Gender and Divorce Law in North Africa: Sharia, Custom and the Personal Status Code in Tunisia 9780755608249, 9781780765297

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Et qu’un peuple muet d’infâmes araignées Vient tendre ses filets au fond de nos cerveaux Charles Baudelaire, ‘Spleen’, in: Fleurs du mal, 1868 Translation: and voiceless hordes of spiders come, to spread their infamous cobwebs through our darkened brains (Lewis Piaget Shanks, Flowers of Evil, New York, 1931)

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NOTES ON TR ANSLITER ATION

In my transliteration I make a distinction between the transcription of Modern Standard Arabic (fusha) on the one hand and Tunisian Arabic (al-lahja al-tunisiyya) on the other. Modern Standard Arabic is used in legislation, court decisions and the literature as well as during the court hearings, while Tunisian Arabic is employed in reconciliation sessions and interviews. Also, for the transliteration of Tunisian names I use Tunisian Arabic as a starting point as Tunisians themselves do this when they write their names in Roman characters. Terms that are included in the Oxford English dictionary, such as ‘Quran’ and ‘sharia’, shall not be transcribed following this system but will follow the transcription in this dictionary. For the transliteration of Modern Standard Arabic I follow the rules employed by the Encyclopaedia of Islam (EI), with a few adaptations. With regard to vowels, I do not make a difference between short and long vowels. With regard to emphatic consonants (sad, dad, ta’, and za’), I do not make use of a point below the character. The same is true for the ha’. This means that the reader cannot see the difference between for example the sad and the sin, and between short and long vowels. This choice is made because I find it unnecessarily complicated for non-Arabists to indicate such details, while the readers who are Arabists know how the words should be written in Arabic. b=Ҭ t=Ү

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th = ү j=Ұ h=ұ kh = Ҳ d=ҳ dh = Ҵ r=ҵ z=Ҷ s=ҷ sh = Ҹ s=ҹ d=Һ t=һ z=Ҽ ‘=ҽ gh = Ҿ f=Ӏ q=Ӂ k=ӂ l=Ӄ m=ӄ n=Ӆ h=ӆ w=Ӈ y=Ӊ Short: a = ´; i = ӏ ; u = ӎ Long: a = ҫ ; i = Ӊ ; u = Ӈ Diphthong: ay = ҫӉ; aw = Ӈҫ For the transcription of Tunisian Arabic I employ the French transcription as employed in the journal L’Année du Maghreb and in Tunisia itself. Here, the rules are the same as described above, with the following exceptions: ch = Ҹ k=Ӂ ou = Ӈ Short ӎ = ou Long Ӈ = ou Diphthong: Ӈҫ = aou

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PR EFACE

This book could not have been written without the help of many, in Tunisia and beyond. First and foremost, I should express my gratitude to the judges at the Court of First Instance (CFI) Tunis and the president at this court, for their generous welcome and the many inspiring conversations on law. Also, I’d like to thank the clerks and other personnel who handed me decisions, found me a chair or brought me qahwa wa cake (coffee and cake), including the man at the photocopy shop opposite the court who copied thousands of pages for me. I should also thank the judges at the Cantonal Court in Tunis, and the family judges and presidents of the CFIs in Sousse, Sfax, Gafsa and Le Kef. I should also express my gratitude to other legal practitioners for the information they handed me, such as Bouchra Bel Haj Hamida, Yosra Frauss, Sana Ben Achour, Monia Ben Jemia, Kalthoum Méziou, Kamal Sharfeddin, Moncef Bouguerra and the counsellors at the Centre d’écoute in Tunis. I’d also like to thank the people from the French Institut de Recherche sur le Maghreb Contemporain (IRMC) in Tunis for giving me my own work space and inviting me in on lectures. I also wish to thank Sadri Saieb from the Institut Suisse du droit comparé (ISDC) in Lausanne for his incredible help finding literature. Another important help in the process of writing this thesis was the library of the École d’hautes études en sciences sociales, the Fondation Maison des sciences des homme (FMSH). I also wish to thank the Institut d’études de

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l’islam et des sociétés musulmanes (IISMM) in Paris and specifically Jean-Philippe Bras, Nathalie Bernard-Maugiron and Baudouin Dupret, for organizing a seminar series on law in the Muslim World. At the University of Amsterdam I should express my special thanks to my supervisors Dorien Pessers and Ruud Peters for their strong and conscientious supervision. I should thank the Amsterdams Universiteitsfonds and the Prins Bernhard Cultuurfonds for their financial help. Colleagues who are working in the same field and who I got to know better over the years are Jessica Carlisle, Kmar Bendana, Léon Buskens, Nadia Sonneveld, Esther van Eijk, Friso Kulk, Iris Sportel and Sarah Grosso, who I should thank for the useful and necessary feedback on several occasions. Last but not least, this research would not have been possible without the help of my Tunisian Arabic teacher, Mounira Marouani. But most of all I should thank the people close to me for their immense patience during the process of writing it. In Tunisia, Paris and Amsterdam, my friends, family and, last but not least, David – I have been a pain to all of you, as the ‘bloody thesis’ was always more important than anything else.

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INTRODUCTION

Since the promulgation of the Tunisian Personal Status Code (PSC) in 1956,1 a fascinating discussion has been taking place about judicial practice.2 Tunisian academics argue that the PSC is very ‘progressive’, but that it is not sufficiently implemented by judges. The authors state that Tunisian judicial practice is characterized by legal pluralism, in the sense that judges are applying sharia and custom alongside the legislation.3 Some recent writings on the other hand testify to what is termed a ‘development’, where judges invoke the constitution and international conventions to interpret the law in an ‘innovative’ way.4 The discussion shows great concern among Tunisian jurists about how judges are dealing with the law in the field of personal status. In the light of this discussion, I look at recent practices of judges in the field of personal status law, using the Court of First Instance (CFI) of Tunis as a case study. From such practices in this court, I intend to derive the norms affirmed by the court, and what their sources are. My personal interest in judicial practice in the field of personal status law in the region5 was evoked when I was still a student of law, Arabic and Islamic Studies. Since family law touches upon the most fundamental human experiences, relating as it does to birth, love, death and kinship,6 I became interested in this legal domain when I was in law school. Then, during a Masters in Islamic Studies, I was taught that it is specifically this legal domain that was one of the last to be codified in the region, until the codifications in 1917 (in the Ottoman Empire), the 1920s (in Egypt), the 1950s (in the Maghreb) and even later (Libya, Yemen and Indonesia waited until the 1970s, and Oman, Qatar and Afghanistan as late as the turn of the century).

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These legislations constituted – to a greater or lesser extent, depending on the country – a break with the past, in the sense that the codifications deviated from the law previously applied, but for reasons of legitimacy it was claimed that these were based on fiqh (Islamic doctrine), albeit with the amendments deemed necessary in ‘present-day societies’.7 Because the codes could thus be considered a break with the past, I became interested in the question of how judges related to such legislation: do they consider themselves bound by it, or do they continue to apply the law as it was previously applied? This was the topic of my master’s thesis on Libyan personal status law, based on fieldwork in Tripoli (undertaken in spring 2006). But then my attention shifted to Libya’s western neighbour, Tunisia. The Tunisian legislature seems to have gone much further than others in its break with the legal past:8 the Tunisian PSC is famous in the region and beyond for its abolition of polygamy, repudiation (extrajudical, unilateral divorce by the husband) and marriage guardianship (representation of the bride by her father), and its legalization of full adoption.9 For this reason, the question of whether the legislation is really being implemented by judges is even more fascinating in the Tunisian context than in other countries in the region; this led me to decide to examine how Tunisian judges relate to legislation in the field of personal status law. During the preparation of my fieldwork in the Tunisian courts, the topic turned out to be even more of a live issue than I had thought: while examining the literature, I found that the question of how Tunisian judges deal with the law was the subject of much discussion in Tunisian legal literature.10 It turned out that the overall tendency in these writings was towards fierce criticism of the judiciary, on the grounds that judges are applying sharia and custom alongside the legislation. In this way, those involved in such discussions contend that the legislation is not being implemented, and that judicial practice in the field of personal status law is characterized by legal pluralism. I decided to take these writings as a starting point for my study, in the sense that I wished to examine the extent to which their critique was justified, especially since their findings seemed to be based on limited sources – Tunisian authors have little access to unpublished court

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decisions. I developed two axes for the study: I wished first to examine what norms were issued by the courts, and second, to examine which sources of law the courts were applying. My interest was again intensified when I discovered some very recent literature that testifies to what its authors term ‘developments’, making some of them conclude that currently, judges ‘are moving between a spirit of tradition and a spirit of innovation’.11 The breakthrough decisions addressed in Tunisian legal literature concern issues stemming from mixed marriage (the validity of a marriage between a Muslim woman and a non-Muslim man, the right of a non-Muslim to inherit from a Muslim and the right of a non-Muslim mother living abroad to be granted child custody).12 According to these Tunisian authors, such decisions reflect not only a break with existing judicial practice on the level of the norm they affirm, but also on the level of the sources: the fact that the decisions invoke the constitution and international conventions is an absolute novelty in the field of Tunisian personal status law.13 But that was not all. In the process of filing for a research permit, my interest was further heightened: it was at this juncture that I discovered the extent to which personal status law is a politically sensitive topic (and hence I never obtained an official permit), and when I was eventually allowed access to the court – that is, to one particular court – the court in question turned out to be the one where the ‘innovative spirit’ had actually started, with two so-called ‘breakthrough’ decisions, in 1999 and 2000 respectively, where the court had applied the constitution and international conventions.14 This led me to wonder whether this court was also looking to these sources in other areas of personal status law, a development which might have passed unnoticed. Moreover, the court in question turned out to consist of female judges as far as personal status cases were concerned.15 This fact immediately drew my attention because one of the most influential Tunisian authors with respect to personal status law – Sana Ben Achour, Professor of Constitutional Law at the Faculté de Sciences Politiques, Juridiques et Sociales and director of a women’s organization, L’Association Tunisienne des Femmes Démocrates (ATFD, hereafter: Femmes Démocrates), who had hypothesized in two 2007

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articles that the ‘spirit of innovation’ in the field of mixed marriage was related to the feminization of the judiciary, in the sense that female judges ‘mobilise the emancipative potential of the law’ as they would apply an egalitarian interpretation of legislation.16 This hypothesis fits with the (strongly criticized) theory of Carol Gilligan that female judges add a female voice, a theory that has become the basis for a range of studies on female judges all around the world17 – except in the region.18 As I had already noticed when filing for a research permit, personal status law and judicial practice turned out to be sensitive topics during my fieldwork. As in other countries in the region, personal status law is a crucial area in public debates on the status of Islam in the political and legal order, and the government is constantly seeking a balance between society’s differing demands. The Tunisian government, however, was particularly repressive in its attempt to silence those voices (from ‘Islamist’ forces and from independent women’s and human rights organizations) which called the official ‘state feminism’ into question.19 Geisser and Gobe argued in 2008 that this repression is due to the fact that since the year 2000 the Tunisian regime has been unstable (which was indeed confirmed in January 2011 when President Ben Ali fled the country).20 The politicized character of personal status law and women’s rights made my research more difficult, but also more interesting than had been expected when I first started working on Tunisian law. Because personal status law concerns everyday life, it is at the heart of the basic organizational principles of society,21 and for this reason, it has an extra, and very weighty, political dimension. At the time I was writing up my findings, to everyone’s surprise the so-called Révolution du Jasmin (Jasmine Revolution)22 or Révolution de la dignité (Revolution of Dignity) took place, inaugurated by a range of protests which eventually led to the flight of President Ben Ali to Saudi Arabia on 14 January 2011, after heading the regime for 23 years. In the months following these events a huge range of demonstrations have taken place, where people are voicing their concerns about what a ‘new’ Tunisia should look like. Many of these demonstrations address the question of the place of Islam in the public, political

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and legal spheres, as well as women’s rights and, more specifically, the PSC itself.23 Also, many non-governmental organizations (NGOs) have been set up in recent months, a novelty in Tunisian history.24 Some of these are concerned with women’s rights, others with the relation between the state and religion, and still others with the judiciary. Also, over 100 political parties have been established, many of which have the relation between the state and Islam as well as women’s rights high on their agenda. On 23 October 2011, the constitutional assembly was elected, which will draft a new constitution. If this provides that all legislation must be in accordance with (the principles of) sharia – which the current constitution does not mention – the PSC might come into question.25 It is in the light of all these factors that the study examines judicial practices in the field of divorce at the CFI Tunis. The study is based on two axes: the rulings issued and the norms thus created by the court, and the sources it applies to come to these decisions. Sub-questions connected to these axes allow me to verify or nuance statements made in Tunisian legal literature. The sub-question relevant to examining the norms corresponds to the statement of Sana Ben Achour: whether the norms affirmed by the court can be qualified as ‘gender-neutral’. Sub-questions that can be addressed when examining the sources are the following: first, how do judges relate to legislation? Second, how do judges relate to ‘sharia’? Third, how do judges relate to ‘custom’? Fourth, does my data testify to a ‘development’, in the sense that sources such as the constitution and international conventions are invoked? The choice to study judicial practice in the field of divorce and its consequences is based on the following considerations. First, it is argued that the legislation in the field of divorce deviates considerably from the past. For example, before 1956 people were not obliged to go to court to obtain a divorce, which now they are. Moreover, women were not allowed to obtain a divorce at all without the consent of their husband or a judge (qadi), whereas nowadays, men and women have an equal right to divorce. This makes it interesting to examine to what extent the legislation is implemented. A second reason for examining judicial practice in the field of divorce is that the legislation is particularly vague on this issue. For example, with regard to divorce for

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harm (which is similar to fault divorce in some European systems), the legislation does not define ‘harm’ in any way, leaving it to the judge to decide whether a particular act of one spouse (such as violence, abandonment of the marital home, or adultery) constitutes harm to the other. The vagueness of the legislation makes it interesting to examine what sources the court employs to decide on divorce cases: does it apply the legislation, or do courts use additional sources of law, such as ‘sharia’, ‘custom’ or the constitution? The third reason for my choosing to concentrate on divorces is that they represent a large majority of the cases treated by the CFI Tunis. This study can be summarized as a bottom-up study of law. It derives the norms that are affirmed by this court from judicial practices as laid down in court decisions and reflected in court sessions and interviews. In a second stage, the study examines what sources the court applies by looking at what sources it invokes.

Norms In order to examine which norms apply to divorce in Tunisia, one could simply look at the relevant legislation. However, when it is strongly suspected that this legislation is not being implemented (as Tunisian authors argue), the code cannot be relied upon to represent what actually happens, as the law on the books may well differ from the law in action. To find out what norms are in fact applied in daily reality, one must study practices. A famous defender of deriving norms from practices was Foucault. He argued that norms do not exist, but rather are produced. The production of norms is an instance of the production of truth: if powerful institutions such as psychiatric hospitals or courts define behaviour A as normal and behaviour B as abnormal, these institutions are producing what normal behaviour (the norm) is.26 This is what Foucault calls ‘normalization’: the act of making the norm.27 Normalization is carried out through correctional punishment techniques, such as imprisonment, but also through social exclusion, psychiatric treatment and the like.28 According to Foucault, one should study the practices of powerful institutions to find out what norms they are

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producing.29 One of these ‘disciplinary institutions’, as he calls them, are the courts. The focus on courts and judges in the study of law immediately reminds every legal scholar of Legal Realism. It was especially Alf Ross, the founding father of Scandinavian Legal Realism, who argued that legal science should involve the study of judges rather than legislation.30 The difference between Legal Realism and Foucault is that, according to Alf Ross and his followers, one should focus on judges alone, while Foucault’s view is that courts are only one of the powerful institutions that produce norms; other institutions, such as psychiatric institutions, are issuing norms as well.31 Thus, for Foucault, the norm issued by courts is a norm amongst others (which also implies that he is not uniquely focusing on legal norms, but norms in general).32 This is important to realize in the Tunisian context where the norms issued by the courts in the field of divorce exist side by side with those issued by other powerful institutions, such as the State Mufti.33 For example, in 2008, Tunisian newspapers reported that a woman had addressed the State Mufti to tell him that her husband had repudiated her out of court, and to ask him whether she was now divorced. Apparently, the State Mufti had answered that she could indeed consider herself a divorced woman, but that to have this status affirmed by the official legal system, she should go to court.34 In this study, I examine the norms issued by one particular powerful disciplinary institution, the CFI Tunis. As, following Foucault, the norm issued by this court is only a norm amongst many other norms issued by other powerful institutions (including other courts throughout Tunisia), the study does not pretend to say more than to establish the norms issued by this particular court (instead of the norms at all Tunisian courts, or the norms in Tunisian society).

