Abstract

Keywords

Islam; women; family law; Code of Personal Status; Tunisia.

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1 Introduction

Before independence, Tunisian society was based on the concept of the family and relied on behavioural attitudes stemming from a strong loyalty to one's social grouping and class, to the point that governing bodies were formed along those lines.1 The traditional Tunisian family was socially “central” in so far as the greater part of social dynamics were centred on it.2 Objectively, the major articulations of society were lineages.3 The state was formed by one of these lineages, and the group tended to be organised like a family.4 For the individual, the family was the group to which the individual owed life, identity, and social legitimacy. It was the outlet for the individual’s needs and the mediator, if not the sphere of application, of the individual’s values. Symbolically, this appeared to be the most plausible model of social relationships, patriarchalis, and it thus became the form of social relations extending far beyond the domestic situation from which it derived its name.5 Thus, when the individual considered the world outside the domestic group, everything referred the individual back to the family.6

As time progressed, the Middle East and North African (MENA) regions developed family codes that governed issues of personal status, which included marriage, divorce, child custody, maintenance and inheritance. In terms of marriage, these family codes usually address issues such as marital contracts, guardianship, the maintenance of the family, and the age of the parties. In terms of divorce the codes addressed the reasons for divorce, custody issues and the procedure.7 They superseded family codes which were not always friendly towards women, especially relating to marriage and divorce. It may be argued that some of the previous family practices had lacked gender equality and the overall improvement of gender relations. The new codes could be viewed as a break from the then status quo.

Where Islam is the dominant religion very few nations can boast that the realisation and protection of women's rights and gender friendly relations are on top of their priority list. Tunisia and historically Turkey occupy progressive positions amongst Arab and Middle Eastern nations in terms of

the progressive realisation and protection of women’s rights in marriage and divorce.8 Other Muslim states are beginning to become more aware and progressive in their realisation of women's rights, and this is to be complimented.

However, the realisation and protection of women’s rights and the protection of gender-friendly relations can be traced back to the period before the codification of family law, to the role played by the early reforms in the Mena region. It could be argued that the early reforms created an atmosphere in which the realisation and protection of women's rights gathered momentum in placing women at the centre of the debate on the progressive realisation of women's rights. In the case of Tunisia the overall improvement of women's rights can be associated with the role played by those early reformers, although factors such as the policy of modernisation,9 under Tunisia's first post-independence President, Habib Bourguiba, a Western educated nationalist, cannot be excluded.10

The codification of Muslim family law and certain of its provisions, especially in countries where Islam is the dominant faith, is a subject of great complexity and gives rise to heated debates. I argue that Tunisia's family law has consistently undergone transformation, favouring women’s rights in the areas of marriage and divorce.

This article will be divided into the following sections. Section one will argue the important role played by the early reformers in creating a liberal atmosphere in which the rights of women were championed, before as well as under the French Protectorate. Section two will demonstrate that once independence had been attained, Muslim family law became a priority (amongst others) for the modernisation of Tunisia, of which women were the standard bearers. Section three will highlight briefly the improvements that took place after the Arab Spring, when women were again the standard bearers for women-friendly legislation. I thus argue that Tunisia can be viewed as one of the most progressive Muslim countries in promulgating women-friendly legislation.

2 Early reformers

The realisation and protection of women's rights within the MENA region date back as early as the 19th century. Reformists such as Mohamed Abdu, Abdel Aziz Thalbi al-Din Al Afghani and Ibn Abi Al Diaf held the belief that the cause of the socio-economic deficit in most Muslim states could be

attributed in part to the position of women, who in most Muslim states occupy a position inferior to that of men.11 These reformists proceeded with extreme caution with regard to certain existing Islamic structures, attempting to raise the status of women within an Islamic context.12 The aim was to proceed with reforms without alienating Islam's primary sources, such as the Qur'an and the Sunnah,13 so as not to be accused of westernising the Arab state, its people and culture. These reformers started by defending Islam and the rights of women in a liberal sense, by referring to the primary texts, emphasising that the wives of Prophet Mohammad (PBUH)14 were educated in reading and writing, and were able to negotiate various transactions.15

Several North African jurists embarked upon the task of improving the inferior position of women which was prevalent in many North African and Middle Eastern nations. According to the anthropologist Khedher, the emancipation of women was not high on the agenda of any Muslim state (historically with the exception of Turkey). This general statement included Tunisia as it was during the French Protectorate.16 Mohamed Abdu and

Qasim Amin frequently lectured about the rights of women within an Islamic framework. Qasim Amin published books titled The Liberation of Women and The New Woman, which many viewed as points of departure in Egypt concerning the status of women.17 In these works he advocates the emancipation of women as an important step in the modernisation of the Arab world, which needed the support it would receive from providing women with access to education and socio-economic opportunities.18

The Tunisian scholar and Imaam (meaning a Muslim cleric) Shayk Muhammad Snoussi published The Flower's Blooming, in which the author emphasised the place of women in an Islamic context and stressed the importance of education for young Tunisian girls.19 Later in the same period one of a group of intellectuals, Abdelazziz Thaalbi, published a text titled The Koran's Liberal Spirit that argued for young Tunisian girls to be educated, and against the wearing of the veil and the seclusion of women, as these traditions presented a serious obstacle against social progress in Tunisia.20 It could be argued that these early reformers created a liberal atmosphere which ignited the interest of other intellectuals in publishing articles about the plight of Tunisian women.21 Most of these writings advocated the education of girls (there is no conclusive consensus that “education” in these texts referred to higher education or Islamic education) and dealt with the contentious issue of the veil.22

