathi
rules that wail’s opposition to marriage is unreasonable; whether or not wail’s agreement

22
is required for validity of marriage is governed according to classical school of law
applicable to parties; in all cases, kathi is directed to make inquiry to determine that there
are no lawful obstacles to marriage under either Muslim law or Administration of Muslim
Law Act.

Brunei: guardian may not force ward of either sex into marriage or prevent ward from
marrying; if guardian withholds consent, ward may take matter to court to obtain
permission.

Philippines: free consent of marrying parties and presence and consent of wali are
requisites for marriage contract.11

Background and Sources:

Redden, "Jordan" in The Modern Legal Systems Cyclopedia, volume 5, Buffalo NY

1990; Amin, "Jordan" in Middle East Legal Systems, Glasgow 1985; Mahmood, "Jordan"
in Statutes of Personal Law in Islamic Countries, New Delhi 1995; Hinchcliffe and
Alami, "Jordan" pages 79-114 in Islamic Marriage and Divorce Laws of the Arab World,
London 1996; Welchman, "The Development of Islamic Family Law in the Legal System
of Jordan," ICLQ 37 1988 868- 886; Gallagher, "Women's Human Rights on Trial in
Jordan: The Triumph of Toujan al-Faisal," pages 209-231 and appended translation of
article by Toujan al-Faisal, "They Insult Us... and We Elect Them!" pages 232-237, in
Afkhami, Faith and Freedom, London 1995.

23
Judicial Divorce

In many countries in the Islamic world, men have possessed a unilateral and
unconditional right to divorce. In these same countries, women are often not only not
afforded that right but, if they are allowed the right of divorce at all, must resort to the
courts to divorce their spouses, where they confront innumerable social, legal, and
bureaucratic obstacles. In many Islamic countries, women are often at a massive
disadvantage compared to men in such matters as financial support, child custody, child
visitation and child guardianship, and subsequent remarriage.

Africa

Kenya: governed by classical law Post-Divorce Maintenance/Financial.

Senegal: either party may seek judicial dissolution on following grounds (preceded by
reconciliation efforts by judge): other party’s declared absence; adultery; sentencing for
crime bringing dishonour to family; failure to fulfil legal condition stipulated upon
marriage; abandonment of family or conjugal home; maltreatment rendering continuation
of marital life impossible; medically established sterility; grave and incurable illness
discovered since marriage; incompatibility making continuation of conjugal life
intolerable; and for wife, failure to maintain on part of husband.

24
Tanzania: except in extreme cases, no petition of divorce to be heard before marriage
has subsisted for two years; either spouse may apply for divorce on grounds of
breakdown, but no decree of divorce can be granted unless court is convinced of
irreparable breakdown; party seeking divorce must first apply to Marriage Conciliatory
Board which must certify failure to reconcile parties before divorce suit can be initiated;
evidence of breakdown of marriage for court's purposes must indicate following grounds:
mental or physical cruelty; wilful neglect; desertion; voluntary separation; or change of
religion dissolving marriage under religious law the parties were subject to at time of
marriage; requirement of recourse to Marriage Conciliatory Board can be waived under
certain circumstances (desertion, mental illness, imprisonment, etc.).

Sudan: wife may seek judicial divorce on following grounds: husband's incurable
physical or mental illness making it dangerous for the wife to continue to live with him;
husband's impotence not curable within one year (established by medical report);
husband's cruelty or discord between spouses; husband's inability to pay; husband's
absence for one year or more or his being sentenced to two years or more in prison; also,
divorce by ransom, i.e., if wife is declared nashiza (disobedient) by court order, wife may
waive her rights and if the man does not agree to the divorce, arbitrators must be
appointed; if she proves that she suffers from remaining with him a talaq will be ordered
by the court.