Sources As stated above, the starting point of this study is that a study of legislation is not the proper way to understand what norms apply to divorce (a view inspired by Foucault and by Legal Realism), especially in a situation where it is argued that the legislation is not being

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implemented. In this way, this study accepts that judges are not la bouche de la loi: they are not necessarily applying legislation, let alone legislation only. The statement that judges are not merely la bouche de la loi fits with Legal Realism, and the idea that legislation does not have a monopoly is a statement that forms the core of the doctrine of legal pluralism,35 and for this reason, the present study is inspired by these currents. However, both involve some problems which I will describe below, followed by a presentation of the approach chosen for this study: ethnomethodology. Legal Realism The starting point of Legal Realism is that ‘law’ does not equal legislation. As a consequence, it has been argued that judges have discretionary powers. For example, the positivist Hart argues that although in principle judges are applying legislation, they retain discretionary powers. This is due to the open texture of language,36 the occurrence of so-called ‘borderline cases’37 and the use of open norms (such as ‘justice’ and ‘fairness’). In these cases, judges employ jurisprudence, but if this source is silent, judges create new law.38 Diametrically opposite to the presumption that, in principle, judges apply legislation lies another important current in legal theory and legal sociology, namely the ‘critical legal studies’ movement (CLS). This argues that judges’ discretionary powers are not curtailed by legislation at all: indeed, some CLS adherents state that discretionary powers are curtailed only by judges’ political preferences.39 Although I follow Legal Realism to the extent that I accept that judges do not necessarily or merely apply legislation, I have a problem with these theorists’ presuppositions about the role of different sources of law (legislation, jurisprudence and political preferences). I see it as problematic to argue beforehand that Tunisian judges in the field of divorce law apply legislation except in borderline cases and in case of open norms, and that in the latter, they apply jurisprudence: this is exactly what should be examined in the first place. The same is true for the presupposition that judges do not apply legislation at all.

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Legal pluralism The study of judicial practice in the field of divorce can be considered as a study of the implementation of legislation, and as such, a study in the field of legal pluralism. In both fields of research (the two are highly interrelated),40 authors tend to compare (their understanding of) legislation to the norms being applied (by judges or litigants). In cases of a perceived gap between the two, the authors conclude that there is no monopoly of so-called state-centred law, and thus that this is an instance of legal pluralism. The terms employed to denote the alternative normative order being applied differ from one author to another (‘non-state law’, ‘social norms’, ‘indigenous law’, ‘custom’, ‘sharia’, ‘international law’, etc.). Although my research was certainly inspired by such writings, I felt uncomfortable with them in one particular way: I do not believe it possible to compare a practice with a normative order. Thus the first step in studies on legal pluralism – comparing practice with legislation – is in my view problematic, since I consider that legislation is (almost) always open to interpretation.41 The same is true for other normative orders, such as ‘sharia’ and ‘custom’, the alternative orders applied according to Tunisian legal literature. Indeed, ‘sharia’ is the general term for many different and sometimes contradictory interpretations of the sources of Islam, the Quran and hadiths, which justifies the statement that the contents of sharia depend on the person referring to it.42 And with regard to ‘custom’, Von Savigny has already argued that while the Volksgeist might be relatively easily identifiable in ‘early society’, this is less so as society develops and its sub-groups and classes become more differentiated.43 As Roche puts it: ‘Any large, complex society with its multiplicity of social backgrounds and individual experiences, contains varying mores and attitudes within itself.’ 44 Moreover, the dividing line between ‘sharia’ and ‘custom’ is far from clear.45 Ethnomethodology After having struggled for some time with the possibility of employing the frameworks of Legal Realism or of legal pluralism, my eye fell

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on the writings of Baudouin Dupret and his call for an ethnomethodological study of law and legal practice in the region – or studying legal practice ‘from the inside’, to use his phrase.46 An ethnomethodological study of behaviour examines how the actors observed understand their own acts.47 For a study of the behaviour of judges this means that if they refer to ‘sharia’, for example, to explain why they impose a certain norm, an ethnomethodologist takes this reference at face value.48 Thus an ethnomethodologist will not examine whether the act is ‘really’ inspired by sharia (for example, by comparing the norm issued by the court with ‘the sharia’), and it is in this way that the ethnomethodological approach differs from that used in Tunisian legal literature, where it is argued that judges are applying ‘sharia’ because the norms they issue are in conformity with (the perception of the authors of) this normative order. The ethnomethodological approach solves the two problems I encountered in the literature on Legal Realism and legal pluralism. As it follows the actors’ understanding of their own acts, I am not obliged to choose between, for example, Hart or the CLS; rather, I shall examine what sources the judges employ, without presupposing that they apply legislation, their political preferences, or something else. Also, I do not need to compare the norms issued by the court with various normative orders, nor am I obliged to label these orders as ‘sharia’, ‘custom’, ‘legislation’ and the like. The ethnomethodologist concludes that the judge applies a certain source when he/she invokes it, which is considered to reflect the judge’s understanding of his/her own act of decision-making. This ethnomethodological focus on the act is completely in line with Foucault’s focus on practices, on the production of the norm. Before I continue, I should address the relationship between the ethnomethodological study of judicial reasoning and the rhetorical study of legal reasoning. Unlike legal pluralism and Legal Realism, both focus on words, on what the actors ‘say’ (in interviews, reconciliation sessions or decisions). Indeed, legal rhetoric as presented by Chaim Perelman is ‘a microanalysis of arguments, [an analysis of] texts at the level of the word and phrase, of the arrangement of parts, and of the structure of arguments’.49 But there is a crucial difference between

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rhetoric and ethnomethodology, which is that the rhetorical analysis of judicial argumentation focuses, as the term suggests, on the rhetorical character of the arguments invoked instead of taking them at face value: for scholars such as Chaim Perelman, the argument that a judge invokes to justify or explain a decision (the ‘missing link’ between the fact of the case and the law on the one hand, and the judgement on the other)50 is first and foremost aimed at persuading the audience;51 the judge tries to convince the audience that the decision cannot be otherwise, and does this by invoking the argument that is the most persuasive for this audience; it is a mere post hoc rationalization.52 For the present study this would mean that if a judge invokes ‘custom’53 or ‘sharia’54 as an argument to explain the decision, it can be concluded that in the judge’s mind, this argument shall persuade the audience; it cannot be concluded that the judge actually employed ‘custom’ as a source that directed his decision. Although I chose to take the arguments invoked at face value instead of suspecting ex pro ante that they are mere post hoc rationalizations, one specific aspect of the rhetorical study of judicial argumentation is picked up here: indeed, invoking a certain source does not only suggest in principle that the judgement is based on it, but also that in the judge’s mind this source is persuasive for the audience. Sub-questions The sub-questions in this study aim to bring about nuances in certain statements made in Tunisian legal literature – namely that judges apply sharia and custom instead of or together with legislation, that there is a new tendency for judges to apply the constitution and international conventions and that female judges adjudicate in a gender-neutral way. To examine how judges relate to ‘sharia’, I look at whether judges employ terms such as ‘sharia’, fiqh or the Quran, or whether in any other way a link is made with this normative order. With regard to the question of the relationship between the legal and ‘custom’, I examine whether judges make reference to notions such as ‘custom’, ‘Tunisian society’ and the like. In order to examine whether the norm is justified

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with reference to legislation, I look at whether judges invoke legislation in their decisions. In the same vein, the invocation of the constitution and international conventions, as well as of fundamental principles, helps me to verify that the ‘development’ witnessed in the field of mixed marriage can also be observed in ‘my’ court, and in fields of personal status law other than mixed marriage. As stated above, Sana Ben Achour argues that, possibly, female judges issue a gender-neutral norm. The question of whether or not the feminization of the judiciary influences judicial practices is the topic of many studies around the world. These aim to verify or falsify the hypothesis put forward by Carol Gilligan in her 1982 book In A Different Voice, which argues that female judges add a ‘different voice’ to legal practice because they have an ‘ethic of care’ instead of an ‘ethic of rights’, and therefore they judge in a more moral and humane way.55 This hypothesis has been problematized in two ways. First, it has been argued that the idea that female judges add a different voice only because they are women is essentialist. In the footsteps of Judith Butler it is argued that when studying behaviour, the variable cannot be sex, as the mere fact of being born a woman does not influence one’s behaviour.56 In this sense, it is argued that the variable is ‘gender’ – not sex, but shared life-experiences as a woman affecting behaviour. Rosemary Hunter on the other hand argues that the variable is ‘feminism’; and as men can also be feminist, it is of no use to examine whether female judges arrive at their decisions in a different way from men.57 A second objection to Gilligan’s hypothesis that female judges add a different voice is that although ‘gender specific features can be shown to exist in terms of judges’ behaviours and working styles, ... in most countries there is not sufficient hard evidence that they affect the actual outcome of particular cases [emphasis added]’.58 However, some studies do show differences, and, interestingly enough, not so much in the sense that Gilligan might have expected. In Israel, Bogoch found that women impose lower sentences on sexual offenders than their male colleagues, which she explains by claiming that female judges do not show special sympathy for victims of rape and sexual assault.59 In the same vein, Junqueira found in Brazil that female judges are tougher towards women on questions of alimony after divorce, and

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male judges more generous (granting larger amounts), which she explains by implying that female judges wish to help other women to develop their potential as human beings.60 Such studies, comparing judicial practices among men and women, have been carried out across the world, with the exception of the region in question. In examining whether female judges issue a gender-neutral norm, I am acting exactly in accordance with what Judith Butler and others object to, namely looking at people’s behaviour according to the variable of their sex. However, this is justified by the fact that in my study, the actors themselves underlined that men and women decide cases differently: one of the family judges stated that: ‘A good family judge is not necessarily a woman, but in practice they do a better job as they are more humane.’61 Moreover, the fact that women are overrepresented in family and child matters at the CFI Tunis (in 2005, 28 per cent of all Tunisian judges were female, but 88 per cent of the judges in family and child matters at the CFI Tunis was a woman) indicates that the president of this court, who appoints the judges, thinks that women should be in these positions.62 The fact that the actors in this study themselves perceive sex as an important variable is a justification for the sub-question of whether women adjudicate in a gender-neutral way. However, I do not follow the approach implicit in other studies on female judges, which are quantitative and comparative – analyzing how female judges decide a certain type of case and how men do. In the present study, I merely examine to what extent the norm produced by these judges is gender-neutral. As a result of this approach, I will not be able to conclude that female judges are indeed more inclined to ‘mobilise the emancipative potential of the law’, as my data concerned only female judges.63 In the same vein, I cannot conclude that, if the norms are gender-neutral, this is due to the fact that these judges are women – I can only conclude that the norms in question are or are not gender-neutral.

Empirical material The material for this study consists of published and unpublished court decisions, interviews, observation and Tunisian legal literature.

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An additional ‘source’ (or actually a prerequisite for understanding my sources) was my ethnographic ‘embeddedness’ in Tunisian society during 14 months that enabled me to study Tunisian judicial practices in their context.64 The court decisions were written in Modern Standard Arabic, while court sessions are either in Modern Standard Arabic (court hearings) or Tunisian Arabic (sessions behind closed doors); interviews were almost always in French. I was not permitted to record sessions and interviews, but I noted down as much as possible, often verbatim. As litigants seemed to think I was an official clerk or a judge in training, my presence at court sessions should not have influenced their behaviour, though it might have influenced the judge.65 This problem was at least partly solved by the possibility of verifying the findings through interviews and court decisions. The collection of material began at the Institut Suisse du Droit Comparé in Lausanne, Switzerland, where I collected works of Tunisian legal literature as well as court decisions published and annotated in Tunisian legal journals (November 2007).66 Between July 2008 and September 2009, I conducted fieldwork in Tunisia. In this latter period, I collected decisions at the CFI Tunis, interviewed judges and observed public and private sessions at this court. I also collected additional written material (literature, and decisions from the Court of Cassation) and interviewed other actors involved in personal status cases. A trip around the country in January 2009 enabled me to collect material at other CFIs; this is not used in the present study, however, but enabled me to put the practices at the CFI Tunis into perspective and confirmed that I should not generalize my findings for the whole of Tunisia. During a short stay of two weeks in the summer of 2010 I interviewed the two family judges at the CFI Tunis to be able to answer some questions that had arisen while analyzing my material. As this is a case study of the CFI Tunis, the material concerns this particular court. It consists of, first, decisions from the years 2008 and 2009;67 second, interviews with the two family judges, the reconciliation judges, the family judge for endangered children and the president of the court; third, observation of (some 450) reconciliation and other court sessions (sessions of the family judge for endangered children

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and of the public prosecutor in family matters,68 as well as court hearings of the family chamber);69 and fourth, Tunisian legal literature.70 Additional material concerns interviews with lawyers,71 counsellors at the Centre d’écoute (treating cases of domestic violence),72 the CFI Tunis public prosecutor who deals with family matters (such as nonpayment of maintenance and domestic violence), university professors specializing in personal status law73 and a handful of litigants involved in divorce cases.74 Some domains touching upon divorce are not treated by the family and child department of the CFIs: maintenance cases come before the Cantonal Court, and cases of adultery and domestic violence are treated by the penal chamber of the CFI; I therefore also collected material from the courts/departments concerned. I conducted fieldwork at the Cantonal Court in Tunis, where I interviewed two maintenance judges and observed court hearings in maintenance cases. I also interviewed the head public prosecutor and the penal judge (head of one of the penal chamber) at the CFI Tunis on adultery and domestic violence. The collection of my material was challenged by a combination of factors. In the first place, I never obtained a complete picture of cases in the sense of the reconciliation sessions, the documents in the file (e.g. lawyer’s correspondence and evidence) and the decision itself; of each case, I either had the court judgement or witnessed one or more reconciliation sessions. The president of the court did not allow me to read entire case files, as these belonged to the litigants; therefore I only obtained the entire file of one particular case.75 As much time elapses between the reconciliation sessions and the final decision, and as many different reconciliation judges preside over the sessions, there was only one case where I obtained the divorce decision in addition to observing the reconciliation session.76 A second obstacle was that the judges did not allow me to record sessions and interviews. Although I noted down as much as possible, it was often impossible to write everything down verbatim, and thus my notes were a ‘subjective’ version of what was being observed. Moreover, as stated before, my presence at reconciliation sessions might have influenced the behaviour of the judge.77 In the third place, the ‘interviews’ with the judges did not give as much information on judicial practices as I would have liked. This was due

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to a number of factors, namely time constraints and my position as a researcher. Judges did not have much time to answer my questions: they had an extremely heavy workload, and people kept coming in, interrupting our conversation. In order to improve this aspect, I made some appointments with the judges to have a proper interview, but on these occasions they seemed to give the answers they thought to be proper, rather than speaking openly and frankly. With regard to my position as a researcher, I often felt embarrassed by the fact that I was present in court and at the side of one of the judges five days a week, taking as much as I could from them, and by asking them for more explanations and descriptions – and so I often desisted, not only out of embarrassment but also out of fear that at a certain point they would lose patience and ask me to leave. Another problem in the collection of the material was that some male informants would insist on meeting in an improper place at an improper time. As a result, there is some material which I know exists (e.g. decisions concerning polygamy and informal marriage), but which I was unable to obtain. And a final problem was that some informants (for example one particular lawyer) were reluctant to speak to me as they seemed afraid of repercussions from the government. That I sometimes had to move heaven and earth to obtain certain material, which could even be frightening and therefore made me quite reluctant to do it, becomes clear from the following experience. One of the family judges handed me a decision on divorce for adultery, and as this referred to the procès-verbal (hereafter referred to as p.-v.) of hearings at the police station, I was curious about these documents and tried to obtain them. However, I did not have access to the entire files, as the documents remain the property of the litigants. The files were at the Court of Appeal in Tunis, where I did not know anyone, and I pleaded with the people at the archives of this court to hand me the file, but they consistently refused. This made me seek the help of a young lawyer, Zied, who was willing to sign the forms for me that lawyers employ when they need to obtain a file. But bilesh faida (without success): as his name was not on the files, the clerks would not hand it over. When the clerks had gotten tired of me, one of the men there sent me upstairs, to the vice-president of the Court

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of Appeal. I went there, taking Zied with me, and we were both quite nervous as we knew that we had been trying something that is not allowed: the case file belongs to the parties and is not public. Zied tried to plea with the vice-president, who was quite surprised by the whole situation and did not understand what we were trying to do, and during this conversation I was feeling increasingly guilty, fearing for Zied’s career. But then, the vice-president’s secretary called. When the vice-president explained that she would have to contact him later as he was in a meeting with a foreign woman who wanted to obtain a file, this immediately rang a bell and the secretary asked if I was from Holland. The vice-president asked me where I was from, and as I did not know why he asked this, I was reluctant to answer and simply wished to get away without them being able to identify me. But Zied answered for me, and once the vice-president had repeated my origins to his secretary, his face suddenly changed. When he had hung up, the vice-president asked me why I had not told him that I had a research permit at their court. He immediately called the archives to order the clerks to hand me the entire file. Zied and I went down as quickly as possible to obtain the file, which I brought to the photocopy point at the opposite side of the street, urging the man who I knew there to do his work as quickly as possible, paying him a little extra – I was still afraid that they would find out that I did not at all have this type of permit. Of course, when I had obtained my informal permit from the vice-minister of justice, the latter had called the presidents of the CFI Tunis, the Court of Appeal and the Court of Cassation to tell them that I could do research there, but I did not have a right to photocopy case files at the courts. The man at the photocopy shop did his work quickly and I brought the file back to court, thanking Zied for his help. I brought the photocopies home with me, where I finally sat down behind my desk with the file and could breathe normally again.