Several of these articles were written and published by a Tunisian political activist, Tahar Haddad, who studied at the Al Zeitouna mosque.23 As a member of the Destour Party, Haddad was determined to find alternative routes to advance the position of women and workers in Tunisian society during this period.24 Haddad argued that Islam was not oppressive to women but rather actually improved the status of women when compared with their pre-Islamic conditions by protecting them and guaranteeing their basic rights. Haddad criticised practices such as veiling, polygamy, arranged marriages and repudiation, the husband's unfettered prerogative,

known in Islam as talaq, as infringing on the rights of women.25 The Zeitouna administration condemned his last work, titled Imra' tuna fi al-Shari´a wa-l-Mujtama (Our Women in Shari'a and in Society) as heretical.26 His diploma (tatwi) was confiscated and various Tunisian scholars learned in religion (ulama) published rebuttals of his works. In addition, various journalists and Destour Party officials also denounced his works.27 It may be argued that Haddad's writings in a way created a positive atmosphere that propelled women to contribute significantly to their homeland. However, this was not sufficient to create a solid foundation for the emergence of a women's movement aimed at achieving gender equality.28 In 1936 the first women's organisation, Union Musulmane des Femmes de Tunisie (UMFT) emerged to promote women's education, following the ideas of Haddad. It was joined by nationalist leaders and was used as an instrument to co-ordinate national resistance against the French, in order to attain independence.29 Sadly, in almost all these instances the Tunisian national movement did not prioritise the status of women in society. This featured only later, in the development of Tunisia as a whole.30 Although the book made Haddad a pariah, one can argue that he strongly influenced gender relations and later reforms in family law.31 Haddad died in 1935 at the age of 36, and it has been suggested that his demise was due to stress.32

3 Tunisia's family law pre-independence

Towards the end of the tenth century of the Christian Era (CE) the Tunisian population largely converted to Islam.33 The inhabitants of the North African region were of Arab-Berber descent, speaking either Arabic or a Berber dialect.34 Modern day Tunisia was a French protectorate from 1881 until 195635 and, together with Algeria and Morocco, these states share a sense of solidarity through their relationship with France, a foreign, non-Muslim state.36

The particular practice of Islam developed in Tunisian society was based on kin groupings that allowed male members of the group to have almost complete control over women.37 The shariah, as inspired by the Maliki and Hanafi schools of religious thought, was particularly important to the exercise of this type of control.38 These two schools of thought also sanctioned a special bond especially amongst the male members of the extended kin group.39 The combined power of the husband and his male kin over women's lives, referred to by Charrad as "kin-based patriarchy",40 represented a particular form of subordination and control that women experienced in Tunisia and in most Arab and Middle Eastern states.41

Some of these practices included adherence to all the restrictions affecting the legal status of women.42 For example, there was no minimum age for marriage, except for the stipulation that marriage should take place after puberty.43 In addition, the actual ceremony that confirmed the marital contract was attended by the father, or in his absence by the male guardian, who uttered the consent to the marriage, because in most instances the bride was not present.44 Omri, a legal scholar, argues that for a person steeped in European culture the thought of marriage in absentia, without approval from the bride, is absurd. However, such marriages were common before the introduction of the CPS as well as other Muslim and non-Muslim states, where there was a Muslim population.45

Polygamy was not introduced by Islam nor was it part of an Islamic phenomenon.46 Polygamy was allowed in pre-independence Tunisia, and the husband could be married to as many as four wives at a time,47 although in reality only a small minority of men could afford having more than one wife.48 The justification of the practice was found in the Qur'an and the Sunnah, being the primary sources of Islam. Although only a few practised polygamy, it could be argued that that the legality of polygamy had the

potential of threatening women and pressured them into compliance with the husband's wishes. There could have been other factors that could have the same potential for example, socio-economic reasons. No matter the reasons, polygamy was and is perhaps today still an obstacle for women to achieve true gender equality and gender relations. This was common practice in most Muslim states at that time and even though the practice of polygamy still continues in a few Muslim states today, it does so under certain conditions and with various stipulations.49

In terms of the dominant school of religious thought (in Tunisia), the Maliki school, repudiation by the husband required only the presence of two witnesses. No judicial intervention was required.50 The witnesses were to be males. The wife had no judicial recourse.51 According to Charrad, the only recourse the wife had was to turn to her family or community to approach the husband to request that he not repudiate her.52 Without judicial intervention the wife was in a vulnerable situation, as there was no protection for her wellbeing or even her children. However, women could appeal to a religious judge and ask for a divorce. This could be granted only on highly limited grounds.53 Stilt and Gandhavadi, scholars of history, put forward that according to the Mailiki school of thought, a wife could obtain a judicial divorce for abandonment and lack of financial and material support from her husband for various reasons including certain categories of harm and injury.54

In Haddad's book, the Imaraatuna Fi Al Sharia Wa Al Mujtamaa (Our Women in the Sharia and in Society), the second section provides a lonely picture of the situation of women in Tunisia, with illustrations drawn from the author’s own experiences when he visited the courts in Tunisia. He states, "I went in person to our Shari'a courts to ascertain if there was statistical data telling about marriages and divorces and I found that they did not exist."55 Two types of courts existed in Tunisia, namely the secular courts and the shariah courts/tribunals. Family law remained the domain of Muslim judges (qadis), who adjudicated through Tunisia's traditional system of Islamic jurisprudence based on either the Maliki or Hanafi religious school

of thought, whereas the rest of Tunisia's legal system was subject to existing or recently published codes introduced by the French.56

The French colonial officials refrained from interfering with the prevailing Islamic law, although other laws, such as those pertaining to contracts and property, were amended for economic and political reasons.57 The French were very aware that any interference with Tunisia's Islamic family law could lead to social disorder, particularly as Tunisians viewed Islam as the cornerstone that both separated and distinguished their identity from the French. As a result, Islamic family law in Tunisia was left intact, serving as a point of differentiation between Tunisia and France. Charrad also suggests that Islamic family law was left untouched for political reasons.58 In nations where colonialism has taken place, the personal law of the inhabitants is normally left intact, as there is no benefit to be gained by altering those laws.