Somalia: either party may seek judicial dissolution on following grounds: incurable
disease of other spouse making cohabitation dangerous or impossible; disappearance of
other party for period of over four years; habitual failure to maintain by other party;
serious disagreement between spouses making conjugal life impossible (after
reconciliation efforts of 60 days); perpetual impotence or sterility of other party; and
other spouses sentencing to over four years imprisonment. Wife is entitled to seek
dissolution if husband has been granted permission to marry polygamously by District
Court, on condition that there are no children

Ghana: possible to terminate customary law marriage by application to court under

Matrimonial Causes Act, in which case grounds for divorce include those recognised in

25
personal law of the parties in addition to those enumerated in the Act; under Act, divorce
may only be granted if court concludes irreparable breakdown; courts hearing suits for
divorce among Muslims directed to apply Matrimonial Causes Act directing guidance by
justice, equity and good conscience in determination of post-divorce reliefs and custody.

Ethiopia: judicial divorce may be sought by either spouse for "serious causes" or "other
causes"; serious causes are: adultery; desertion of marital home without knowledge of
that parties whereabouts for two years; a spouse’s confinement to lunatic asylum for
minimum of two years; and judicial declaration of absence of a spouse; couples seeking
divorce for either serious or other cause must first appoint family arbitrators who will
attempt to effect reconciliation and if efforts fail, arbitrators can grant a divorce,
preferably on mutually agreed terms; if serious cause for divorce can be established for
which one spouse bears burden of fault, family arbitrators may divide common property
unevenly; if no serious cause is established, property is divided unevenly to disadvantage
of spouse who petitioned for divorce; arbitrators decisions can be appealed to courts;
Family Law may have placed jurisdiction for divorce with the courts from the beginning
of the proceedings.

Middle East

Egypt: wife may obtain judicial divorce on following grounds: serious or incurable
defect of the husband (unless woman married in full knowledge of such defect or defect
occurred after the contract and she implicitly/explicitly accepted it), harm making
cohabitation as husband and wife impossible, if harm is proved and reconciliation efforts
fail, material or moral harm if husband marries polygamously and such harm makes
cohabitation as husband and wife impossible (up to one year from date of her knowledge
of the polygamous union), husband’s absence for a year or more without reasonable
justification; husband’s imprisonment for three years or more, after one year of sentence
has passed, non-payment of maintenance; and discord if reconciliation efforts fail, with
financial settlement proportionate to allocation of blame as determined by arbitrators;
wife may also obtain a divorce on the grounds of incompatibility, but will not lose all

26
financial claims against her husband; a divorce requested by wife on the grounds of
incompatibility must be granted within six months.

Tunisia: available (after reconciliation efforts) at request of either party; in issuing

decree of divorce, Court shall also assess maintenance, custody, housing and visiting
rights.

Iraq: wife entitled to request dissolution if husband does not fulfil any lawful condition
stipulated in marriage contract; either party may request dissolution upon following
grounds: such harm as makes continuation of marriage impossible; marital infidelity; if
marriage was contracted without judicial permission before either party attained 18 years;
if marriage was concluded outside court by coercion and was not consummated; if
husband marries polygamously without judicial permission; and if any of above grounds
are not proven, on grounds of discord (in which case courts initiate reconciliation
procedures; if reconciliation efforts fail and husband refuses to pronounce talaq, courts
may grant judicial divorce; if wife is found to be at fault, her financial rights are forfeit).?
Wife may request judicial divorce upon following grounds: if husband is imprisoned for
three or more years; if husband abandons wife for two or more years without lawful
reason; if husband does not consummate marriage within two years of contract;
husband’s impotence or affliction (if after consummation, must be confirmed by medical
report); husband’s infertility if wife has no living son by him; husband’s serious illness
which would cause wife harm; non-maintenance after grace period of up to 60 days; non-
maintenance due to husband’s absence, disappearance, concealing his whereabouts, or
imprisonment for more than one year; and if husband refuses to pay maintenance arrears
after 60-day grace period; wife may also request judicial separation before consummation
in return for any dower and proven expenditure on husband’s part for purpose of the
marriage.