Existing research In many studies of law and legal practice in the region, Weber is cited as the first to have addressed the subject of judges in the region.78 Although Weber did not study the issue in an empirical way but

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merely used the qadi as an example of a judge who did not apply ‘modern’ legislation, the term Kadijustiz has become a magical image of judges in the region, and Weber’s description of the qadi has often been referred to as needing to be affirmed or denied.79 However, decades passed before other famous writings on law and legal practice in the region appeared. In his book The Anthropology of Justice: Law as Culture in Islamic Society (1989), Lawrence Rosen describes the practices of a qadi in the Moroccan town of Sefrou. He derives the concept of ‘putting the parties back into a position of reconciliation’ from the judge’s practice and concludes that this strategy characterizes practices of judges in ‘Islamic societies’.80 In this way, everything the judge does relates for Rosen to this underlying structure of reconciliation. In the same period, Aharon Layish published a number of works on judicial decision-making in Israel and Libya,81 Ron Shaham examined the practices of sharia courts in Egypt82 and a few years later, Lynn Welchman wrote on the West Bank,83 while Ziba Mir-Hosseini concentrated on Morocco and Iran.84 These writings focused on the relationship between legislation and/or judicial practice and the sharia. Other authors concentrate on the interplay between law and custom;85 sharia and custom;86 or state law, international (European) law and custom;87 or on the interplay between sharia, state and social norms.88 Recently, a number of studies have appeared on legal practice in the region which do not establish a relationship with sharia, custom or another structure. In fact, one can almost speak of a ‘new wave’. Names that can be connected to this development are Baudouin Dupret, who worked on Egyptian law, Jessica Carlisle, who worked in a divorce court in Damascus,89 and Nahda Shehada, who focused on Palestine.90 These authors problematize the possibility of relating (judicial) practice to sharia, or to another type of structure such as custom or ‘reconciliation’ (Rosen), through their concern with the fact that their data is often ‘messy’. This means that even if a specific structure seemingly comes to emerge from the data, the effort of relating all the findings to this structure is dangerous, as one risks pushing certain data into this mould, becoming blind to what it is actually saying.91 In fact, what these authors are telling us is that research on legal practice in

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the region should be careful to remain humble towards the material, even when we think we have finally ‘understood’. Of course, studies that explain specific features from a special structure are eminently readable, as the data is described around a theme. But (unfortunately?) the reality is often cloudier. As I was often confronted with the ‘messiness’ of my material, I became very interested in this nuanced approach. For example, for this study I came across a great deal of data that seemingly confirmed that it is difficult if not impossible to obtain divorce for harm on the grounds of domestic violence. It would be rather easy to explain this by concluding that judges do not disapprove of domestic violence. However, in interviews they told me that it was their experience that many women lie in court to obtain damages. This is a good example of how the collection of a large amount of different types of material (decisions, interviews and observation) enables the observer to assess to what extent the data is messy, and how a large data collection makes the establishment of underlying structures problematic. In this sense, I was very lucky to collect as much material as I did, especially in having access to court files and court proceedings, and being introduced to judges who were willing to talk to me. As a consequence, this study is highly influenced by Baudouin Dupret, in the sense that I employ an ethnomethodological method to examine what sources judges apply, and with regard to his (and others’) nuanced approach to empirical material. Nevertheless, this study deviates from Dupret’s approach in a number of ways. In the first place, his writings tend to describe and analyse one particular court file,92 while I examine what norms are affirmed by one particular court over one period of time, and what sources are invoked as underlying the norms issued by that court. In this way, I intend to give an impression of the practice at this particular court, while Dupret explicitly refrains from so doing, as he does not draw general conclusions from the individual cases he selects. In the second place, I’m trying to verify/falsify hypotheses/arguments put forward in Tunisian legal literature, while Dupret does not make use of the national legal literature at all, confining himself to court files. In the third place, my material is more eclectic than Dupret’s, consisting as it does of court decisions, interviews and

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observation, as well as Tunisian legal literature. This use of eclectic material is rather unique in the study of legal practice in the region, because of the problem of access to decisions and to courts. It allows me to give a more all-encompassing image of judicial practice.

Academic and social relevance I hope to contribute to existing research in the following ways. In the first place, this study examines the statements made in Tunisian legal literature to the effect that legislation is not being implemented and judicial practice is characterized by legal pluralism as judges apply legislation alongside sharia and custom. This can be done via a large and eclectic data collection and a bottom-up approach which focuses on practices and the factual production of norms. In the second place, this book examines how judges act in situations where several normative orders at once appear to demand application. Tunisia is, of course, not the only country where such situations occur; with this study, I present the bottom-up approach as a method which can be applied to the examination of judicial practices in countries where the question arises of whether or not legislation is implemented by judges, and whether judicial practice is characterized by legal pluralism. In the third place, the research offers data on judicial practice in the field of divorce law in Tunisia. This adds to the knowledge other academics have collected on law and legal practice in the region in general (Lynn Welchman, Ziba Mir-Hosseini, Jessica Carlisle, Nadia Sonneveld, Léon Buskens, Nahda Shehada, Annelies Moors et al.) and to the findings of Tunisian and other scholars on law and legal practice in Tunisia specifically (Sana Ben Achour, Souhayma Ben Achour, Kalthoum Méziou, Monia Ben Jemia, Moncef Bouguerra, Ali Mezghani, Sassi Ben Halima et al. in Tunisia and Stephanie Waletzki, Stéphane Papi, Sarah Vincent-Grosso, Marta Arena et al. in other countries). In the fourth place, this book hopes to take a first step in the study of female judges’ practices in the region. An element of practical importance to an examination of what norms organize personal status law in a particular courtroom lies in

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international private law. When applying Tunisian personal status law, foreign judges (mainly in France, Switzerland, Canada and Belgium) are not only inclined to look at the legal text, but also to take the national legal practice into account. Evidently, the academic importance of the study is that it makes French (legal) literature available to an Anglophone audience. I have often observed the enormous gap between the Anglophone and Francophone academic worlds: apart from some translated works (e.g. Durkheim, Weber, Foucault, Bourdieu), the two worlds employ different theories, cite different authors and therefore tend to remain ignorant of each other’s accomplishments. With this study, I hope to contribute in some small way to a cross-pollination of the two academic worlds. Finally, an element of social importance is connected to the current polarized climate in the ‘West’ where ‘immigrants’ (often third-generation) from the region are concerned. A high percentage of these people are originally from the Maghreb, and are increasingly confronted with a polarized debate concerning their religion, their norms and their values. Personal status law plays an important role in this debate, as it is related to images of ‘the Other’:93 topics such as repudiation, polygamy and child marriage are considered to prove the dominant structures of patriarchy and female submission, representing the so-called difference between Western and Muslim ‘civilizations’.94 These images often have nothing to do with any empirical evidence of the norms applying in a certain country, nor with the sources underlying those norms. This study might show that for example repudiation is not applied in the Tunisian courtroom, and that ‘sharia’ is not the only factor directing Tunisian judges. The study proceeds as follows. Chapter One elaborates on the discussion in Tunisian legal literature. Chapter Two gives an introduction of the proceedings in cases of divorce. Chapters Three, Four and Five examine judicial practice in the field of divorce: Chapter Three focuses on divorce by mutual consent and Chapter Four on divorce without grounds. Chapters Five to Nine focus on divorce for harm, focusing on domestic violence, non-payment of maintenance, the violation of the duty to cohabit, adultery and other grounds. Chapter Ten examines the

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consequences of divorce with regard to children, addressing the topics of custody, visiting rights, child maintenance and housing. All the chapters are divided into three parts: after an outline of the specificities on the proceedings, the second section gives an extensive overview of the empirical material that is constructed around one or more judicial decisions. The third section then analyses the material, deriving the norms, and the sources invoked. The conclusion at the end of this study is divided into three parts. The first addresses the first axis of this study, namely the norms. It summarizes the norms that I derived from the material in Chapters Three to Six, and addresses the norms in the light of Foucault’s concept of ‘normalization’. This first section finishes with a discussion of the first sub-question, namely whether the norms can be called gender-neutral. The second part of the conclusion addresses the second axis of this study, namely the sources. It summarizes the sources that are invoked in the material as described in Chapters Three to Six, and addresses the other four sub-questions, concerning the role of legislation, ‘sharia’, ‘custom’ and the constitution, fundamental rights and international conventions. The third part of the conclusion aims to give a short insight into events after the revolution of 14 January 2011 that might influence judicial practice at the CFI Tunis.

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CHAPTER 1 THE BACKGROUND TO THE DEBATE IN TUNISIAN LEGAL LITER ATUR E

I: ‘In the domain of women’s rights ... the role of the judge is essential’1 When talking about personal status law, Tunisian authors concentrate on the role of the judge in the realization of the enhancement of women’s rights. Their writings share an enormous frustration with what judges actually do, mostly condemning them for blocking the emancipative possibilities of the law, and their disappointment leads them to set their faces against the judges in question. However, recent writings are showing a certain optimism with regard to judicial practices that, according to the authors, are more ‘innovative’. In this section, I will describe the Tunisian legal literature that addresses judicial practices in the field of personal status law. The section addresses the examples put forward by the authors, and their explanation for their frustration or their optimism. Most Tunisian writings on the Tunisian PSC begin by stressing that it is unique in the region. For example, Mohamed Charfi writes in his article ‘Le droit tunisien de la famille entre islam et modernité’: ‘It is essentially to this code that people refer when they say that

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Tunisia is one of the most developed countries in the Arab and Muslim world.’2 The authors continue with a critique of the legislation, stating that on some key points and issues the legislature remained silent.3 This view is most clearly advanced by Kalthoum Méziou, who states that although the PSC is ‘revolutionary on a certain amount of issues, it contains numerous archaisms; on a number of questions moreover, it is laconique and lacunaire’.4 That the PSC (and related laws) contain lacunae is considered to be problematic because the law does not give the judge an indication of what he should do to interpret it: the code ‘is silent on the possibility of lacunae or vague dispositions’.5 It is in the light of the legislative silence that the jurists stress their concern for the judge. Examples To describe the reasons for their disappointment, the authors give several examples of judicial practice. One which is often cited in Tunisian literature is the Hurriya decision (1966), in which the Court of Cassation decided on the validity of the marriage between a Tunisian (Muslim) woman and a foreign (non-Muslim) man, as well as on the possibility of a non-Muslim inheriting from a Muslim.6 In this case, a Tunisian woman (Hurriya) had married a Frenchman. When her mother died, her brothers and sisters contested the inclusion of Hurriya in the list of heirs, arguing that she had no right to inherit from her mother because her marriage to a foreigner had led to her no longer be a Muslim. According to the Court of Cassation, the questions of whether a Tunisian woman can marry a foreigner and whether a non-Muslim can inherit from a Muslim are not regulated by the legislation, and thus, the Court argued, the legislative gap should be filled by ‘Islamic law’. With regard to the validity of the marriage, it should be noted that Article 5 PSC provides that a marriage should not be contrary to the mawani‘ shar‘iyya, which can be translated as ‘lawful impediments’ or ‘sharia impediments’. The PSC itself does not prohibit marriage between a Muslim woman and a non-Muslim man (Articles 14–20 PSC enumerate a number of marriage impediments). However, in 1962 and 1973 two circulaires were issued to prohibit civil

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servants from conducting marriages between Muslim women and nonMuslim men. This means that if the civil servant suspects that the man is not a Muslim (for example because he is a European national), he can require a shahada (certificate) of the State Mufti testifying that the man has converted to Islam.7 Nevertheless, it is unclear if a violation of these circulaires actually touches upon the validity of the marriage, as Article 21 PSC, which sets out the grounds for nullity, only refers to Articles 5 and 14–20 PSC, and not to the circulaires. However, the Court of Cassation decided that Hurriya’s marriage to her French husband was null and void, invoking ‘Islamic law’ without making any reference to the legislation (Article 5 PSC or the circulaires), and that as a consequence Hurriya had effectively become an apostate. With regard to her right to inherit from her mother, the Court referred to Article 88 PSC which provides for the impediment to succession, stating that homicide is ‘one of the impediments’ (min al-mawani‘). The Court argued that this article is not limitative, and that sharia should be applied to fill in the blanks. The Court’s understanding of ‘sharia’ being that a non-Muslim cannot inherit from a Muslim, Hurriya, once declared an apostate, was denied her share of her mother’s estate.8 Another frequently cited example of judges blocking the potential of the law concerns decisions in cases of paternity. Whereas the PSC provides that ‘paternity is effected by marriage or recognition of two witnesses’ (Article 68 PSC), the Court of Cassation repeatedly decided that neither the recognition of the father nor the witness declaration that a specific man is the father of the child can bring about paternity if the child is born out of wedlock. In the same vein, the blood test proving biological paternity cannot effectuate paternity if the child is born out of wedlock.9 Other examples cited in the Tunisian literature concern adoption and custody. With regard to the former, it has been argued that whereas the law makes no mention of the nationality or religion of the adoptive parents, judges require that they are Tunisian nationals. It is also stated that some judges frustrate adoption proceedings as they perceive it as revocable.10 With regard to custody the refusal to accord custody over a Tunisian child to a foreign mother who lives abroad is highly criticized in Tunisian legal literature, where the authors state

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that the law does not provide for this. Judges refuse to recognize the foreign decision that accords the mother custody on the grounds of the open and undefined norm of ‘public order’.11 A final example concerns marital duties, in the sense that husbands can file for divorce for harm on the grounds that their wife left the marital home, even if this was in order to work.12 This understanding of ‘harm’ is also highly criticized in the Tunisian literature as the law does not prescribe that ‘harm’ includes the wife having a job. Although previous writings mostly criticize judicial practice, the negative tenor in Tunisian writings has changed over the past decade, as some authors have witnessed a particular development in the adjudication of personal status law. Sana Ben Achour argues that nowadays the courts are moving ‘between the spirit of tradition and of innovation’.13 Similarly, Bouguerra notes that while ‘the majority of the decisions’ shows ‘deep conservatism’, ‘some decisions apply the prescriptions in the code in the sense of evolution and modernity’.14 The decisions addressed in these writings concern the area of mixed marriages, or, more specifically: the validity of a marriage between a Muslim woman and a non-Muslim man; the possibility of a nonMuslim inheriting from a Muslim (see the Hurriya case above); and recognizing a foreign decision attributing child custody to a foreign mother who lives abroad. These decisions show judges invoking the constitution and international conventions – a practice not seen before in the field of personal status law (unlike other areas of law).15 A decision of the CFI Tunis in 1999 is considered to have constituted a break with regard to the qualification of mixed marriages as being invalid. The facts of the case were as follows. The couple, who lived in Belgium, wished to divorce. The husband, of Belgian origin, brought the case before a Tunisian court, but the wife, of Tunisian origin, contested the competence of the Tunisian judge. She argued that according to Tunisian law the marriage was already null and void, as it had taken place between a Muslim (Tunisian) woman and a nonMuslim (Belgian) man. (She may have chosen this strategy considering that Belgian divorce law gave her more advantages.) Regardless of the woman’s defence, the CFI affirmed its own competence, stating that the marriage was valid in Tunisian law. First, it argued that ‘nothing in