4 Tunisia's family law post-independence Code of Personal Status, 1956

Habib Bourguiba, a lawyer, led the feminist movement, which also included partisans of the New Constitutional Liberal Party (referred to as Neo Destour) and supported an integrated and unified national struggle against the French Protectorate. The alliance between leading factions of the nationalist movement disintegrated after the French were pushed out of Tunisia in the mid-1950s. On the eve of independence from the French a conflict developed between two major nationalist factions, on the one hand a group supporting modernization, and on the other a group holding on to the traditional practices.59 These factions had contrasting views of the Islamic establishment and kin-based groupings.

Bouguiba's faction was the ultimate winner and drew its constituents from the urban areas and the workers’ union. The competing faction, led by Ben Youseff, found support amongst the kin-based communities in rural areas, including the members of the religious establishment.60 As the conflict intensified, Bourguiba asked for French help. The French agreed to help, as their colonial rule was eroding sharply and they preferred that a sovereign Tunisia should be under the leadership of Bourguiba rather than that of Ben Youseff.61 The Tunisian nationalist movement ended with the termination of the French Protectorate and the realisation of Tunisian independence on

March 20 1956. It came as no surprise that Bourguiba was its first president.62

Personal law systems are legal systems in which a different body of law is applied to various communities in the same country.63 These legal systems are based on factors such as ethnicity or religious affiliations and normally regulate matters of family law.64 The issue of gender equality in a Tunisian context has been pertinent for some time, albeit with little or no substantial progress. It was only after Tunisia's independence from French colonial rule that Bourguiba came to make substantial changes to family law, which were promulgated through the Code of Personal Status in 1956.65 The Code of Personal Status (CPS) was enacted only six months after independence and is considered as a monumental step towards the modernisation of Tunisia. The CPS was introduced as law on January 1, 1957, and represented a forward-thinking reform imposed from above, attached to the executive branch.66 It is true that the CPS applies only to Tunisian Muslims. French Law regulates the personal status of Christians, while Jewish citizens have their own code.67

Although the drafting of the CPS involved lawyers and religious leaders, there seems not to have been any involvement of women in the process. This seems at odds with the realisation that the gender issue had been ongoing for decades in Tunisia, being foregrounded by various reformers as well as the emergence of women's movements, as discussed earlier. The CPS was considered complementary to the larger state-building programme that was targeted towards a modern centralised state and efforts to diffuse tribalism, classism and kin-based communities in the rural and urban areas.68 In addition, the CPS was part of the so-called "war against underdevelopment". This strategy included doing away with whatever the government deemed to be impediments against the creation of the modern state. Such impediments could include kin-based corporate communities and patriarchal arrangements permitted by the shari'ah, all of which were deemed as hampering the process of nation building.69 In a speech delivered by Bourguiba relating to marriage and consent, he stated:

It is inadmissible, I am sorry to say, that parents constrain their son to marry a young woman chosen for their convenience. We have in this respect strange practices. There are the young women who have been 'promised' to a young

man for a long time. There are the female cousins, the female relatives with various degrees of kinship closeness, a whole series of young women to marry off … . Let's leave the decision to the husband and wife-to-be.70

Tunisia was dominated by the Islamic faith, and Bourguiba continuously defended Tunisia's Islamic legacy by stating that CPS was based on the Maliki school of religious thought or the part that related to family law. He claimed that the CPS did not change what was considered halal (permissible) or haram (not permissible).71 Scholars such as Weideman and Ganna, when addressing the CPS and in particular its spirit, argue that it is unmatched in the Muslim world, except perhaps by the 1924 Turkish Civil Code. Furthermore, the CPS did not altogether abolish the shariah, nor did it proceed to mimic the European model under the leadership of Ataturk.72

The CPS is made up of the following books: Al Zawaj (marriage), Al Talaq (divorce), Al Nafaqa (alimony), Al Hadhana (child custody), Al Nasab (determination of parenthood), Al Laqit (abandoned children), Al Mafqud (missing persons) and Al Mirath (inheritance).73 Each of them includes a number of articles reconstituting the legal status of women family law, for example.

Book 1 addresses the requirements for a marriage to be deemed valid. Of importance is the requirement that consent must be obtained from both parties to the marriage, in front of two worthy witnesses, which makes the 1956 CPS gender neutral.74 The dower (mahr) payable to the wife must be specified.75 It could be argued that in 1956 the CPS put an end to the popular practice of arranged and perhaps forced marriages that could have existed during the period of colonialism, although such practices took place privately without the authorities being made aware.76 In addition, the CPS sought to prevent arranged and forced marriages by taking away the authority of the father and/or guardian, which could perpetuate the abovementioned practices.77 The promulgation of the CPS made marriage a voluntary and consensual union, and the courts had the authority to end it, thereby curtailing the unilateral repudiation of the male.78