Morocco: wife may seek judicial divorce on following grounds: husband’s non-
maintenance; husband’s grave and incurable or long-term defect; harm caused by
husband making cohabitation impossible (after reconciliation efforts); husband’s absence
for over one year without valid reason; husband’s oath of abstinence if he does not

27
comply with judicial decision allowing four month grace period; all judicial divorces
irrevocable except divorce granted because of husband’s oath of abstinence or inability to
maintain.

Palestine: West Bank- see under Jordan. Gaza Strip- the same, except that women may
petition for divorce on the grounds of injury and does not allow the husband to petition
on grounds of 'discord and strife'.

Syria: wife may seek judicial divorce on following grounds: defect in the husband
preventing consummation (though such right is forfeit if wife accepted defect except in
cases of husband’s impotence); husband’s insanity; husband’s absence without
justification for one year; husband’s sentencing to three years imprisonment after serving
one year of sentence; and husband’s non-maintenance, if non-maintenance is due to
husband’s inability, judge shall grant grace period of up to three months; either spouse
may seek judicial divorce on grounds of discord causing such harm as makes
cohabitation impossible (after reconciliation efforts).

Jordan: grounds on which women may seek divorce include: failure to maintain,
physical desertion or husband's absence for one year or more, husband's prison sentence
of three years or more; both spouses may petition on grounds of 'discord and strife',
breach of a binding stipulation of the marriage contract, and various grounds associated
with spouse's mental and physical health.

Yemen: dissolution available to either spouse on grounds of defect (right is forfeit if

defect was accepted explicitly or implicitly, except for insanity, leprosy and other
communicable diseases difficult to cure); and inequality of social status; annulment
effected if husband becomes Muslim and wife is not kitabiyya or if wife becomes Muslim
and husband refuses conversion to Islam or on grounds of either party’s apostasy; wife
may request decree of dissolution (lesser irrevocable) on following grounds: husband’s
non-maintenance; husband’s absence or disappearance for one year if husband left no
provision for maintenance or two years if he provided for wife’s maintenance; husband’s
imprisonment for three years or more after one year of sentence; husband’s breach of

28
maintenance or accommodation obligations towards co-wives; incompatibility (after
reconciliation efforts, and if husband refuses to pronounce talaq, in exchange for wife’s
return of her dower); husband’s proved addiction to alcohol or narcotics.

Kuwait: woman may seek judicial divorce on following grounds: husband’s non-
maintenance; ila; husband’s absence of one year or more without good reason, giving rise
to injury to wife; and husband’s imprisonment for three or more years; either spouse may
apply for judicial divorce on grounds of injury/prejudice caused by such word or action
as makes continued matrimony impossible, established by testimony of two male or one
male and two female witnesses (after reconciliation efforts, with possibility of award of
appropriate compensation to aggrieved party); annulment available on following grounds:
defect of either spouse such as makes cohabitation harmful or hinders conjugal relations
(e.g., disease, impotence); and difference of religion arising after marriage that renders
marriage invalid according to rules of shari’a and either party may demand dissolution
on grounds of non-compliance with any valid stipulation recorded in marriage contract.

Algeria: wife may petition for divorce on following grounds: non-payment of

maintenance; infirmity preventing conjugal relations; husband’s abstinence from sexual
relations for over four months; husband’s imprisonment for over a year for offense that
brings disgrace to his family; husband’s absence without provision of maintenance or
valid reason for over a year; any legally recognised harm (e.g., relating to maintenance,
treatment of CO-wives, etc.); and any grave moral impropriety.

Libya: judicial divorce available on following grounds: husband’s failure or inability to

maintain without cause; absence without justification; grounds of defect preventing
fulfilment of aims of marriage or other grave defect; ila’ or hajr, after appropriate grace
period; most of above grounds available to husband as well; if parties do not agree to
talaq by mutual agreement, court will appoint arbitrators; if reconciliation efforts fail and
harm is established, judge issues decree of divorce with financial effects proportionate to
relative fault; annulment effected due to difference of religion in cases of conversion after
marriage where this affects validity of marriage according to shari’a.