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the file demonstrates that the man is not a Muslim’. This suggests that it is not up to the man to prove that he is a Muslim, but to the woman to prove that he is not (which of course, is practically impossible in the absence of a definition of a ‘Muslim’). Second, the Court continued that even if the man was not a Muslim, the marriage would be valid, as ‘Article 14 PSC does not contain a religious marriage impediment’. Furthermore, the Court argued, ‘the New York Convention of 1962, that is signed and ratified by Tunisia, protects the freedom to choose a spouse, and this convention takes precedence over Tunisian national legislation’. This interpretation of the law clearly breaks with the practice reflected by the Hurriya case. The new interpretation was confirmed by both the Court of Appeal of Tunis16 and the Court of Cassation.17 The following decision from 2000 is generally considered to have constituted a break with the practice of denying a non-Muslim the right to inherit from a Muslim. (It should be noted that the previous practice mainly concerned women, as marriage between a Tunisian woman and a foreign (Western, non-Muslim) man is still quite rare.) The question of interreligious succession arises when a Muslim is deceased and there is a non-Muslim among his (intestate or testate) heirs. When a person has died, the Cantonal Court draws up the list of heirs. This list is then transferred to a notary, who divides the patrimony among the heirs mentioned on the list. On 18 May 2000, the CFI Tunis (again) decided in a case where a foreign woman had inherited from her Tunisian husband. The husband had died in 1980, and she inherited part of his estate. After a few years, she sold part of her inheritance, which she regretted afterwards. She tried to nullify the sale at the Cantonal Court, stating that she had not been competent to sell the goods in question, as she was not competent to inherit them because she had only converted to Islam six days after her husband’s death. Thus, she had not owned them in the first place. The Cantonal Court granted her demand and nullified the sale, but the defendants appealed the decision. The CFI Tunis decided that the wife was competent to inherit from her Muslim husband, whether she had converted to Islam or not, because Article 88 PSC does not provide that religion is an impediment to succession.18 Moreover, the

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court stated that a religious marriage impediment would be contrary to international conventions, specifically the UDHR (Universal Declaration of Human Rights), ICCPR (International Covenant on Civil and Political Rights) and ICESCR (International Covenant on Social, Economic and Cultural Rights).19 This view was confirmed by the Court of Appeal in another succession case.20 However, as recently as 2006, the Court of Cassation decided that ‘Article 5 of the Tunisian Constitution does not mean that it is possible to simply bypass other legal dispositions concerning the exercise of other rights. Therefore, the right to inherit remains submitted to the conditions provided by the legislature in the Personal Status Code.’21 It was not until 2009 that the highest Court confirmed the new practice.22 A decision from 2001 is generally considered to have formed a break with the practice, described in Tunisian legal literature,23 in which courts used to deny custody to a foreign woman living abroad.24 The facts of the case were as follows. A Belgian woman asked for recognition of a Belgian decision that attributed custody to her.25 The Tunisian husband argued that it is ‘in the interest of the child, who is Tunisian and a Muslim, to grow up in Tunisia’. But the Court of Cassation rejected this argument, deciding that ‘nothing in the foreign decision contradicts Tunisian international public order or Tunisian legislative politics. Only the best interest of the child should be taken into consideration and nothing else.’ Analysis and explanations Many Tunisian authors state that the criticized practices are due to the fact that judges are applying ‘Islamic law’ or ‘custom’ – a practice that the authors firmly reject. In more recent writings, on the other hand, the authors explain that courts are applying the constitution, fundamental rights and international conventions, which meets with approval. The majority of writings critical of judicial practice argue that the practices reflect an application of ‘Islamic law’,26 ‘the Islamic tradition’,27 ‘classical Islamic law’,28 the ‘Islamic sharia’,29 or ‘the conservative Islamic rule’.30 Some argue that ‘Islamic law’ is applied to interpret the law (and thus, praeter legem), while others state that

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‘sharia’ is even applied contra legem.31 They argue that the application of ‘sharia’ entails a violation of the legislature’s intentions, which were to ‘reform [personal status] law in an a-religious sense’.32 The authors who analyse judicial practice with a focus on ‘culture’ or ‘custom’,33 instead of religion, employ the term ‘conservative’ to denounce judicial practices.34 These authors argue that the application of ‘custom’ entails again a violation of the legislature’s intention, which was to ‘facilitate social evolution’,35 to bring about an evolution of mentality36 and ‘the emancipation of women’.37 A number of authors stress that the practices they denounce are in violation of the spirit of the code,38 which is emptied of its ‘emancipative contents’,39 and made to conform with the ‘patriarchal order’.40 And some argue that judicial practice is incompatible with ‘universal ideas’, and with Tunisian social reality.41 Tunisian authors explain their findings – that judges apply ‘sharia’ or ‘custom’ – in three ways (see above): first, legislation constituted too large a break with the past;42 second, legislation contains many lacunae while unclear on the additional sources of law;43 and third, the legislature is ambivalent on the role of ‘sharia’ in the Tunisian legal order and enhancement of women’s rights.44 Authors who have written a great deal on the ‘innovative’ practices contend that judges are applying the constitution (mainly the principles of equality and religious freedom) and international conventions (mainly CEDAW and the 1962 Convention) and fundamental rights,45 and Sana Ben Achour argues that this is due to the feminization of the judiciary. I will treat all these four issues, one by one.

II: A break with the past Some authors state that the judges employ ‘sharia’ and ‘custom’ because of a ‘gap’ between legislation, on the one hand, and the law previously applied, which according to them was ‘sharia’, on the other. In this way, they are implying that the legislation is ‘ineffective’; this view is of course problematic: there is insufficient knowledge of the norms applied before 1956, and even if these did amount to ‘sharia’, it would be difficult to establish where the present code differed from it, as one would have to compare the two.

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This section addresses two issues. First, I will give a short description of Tunisian legal history, which is characterized by the process of codifying the law which was to replace fiqh in the courts; this period finished with the introduction of the PSC in 1956. Next, I give a short overview of the contents of the PSC. Although I think it impossible to compare a code with ‘sharia’, I think it is necessary at this point to give an indication of the extent to which this codification provoked a break with the past. For this reason, I shall contrast the code with the most generally accepted interpretations of Maliki fiqh, the Islamic school of law that is predominant in Tunisia. Legal history Tunisia is originally a Berber region where several Berber peoples lived who were Christians or Jews. In 670, Kairouan was founded during the Arab conquests,46 and since that time, the territory has been ruled by several Islamic dynasties, such as the Shi‘a Fatimids. Islamization was completed under the Zirides (972–1160), when Christianity declined, the population was almost completely ‘Arabized’, and Sunnism replaced Shi‘ism in almost the entire territory.47 The Maliki school upheld at the mosque of Kairouan became dominant in Tunisia, with a large Jewish minority and a small Khariji community48 (both on the island of Jerba and more to the south). Tunisia was ruled by the Hafsid dynasty until the Ottoman occupation in 1574, when it became an Ottoman province under the Husaynid Bey (governor); this dynasty lasted during French occupation and ended at independence from France. Until the nineteenth century, Tunisian law consisted of Maliki fiqh,49 decrees from the ruler (governor) and ‘custom’, as well as precedents set by the judges of Kairouan (‘amaliyyat).50 Judicial powers were held by religious courts, presided over by qadis (judges), and ‘secular’ courts, applying decrees. Most religious courts were Maliki, but there were also Hanafi courts, which applied Hanafi law to the Hanafi minority (in 1574, Tunisia came under Ottoman rule, and the Hanafi school was the dominant school of law in the Ottoman Empire), and Jewish courts which applied Mosaic law to the Jewish population. As in the rest of the Muslim world, this ‘religious adjudication’ of qadis operated

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in parallel to a ‘secular adjudication’ in the hands of the Sultan himself, represented by governors outside the capital.51 Besides, there was a commercial type of adjudication, applying custom (‘urf).52 From the fourteenth century onwards, consular courts dealt with cases in which Europeans were involved.53 In the mid-nineteenth century, Tunisia entered a period of legal and political reform, resulting in codification, among other things. This occurred in parallel to the Ottoman reforms (tanzimat, resulting in the Mecelle of 1876 and the 1917 Ottoman Law of Personal Status),54 but did not coincide with these, as Tunisia had retained substantial autonomy under the rule of the Husaynid Bey.55 Parts of civil and penal law were codified in the 1861 qanun al jinayat wa-l-ahkam al-‘urfiya, a law of Maliki and Hanafi inspiration that contained some Islamic principles of penal law (ta’zir and jinayat, though no hudud). It brought about important reforms and was applied by separate, nonreligious courts.56 In the same year, a constitution was proclaimed (Qanun al-Dawla).57 However, both were soon abolished (in 1864) in what has been called ‘Tunisia’s first revolution’, characterized by an economic crisis and social unrest.58 In 1881, Tunisia became a French protectorate. The Bey remained formally sovereign, but the administration and the judiciary were controlled by French officials, and all legislation had to pass France’s highest official in Tunisia, the résident-général. It was during the protectorate that law was indeed codified, putting sharia law aside. Yadh Ben Achour speaks of a ‘sacralisation of the State and a de-sacralisation of law’ to describe the situation in which the authority of law depends on its issuance by the state instead of its presumed ‘divine’ origins.59 The first code introduced under the French was the Code Foncier (code of land law) in 1885.60 In 1896, a commission for the codification of Tunisian laws was established, composed of four French legal scholars and one Tunisian, David Santillana (a Jewish specialist in Islamic law).61 The commission produced a civil code (1906) and a penal code (1913). The former was based on several different sources:62 in the margins of the law and in Santillana’s presentation of it, reference was made to French law, fiqh, German law, Tunisian custom, French jurisprudence and the jurisprudence of the French courts in Tunisia.63

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The Penal Code was inspired by both the French Code Pénal and 1861 Tunisian code of penal and civil legislation. The process of codification was finalized with a Code of Civil Procedure64 and a Code of Criminal Procedure.65 The former set up separate jurisdiction for Europeans and Tunisians.66 In 1956 Tunisia gained its independence from France, and entered another era of reform. At this point, most areas of law had been codified, except personal status law: sharia and Jewish courts continued to apply fiqh and Mosaic law respectively, while French courts applied French law in family cases where a foreigner was involved.67 Shortly after independence, the new president, Habib Bourguiba (replacing the Husaynid Bey), issued a Personal Status Code. Legislation in the field of personal status law In the field of personal status law, the relevant codes68 are the PSC and related laws concerning personal status, namely the laws legalizing adoption, on the maintenance fund, on illegitimate children and on the optional community of goods within marriage. Other codes containing provisions that are important in the field of personal status are the Codes of Civil Status (CCS), of International Private Law (CIPL) and of Civil and Commercial Procedure (CCCP). Finally, the constitution as well as some provisions in the Civil Code (CC), the Penal Code (PC) and the Code of Criminal Procedure (CCP) can be of relevance for personal status matters. For the text of the PSC, refer to the Appendix (English translation of the first part of the PSC). Marriage With regard to the marriage contract, the PSC sets out the following provisions. It underlines that the consent of both future spouses is obligatory (Article 3), which is in contradiction with Maliki fiqh which allows the marriage guardian to force a woman into marriage (except an adult who is not a virgin, i.e. who has been married before). Moreover, the law prescribes that the marriage is contracted by the future spouses themselves, which is in contradiction with the Maliki

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rule that the bride’s marriage guardian (usually her father) represents her, meaning that in Maliki fiqh, women cannot contract marriage without their father’s consent, whilst according to the PSC, they can. This is in line with an old Tunisian practice, as women from the urban elite already married without a marriage guardian before the issuance of the PSC.69 This is only different if the future spouses are minors, in which case the minor (boy or girl) needs the consent of the father and mother (in Islamic law, only the male guardian has this privilege).70 Concerning the formalities of the marriage contract, the PSC requires the presence of two witnesses (Article 3 PSC); this provision is complemented by the Code of Civil Status, stating that a marriage should either be contracted in the presence of two professional witnesses (‘udul), or in front of the civil servant in the presence of two witnesses.71 Although the presence of two witnesses is also required by the Maliki fiqh, the registration of marriage that is required by the CCS is not; violation of this rule is punished with three months imprisonment, leaving the marriage null and void.72 According to the family judge in Gafsa (south Tunisia), people still contract ‘urfi marriages in this region, meaning that they celebrate a wedding without registering it with the authorities.73 In Tunis I observed that the punishment of three months imprisonment does not only concern cases where the marriage is celebrated, but is also applied to unmarried couples who live together. This was confirmed by the penal judge at the Cantonal Court, who is competent in such cases: he had convicted a mixed couple (a French man and a Tunisian woman) who had a child and were living together in a rich and mixed suburb of Tunis for unmarried cohabitation, on the grounds that they had violated the Code of Civil Status by not having their ‘marriage’ registered with the authorities. In this way, the court issued the norm that living together before marriage is prohibited. An important feature of Tunisian marriages in practice is that they generally take place in three stages: while legislation only makes mention of the engagement and signing the marriage contract, Tunisians generally add a third stage, namely the wedding festivities. Signing the contract is called sdaq (the contract), and the wedding is called the ‘urs. Although the signature of the marriage contract is the

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official moment on which the marriage is contracted, the social moment is at the marriage festivities, and it is the latter that justifies cohabiting (and sexual relations). The marriage proceeds as follows. First, the couple gets engaged, which involves the man and his family paying a visit to the woman’s family. On this day, the men read the fatiha (the first chapter of the Quran) in the woman’s house, or invite a special chorus of five or six men to do this (this is common for every special occasion, such as birth or moving house, as it is supposed to bring good fortune). This is followed by a party with live music (‘uwwada, modern Oriental music with old-fashioned instruments such as the ‘ud and the qanun, and a singer), where the man brings a satin basket with perfume, pâtisseries and the engagement ring (khatem). Then the families set a date for the sdaq, although some families have these four phases on the same day. The sdaq takes place at the city hall or somewhere else, and afterwards, the men may visit the mosque or a zawiya to pray. But the most important social moment is during the ‘urs, which can take as long as seven days and which is the most costly phase. The first day, hazzan ‘urs, is the moment on which the bride brings the trousseau to the future marital home, which the husband has rented/bought and prepared with furniture. On the second day, the woman visits the hammam with a group of female friends (nhar al-hammam). She wears a headscarf (even if she does not do this generally) and a sifsari, the old Tunisian dress for women, consisting of a large white cloth that is draped around body and head. When the group walks to the hammam, the women make lots of noise, with a tarbouka and with their mouths (zaghrat). They sing typical Tunisian songs. In the hammam, the group hands out orange juice and halawiyat to all visitors present, and the bride is completely washed. The second, and maybe also the fourth, day is the day of the henna, when the women come together to paint hands and feet with henna. On this day, live music is played, which can be ‘uwwada or Bedouin music (mizwid) or classical religious songs (sulamiyya). On this day, the bride wears a headscarf and long sleeves and no make-up. Some people make complicated decorations with the henna on hands and feet, while others only paint the nails, the inside of the hands, or make a circle in their hand palm. Henna is considered to bring good fortune. The last party of the bride in her parents’ house

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is characterized by gift-giving and offering money. Here, the bride is wearing a traditional dress and is seated on a chair that is painted in gold. The next day is dedicated to rest. The bride epilates her entire body, and has a tattoo made with black coal on her arm. On this day, the groom has a party with food and music. He receives gifts and money, which can take the form of an auction: a family member calls out the names in a microphone, announcing how much the different people present (men only) have given to the groom. The last day is the actual ‘urs, a party with food, music and dancing, generally held in a qa‘at afrah or salle de fête, with a live band. Here, everybody is dressed up in colourful and glittery dresses; people dance, while the bride and the groom are seated on a special bench or two separate seats painted in gold. Here, the bride wears a wedding dress that may be white or coloured. She is wearing special make-up (maquillage libanaise) and has been to the hairdresser. On this occasion, the husband offers jewellery. The jewellery can amount to valuable treasures of gold, as is the case on Jerba, where husbands offer their wife a couscous sieve full of jewellery. According to Latreille, the jewellery therefore serves the same purpose as the dower in other countries in the region, namely as a financial security for the wife, especially after a divorce.74 During the party, the couple leaves to consummate the marriage, which can be in a hotel or in the marital home, meaning that it is their first night there. In ‘conservative’ circles, the groom’s mother generally calls the couple in the morning to ask her son whether the bride was still a virgin. In rural areas, I was told that the family waits outside, yelling ‘hurry up!’, eager to see the blood on the sheets. A second feature of Tunisian marriage in practice is that the civil servant (if the marriage is contracted at the city hall) and the professional witnesses (if contracted at home) preside over prayers during the marriage ceremony. This is not prescribed by law (or by the fiqh, for that matter). And a third feature that does not correspond with legislation concerns the bride price: the PSC mandates that the groom pays a bride price to the wife, without providing for a maximum. In other countries in the region, bride prices are so high that they prevent many men from getting married. However, in Tunis, the dower consists generally of one dinar,75 which is paid during the signing of the sdaq. When I