The CPS of 1956 now requires that the parties must be of a certain age. For males the prescribed age is 18 years old and for females 15 years of age.79 In Islam there is no prescribed marital age, except that the parties must have reached physical maturity. In addition, the marriage of either party below the legislated age shall be subject to special authorisation by a judge. The authorisation shall be given only upon proof of the attainment of physical maturity.80 The difference of age by gender in the CPS could constitute a distortion relating to the relevant bargaining power of the parties involved, and could result in a marriage contract which is advantageous to one party, leaving the other party in a vulnerable position.81

One has to be careful, as many other factors could also lead to one of the parties’ being vulnerable. For example, if the female is 15 years old she may not be aware of her options, and she may be inexperienced in the art of negotiating, being too dependent on the advice of the family, who may not necessarily have the girl’s interest or well-being at heart.82 But we must be careful not to underestimate the maturity that young people have.83 In addition, the prohibition of marriage between blood relations is an important constraint to marriage.84 The impediments of a temporary nature are the existence of third-party rights in the marriage or the iddah (referred to as the reconciliation period, which applies only to the woman and not to the man).85

Polygamy has always been a highly contentious issue in an Islamic context. According to the CPS, polygamy is prohibited. Marrying more than one woman shall incur a punishment of one year’s imprisonment and a fine of 240,000 Francs, or either of these.86 Not surprisingly, the Tunisian traditionalists were deeply unsatisfied with this particular interpretation and argued that the Qur'anic verse requiring the equal treatment of wives had always been regarded as a moral suggestion.87 The traditionalist argument was that the verse clearly referred only to the financial treatment of wives and other similar equalities, subject to human competence. Bourguiba's understanding was thus deemed to be in direct conflict with the traditional interpretation of the practice of polygamy.88 Although some have argued that article 18 did not render polygamous marriages invalid but merely instituted secular sanctions,89 the Minister of Justice, Al Snousi, at that time

stood firm in the conviction that the equal treatment of wives was impossible.90 Inferences could be drawn from the barring of polygamy that Tunisia had indirectly or directly rejected the idea that women are to be deemed possessions and/or symbols enhancing the social, economic or political status of men. In addition, by outlawing polygamy, Tunisia might well have ensured a degree of psychological comfort and stability for women who might otherwise live in fear that their husbands might marry a second, third or fourth wife.

Of concern was article 23 of the 1956 CPS, which stipulates that the wife must fulfill her matrimonial duties "in conformity with usages and custom".91 Article 23 thus implied acceptance of pre-modern Islamic jurists' thinking that a wife must accede to the husband's sexual demands in the absence of a valid excuse. Mayer, a legal scholar, correctly points out that there was no stipulation that mutual affection should be the foundation for marital attachment or that cohabitation could be interpreted as the spouses' mutual obligation.92

Book II of the 1956 CPS deals with divorce. Article 30 stipulates that no divorce shall take place save before the court.93 Furthermore, divorce procedures may be undertaken by both husband and wife, and the supporting reasons are to be found in the CPS.94 In addition, the court shall determine the financial indemnity to which the wife may be entitled by way of damages, or the indemnity which she has to pay the husband.95 In addition, the court must investigate the cause of the dispute which failed to bring about reconciliation between the parties.96 The court is also empowered to take all measures which will ensure the accommodation of the spouses, their maintenance and the upbringing of the children. From the above, the inference may be drawn that the accommodation of the spouses and the well-being of the children is very important.97 It is of note that the well-being of the child in the context of a divorce has recently become paramount in legislation in most developing and developed countries.

Apart from the modification of shariah law, the government had to reconcile legal disputes that arose among the Muslim citizens. While judges of the Hanafi and Maliki schools of religious thought (judges are referred to as qadis in Arab and Middle Eastern states) continued to exist side by side

during the Ottoman Empire and before the codification of Tunisia's family law, the simultaneous existence of these two competitive jurisdictions could no longer be justified once independence had been achieved. In an effort to find a solution, Tunisia abolished the shariah courts, and disputes relating to family law were now to be adjudicated before the national courts.98

5 Amendments to Code of Personal Status post-1956

This part of the article addresses the latest amendments to the CPS in the realisation of women-friendly rights in Tunisia. The CPS has been revised several times since 1956. Only the latest revisions will be discussed here as they relate to marriage and divorce.

Article 3, which was revised in 2007, now states that marriage is formed only by the free will of the parties. Furthermore, it now requires the bride to be present at the site of the place of the marriage contract and to expressly direct her opinion to the marriage.99 The position of a matrimonial guardian has been abolished. The law no longer sanctions arranged or forced marriages of parties of either gender. The law currently strips away the legal prerogative of the father or guardian to commit a man or a woman to marriage against their will.100 The marital age of both parties has been set at eighteen years of age.101 Moreover, the CPS indicates that the marriage can be concluded only before two notaries or an officer of the civil registry, and the marriage must be registered with the civil authorities.102 A certificate delivered by the civil registry, or by the two notaries after they have performed the marriage, has now become the only valid proof of marriage. This is an attempt to eliminate secret marriages.

Article 5, revised in 2007, reads that someone who has not attained the age of eighteen years cannot marry. Below this age, the marriage cannot be contracted except with the special permission of a judge, who will grant such permission only for serious reasons and in the best interest of the child.103 According to Chekir, the age limit prevents early marriages, which permit sexual intercourse between partners when they are still physically or mentally immature. This change also helps to delay motherhood, thereby reducing the number of children under the age of 20 years, who presently make up 50 per cent of the population.104 Furthermore, it may be argued

that premature childbearing before full physical maturity has the potential to affect the reproductive and sexual health of women.105 Early childbearing may also prove to be an obstacle for women who wish to further their education and want to pursue a profession, not discounting the emotional and psychological impact this may have on them. These issues may also affect the male, who might not be ready to take on parental responsibilities and may thus put the burden on the woman.