29
Asia

Indonesia: either spouse may seek judicial divorce (preceded by reconciliation efforts by
judge) on following grounds: other spouse’s adultery, alcoholism, addiction to narcotics,
gambling or "any other vice that is difficult to cure"; abandonment for two years without
valid reason; cruelty or mistreatment endangering life; physical disfigurement or malady
preventing performance of marital duties; sentencing to prison term of five years or more;
and constant disputes without hope of resolution.

Malaysia: wife may apply for dissolution on following grounds: husband’s

disappearance for over one year; failure to maintain for three months; sentencing to three
years or more in prison; failure to perform marital obligations for one year; continued
impotence, if wife was unaware of it upon marriage; mental illness lasting two years or
leprosy, vital go or communicable venereal disease; wife’s repudiation of marriage
concluded by father or grandfather before she attained 16, if she is below 18 years and
marriage was unconsummated; cruel treatment; husband’s refusal to consummate for
four months; invalidity of her consent (obtained under duress, mistaken, etc.); and any
other grounds for dissolution or nullification recognised in hukm shar’.

Singapore: wife may be granted judicial dissolution with husband’s consent and Court
will grant application; if husband agrees to a khul’ Court will assess amount of
compensation to be paid by wife according to means and status of both parties; wife may
also apply for faskh on following grounds: husband’s failure to maintain for three
months; imprisonment for three years or more; failure to perform marital obligations for
one year; continued impotence since marriage; insanity or serious illness making
cohabitation injurious to wife; and cruel treatment (defined as habitual physical abuse or
cruelty of conduct, associating with women of ill-repute, obstruction of wife’s religious
observance, unequal treatment of co-wives, cohabiting with another woman, or trying to
force wife to lead immoral life); before making decree of divorce or nullity, Court may
appoint arbitrators to attempt reconciliation.

30
Brunei: judicial divorce available on following grounds: husband’s failure or inability to
maintain without cause; absence without justification; grounds of defect preventing
fulfilment of aims of marriage or other grave defect; ila’ or hajr, after appropriate grace
period; most of above grounds available to husband as well; if parties do not agree to
talaq by mutual agreement, court will appoint arbitrators; if reconciliation efforts fail and
harm is established, judge issues decree of divorce with financial effects proportionate to
relative fault; annulment effected due to difference of religion in cases of conversion after
marriage where this affects validity of marriage according to shari’a.

Philippines: wife may seek judicial divorce on following grounds: in cases of husband’s
oath of abstinence (ila), zihar (likening wife to his relations within the prohibited
degrees), li’an (imprecation of adultery); wife may seek decree of faskh on following
grounds: husband’s failure to maintain for six months; husband’s sentencing to one years
imprisonment; husband’s impotence or abstention from conjugal relations for six months;
husband’s insanity or affliction with incurable disease injurious to family; husband’s
cruelty (defined in Code); and any other cause valid under Muslim law; until the passage
of the Family Code, Muslims were the only Filipinos with the possibility of legally
ending a marriage.13

Background and Sources:

Hooker, Islamic Law in South-East Asia, Singapore, 1984; Ibrahim, Family Law in
Malaysia and Singapore, Singapore, 1984; Kamali, "Islamic Law in Malaysia: Issues and
Developments," Yearbook of Islamic and Middle Eastern Law, vol. 4 (1998): 158-179;
Mahmood, Malaysia in Statutes of Personal Law in Islamic Countries, 2nd ed. New Delhi,
1995; Redden, Malaysia in Modern Legal Systems Cyclopedia, vol. 9, New York, 1990;
Selangor, Administration of Islamic Law Enactment 1989 and Islamic Family Law
Enactment 1984 (as at 15th September 1991), comp. by Legal Research Board, Kuala
Lumpur, 1992; Siraj, Women and the Law: Significant Developments in Malaysia," Law
and Society Review, vol. 28, no. 3 (1994): 561-581.