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asked why, several people told me that the legislation forbids paying more than one dinar. This is a typical example of a situation where general notions of the legislation do not correspond to reality. I suspect that this particular rumour originate in one of Bourguiba’s speeches in an attempt to get rid of ‘archaic’ practices. Another example of general notions on legislation concerns extramarital sex: I witnessed that many people were convinced that having sex while not married is prohibited by law, as is sharing a hotel room with someone from the opposite sex while unmarried. However, the law is silent on the matter, but indeed it is the practice of hotels to refuse a room to unmarried couples (unless they are Western foreigners). Children are instructed in school that it is forbidden to have sex while unmarried. Even if the groom is not expected to pay a large bride price, marriage remains expensive, especially for men. He should pay for gifts for the bride, the ring, food and perfume, he should pay for the music, and he should rent a marital home and prepare it with furniture. Also, he should offer the bride jewellery. The bride on the other hand pays for the dresses (she is supposed to wear a different dress on every day of the wedding), the trousseau and the maquillage libanaise, which can cost up to 1,000 dinars. All these expenses together contribute to people marrying late, because men simply cannot afford marriage before they earn a decent living. On the other hand, people can avoid these costs by renting the dresses, and moving in with their in-laws. I even witnessed a marriage where it turned out afterwards that the jewellery offered to the bride belonged to the groom’s mother and aunts; it was handed to her during the ‘urs, which is a special moment where the music stops and a professional photographer takes pictures, but she had to return the jewellery afterwards. In this case, it was the woman who rented the marital home, and the husband’s friends who collected furniture. Even the dower (in this case 50 dinar) was borrowed from a friend and was returned afterwards. Marriage impediments Articles 5 and 14–20 PSC enumerate the marriage impediments, such as minority: the minimum marriage age was fixed at 18 for both

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spouses in 2007.76 In the law of 1956, the minimum age was 18 for men and 15 for women, and judicial approval in case of a marriage of people below this age was based on the ‘physical maturity’ of the spouse, meaning if they had reached puberty. In 1964, the minimum marriage age was changed to 20 and 17 respectively, unless the couple obtained a judicial authorization for the marriage.77 The introduction of a minimum marriage age deviates from Islamic law which does not provide for a minimum age for marriage, while the marriage can only be consummated when the spouses have reached puberty. According to the Office National de la Famille et de la Population, the average marriage age in Tunisia in 2008 was 29 for women and 33 for men, against an average marriage age for women of 12.8 years old between 1931 and 1946, 17.8 between 1950 and 1956 and 21.6 between 1975 and 1979.78 I had the impression that there is a correlation between marriage age and level of education, in the sense that well-educated people marry at a later age. This may be due to people wishing to complete their studies before marriage, but another explanation is that there is high unemployment amongst university graduates. As people with a university degree (often even a PhD; Tunisians are among the highest-educated people in the region)79 are generally reluctant to take a job that is below their level, they may remain a financial burden for their parents until over the age of 30, not ready to marry as they do not have the means to support a new family. The frustration that this situation may cause is said to have been one of the driving factors behind the 2011 ‘revolution’.80 Other marriage impediments mentioned in the articles are consanguinity,81 affinity82 and suckling.83 The latter is a typical feature of Islamic law, and implies that people who were fed by the same wetnurse cannot marry each other nor each other’s relatives. The PSC provides that suckling is subject to the same impediments as consanguinity and affinity, except that it is only the child himself and not his brothers and sisters who are involved in the impediment, and that suckling is only an impediment if it took place in the first two years of the child’s life. Although seemingly archaic, I observed that breastfeeding is indeed still experienced as an impediment to marriage. For example, when a friend of mine, a 28-year-old student in the master of patrimoine (cultural heritage) and a self-declared atheist and

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communist, told me that he would visit a female friend of his in Paris, I asked whether she was a ‘friend’ or if there was more. He laughed at me and said, ‘No, she is my sister!’ When he noticed my surprise (to my knowledge, he only had a slightly older brother), he explained that this girl was their neighbour and had been born around the same time as his brother. As her mother had no milk, my friend’s mother nursed the two of them. For him, the fact that she was his sister was not something ‘Islamic’, but simply something that was very deeply felt by him, even if contrary to the legislation. Another marriage impediment set out by the PSC is triple divorce,84 a typically Islamic feature that means that if a couple has divorced three times, they cannot remarry each other. This was actually applied by the court, as I observed one reconciliation session where the husband filed for divorce, and the couple had been divorced two times before. The judge told the husband that he should be certain about this divorce as they could not remarry. The PSC also provides for the impediment of the waiting period, meaning that the wife cannot remarry during the three months following the divorce or, if she is pregnant, until delivery.85 The waiting period is set at three months instead of the three menstrual cycles in Islamic law, and starts after the court has pronounced the divorce. In principle, the husband should continue to pay maintenance during this period, although judicial practice may deviate from this, as will be seen in the next chapters. Marriages contracted in violation of these impediments are null and void, although they do have consequences for paternity.86 This means for example that if a marriage has not been registered, it is invalid and the couple risks three months’ imprisonment, but the child born from this marriage has a legal bond with its father in the sense that it has the father’s family name, and shall inherit from him and his family. But the most important deviation from the fiqh where marriage impediments (or even the PSC as a whole) are concerned is the prohibition of polygamy, meaning that the fact of being married is an obstacle to contracting another marriage for both women and men. Violation of this rule is punished with one year’s imprisonment. This is quite drastically contrary to the fiqh, which allows men to marry up to four women. The interdiction was introduced gradually: in

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1956, Article 18 provided that ‘Polygamy is prohibited. It is punished with one year’s imprisonment and a fine of 240.000 francs.’ In 1958 it was added that ‘The person who is married and concludes another marriage before dissolving the first, shall be punished with [ ... ] even if the new marriage is not contracted in conformity with the law.’87 In 1964, Article 21 was changed, providing that the marriage would be dissolved, and that ‘[t]he couple whose marriage has been nullified but nevertheless continues living together is punished with 6 months imprisonment’.88 However, it does not deviate from Tunisian practice: polygamy was not practiced in Tunisia as it was in some other countries in the region, and the shuyukh at the mosque in Kairouan had already established a norm in the fourteenth century that women could include a condition in their marriage contract that their husband would not marry another woman, the shart kairouanais (Kairouan condition). This condition stated that if the man married a second wife, the first marriage contract became invalidated automatically, or even that the first wife could oblige her husband to divorce the second wife. The condition became general practice specifically in some social circles and urban areas.89 To complete the rules with regard to the marriage contract, a circulaire was passed in 1962 that prohibits civil servants to register a marriage between a Muslim woman and a non-Muslim man (see above). Also, a law was issued in 1964 that requires a medical certificate for both spouses.90 This means that if a couple wishes to contract marriage, they should show a medical certificate to the civil servant or the professional witnesses. The certificate should not be older than two months, and should give information on contagious diseases, psychological disorders, alcoholism and other diseases, especially tuberculosis and syphilis, that could endanger wife and children. The doctor who issues the certificate can refuse to do so if he considers the marriage dangerous for the spouse or children, or he can advise the couple to postpone marriage. Violation of the law is punished with a fine of 100 dinars (€ 50). In practice, the spouses are specifically tested for hepatitis, which is a very common disease in Tunisia, especially in rural areas. I witnessed one couple that underwent the test where both future spouses were tested for hepatitis only; the future husband turned out

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to be infected with a form of hepatitis and the future wife was advised to be vaccinated against this. When their first baby was born, it was immediately tested for hepatitis as well. Of course, this test implies that the couple does not have sexual intercourse before the marriage, which is not always the case. The certificate does not protect people against HIV, because the doctors do not test for this. This may be different if one of the spouses is a foreigner, as the dominant discourse in Tunisia is that HIV only exists in Europe and Sub-Saharan Africa: when foreign students apply at a Tunisian university, they are required to pass an HIV test, which Tunisians are not. It is interesting to note that the medical certificate is also used by women to prove that they are still a virgin, in case that they do not bleed on the wedding night. According to Ferjani, this law was issued to protect future spouses against surprises during the wedding night or after – surprises that in other countries justify divorce for harm on the grounds of a disease of the other spouse that was not made known before contracting marriage.91 Rights and duties within marriage With regard to the rights and duties within marriage, Article 23 PSC provides that ‘[b]oth spouses shall treat each other with benevolence, live with the other on good terms and refrain from causing harm. [ ... ] They shall cooperate in running the business of the family, a good upbringing of the children, and the management of the affairs of the latter including their education, travel and financial transactions.’ Article 23 PSC also decrees that ‘[b]oth spouses should perform their marital duties in conformity with usage and custom’. The provision that the wife should obey her husband was abolished in 1993.92 However, the article still states that the husband is the ‘head of the family’, although seemingly, this only regards his obligation to ‘support his wife and children in accordance with his means and their situation in the light of the components of maintenance’. This is repeated in Article 38 PSC which obliges the husband to maintain his wife after the consummation of the marriage until the end of the post-marriage three-months’ waiting period. Article 23 PSC provides that the wife

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‘should contribute if she has the means’. While the husband’s obligation to maintain his wife is in accordance with the Maliki fiqh, the requirement that the woman who has means should contribute is not; in classical Maliki law, the wife cannot be obliged to touch her own means (such as the bride price). That the principal duty to maintain the family is placed squarely upon the husband has been criticized in Tunisian legal literature, on the grounds that this reaffirms gender inequality.93 Besides the rights and duties in Article 23, the PSC allows the spouses to stipulate additional rights and duties in their marriage contract, thus confirming that marriage is a contract like sale or rent, which can be amended in accordance with the agreement of the parties to that contract.94 In 1960, the Court of Cassation decided that no clause with regard to a community of goods can be inserted in the marriage contract,95 but in 1998, a special law was introduced that regulates the optional community of goods within marriage.96 Although the Maliki fiqh allows the spouses to stipulate specific conditions in their contract, it does not provide for a community of goods within marriage. The 1998 law allows for shared ownership of all goods, but only contains specific provisions for real estate. A lawyer who specializes in family law told me that even if the couple agreed on a community of all goods, judges may reject this for everything that is not real estate. Divorce Article 31 PSC provides that the Court of First Instance pronounces the divorce on demand of both spouses, on the grounds of harm, or on demand of one of the spouses without grounds. The divorce cannot take place outside of court, and it can only be pronounced after the judge has undertaken one to three reconciliation sessions97 behind closed doors. This provision differs significantly from the Maliki fiqh. In the first place, the fiqh does not require that divorce takes place through court; the husband can repudiate his wife outside of court (talaq), and the same is true when spouses contract a divorce by mutual consent (khul‘); the only instance of divorce where a judge (qadi) is

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involved concerns the divorce on demand of the wife (tatliq). However, it has been argued that the abolition of repudiation followed the practice of the Tunisian urban elite, who divorced with the intervention of notaries (‘udul) with a divorce certificate, in the presence of the wife or her father. A second important difference with the Maliki fiqh concerns the grounds for divorce: Article 31 PSC gives both spouses the right to divorce by mutual consent, on the grounds of harm, and without grounds. In the classical doctrine the husband has the right to repudiate his wife, and the divorce by mutual consent (khul‘) and judicial divorce (tatliq) are reserved for the wife. In the Tunisian law however, the husband as well can file a petition for divorce by mutual consent and judicial divorce. Divorce without grounds, which may be compared to repudiation in the sense that the spouse does not need the other party’s consent and is not obliged to convince the court of the existence of specific grounds justifying divorce, is available to both men and women in Tunisian legislation. Another difference from the Maliki doctrine is that the legislation does not define ‘harm’; in Maliki doctrine, non-payment of maintenance, absence from the marital home for a long period, and physical defects give the wife the right to judicial divorce, together with the general term of ‘harm’ (darar) which may involve domestic violence. The Tunisian legislation, however, is limited to ‘harm’ (darar), without explaining this term. The reforms in the field of divorce are highly criticized in Tunisian society. The most important argument is that divorce is made too accessible, leading to a high divorce rate. In 2009 the Ministère de la Femme et de la Famille announced that divorce rates in Tunisia were the highest in the Arab world, and fourth highest in the entire world. The Ministry of Justice intervened, arguing that this study was unreliable, and underlining that the divorce rate had decreased 3 per cent in 2008. In 2008, 9,127 divorces were registered, as opposed to 16,000 marriages. The Ministère de la Femme, having studied 500 divorces, announced that most of these are due to ‘material problems, social and cultural incompatibility between the spouses, jealousy, adultery and infertility’.98 Personally, I found it a complicated matter to establish what the causes are for a specific divorce, but the following chapters will give insight in the causes that are presented by the litigants. But

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it goes without saying that, as Oscar Wilde put it, ‘[m]arriage is the principal cause of divorce’. Article 31 PSC stipulates that the spouse who files for divorce without grounds can be sentenced to pay damages (ta‘wid) to the other spouse. The same is true if harm has been established, in which case the spouse who caused the harm constituting the divorce should pay damages (ta‘wid). Since 1981, the repair of material harm to the ex-wife is different from the repair of material harm to the ex-husband:99 the wife can choose to have her damages paid in monthly instalments instead of a lump sum, thus resembling maintenance after divorce. This has been heavily criticized as it reinforces inequality between men and women.100 This provision differs significantly from the Maliki fiqh which does not provide for maintenance after divorce, except during the three-month waiting period. However, some interpretations of the fiqh do provide for damages in cases of unjustified repudiation, in which case the husband should pay a sum of money (mut‘a), as is for example prescribed by the Moroccan family code. Guardianship and custody The law provides that during marriage, custody (hadana) of offspring is attributed to both parents, while the father has legal guardianship.101 After divorce, guardianship (wilaya) remains with the father, while custody (hadana) is attributed to one of the parents or a third person in conformity with the best interest of the child.102 The rules with regard to guardianship and custody have changed significantly over the years. The law of 1956 prescribed that custody after divorce belonged to the mother and ended at the age of seven for boys and nine for girls. When the children reached this age, they would move in with their father, if the father filed a case for this and unless the judge decided that it was in the interest of the child to stay with its mother. The mother would also lose custody if she remarried. In cases where the mother lost custody before the children reached the ages of seven and nine respectively, the law provided for a list of female relatives that would obtain custody, starting with the mother’s mother. Thus, the young children of the remarried mother would normally live

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with the maternal grandmother, enabling the mother to visit her children as often as the caretaker (the grandmother) would allow her to.103 In 1966 the maximum age for custody was abolished, meaning that custody ends when the child reaches the age of majority (at the age of 18), which contradicts the Maliki fiqh, where custody ends much earlier. The list of female caretakers was abolished too, and instead, Article 67 PSC provided that custody was attributed to the mother or the father or a third person, in accordance with the best interest of the child, which differs considerably from the Maliki fiqh according to which the children stay with their mother after divorce and should in any case be taken care of by a woman. The amendment also resulted in the fact that if the mother remarried, the children would go directly to the father instead of a female relative, which is contrary to the fiqh as well.104 Since 1981 the mother can obtain legal guardianship in case of death or inability of the father to take decisions on the child’s behalf, while in the fiqh, guardianship is transferred to a male relative of the father.105 Since 1981, the mother who remarries loses custody unless the judge estimates that this is not in the best interest of the child,106 and only if the father files for custody within one year after he became aware that the mother’s marriage has been consummated, which contradicts the fiqh too.107 Since 1993, the woman who has custody can execute some guardianship rights, meaning for example that she can travel with her child without the father’s consent, whereas Maliki doctrine understands ‘custody’ (hadana) in a very limited way, namely the daily caretaking.108 Paternity The principal rule in Tunisian legislation concerning issues of paternity is as follows: while the mere fact of birth causes legal maternity, legal paternity is only effectuated by the marriage between the father and the mother, recognition by the father or the declaration of two or more reliable witnesses (Article 68 PSC). Judicial practice demonstrates that recognition and testimony can only constitute paternity if these establish that the parents were married at the time of the conception; thus, they should prove that the child is legitimate, and not that