In addition, medical certificates of the good health of both spouses are mandatory. This is an effort to prevent venereal or sexually transmitted contagious diseases, and to protect the physical and emotional well-being of the child, the wife and the husband.106 The medical test results are to be provided to the parties without delay. In the past the provision of these test results took as many as three days.107 However, in a rural setting these tests may take longer to due to bribery and corruption.108 These violations occur despite the fact that this law had been in place for the past fifty years, requiring that a “free” pre-marital medical test be performed by public clinics as well as public hospitals prior to the marriage ceremony.

According to an Association des journalistes d' information sur les religions (ARIJ) report relating to the pre-marital testing, there are certain shortcomings. For example, doctors are meant to issue certificates after the couple performs a number of legally required tests. If this is not performed, the law does not impose any punitive measures on the doctor.109 Furthermore, if the doctor complies with the necessary provisions of the law, his role is limited to only informing the parties of a potential condition (which the test has highlighted) and issuing a warning of any consequences that may be relevant to the child or the wife.110 Although the doctor has the authority to withhold the certificate or postpone issuing it to a later date, this barrier is circumvented by simply going to another doctor in another area.111 In order to combat these shortcomings the state has introduced legislation which states “that any person knowingly infected with a communicable disease (a venereal disease) who goes out of his way to pass along this

disease to another person shall be punished with imprisonment for a period ranging between one and three years.”112

Article 2 of the 1956 CPS,113 on the breach of the promise of marriage, was modified by Law No. 93-97 of 12 July 1993, which states that "each of the two fiancés shall have the right to the restitution of gifts given to each other except in the case of breach of promise or a stipulation to the contrary."114 Article 12 relates to the dowry and states that it may consist of any lawful property having monetary value and it shall now belong to the wife. In contrast, the previous wording of article 12 relating to dowry provided that only the fiancé or the husband had the right to the repayment of any gifts given to the fiancée or wife.

A revised article 23 concentrates on mutuality, requiring both spouses to be kind to one another, to maintain a good relation, and to avoid harming each other.115 They are to work together to manage the home, raise the children, and provide for their needs. According to Mayer, the language of the CPS closely resembles the modern French Civil Code, article 213, which stipulates that the spouses together are to ensure the moral and material direction of the family, provide for the education of the children and their preparation for the future.116 The old language of the CPS relating to article 23 of the 1956 version, requiring the wife to acknowledge the husband's prerogatives and to show obedience, was abolished.117

Article 23, however, still refers to the husband as the head of the family, raising serious questions of interpretation. On the question of interpretation, Mayer puts forward the following, that perhaps the husband's status as the head of the household could be interpreted to mean that he retains decision-making prerogatives and that the wife should defer to his wishes.118 Or perhaps it may reflect the primary responsibility that he has to provide for his family according to his means.119 Furthermore, article 23 directs the wife to contribute, too, if she has money.120 The provision stipulating that the wife must fulfil her conjugal duty in conformity with custom and usages was revised in 1993. The revised provision requires that both parties fulfil their duties in conformity with the custom and usages of the pre-independence family structure.121 The reforms to the CPS certainly advance the

progressive realisation of the equal rights coupled with the equal responsibilities of the spouses.122 This means that the wife plays an active role in the family as a generator of economic resources. Commenting on the revised provisions of article 23, Grami states that Tunisian women do not only have rights equal with those of their male counterparts, but also equal responsibilities in monetary terms.123

Before 1956 unilateral repudiation, which had been a widespread Muslim tradition, allowed the husband to divorce his wife with impunity, and freely.124 The CPS has changed the regulations relating to divorce in a progressive manner. The improvements have abolished repudiation.125 The term "repudiation" appears nowhere in the text of the CPS. A divorce can take only place in court.126 There are three possibilities for divorce: a mutual divorce agreement of both spouses, or at the request of one spouse because of harm to which that spouse has been subjected, or at the request of the husband.127

When a divorce is granted, the woman can demand compensation for any wrongs to which she has been subjected.128 She has a right to an allowance, payable monthly in arrears, which depends on the standard of living to which she was accustomed during the marriage, it may also be payable as a single capital sum.129 Furthermore, women with the custody of the children of the marriage have the right to child support, and an alimony fund was also established by the state in 1993, which ensures payments to divorced women and their children in cases where the husband neglects his duties. Article 19 of the CPS states that a man is forbidden to marry his "triply-divorced wife" (where the husband pronounces the divorce three times in one sitting - for example, the husband says to his wife, "you are divorced

thrice"),130 and article 14 describes "triple divorce" as a permanent impediment to marriage.131 There has been considerable controversy over the interpretation of these provisions, and it not certain whether a triply-divorced wife can marry her former husband, even if the resulting bar has been removed in accordance with the procedure described by law.132

6 2017 Reforms

On September 14 2017, in a speech by the Tunisian president Beji Caid Essebsi, the Tunisian government put an end to the ban (a 44-year ban imposed in 1973) on inter-religious marriages between Tunisian Muslim females and non-Muslim males.133 During this speech on national Women's Day he proposed amendments relating to the provisions governing the rule of inheritance and marital contracts.134 In an Islamic context parties are permitted to contract a marriage with members of other religions, but those not of the Muslim faith must accept Islam as their new faith for the marriage to be valid. When a woman contracts a marriage to a person of another faith, it is the other person that must embrace Islam as his new faith. However, there are scholars that argue that Muslims are permitted to marry only a partner of the same faith.135 In addition, the President proposed the removal of a bar that prevents inter-religious marriages between Muslim women and non-Muslim men. It has always been legal for men to marry outside their religion.136