31
Talaq

Africa

Kenya: governed by classical law.

Senegal: extra-judicial divorce not permitted.

Tanzania: does not automatically dissolve marriage, but constitutes compelling ground
for Court to issue decree of divorce if talaq was pronounced after failure of reconciliation
efforts by Marriage Conciliatory Board.

Sudan: Regionally standard reforms affecting validity of talaq accompanied by a number

in word or sign, talaq in the form of an oath, talaq phrased and intended to induce
someone to do something. The wife must be informed of the husband's revocation of a
revocable talaq during her `idda period in order for the revocation to be valid.

Somalia: Family Code provides that right of talaq belongs to husband "subject to the
authorisation by the competent court"; court may authorise divorce only after
reconciliation efforts (of 60 days) have failed, and court may not authorise more than one
talaq at a time; divorce by a minor, insane person, or pronounced under compulsion is
invalid.

Ghana: governed by classical or customary law.

Ethiopia: abolished; under Civil Code, all divorce law is uniform regardless of whether
marriage was civil, religious or customary.

Middle East

Egypt: talaq expressed indirectly, while intoxicated or under coercion, or conditionally

with coercive intent is ineffective; repudiation to which a number is added verbally or by
gesture effective only as single revocable talaq (except third of three); written and
notarised certification of talaq must be obtained within 30 days of repudiation and notary

32
must forward copy of certificate to wife; certain financial effects of talaq suspended on
her knowledge thereof if husband is found to have concealed it.

Tunisia: extra-judicial divorce prohibited; irrevocable divorce becomes permanent

impediment to remarriage between divorced spouses.

Iraq: talaq must be confirmed by Shari?a Court?s judgement or registered with Court
during ?idda period; talaq by man who is intoxicated, insane, feeble-minded, under
coercion, enraged (madhush), or seriously ill or in death sickness ineffective, as is talaq
that is not immediate or is conditional or in form of an oath; all talaqs deemed single
revocable (except third of three); wife may obtain khul? From husband in return for
consideration that may be more or less than her dower.

Morocco: talaq must be registered at court, normally in presence of wife; if talaq is

found to have been exercised while wife is menstruating, judge shall oblige husband to
revoke it; talaq uttered while intoxicated, under coercion, enraged, upon condition, by
oath or with intention to coerce not effective; talaq to which a number is attached
effective as single revocable only (except third of three).

Palestine: West Bank- see under Jordan. Gaza Strip-standard reforms to Hanafi rules as
implemented in Egypt in 1920's, reducing effect of many forms of triple talaq to a single
revocable and denying effect to others (eg those spoken as an oath). Extra-judicial talaq
valid but registration is mandatory.

Syria: talaq uttered while intoxicated, disoriented/enraged, under coercion, during death
sickness or grave illness, or in order to coerce deemed ineffective; talaq to which number
is attached shall be considered single irrevocable (except third of three).

Jordan: talaq uttered while asleep, drunk, in a faint, overwhelmed (madhush), or under
coercion have no effect; oaths on talaq and conditional talaq intended to coerce someone
into committing or refraining from a particular act are invalid; talaq accompanied by a
number in word or gesture, or repeated in a single session, gives rise to a single revocable
repudiation.

33
Yemen: talaq ineffective if uttered while intoxicated or with intent to coerce; talaq to
which number is attached only effective as single revocable (except third of three).

Kuwait: talaq uttered by man who is insane, feeble, under coercion, intoxicated,
mistaken, disoriented, or enraged shall not be effective; statement of talaq must be
immediately effective; talaq to which a number is attached effective as single revocable
only (except third of three); rules on khul include explicit prohibition of coercion in khul
and invalidate any condition by father stipulating his custody over children from the
marriage.

Algeria: only established by judgement of the court; judgement must be preceded by

reconciliation efforts by the judge; wife may obtain a khul in return for compensation (not
to exceed proper dower) if husband consents.