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it is the child of a certain man.109 If the child is born out of wedlock, it can obtain the father’s family name on the grounds of a special law issued in 1998,110 which also provides for additional rights vis-à-vis the biological father, such as maintenance. I observed that in practice, judges do not grant children born out of wedlock ‘full paternity’: they underlined repeatedly that these children do not have a right to inherit from their father and his family. The legislation deviates from the Maliki fiqh in the sense that the classical doctrine does not provide for the possibility of granting the father’s family name to an illegitimate child. However, the classical doctrine is characterized by a number of detours in order to establish legal paternity between a child born out of wedlock and its biological father. For example, in the absence of a requirement to register marriages, the parents can simply declare that they were married at the time. Also, the Maliki doctrine embraces the notion of the ‘sleeping embryo’, according to which women can carry a baby as long as four years. As a result, if a woman gives birth to a child, it can obtain a legal bond with the woman’s ex-husband, if she has been married within the past four years. These detours exist to a certain extent in Tunisian legislation as well, as the woman can be considered pregnant for a whole year (instead of 4, Article 35 PSC), and as an unregistered marriage does establish paternity (Article 22 PSC). I observed that the latter is indeed employed by judges to bring about paternity: if the parents marry right after birth, the court presumes that they had an unregistered marriage at the time of the conception, and even if this is not proven with a penal conviction for violation of the Code of Civil Status, the court orders to add the father’s family name to the birth certificate. As a consequence, there is ‘full’ paternity, meaning that the child can also inherit. In order to effectuate a legal bond between the child and someone different from his legal parents, adoption was legalized by a separate law in 1958.111 This law provides for full adoption, meaning that the child loses its legal bond with its biological parents. Although this deviates drastically from the fiqh, and although Tunisia is one of the only Arab Muslim countries that recognizes adoption,112 this law is applied in practice: children born out of wedlock, especially, are often given up for adoption and Tunisian couples are happy to

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adopt. However, judges (the adoption judge at the Cantonal Court is competent in adoption cases, and the family judge at the CFI is competent in appeal) refuse to allow foreigners to adopt. The judge at the Cantonal Court in Tunis explained to me that this is because if a child moves abroad, the Tunisian Child Protection Services cannot track it down to ensure it is being well-treated, which is apparently procedure in adoption cases. However, there are also indications that non-Muslim foreigners cannot adopt because in that case, a Muslim child is brought up in a non-Muslim country by non-Muslims, which would imply that, for example, Algerians can adopt a Tunisian child. According to the head of a home for children born out of wedlock in Gafsa (Association Beity), the court in Gafsa pronounces the adoption as long as one of the parents is Tunisian. For example, he remembered a couple where the wife was Tunisian and the husband Italian, living in Italy, but converted to Islam. The family judge in Sfax told me that even elderly single women can adopt a child. An alternative to adoption is kafala, an Islamic feature which delimits the relation between the child and its caretakers to the caretaker’s obligation of custody and maintenance.113 A second alternative, in the absence of caretakers, are the official institutions that take children under their care and exercise the same rights and duties as the legal parents.114 Inheritance Tunisian law follows the same rules for the division of the estate of the Maliki fiqh, except for one reform, namely radd. The Tunisian rules are as follows. When a person dies, the Cantonal Court draws up the list of heirs. At least two-thirds of the estate is divided in accordance with the law, as the deceased cannot bequeath more than one-third of his estate. The list starts off with the Quranic heirs (male heirs: father, paternal grandfather, uterine brother and husband; female heirs: mother, grandmother, daughter, agnatic granddaughter, germane sister, consanguine sister, uterine sister and wife), attributing each of them their Quranic shares (Articles 91–113 PSC). What is left over is divided between the agnatic heirs (male relatives: father, ascendant, descendant by the son, germane or consanguine brother, descendant of the latter, germane or

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consanguine uncle, germane cousin) in which case the closest degree takes precedence over the others, or the state (Article 114 PSC). This is merely a codification of Maliki fiqh. In 1959 the concept of radd was introduced, providing that in the absence of agnatic relatives, and if the entire estate has not been completely divided among the Quranic heirs, the remainder is divided among the Quranic heirs in accordance with their relative shares. Daughters and paternal granddaughters also benefit from this arrangement if there are agnatic heirs from the degree of paternal brothers and uncles as well as their descendants, meaning that if the deceased did not have a father, a male ascendant, a descendant by the son, etc. the daughter takes the remainder of the estate.115 This deviates from Maliki fiqh, as the latter provides that the state takes the remainder. Another deviation from the classical doctrine is that the Tunisian legislation does not prohibit non-Muslims from being represented among the intestate heirs of Muslims; the only impediment mentioned in Article 88 PSC is if the heir has murdered the deceased. Other legislative measures Besides the PSC, the Tunisian Penal Code contains some legislation that is relevant for divorce cases too, especially for cases of divorce for harm. This is especially true for the provision prohibiting domestic violence (Article 218 PC), but also for the articles pertaining to sexual relations. In this respect, it is remarkable that unlike in many other countries in the region, sex before marriage is not prohibited in Tunisia. This is surprising because I found that my informants were convinced that it is illegal to have sex before marriage; for example, a 26-yearold student of literature had been taught that in school. In this way, my friend’s schoolteacher, acting as a disciplinary institution, issued the norm that sex before marriage is prohibited, although legislation does not assert this. This is significant for divorce practices too, as it means that litigants may think that if the woman is not a virgin before marriage, she has violated the law. It will become clear in the following chapters that even if virginity is not prescribed by law, it does play a significant role in divorce cases.

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Although legislation does not prohibit sex before or outside marriage, it does prohibit sex in some circumstances, for example when one of the persons is married to someone else, as adultery is punishable with five years’ imprisonment and a fine of 500 dinars, for both the married person and the accomplice.116 It is remarkable that until 1968, the Penal Code, which was issued during the French protectorate, only prohibited adultery for women. That adultery is punishable by law may surprise some, as it suggests that adultery is no longer part of the private sphere. However, it is not entirely public either: the police can only prosecute someone for violation of Article 236 if the spouse has filed a complaint, and if the spouse retracts the complaint, prosecution ends immediately. Another sexual act that is punishable by law is the sexual act without the other person’s consent: rape is punished with a life sentence, unless it is committed with violence, under threat of the use of a weapon, or when the victim is less than ten years old; in such cases, it is punished with the death sentence.117 However, rape within marriage is not mentioned explicitly in the law, which may suggest that forced sex within marriage is not considered to be ‘rape’; although the Tunisian government explained that this article does pertain within marriage as well, there is no evidence that any prosecution has taken place with respect to such cases118 and indeed, the Femmes Démocrates have been lobbying for many years now to make this punishable as well. Moreover, it has been argued by one of the lawyers of the Femmes Démocrates that the article which prohibits sex with a woman under 20 years of age is used to release rapists: Article 227 PC punishes sex with a girl who is under 20 with five years’ imprisonment; if she is under 15 years old, the punishment is six years’ imprisonment, and if she is under 13, the punishment is a life sentence.119 One of the lawyers argued that sometimes, women are forced to marry the man they had sexual relations with ‘to protect the honour of the family’.120 Besides these acts, other sexual acts that are forbidden are incest,121 sodomy122 and prostitution.123 Incest is prohibited in the sense that the punishment for sex with a minor is doubled if the person guilty of such a crime is a family member of the victim or in any other way has

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authority with respect to her, such as teachers, servants and doctors. Sodomy is punished with three years’ imprisonment, unless it can be qualified as sex with a minor or rape, meaning that sodomy between consenting adults as well as sodomy within marriage is punished with this sanction. This provision was issued under the French protectorate. The prohibition of prostitution is remarkable as there are a number of brothels that are legalized. In practice, ‘sex laws’ were used for other purposes than the ones they were explicitly targeted at; namely, interference in the relationships between the sexes, and to earn extra money. For example, the interdiction of prostitution was used to arrest couples in the streets and to prevent unmarried couples from sharing a hotel room. The suspicion of prostitution in the streets specifically involved mixed couples: for example, a (female) Tunisian friend of mine was once stopped by the police when she was accompanying a (male) European friend in her car. Another (female) Tunisian acquaintance friend of mine was stopped by the police when she was walking hand-in-hand with her lover. In this way, the police as a disciplinary institution contructs the norm that relationships between Tunisian women and foreigners, be it Muslims or Westerners, are ‘prostitution’ and therefore ‘abnormal’. The suspicion of prostitution in hotels involved all unmarried couples except Western ones (who did not look Arab) who wished to share a room without showing their marriage certificate. This was based on the interdiction of prostitution, as hotels feared to be prosecuted for being a brothel – remarkably, my informants were convinced that sharing a hotel room is prohibited by law for unmarried couples and therefore would always book two rooms or bribe the receptionist. By prohibiting unmarried couples from sharing a room, hotels issue the norm that sex is forbidden outside marriage. At the same time, hotels issued the norm that for Westerners, sex outside marriage is not forbidden – which confirms the image in Tunisia that sexual morals are much more relaxed (not to say ‘loose’) in the West. The interdiction of sexual harassment was also used to interfere with people’s private lives. The interdiction of sexual harassment was issued in 2007 in response to the lobbies of the

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Femmes Démocrates, but to their surprise it enabled policemen to arrest young couples who were showing affection in public. In fact, a male informant was arrested and beaten by the police for ‘harassing’ his girlfriend (a Western woman). In this way the police issued the norm that people cannot show affection in public unless they are married.124 That such practices also served to earn some extra money becomes clear from the following example. In the case of the couple that was walking hand in hand, the officer took an interest in the man’s watch, and the man understood that he could buy him off by handing it to him, after which they were released. In the same vein, I repeatedly witnessed in hotels that people bribe the staff to obtain a room. Recapitulation The overview of the legislation demonstrates that in some significant domains (polygamy, marriage guardianship, custody, etc.) the PSC deviates from ‘sharia’ which made some people conclude: ‘The whole tenor of the [PSC] ran counter to traditional Muslim jurisprudence.’125 In this sense the code constituted a break with the past, although it might have been in accordance with certain Tunisian practices (divorce and polygamy). However, that break is not limited to the contents of the PSC – it was already constituted by the mere act of codification; previously, judges had presumably applied fiqh, while from 1956 onwards they were to apply a code in the field of personal status. Moreover, the role of fiqh in Tunisian personal status law declined even more once the law was applied in national courts instead of sharia courts, where qadis were replaced by judges who had been trained in a law faculty in which hardly any attention was paid to the teachings of Islamic law. Another important change concerns the fact that the PSC applies to all Tunisians regardless of their religion, unlike personal status law in many other countries in the region, where personal status law follows a confessional system.126 And last but not least, the break with the ‘sharia’ in the field of personal status law was intensified by the fact that the legislation does not provide that ‘sharia’ should be applied as a source of law in case of lacunae – neither the constitution,

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nor the Civil Code that provides for interpretation rules, nor the PSC mentions the term ‘sharia’ (see below). The question arises as to why the code deviated from ‘sharia’. A first reason possibly lies in the political declarations that accompanied the promulgation of the PSC, in which it was presented as the fruit of ijtihad – the interpretation of the sources of Islam, the Quran and hadiths (see below). Another possible reason is that in 1956 the PSC was simply imposed from above: it did not follow a democratic process (parliament had not yet been installed at the time),127 nor did it develop in a dialectical relationship with then-current judicial practice (the practices of the qadis). In fact, there was as little participation from society as possible. The code was drafted by a commission of only three jurists,128 and it was drawn up in such a short period of time that there was simply no possibility of popular interference: Bourguiba appointed the commission directly after independence, and the code was finalized in less than three months.129 In this way, Bourguiba took advantage of the revolutionary atmosphere in which everything seemed possible. Also, by presenting the PSC for signature to the Bey in the summer of August 1956, Bourguiba avoided interference from the religious figures, who do not work at this time of year. Moreover, as in April Bourguiba had already appointed a ‘liberal’ shaykh as the head of Zaituna Mosque (Tahar Ben Achour, a relative of Yadh and Sana Ben Achour), the PSC escaped criticism from the most important religious figure of the country.130 Another important means of preventing criticism was to introduce important reforms gradually, in the PSC or in separate laws; this was the case in the criminalization of polygamy131 and the legalization of full adoption.132 Thus the passage of the PSC took place almost à huis clos, with no concessions to public involvement. Indeed, that the laws lacked any democratic character enabled a clean break with the law as it was lived by the people. It should be noted here that this procedure challenges the commonlyheld idea that democracy in the region would automatically lead to the enhancement of women’s rights; indeed, the introduction of the Swiss civil code in Turkey passed in a similar authoritarian way and may be considered the most ‘women friendly’ code in the region. Nonetheless, later amendments and additions to the PSC had more democratic

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justification, and developed in a more dialectic relationship with legal practice. Since 1959, most legislation has passed through parliament, and some proposals for laws are taken up on the initiative of human and women’s rights organizations, both international and national, which are aware of practices that should be affirmed or suppressed by legislation. For example, the 1998 law attributing the father’s family name to children born out of wedlock was issued after campaigning by the ATFD, whose members were well aware that most judges refused to acknowledge a bond of paternity between the father and the child born out of wedlock. The democratic character of personal status legislation should however not be exaggerated: until 14 January 2011, the Tunisian parliament consisted for the most part of a single political party – the Rassemblement Constitutionnel Démocratique (RCD) – and questions that were not deemed to fall within official ‘state feminism’ (see below), such as equal inheritance rights, were simply not addressed.

III: Lacunae, and additional sources of law Another explanation in Tunisian legal literature for the judges’ continuing application of ‘sharia’ and ‘custom’ is that the PSC contains many lacunae, and that the legislature did not make clear what judges should do to fill these gaps.133 Indeed, the PSC contains no specific provision in this respect, indicating additional sources of law (as for example Article 400 of the Moroccan family code, which provides that in the event of lacunae, judges should have recourse to Maliki fiqh). However, the legislation does contain a few indications of what should be done in the event of a lacuna: some point to the constitution and international conventions, others to ‘sharia’ and ‘custom’. The constitution, fundamental rights and international conventions The constitution is the highest national source of law in the Tunisian legal order, meaning that legislation should be in conformity with it. The constitutionality of a law is checked before the law is issued by a

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constitutional council,134 and after this point it is checked by judges (Tunisia does not have a constitutional court). This means that judges can shelve legal provisions for incompatibility with the constitution, but it also means that in case of lacunae, the constitution can be used to fill the gaps. Indeed, the Court of Cassation decided on a number of occasions that judges could apply the constitution to interpret legislation.135 Provisions of the constitution that may have been relevant to interpret the PSC (the constitution was abolished after the ‘revolution’136) concerned the equality principle and the freedom of religion (Articles 5 and 6).137 According to Sana Ben Achour, Article 1 of the constitution (Islam is Tunisia’s religion) could also be used to interpret the PSC: according to this author, this provision was invoked by judges who applied ‘sharia’ to interpret the law.138 According to the Tunisian constitution, international conventions that are ratified by Tunisia override national law as soon as they have been published.139 This does not only mean that all Tunisian legislation needs to be in conformity with these conventions, but also that courts can employ these to interpret Tunisian legislation. Tunisia has ratified the following human rights conventions: ICCPR and IVESCR (1969), the Convention for the Elimination of all Discrimination Against Women (CEDAW, 1985), the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1968), the Convention for the Rights of the Child (CRC, 1992) and the Convention Against Torture (CAT, 1988). Tunisia made no reservations to the ICCPR, the ICESCR and CAT, but it did make reservations to CEDAW and the CRC, although many have since been nullified: all except one reservation to the CRC were revoked in 2002 and 2008, while the interim government announced on 19 August 2011 that it had revoked all reservations to CEDAW except a general one (see below). When ratifying CEDAW in 1985,140 Tunisia made reservations to Articles 9, 15 and 16. With regard to Article 9.2, which protects equal rights for men and women to pass on their nationality to their children,141 the reservation states that this paragraph must not conflict with the provisions of Chapter VI of the Tunisian Nationality Code. Previously, the Nationality Code discriminated against mothers,