The announcement by the President has received widespread condemnation among religious groups, who suggest that these latest provisions are in direct opposition to Islamic law, as it is Islamic law that prevails over family matters. These religious groups contend that these latest provisions allowing inter-religious marriages and the granting of equal portions of inheritance to females conflict with the Quran and the main principles of Islamic jurisprudence.137 For example, Egypt's Al Azhar institution, the world's foremost seat of religious learning for Sunni Muslims, swiftly rejected the Tunisian proposals. Its president, Abbas Shoman, Al Azhar's second most senior cleric, stated that calls for the equality of men and women in inheritance do an injustice to women, do not do women any good, and clash with shari'ah. As for the reforms in marriage law, Abbas Shoman argued that while Muslim men were likely to respect the beliefs and freedom of worship of their non-Muslim spouses, non-Muslim men were unlikely to do the same for their Muslim wives.138

However, those supporting the President argue that this approach to inter-religious marriages and women’s inheritance aligns itself with article 21 of 2014 Tunisian Constitution.139 Article 21 provides that "all citizens, male or female, have equal rights and duties, and are equal before the law without any discrimination." Since the Arab uprising and coupled with Tunisia's progressive gender-friendly laws, there has been a debate amongst various sectors of the community as to the relationship between the written law and the day-to-day operation of the law. One explanation (there could be others) for the lack of the successful implementation of the new law is that perhaps it represents a too big a break with the past.140 What must change besides the law is the attitude of the people (especially those in authority) and their willingness to enforce and sustain the change. In most countries where change has occurred, there are those who fight to retain the old way of life, hanging onto the past without giving the new a chance to flourish.

In the arena of inter-faith marriages, the application of law is generally represented as an example of its inability to align itself with social change.141 Although the CPS does not include in its provisions impediments to religious marriage, the jurisprudence (fiqh) is generally interpreted to prohibit the marriage between a Muslim woman and a non-Muslim man. This has led to civil servants and judges pronouncing inter-faith marriages as null and

void.142 Evidence of this practice is to be found in two circulaires (decrees) of 1962 and 1973 aimed at civil servants to extract information of official conversion to Islam (official evidence from the state; mufti – Islamic jurisprudence scholar),143 if the husband is a non-Muslim, that he has converted.144

The National Institute of Statistics (al-ma' had al-watan li al-ihsa) indicates that 30,000 Tunisian women emigrated from Tunisia in 2004 in order to marry.145 The existence of such conditions could have the potential to lead to viewing contracting a marriage with a foreigner as the best possible way of bypassing the existing law. The question which Tunisian women now face is whether the government should play a more definite role on who its people chose to marry, or should it merely act as an arbiter in contractual marital disputes.146

Although Tunisia is viewed by many as the vanguard of gender-friendly laws, it stands as a nation of contradictions relating to the law and social change. It seems that the new democratic atmosphere has created a new discourse relating to inter-faith marriages. Municipalities across Tunisia have adopted different stances, some allowing inter-faith marriages and others refusing to register such marriages.147 Inferences may be drawn from the above, that those municipalities148 that reject inter-faith marriages are clinging to a conservative interpretation of the CPS, thereby not allowing constitutional change to influence their decisions, or perhaps their stance could be linked to the resurgence of Islamist or Salafism influences to which they have allegiance. Those allowing inter-faith religious marriages are guided by and enforcing the constitutional provisions of the new Tunisian Constitution of 2014. Whatever the reason or reasons, Tunisia is facing new conflict relating to inter-faith marriages. One can but hope that the newly enacted Tunisian Constitution will influence the national law, that the constitutional provisions will be allowed to filter down to the local law, and that the enforcement of the law will take place, thereby eradicating the possible lacuna between the written law and the law in practice. This is also

in line with article 46 of the Constitution, which reads "the state commits to protect women's accrued rights and works to strengthen and develop those rights" and that “the state guarantees the equality of opportunities between women and men to have access to all levels of responsibilities in all domains."149

7 Conclusion

Despite the modernisation of the legislation relating to women's rights, remnants of the old patriarchal structures exist, and the cultural tendency to hold that males are superior to females is a reality. This may not be evident in the major cities of Tunisia, but is perhaps more prevalent in the outlying cities, where this patriarchal structure is difficult to dismantle. Furthermore, tension exists between the notion of gender equality and religious identity that encourages traditional division along gender roles. In particular, in the realm of the family, for example, the CPS gives Tunisian women the right to negotiate their marital contract, but in practice social pressure influences the exercise of this right more than the law.150

Generally, the recognition and understanding of the continuously changing nature of Islamic teachings, coupled with the evolving nature of the shari'ah, can arm activists with information for use in countering patriarchal and discriminatory discourses relating to women's rights, roles and duties.151 Evidence of the evolving nature of the shari’ah and the existence of the counter-narratives is the change of atmosphere, which has pushed Tunisia into adopting a more expansive constitution, which to a greater or lesser extent accommodates gender equality.

Although, Tunisia has since independence leaned towards modernity and struggled to make a complete break from the past and embrace modernity in totality, there is definitely an increasing change in the prevailing gender roles. Evidence of this is to be found in marriage patterns which no longer reflect family needs but rather the wants and desires of the individuals, and the changing relationship between society and the individual. However, the more expansive 2014 constitutional provisions, which embrace modernity and the individual seem sometimes not to be understood or enforced, especially in outlying districts, where remnants of the old patriarchal structures seem to be playing a more practical role. In addition, Tunisia seems to be fighting a new battle or perhaps an old battle, which has

become more prominent, about religious identity and the identity of the person. When there is a transition from the old to the new, there will always be areas of concern and contention. However, Tunisia must be complimented and encouraged to enforce the constitutional provisions, which have created an atmosphere in which gender equality is fostered in the context of the family.