Libya: Article 28 states "[i]n all cases divorce shall not be established except by a decree
by the relevant court" whether by talaq, mutual consent or judicial divorce; talaq uttered
by a minor, insane, demented or coerced husband or without deliberate intent is invalid,
as is suspended or conditional talaq; talaq to which a number is attached considered
single revocable (except third of three); wife may also obtain khul’ from husband for
appropriate compensation, which may include deferred dower or custody over children; if
husband retracts offer of khul’ "due to obstinacy" court is empowered to rule a khul’ in
return for appropriate compensation.

Asia

Indonesia: Marriage Law provides that divorce shall be carried out only before Court of
Law, after Court has endeavoured to reconcile the parties; husband married under Islamic
law may submit letter notifying religious court of his intention to divorce and giving his
reasons; if husband’s reasons accord with any of six grounds for judicial divorce outlined
in Marriage Law and determines that reconciliation is not possible, court will grant
session in order to witness divorce.

34
Malaysia: extra-judicial repudiation punishable by fine and/or imprisonment, and courts
adjudicate on validity of talaq on basis of classical Islamic law although original
legislation is silent on the matter; husband wishing to pronounce talaq required to apply
for judicial permission, outlining his reasons as well as amounts of payments of nafkah
edah (‘idda period maintenance), mutaah (consolatory gift) and maskahwin (dower) he
intends to make and provisions for division of harta sepencarian (matrimonial property);
if court hearing determines consent of other party and irretrievability of breakdown, court
advises husband’s pronouncement of single talaq and registers divorce; if other party
disagrees or court is not convinced of irretrievable breakdown, court begins conciliation
efforts of no longer than six months; if conciliation committee fails to effect conciliation,
issues certificate of its failure and any and recommendations regarding custody,
maintenance, division of property, etc.

Singapore: registration of divorce and revocation of divorce is compulsory, and non-

compliance is punishable by fine; kathi may not register divorce without an inquiry
establishing both parties consent; kathi may not register any divorce by triple talaq and
case must be referred to Shari Court.

Brunei: Article 28 states "[i]n all cases divorce shall not be established except by a
decree by the relevant court" whether by talaq, mutual consent or judicial divorce; talaq
uttered by a minor, insane, demented or coerced husband or without deliberate intent is
invalid, as is suspended or conditional talaq; talaq to which a number is attached
considered single revocable (except third of three); wife may also obtain khul’ from
husband for appropriate compensation, which may include deferred dower or custody
over children; if husband retracts offer of khul’ "due to obstinacy" court is empowered to
rule a khul’ in return for appropriate compensation.

Phillipines: divorce may be effected by: talaq, ila, zihar, li’an, khul’, tafwid or faskh, as
enumerated in Family Code; divorce by talaq must be effected by husband in single
repudiation during wife’s tuhr; talaq to which any number is attached counts only as
single revocable until expiry of ‘idda.14

35
Polygamy

Muslim countries are addressing the issue of polygyny in different ways. One group of
countries, including Tunisia, Turkey, and in part Lebanon, simply bans the practice
outright. A second group restricts the practice, applying conditions that, in some cases,
are quite rigorous to deter a frivolous exercise of multiple marriages.

Africa

Senegal: permitted; groom must register his option for monogamous, limited
polygamous or polygamous (up to four wives) regime upon registration of first marriage,
and option is for life; wives entitled to equal treatment in polygamous unions.

Tanzania: permitted with consent of first wife; upon registration, parties are to declare
whether marriage is polygamous, potentially polygamous, or monogamous, and marriage
may be 'converted' to polygamous or monogamous by joint declaration
Obedience/Maintenance: maintenance of wife or wives is husband's duty; becomes wife's
duty in cases where husband is incapacitated and unable to earn a living; Courts may
order maintenance under limited circumstances where husband refuses or neglects to
maintain wife.

Sudan: classical rules apply.