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in that only the father passed on his nationality to the child, meaning that children born in a mixed marriage only obtain their father’s nationality (which is generally the Tunisian one). However, since the code was changed in 1993, women are allowed to pass their nationality on to their children, albeit only with the father’s consent.142 With regard to Article 15 of CEDAW, which protects freedom of movement and freedom to choose one’s residence,143 the reservation stipulates that particularly that part relating to the right of women to choose their residence and domicile must not be interpreted in a manner which conflicts with the provisions of the Personal Status Code on this subject, as set forth in Chapters 23 and 61 of the Code. Article 61 of the PSC provides that a person who has child custody will lose this if he/ she moves to a place so far away from the guardian that the latter can no longer execute his rights and duties; in this way, the child’s carer, usually the mother, is not free to choose his/her residence. Article 23 of the PSC provided at the time (1985) that the wife should obey her husband, which could be seen as allowing the husband to delimit her freedom of movement. However, as this was abolished in 1993, the reservation with regard to this article seems to have lost significance, although it will be demonstrated in the following chapters that women cannot abandon the marital home without a valid reason. With regard to Article 16, paragraphs (c), (d) and (f),144 the Tunisian government declared that it does not ‘[consider] itself [ ... ] bound by these provisions’. This article protects equal rights and duties in marriage and divorce and with regard to the children. The former is violated by Article 23 of the PSC, which, after the abolition of the duty of obedience in 1993, continues to state that the husband is the head of the family meaning that he is the principal breadwinner. Equality with regard to custody and guardianship is violated by Article 58 of the PSC, which allows that the woman who remarries can lose custody,145 and by Article 154 of the PSC, attributing guardianship to the father. Nevertheless, over time, mothers have obtained more rights with regard to their children, as they enjoy certain privileges that were previously reserved for the guardian, and they can even obtain guardianship if the father is unfit. With regard to paragraphs (g) and (h) of Article 16 of CEDAW,146 which protect equal rights with respect to a family name, a profession

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and property, Tunisia declared that these paragraphs ‘must not conflict with the provisions of the Personal Status Code concerning the granting of family names to children and the acquisition of property through inheritance’. Equal rights with regard to a family name, however, were previously violated as children born out of wedlock did not have a right to their father’s or their mother’s family name, a situation that changed with the 1998 law which enabled a child born out of wedlock to obtain the biological father’s family name. Equal rights with respect to professions are protected by Tunisian legislation, especially since the abolition of Article 861 of the Civil Code that required that married women cannot sign a labour contract without their husband’s consent. Equality with respect to property contrasts with Tunisian inheritance law, according to which men inherit twice as much as women who stand in the same position to the deceased. It is also violated by judicial practice according to which children born out of wedlock do not inherit, even if they obtained their father’s family name. As stated above, the interim government announced on 19 August 2011 that it revoked all reservations to CEDAW except the general one, which provides that no law would be adopted that violated Article 1 of the Tunisian constitution. Under the constitution of 1959, this article stated that ‘Islam is Tunisia’s religion’ and the consequence of the reservation was unclear – if it meant that the convention did not apply if incompatible with Islam, it might have been seen as potentially rendering the convention empty of meaning, as depending on one’s interpretation of ‘Islam’, all provisions in the convention may be incompatible with this source.147 As the former constitution is suspended and the new one is yet to be drafted, the consequences of maintaining this reservation are unclear. The reservations to the CRC (ratified in 1992)148 were withdrawn in 2002 and 2008,149 except one. In 2002, Tunisia withdrew the declaration that ‘its undertaking to implement the provisions of this Convention shall be limited by the means at its disposal’, and the reservation to Article 40, paragraph 2 (b) (v) CRC; this article mandates that the conviction of any child of a crime and any measures imposed in consequence thereof can be ‘reviewed by a higher competent, independent and impartial authority or judicial body according to law’.

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As judicial review is guaranteed by the Child Protection Law of 1995, the reservation had become meaningless. In 2008, the government withdrew the reservations with regard to Articles 2 and 7 CRC. The reservation with respect to Article 2, that protects the equal treatment of children, provided that this article ‘may not impede implementation of the provisions of [Tunisia’s] national legislation concerning personal status, particularly in relation to marriage and inheritance rights’; this reservation referred to discrimination against children born out of wedlock and against women below adult age. Despite the 1998 law concerning children born out of wedlock, and despite the revocation of the reservation, Tunisian law has continued to violate this provision as children born out of wedlock do not inherit from their biological father, and girls inherit half as much as boys. The reservation with respect to Article 7, which provides for a child’s right to be registered immediately after birth and to have a name, a nationality and the right to know and be cared for by its parents, provided that the article ‘cannot be interpreted as prohibiting implementation of the provisions of national legislation relating to nationality and, in particular, to cases in which it is forfeited’. The reservation referred to the impossibility of a mother passing on nationality to her child, meaning that children born out of wedlock remain without a nationality, but this no longer applies. In the same year, the government withdrew its declaration that ‘[t]he Government of the Republic of Tunisia declares that it shall not, in the implementation of this Convention, adopt any legislative or statutory decision that conflicts with the Tunisian Constitution’. The latter in particular is very important, as withdrawing this declaration involves Islam (via Article 1 of the Tunisian constitution) no longer taking precedence over the CRC. The only reservation to the CRC that remained in force is contained in the statement: ‘The Government of the Republic of Tunisia declares that the Preamble to and the provisions of the Convention, in particular Article 6, shall not be interpreted in such a way as to impede the application of Tunisian legislation concerning voluntary termination of pregnancy’, which should be read in relation to the law legalizing abortion.150 While the relevant article in the Penal Code allowed abortion only in cases where it was the fifth child and only

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with the father’s permission, abortion is nowadays legal for everyone less than three months pregnant (or longer in case of a medical indication). It takes place anonymously and for free, a measure that fits with Bourguiba’s family-planning programme. Besides the constitution and international conventions, there is a third legal source that judges can also have recourse to in case of a lacuna: the Civil Code (CC), which follows from Tunisian legal literature and judicial precedents. The CC contains interpretation methods in Articles 513–563. These articles provide for very specific interpretation methods, such as lex posterior derogat legi priori, lex specialis derogat legi generali, etc. ‘Sharia’ and ‘custom’ Although the PSC does not contain a general article referring to additional sources of law, it does make reference to ‘sharia’ and ‘custom’ in some specific provisions. The most relevant example is Article 23 PSC, which describes the rights and duties of the spouses within marriage. This article states that the spouses should fulfil their marital duties in accordance with custom (al-‘urf wa-l-‘ada). Besides, Article 5 PSC lays out that a marriage should not be contracted in violation of the mawani‘ shar‘iyya, which, as we have seen above, can be translated as ‘sharia impediments’ or ‘legal impediments’. Besides the PSC, the former constitution (which was in force during the practices observed for this study) seems to indicate that ‘sharia’ may be used as a source of interpretation. Although it does not provide that ‘the principles of the sharia are the principal source of law’ (as does, for instance, the current version of the Egyptian constitution), and although it indeed contains no explicit reference whatsoever to the ‘sharia’, the preamble states the wish to remain truthful to Islam, Article 1 provides that Islam is Tunisia’s religion and Article 38 mandates that the president must be a Muslim. This may indicate that the ‘sharia’ is a source of law, because if the Republic indeed wishes to remain truthful to Islam, it is only logical that at least in cases of lacunae, Islamic law be applied. With regard to the Civil Code, it is important to note that this does not mention ‘sharia’ as a source of interpretation. Moreover, it

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states explicitly that ‘custom’ cannot prevail over formal legislation (Article 543 CC). At the same time, however, it should be noted that Article 532 asserts that ‘[t]he law cannot be attributed another sense than the one resulting from its expression, grammatical order, usual significance and the intention of the legislature’. As ‘the intention of the legislature’ is a very vague term, it might leave room for judges to apply ‘sharia’: indeed, if it is the intention of the legislature to act in accordance with ‘sharia’ (see below), then its use as an additional source of law seems to be in accordance with Article 532 CC.

IV: Ambivalence According to Sana Ben Achour, the ambivalent attitude of the government causes judges to feel insecure concerning the question of how they should apply the law and what sources they should employ. The ambivalence concerns two issues: the role of ‘sharia’ in the Tunisian legal order (can ‘sharia’ function as an additional source of law?) and the state’s commitment to enhancing women’s rights (should all laws be interpreted in accordance with this intention?). It is important to note that if clarity is reached on one of these issues, this is no guarantee that the other issue is also clarified: if the state is clear that ‘sharia’ is the fundamental source of law and that no law can be interpreted in contradiction with this source, it cannot be concluded that, as a consequence, the state’s position vis-à-vis women’s rights is also clear: for some, ‘sharia’ is the source of women’s rights, while for others, ‘sharia feminism’ is a contradiction in terms. Sharia In political declarations concerning the PSC, the government has repeatedly denied any break with the past.151 On the day of the PSC’s promulgation, the Minister of Justice, Ahmed Mestiri, affirmed that the code met with the approval of the religious jurists, because it was based on ‘pure sources’. Also, Mestiri stressed that the code was based on the 1947 Code Jaït, a compilation of Hanafi and Maliki law which, however, never had the force of law.152 After the promulgation

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of the PSC, the Secretary of State wrote in a communiqué that the code was inspired by Islamic law and that the new provisions were issued without going against Islamic precepts.153 The promulgation was followed by a campaign on radio and television in which President Bourguiba underlined that the law did not constitute a rupture with Islam.154 A decade after the promulgation of the PSC, Bourguiba stated that all developments had been accomplished ‘in accordance with the teachings of the Holy Book’.155 In the same period, Mestiri pointed out that ‘[t]he Tunisian legislature had been directly inspired by Islamic precepts as enounced by the Quran, the hadiths and the fiqh, following a new conception of ijtihad’.156 Specifically with regard to the abolition of polygamy, the government stressed that this was legitimized by some ‘ulama’ and Quranic exegesis (tafsir) when the Ministry of Justice declared that: We followed the advice of some ‘ulama’ with regard to polygamy, as well as some exegeses on the Saint Verse: these concluded that polygamy is prohibited, both in the light of the sheer impossibility of realizing equity between female spouses in practice ... and [in the light of] the harm in our days that is caused by this practice, namely the jealousy that has pushed a woman whose husband married a second time to kill her rival.157 Under Ben Ali, the continuity between the law and ‘sharia’ was again underlined. The National Pact (al-mithaq al-watani, 1989) stated: The reforms that intend to free and emancipate women are in conformity with very old aspirations in our country based on a firm rule of ijtihad and on the goals of sharia and in this sense, they form the proof for the vitality of Islam and its openness to the demands of time and evolution.158 This was repeated in Ben Ali’s speech on National Women’s Day which was also the 50th anniversary of the PSC (13 August 2006), when he stressed that the PSC had been the result of ijtihad.159 According to Saida Chaouachi, the increased religious reference in

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political discourses during Ben Ali’s regime was related to the fact that the state did not have the same legitimacy as it did directly after independence.160 However this may be, Sana Ben Achour argues that political statements that present the PSC as the fruit of ijtihad (the interpretation of the sources of Islam) are problematic for judges. She argues that if the government declares ‘sharia’ is a source of the law, it is only logical that judges perceive that they should interpret the legislation in accordance with (their perception of) this normative order. If on the other hand the government clarified the ‘secular’ character of the law, ruling out any relation with ‘sharia’, judges could be certain that ‘sharia’ had no role whatever in the Tunisian normative order. The ambivalence with regard to the role of ‘sharia’ in the Tunisian legal system is not only due to declarations on the relationship between the PSC and ‘sharia’, but also to a number of legislative measures issued over the years which reflect ambivalence with respect to the government’s intentions on the role of sharia in the political and legal system. While the legislature issued a range of provisions delimiting the role of religion in the political and public sphere, other measures seem to have enhanced the overlap between the state and religion. Legislation that delimited the role of religion were mostly issued directly after independence, when Bourguiba abolished the habus (or waqf, religious endowment),161 nationalized Zaituna (a mosque and university where the ‘ulama’ and thus the future imams were trained) by including it as the faculty of theology in the ‘secular’ Sadiqi College,162 nationalized the kuttab (Quranic schools)163 and decreed that copies of the Quran could only be printed or imported with the authorization of the Prime Minister.164 Under Ben Ali, a law was issued (the ‘Mosque Law’) which increased state control of mosques,165 and in 2003 an anti-terrorist law was issued that then formed the basis for a range of measures against alleged ‘extremists’ (and other political opponents).166 The most controversial examples, however, are three circulaires: one (issued in 1981) prohibiting the wearing of ‘sectarian outfits’, one (of 1986) prohibiting ‘extremist clothing’ for people working in educational institutions167 and one from 2001 that prohibits ‘extremist clothing’ for students.168 Whereas this range of legislation might justify describing Tunisia as a ‘secular state’, a number of other measures seem to point in

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the opposite direction. For example, the instalment of a Ministry of Religious Affairs, a State Mufti and a High Islamic Council (all during Bourguiba’s presidency) does not seem appropriate for a ‘secular state’. Also, the aforementioned National Pact seems to contradict the ‘secular’ character of the Republic, in that it presented Islam as the basis of Tunisian identity, a response to the fact that in 1988, some actors called in a petition for a greater presence of Islam in legislation.169 Moreover, the state introduced a religious radio channel (Radio Zaitouna) and television channel (Hannibal TV), as well as an Islamic bank (Zaitouna); all these developments took place during Ben Ali’s regime.170 As a consequence, it is unclear to what extent Tunisia is or is not a ‘secular’ republic. According to Sana Ben Achour, this causes insecurity with judges, because, she argues, if Tunisia were a straightforward ‘secular’ republic, judges would understand clearly that ‘sharia’ has no place in the interpretation of legislation. This ambivalence with respect to the role of ‘sharia’ in the political and legal system is connected to the government’s search for legitimacy. It has been argued that those instances where the division between religion and state is blurred are the result of an instrumentalization of Islam to gain such legitimacy. But there are other reasons: first, Geisser and Gobe argue that measures such as religious television channels aim to introduce an islam du juste milieu, which in turn aims at countering extreme forms of Islam.171 And second, measures such as the instalment of a ministry of religious affairs, and controlling Quranic books, Quranic schools, the religious university and mosques, serves to bring religious activities under direct state control.172 In past years, this ambivalence was symbolized by the state’s position on the wearing of the hijab.173 Prohibited since 1981 as a ‘sectarian outfit’, Ben Ali’s regime fiercely repressed all Islamic dress in the years 1990–92.174 But since 2000, Tunisia has been witnessing a rapid increase in the visibility of the hijab:175 even university professors wear it as well as one of the judges in the CFI Tunis. But it goes further: in Bab el-Khadra, a popular neighbourhood in central Tunis where I lived in 2008–09, several men had beards and were wearing the jilab, and women wore the hijab, a niqab and some even covered

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their eyes. These are signs that the government did not always uphold the law,176 even if it repeatedly showed its ‘hijabophobia’ in official discourses. Feminism Although Sana Ben Achour only mentions ambivalence on the role of ‘sharia’ as a source of insecurity for judges, the same may be said of the political position with respect to the enhancement of women’s rights. On the one hand, the Tunisian legislature issued a number of laws to accentuate its adherence to women’s rights, which might make judges confident that, in the event of encountering a lacuna in the PSC, the intention of the legislature is to enhance women’s rights. But at the same time, the government repeatedly refrained from taking the enhancement of women’s rights a step further, which, according to Sana Ben Achour, is again an issue of political legitimacy: the government wants to present itself as ‘feminist’, but too much feminism might harm political legitimacy.177 As a result, the government strongly defends so-called ‘state feminism’, leading to the severe oppression of every faction who wishes either to delimit or to expand existing feminist measures. Although the PSC is probably the most widely-known achievement of Tunisia’s ‘feminist’ politics, there are a number of other laws that have brought about an enhancement of women’s rights in Tunisia.178 For example, the 1957 election code granted women active voting rights (passive voting rights followed in 1969),179 a change in inheritance law was issued in 1959 to the benefit of women180 and in 1966 a Labour Code was issued that guaranteed women ‘equality in chances and treatment in matters of work and profession’.181 A programme of family planning was introduced, legalizing the import of condoms (1961)182 and abortion183 (1965,184 amended in 1973). In 1980, a decree was issued underlining that everyone has a right to education, without distinction between the sexes.185 In 1986, Tunisia ratified CEDAW, and the provision that adultery was only punishable for women was abrogated.186 After Ben Ali had come to power, a change in the labour law underlined the principle of non-discrimination between men and