Bibliography

Literature

ACPF In the Best Interests of the Child

ACPF In the Best Interests of the Child: Harmonising Laws on Children in Eastern and Southern Africa (ACPF Addis Ababa 2008)

Ali The Holy Qurʼān

Ali AY The Holy Qurʼān: Text, Translation, and Commentary (Shaikh Muhammad Ashraf Lahore 1938)

Amir, Shuriye and Ismail 2012 AJMSE

Amir AN, Shuriye AO and Ismail AF "Muhammad Abduh's Conrtibution to Modernity" 2012 AJMSE 63-73

Anderson 1958 ICLQ

Anderson JND "The Tunisian Law of Personal Status" 1958 International and Comparative Law Quarterly 262-279

Angrist 1999 CSSH

Angrist MP "The Expression of Political Dissent in the Middle East: Turkish Democratization and Authoritarian Continuity in Tunisia" 1999 CSSH 703-759

Bonderman 1996 Harv L Rev

Bonderman D "Modernization and Changing Perceptions of Islamic Law" 1968 Harv L Rev 1169-1185

Brand Women, the State, and Political Liberalization

Brand LA Women, the State, and Political Liberalization: Middle Eastern and North African Experiences (Columbia University Press New York 1998)

Buskens 2003 Islamic L & Soc'y

Buskens L "Recent Debates on Family Law Reform in Morocco: Islamic Law as Politics in an Emerging Public Sphere" 2003 Islamic L & Soc'y 70-131

Catroux 1954 International Journal

Catroux G "France, Tunisia and Morocco" 1954 International Journal 282-294

Camilleri 1967 JMF

Camilleri C "Modernity and the Tunisian Family in Tunisia" 1967 JMF 590-595

Charrad 1990 Middle East Report

Charrad MM "State and Gender in the Maghrib" 1990 Mar/Apr Middle East Report 1-34

Charrad 1997 Social Politics

Charrad MM "Policy Shifts: State, Islam, and Gender in Tunisia, 1930s-1990s" 1997 Social Politics 284-319

Charrad 2007 Wash & Lee L Rev

Charrad MM "Tunisia at the Forefront of the Arab World: Two Waves of Gender Legislation" 2007 Wash & Lee L Rev 1513-1527

Charrad "Family Law Reforms in the Arab World"

Charrad MM "Family Law Reforms in the Arab World: Tunisia and Morocco" Report for the United Nations Department of Economic and Social Affairs (UNDESA), Division for Social Policy and Development, Expert Group Meeting (15-17 May 2012 New York)

Chekir 1996 Gender and Development

Chekir H "Women, the Law, and the Family in Tunisia" 1996 Gender and Development 43-46

Grami 2008 BJMES

Grami A "Gender Equality in Tunisia" 2008 BJMES 349-361

Jansen 2007 Nw U J Int'l Hum Rts

Jansen Y "Muslim Brides and the Ghost of the Shari'a: Have the Recent Law Reforms in Egypt, Tunisia and Morocco Improved Women's Position in Marriage and Divorce, and can Religious Moderates Bring Reform and Make it Stick?" 2007 Nw U J Int'l Hum Rts 181-212

Kallander Women, Gender, and the Palace Households

Kallander AA Women, Gender, and the Palace Households in Ottoman Tunisia (University of Texas Press Austin 2013)

Katz 2018 JNAS

Katz JG "Regulating Islam: Religion and the State in Contemporary Morocco and Tunisia" 2018 JNAS 1-4

Khedher 2017 JIWS

Khedher R "Tracing the Development of the Tunisian 1956 Code of Personal Status" 2017 JIWS 30-37

Mashhour 2005 Hum Rts Q

Mashhour A "Islamic Law and Gender Equality: Could There be a Common Ground? A Study of Divorce and Polygamy in Sharia Law and Contemporary Legislation in Tunisia and Egypt" 2005 Hum Rts Q 562-596

Mayer 1995 Middle East J

Mayer E "Reform of Personal Status in North Africa: A Problem of Islamic or Mediterranean Laws?" 1995 Middle East J 432-446

McCarthy 2014 JNAS

McCarthy R "Re-thinking Securalism in Post-independence Tunisia" 2014 Journal of North African Studies 733-750

Moghadam 2004 JCFS

Moghadam VM "Patriarchy in Transition: Women and the Changing Family in the Middle East" 2004 JCFS 137-162

Omri 2004 Journal of Policy Studies

Omri B "The Status of Women under Tunisian Law" 2004 Journal of Policy Studies 147-149

Sfeir 1957 Middle East J

Sfeir GN "The Tunisian Code of Personal Status (Majallat Al-Ahw Al-Shakhsiy)" 1957 Middle East J 309-318

Saidon et al 2015 Pertanika

Saidon R et al "Examining the Policy of Mandatory Premarital HIV Screening Programme for Muslims in Malaysia" 2015 Pertanika Journal Social Science and Humanities 11-142

Sonneveld 2017 Religion and Gender

Sonneveld N "From the Liberation of Women to the Liberation of Men? A Century of Family Law Reform in Egypt" 2017 Religion and Gender 88-104

Tagari 2012 Int J L C

Tagari H "Personal Family Law Systems: A Comparative and International Human Rights Analysis" 2012 Int J L C 231-252