Somalia: man may not contract second marriage without written permission of District
Court; Court’s authorisation requires ascertainment of one of following conditions:
sterility of wife of which husband was not aware at time of marriage, attested by panel of
doctors; incurable chronic or contagious illness of wife, certified by a doctor; wife’s
sentencing to more than two years in prison; wife’s unjustified absence from matrimonial
home for more than one year; or existence of social necessity (not defined).

Ghana: governed by classical or customary law; all customary marriages potentially

polygamous under Ghanaian law.

Ethiopia: abolished, backed by sanctions provided in Penal Code.

36
Middle East

Egypt: notification of existing and intended wives required; existing wife can petition for
divorce if she sustains such harm as makes cohabitation as husband and wife impossible
(up to one year from date of her knowledge of the polygamous marriage).

Tunisia: prohibited; penal sanctions for polygamous husband and wife who knowingly
enter into polygamous marriage are one year’s prison sentence and/or fine.

Iraq: only permitted by judicial permission, to be granted on two conditions: financial

ability and lawful benefit; permission not to be granted if judge fears unequal treatment
of co-wives; ILPS provides penalties of imprisonment and/or fines for non-compliance.

Morocco: polygamy not to be permitted in case of fear of unequal treatment; requirement

of notification of prospective and existing wives; woman who did not insert stipulation
limiting husband’s right to marry polygamously in marriage contract and whose husband
does so may seek judicial divorce on grounds of harm.

Palestine: governed by classical law. Both laws specifically permit a woman to stipulate
in contract that husband will not take another wife while married to her and to petition for
divorce on the basis of this stipulation if he proceeds to break the terms of the stipulation.
(Muslim Palestinians in East Jerusalem cannot marry polygamously under the terms of
Israeli law).

Syria: judge may refuse permission for polygamous marriage unless husband establishes
lawful cause and financial capacity.

Jordan: no constraints aside from classical injunctions that a man must treat all co-wives
equitably and provide them with separate dwellings; man must declare his social status in
marriage contract.

Yemen: permitted subject to equitable treatment of co-wives, financial means, lawful

benefit, and notification of prospective co-wives.

37
Kuwait: governed by classical law; may be subject to stipulations in marriage contract.

Algeria: reason for contracting polygamous marriage must be justified and prior
notification of existing wife/wives required; any co-wife may petition for divorce on
grounds of harm if her consent was not obtained.

Libya: permitted with prior judicial permission based on grounds of financial and
physical capacity; written agreement of wife may authorise husband to marry
polygamously or authorisation may be given by court for certain reasons.

Asia

Indonesia: basis of marriage is considered monogamy, but Marriage Law does not
prohibit polygamy for those religions that allow it (Islam, Hinduism, Buddhism);
permitted with consent of existing wife or wives and judicial permission, by fulfilling
conditions specified by law, i.e., proof of financial capacity, safeguards that husband will
treat wives and children equally; and court inquiry into validity of reasons for wishing to
contract polygamous marriage (e.g., existing wife’s physical disfigurement, infertility,
incurable disease).

Malaysia: allowed with judicial permission; contingent upon application and court
hearing with existing wife or wives; court requires proof of necessity (e.g., sterility
physical infirmity, willful avoidance of restitution order, etc.), proof of financial capacity;
guarantee of equitable treatment of co-wives; proof that proposed marriage will not lower
standard of life of existing wife or wives and dependants; contravention of application
and permission requirements punishable by requiring immediate payment of outstanding
dower to existing wife or wives and by fine and/or imprisonment.

Singapore: permitted, but marriage by a man who is already married must be solemnised
by kathi or with Kathy’s written permission.

38
Brunei: permitted with prior judicial permission based on grounds of financial and
physical capacity; written agreement of wife may authorise husband to marry
polygamously or authorisation may be given by court for certain reasons.

Phillipines: no Muslim man may take more than one wife "unless he can deal with them
with equal companionship and just treatment as enjoined by Islamic law and only in
exceptional cases"; determination of exceptional cases not specified.

39