Weideman 2016 IJMES

Weideman J "Tahar Haddad after Bourguiba and Bin Ali: A Reformist between Seuclarists and Islamistst" 2016 IJMES 47-65

Western 2008 A F L Rev

Western DJ "Islamic Purse Strings: The Key to the Amelioration of Women's Legal Rights in the Middle East" 2008 A F L Rev 79-135

Voorhoeve "Judicial Discretion"

Voorhoeve M "Judicial Discretion in Tunisian Personal Status Law" in Voorhoeve M (ed) Family Law in Islam: Divorce, Marriage and Women in the Muslim World (Tauris London 2012) 1-35

Voorhoeve 2018 OJLR

Voorhoeve M "Law and Social Change in Tunisia: The Case of Unregistered Marriage" 2018 OJLR 479-497

Zeghal "Implicit Sharia"

Zeghal M "The Implicit Sharia: Established Religion and Varieties of Secularism in Tunisia" in Fallers Sullivan W and Bearman LG (eds) Varieties of Religious Establishment (Ashgate London 2013) 107-130

Legislation

Code of Personal Status, 1956

French Civil Code, 2016

Law No. 71, 1992

Law No. 93-74, 1993

Law No. 93-97, 1993

Tunisian Constitution, 2014

Turkish Civil Code, 1924

Internet sources

Anon 2017 https://www.aljazeera.com/news/2017/09/tunisia-lifts-ban-muslim-women-marrying-muslims-170914154657961.html

Anon 2017 Tunisia Lifts Ban on Muslim Women Marrying Non-Muslims https://www.aljazeera.com/news/2017/09/tunisia-lifts-ban-muslim-women-marrying-muslims-170914154657961.html accessed 5 December 2018

Anon 2017 https://www.thenational.ae/world/mena/after-marriage-laws-tunisia-now-tackles-women-s-inheritance-rights-1.629020

Anon 2017 After Marriage Laws, Tunisia Now Tackles Women's Inheritance Rights https://www.thenational.ae/world/mena/after-marriage-laws-tunisia-now-tackles-women-s-inheritance-rights-1.629020 accessed 21 November 2017

ARIJ 2018 http://en.arij.net

ARIJ 2018 Arab Reporters for Investigative Journalism http://en.arij.net accessed 20 May 2018

Bajec 2018 https://www.alaraby.co.uk/english/indepth/2018/9/25/tunisian-women-stand-up-for-right-to-marry-non-muslims

Bajec A 2018 Tunisian Women Fight for Right to Marry Non-Muslims https://www.alaraby.co.uk/english/indepth/2018/9/25/tunisian-women-stand-up-for-right-to-marry-non-muslims accessed 20 April 2019

Bin Hamid Ali Date Unknown https://www.themuslim500.com/guest-contributions-2018/tunisia-and-the-liberation-of-muslim-women/

Bin Hamid Ali A Date Unknown Tunisia and the Liberation of Muslim Women https://www.themuslim500.com/guest-contributions-2018/tunisia-and-the-liberation-of-muslim-women/ accessed 16 April 2019

Conover-Crockett 2015 https://digitalcollections.sit.edu/isp_collection/2194/

Conover-Crockett E 2015 Marriage Culture in Tunisia: Post-Independence to Post-Revolution Shifts https://digitalcollections.sit.edu/isp_collection/ 2194/ accessed 2 April 2019

De Boer 2018 https://www.worldcrunch.com/world-affairs/inside-tunisia39s-battle-over-inter-religious-marriages

De Boer B 2018 Inside Tunisia's Battle over Inter-Religious Marriages https://www.worldcrunch.com/world-affairs/inside-tunisia39s-battle-over-inter-religious-marriages accessed 21 April 2019

Islamic Relief 2018 https://www.girlsnotbrides.org/wp-content/uploads/2018/05/IRW-Islamic-persepctive-on-CM.pdf

Islamic Relief 2018 An Islamic Human Rights Perspective on Early and Forced Marriages: Protecting the Sanctity of Marriage https://www.girlsnotbrides.org/wp-content/uploads/2018/05/IRW-Islamic-persepctive-on-CM.pdf accessed 22 May 2019

Nadhif 2017 https://www.al-monitor.com/pulse/originals/2017/08/equality-in-inheritance-raises-controversy-in-tunisia.html

Nadhif A 2017 Tunisian President Calls for Gender Equality in Inheritance Law https://www.al-monitor.com/pulse/originals/2017/08/equality-in-inheritance-raises-controversy-in-tunisia.html accessed 5 June 2019

Sayed 2017 https://www.egypttoday.com/Article/2/17548/Tunisian-opposition-call-for-ouster-of-President-Essebsi

Sayed N 2017 Tunisian Opposition Call for Ouster of President Essebsi https://www.egypttoday.com/Article/2/17548/Tunisian-opposition-call-for-ouster-of-President-Essebsi accessed 5 December 2018

Stilt and Gandhavadi 2011 https://scholarlycommons.law. northwestern.edu/cgi/viewcontent.cgi?article=1010&context=facultyworkingpapers

Stilt K and Gandhavadi S 2011 Strategies of Muslim Family Law Reform https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1010&context=facultyworkingpapers accessed 5 June 2019

UNICEF 2011 https://www.unicef.org/gender/files/Tunisia-Gender-Eqaulity-Profile-2011.pdf

UNICEF 2011 Tunisia - Mena Gender Equality Profile: Status of Girls and Women in the Middle East and North Africa https://www.unicef.org/gender/files/Tunisia-Gender-Eqaulity-Profile-2011.pdf accessed 12 May 2018

List of Abbreviations