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women (1992).187 A research centre for women’s affairs (CREDIF) was established,188 as well as a commission to evaluate the PSC; some of its proposals were turned into law in 1993, such as the abolition of the wife’s obligation to obedience (Article 23 PSC).189 The office of secretary of state (later transformed into a ministry) was established to deal with issues concerning women and the family,190 a fund was created to secure payment of maintenance after divorce191 and the provision that a crime passionnel received significantly less punishment than other murder cases (Article 207 of the old CP) was abolished.192 Likewise, a provision was issued that decreed that a Tunisian mother married to a foreigner could pass Tunisian nationality to her child, albeit with her husband’s consent.193 A law regulating the optional community of goods within marriage was issued in 1998,194 and the provision that women need their husband’s consent to sign a labour contract was abrogated in 2000.195 In 2004, sexual harassment was made punishable,196 in 2007 the minimum marriage age was set at 18 for both boys and girls197 and since 2008 the mother who has custody over her children can stay in the marital home after divorce.198 For some factions in society the féminisme d’état went too far, while for others it did not go far enough: it met with some resistance from both sides.199 A ‘political feminism’ emerged, that ‘confronted the political powers with an autonomous view on feminism’.200 For example, the Mouvement de Tendance Islamiste (later Ennahda) called for reform of the PSC (1977),201 and eight years later they called for a referendum on the PSC and the reintroduction of polygamy, arguing that the PSC had led to huge problems within Tunisian families and to divorce rates climbing from 4,000 to 6,000 to 12,000 per year.202 On the other side of the spectrum contestations of state feminism were organized by the Ligue Tunisienne des Droits de l’Homme (LTDH)203 and the women’s rights organization Femmes Démocrates.204 These factions formulated their critique of government policies in terms of human and women’s rights. Also, some ad hoc and more structured women’s and feminist think-tanks emerged, such as the Club d’Étude de la Condition de la Femme du Club Culturel Tahar al Haddad (1978–84), the Festival de Tabarka (summer 1979), the Commission Syndicale Femmes (part of the labour union UGTT, 1981), the women’s rights

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commission within the LTDH (1985)205 and the Collectif Maghreb Égalité (1995).206 The ATFD called for the abolition of the reservations to CEDAW and CRC,207 pointed to the lacunae in the PSC208 and argued for the introduction of an effective system of a community of goods within marriage.209 Finally, a special commission was set up in October 1999, to campaign for equal inheritance rights.210 Despite these contestations, the government cautiously protected its feminist politics, in the sense that it carefully delimited how far feminism should and could go.211 Although the Femmes Démocrates (now Association Tunisienne des Femmes Démocrates, ATFD)212 and AFTURD (Association des Femmes Tunisiennes pour la Recherche et la Documentation) had been legalized in 1989, they were continuously oppressed. The regimes of both Bourguiba and Ben Ali censored the press and academia, and put forward state-approved notions of feminism in the press, on television and at academic conferences. The official institutions dealing with gender equality, such as the Ministry for Women and the Family, the Commission nationale femme et développement (1991), the Conseil national de la femme et de la famille (1992)213 and the state’s official women’s rights organization UNFT214 only addressed topics that were not considered taboo and that promoted the state’s version of feminism. At conferences on women’s rights organized by official institutions, cautiously pre-selected officials talked about the Tunisian situation within the limits set by the government. Similarly, at an international conference in the Gammarth suburb of Tunis on personal status law in the Maghreb (June 2009), organized by the UNFT and headed by Soukaina Bouraoui, Tunisian judges underlined the provisions for gender equality in Tunisian personal status law, clearly evading critical questions from the audience.215 When the conference was divided into working groups, I addressed the possibility that in practice, access to divorce is effectively not equal for men and women; but one of the Tunisian judges I knew from court crudely told me to remain quiet. In the same vein, the press only addressed those topics that were not politically declared ‘taboo’, and articles and television programmes that addressed the gaps in the féminisme d’état were censored. For example, the independent magazine al-nisa’ (Women, 1984), which acted as a forum for feminist critique,216 disappeared after

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eight issues treating topics such as women’s oppression, rape, bayt al-ta‘a (‘house of obedience’)217 and domestic violence.218 Likewise, conferences that addressed the limits of the féminisme d’état were censored and anyone wishing to address other topics than the ones fitting within state feminism was banned from these gatherings. For example, at the conference organized to celebrate 50 years of the personal status code (also held in 2009), al-Annabi, a lawyer and son of one of the drafters of the PSC, was invited to give a lecture. When he declared that he intended to mention that over 50 per cent of Tunisian marriages end in divorce, he was told that he was not welcome. When I attended a seminar on the rights of illegitimate children organized by Association Amel, policemen came to ask what we were doing and which topics would be addressed; they also wished to obtain a list of the names of all people who attended the conference.219 Here I exchanged contact details with a lawyer who specializes in family law, who had mentioned some court decisions in her talk that were interesting for my study. The first time I called her, she told me to call her back the next day, and after this brief telephone call, she never again accepted my calls – possibly to prevent repercussions that any contact with a foreign researcher might have. This is understandable in light of the fact that until 14 January 2011, the president of the ATFD, Sana Ben Achour, was constantly under surveillance, as was another member of the same organization, the lawyer Bouchra Bel Haj Hamida. Fear of providing too much information also seemed to influence government officials’ discourses (I come back to this topic, with regard to judges, below). In an interview with the head of Association Beity, the home for pregnant single mothers and their newborn children in Gafsa, I asked how many of these pregnancies were the result of rape. ‘None,’ he replied, following the official discourse that rape does not occur in Tunisia.220

V: Female judges and the ‘emancipative potential of the law’ Sana Ben Achour has stated that in the light of the ambivalence signalled by the government, female judges took a stance: they applied the law in a gender-neutral way, as evidenced by the decisions of 1999

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and 2000 in the field of mixed marriage.221 In this section, I will elaborate on this statement. Women have not always been able to be judges in Tunisia; this has only been the case since the judicial year 1967–68. Elise Hélin, who examined the feminization of the Tunisian judiciary in the 1990s, found that female law-students in Tunisia are tempted to become judges because they can combine their professional duties with ‘taking care of their family’: court sessions mostly take place in the morning, leaving the afternoon for work from home which can be combined, according to these students, with childminding (this advantage was confirmed by one of the two family fudges at the CFI Tunis).222 As a result, by 2005, 28 per cent of Tunisian judges were women. Of the judges dealing with personal status cases at the CFI Tunis, almost all were women: both Family Chambers were women-only, the family judge for endangered children was a woman, as were six out of eight reconciliation judges. However, this is not true for the whole of Tunisia: in the four other CFIs I visited (Sousse, Sfax, Gafsa and Le Kef) only one family judge was a woman (in Sousse). As stated in the introduction, there is debate and disagreement in the literature about whether female judges do indeed judge in a different way, and if so, why: because of their sex (the mere fact that they have the biological features of a woman), because of their gender (meaning that they are the fruit of the social construct of ‘women’), or because of them being (or not) ‘feminist’? Sana Ben Achour presumes that female judges judge in a ‘feminist’ way, meaning that for this author, the fact that their sex is female implies they are feminists. Ben Achour does not explain why this would be the case, which Carol Gilligan does, arguing that women have ‘an ethic of care’. The two principal actors in this study, the family judges at the CFI Tunis, cannot, at least from an ethnomethodological viewpoint, be called ‘feminists’, as they did not define themselves as such. Moreover, neither one of them ever indicated that they were particularly concerned with women’s rights. However, one of them did point out that women adjudicate in a more ‘human’ way. This is an interesting remark, as in this way, this judge acknowledged the difference between male and female judges, using sex as a demarcation line.223 It is also interesting

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because it is entirely gender-neutral: the judge did not say ‘womenfriendly’ but ‘human’. From other statements from the judges I deduce that for them, neither of the sexes need particular protection from judges when adult, but children do: both of them stressed repeatedly that children are the weakest party, especially in divorce cases, suffering from their parents’ mistakes, and the judge should protect them against their parents, be it their mother or their father.224 But even if the judges did not point out that they were feminist, nor indicated in any other way that they cared particularly for women, they may of course judge in a gender-neutral way – indeed, judging neutrally with respect to the sex of the litigants is not necessarily to the benefit of women. For example, if women are granted as little maintenance after divorce as men, this is gender-neutral, but it does not necessarily reflect ‘an ethic of care’ with regard to female litigants. To recapitulate: for the main actors in this study, it is clear that women judge in a different way than men, not because they care more about female litigants, but because they are more human. What is important for them is the protection of the children. I think it would be interesting in this respect to relate some more about these particular judges, to give them a ‘face’ and a history. I do not intend to imply that the judges’ background is a decisive factor in their decision-making, which would be in line with the convictions of the CLS movement – this could only be concluded if the judges pointed this out themselves. This paragraph merely serves as an ethnographic observation of particular human beings, allowing the reader to ‘know’ and ‘feel’ the material and the actors described in this study. In the following, I’ll describe their childhood, their way of life, their characters. Also, I will try to characterize them with the use of Bourdieu’s habitus analysis, to understand to which social class these judges belong, as well as an adapted version of Heinrich Schäfer’s praxeological square, asking them four questions: ‘What grievances are important for you at this moment?’, ‘What do you think is its cause?’, ‘Can you tell me about your hopes, what positive experiences you would like to have?’ and, ‘What would you like to happen for the future?’225 Although this is intended to apply to religious movements, these questions may also generate answers that gives an indication of individuals’ religious

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‘belonging’, or the extent to which ‘religion’ plays an important role for them. However, the judges’ answers turned out to be informative on a much larger scale that their ‘religiosity’, confirming the image I had of them and making this image more understandable; moreover, it enables me to locate these judges in the society of the Tunisian capital under the regime of Ben Ali.

Judge One The judge, who had been in her position as a family judge for 14 years, had an approach that could be described as ‘informal’. This was reflected in her behaviour towards me, as she would give me permissions that I officially did not have, such as attending court hearings (specifically exempted from my authorization by the president of the court), copying an entire case file and attending deliberations of her chamber (which is supposed to take place behind closed doors). Also, when I showed interest in knowing more about her personally (her social background, her interests, etc.; see below), she invited me to her home, and told me that I could ask her anything I wanted as she did ‘not have any secrets’. She described herself as being very ‘social’. She was always warm and motherly, and she liked to talk about personal matters with me. Feeling that our ways of life were considerable different, I was reluctant to tell her much about myself at first. But gradually I felt more comfortable because she was never judgemental towards me. She would give me advice, saying that I should not marry too soon, like she had done, as in this way, I would ‘throw away the good years that people can have together as a couple’, without children. In some instances, she even asked me my personal opinion on a specific case, and I felt free to tell her that I did not agree with her. She would listen to me and explain to me why she would nevertheless stick to her decision. Her informal attitude was also reflected in her behaviour during reconciliation sessions. Sessions were constantly interrupted by people phoning her or walking in, which she allowed to happen. Her son, a lawyer, would often be in the office while the reconciliation sessions took place, and sometimes she would even talk on two phones at the same time while the couple in front of her was in the middle of a story.

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People who walked in would often ask her for a favour, and I have wondered whether she accepted these requests and in that way, received favours in exchange for certain decisions. Some litigants seemed to consider the fact that she was talking on the phone during their sometimes quite painful stories ‘inappropriate’. But I had the feeling that others appreciated her informal attitude, which put them at ease. This judge came from a very rich family, according to her the richest in Tunisia after independence (to corroborate this, she told me that her father was the first Tunisian to own a car). Her father had been a governor and her mother took care of the children – she had seven sisters and three brothers. All her brothers and sisters were well-educated people: her brothers were a diplomat, a medical doctor and a businessman, and her sisters became journalists, librarians, or language teachers, and one of them graduated from art school. She described her father as ‘strict’: she was not allowed to go to the movies, to the library or to the school’s canteen, and she was not allowed to have friends outside school, not even female friends. Her father brought her to school and picked her up by car, and at a certain point even rented a house next to the school to watch her. When her present husband asked for her hand, the first thing her father asked was: ‘Have you two met?’ If the answer was yes, he would have declined the offer, as she was not allowed to meet men. Thus, she got married before she even met her future husband, while she was only 18 years old. She told me that she had married ‘below her social class’, in the sense that her husband was not from a wealthy background. Her parents had been eager to marry off all their daughters, which is why they had accepted his offer while other daughters married diplomats and the like. As a consequence, life changed significantly for this judge upon marriage: when she was a child, they had always had servants, and she had never even bought bread, but once married, they could not afford to live like this any longer. However, she underlined that even if her colleagues (some of whom were married to rather wealthy men) lived in expensive villas, she did not care about such things. But she did get to keep the way of life she was used to to a certain extent: she lived in a rather chic house in a good neighbourhood (Menzah VI), where she was helped by two bonnes. As her husband had French nationality, she could send

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her sons to university in France, and spend every summer there with her husband’s family. With Bourdieu’s habitus analysis in mind, I would classify this judge as belonging to the bourgeoisie, or, in the Tunisian context, someone belonging to the financial (as opposed to the intellectual) elite. She described herself as ‘conservative’, which in my mind was indeed reflected by some opinions and interests of hers. When I asked her once whether she liked to read, she told me, ‘Oh, I adore reading!’ I asked what she would read, and she replied: ‘I read the Quran over and over again, it is so beautiful!’ Also, she once told me a story about her sisterin-law, who is of Japanese origin and who lived with her for a number of years, when the children were small. She told me enthusiastically that this woman had converted to Islam and when I asked her to what this woman had belonged before coming to Tunisia, the judge said: ‘She did not have a religion.’ I thought that the judge meant that the woman had been an atheist, but it turned out that the judge meant that she had been brought up a Buddhist, adding: ‘And that is not a religion.’ In response to my questions based on Schäfer’s praxeological square, she referred consistently to the interests of her children in all answers (she had three sons between the age of 14 and 28). Her biggest hope was that they would be successful, and her biggest fear was that something would happen to them. For me this underlined her motherly character, but it also confirmed that she belonged to a specific part of the Tunisian bourgeoisie, a part that is described in Beatrice Hibou’s dissertation on the power of obedience.226 For many people who belonged to the (upper-) middle class, the proper response to authoritarianism was not to criticize the government, nor try to change anything on the macro level, but to make sure that their family had everything they needed: a good job, a big house, a nice car, a good income. In the Tunisian context, attaining these goods would often involve corruption and bribery practices. In understanding this attitude, it should be remembered that people who tried to change anything and who acted against the regime found life difficult, not only for themselves, but also for their families. If you wanted the ‘good life’, you would have to accept that this involved keeping distance from the government, and possibly patronage and bribery. Moreover, judges did not earn that

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much money and it was hard work, and in this way her attitude in life may simply be called pragmatic. Her pragmatic attitude was also reflected by her response to the 2011 ‘revolution’, when I called her to ask how she was doing. She did not say anything about whether or not she was happy that Ben Ali had left; she did not say anything about the political situation. Instead, she stressed that in her neighbourhood, meaning: in her direct surroundings everything was calm.

Judge Two The other Family Judge had been appointed only a few months before I started my fieldwork. She clearly had a more formal and even rigorous approach to her work as a judge: she would not allow anyone to disturb the reconciliation sessions, and would be angry if someone dared to knock on the door of her office while she was presiding these. Once, her six-year-old son called her from home, where he was on his own as there was no school, and she yelled at him: ‘Don’t you know I’m working? You can never call me while I’m at work!’ This rigid and formal personality was remarked upon by other people too: both the other judge and the president of the court underlined that she was a good judge, even if she may seem somewhat cold and rigid. One of the family lawyers once told me that she had been positively surprised by this judge’s attitude towards lawyers and litigants during the court hearing, which she described as ‘correct’. Also, I have never seen anyone asking her for a favour and I cannot imagine her granting one to anyone. She was very ‘correct’ in her dealing with me as a researcher too, in the sense that she was cautious not to do or say anything contrary to the rules. She would not allow me to attend the court hearings, and when I asked for an interview to know more about her personal background, she was very suspicious. She insisted on asking permission of the president of the court, who told her what kind of questions she could and could not answer. She was rather distant towards me, but not unkind. This judge, also from a large family with five brothers and five sisters, described her background as ‘very modest’. Her father had been a simple public official and her mother was at home with the children. She was the youngest, and according to her own perception, had always

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acted as a lawyer or an arbitrator in her family, even as a child. Her father, who had wanted her to go to law school, died when she was 15, and her mother remained single. Her mother had given her some important life lessons, she said, mentioning as examples that patience pays off (tusbur tnal) and that one should be happy with what one has instead of looking at others. She described herself as a hermit as she did not go out a lot and did not see many people. This was also due to the fact that she was raising three boys between the ages of six and 13 on her own, without the help of a bonne and of her husband, as at the time, the latter was working in Syria for Tunisair. It was a hard life, and she said: ‘I know what it is to be a mother and sacrifice for one’s children.’ She also described herself as loyal: she did not have many friends, but the friends that she did have could count on her and had been in her life ever since childhood. With Bourdieu’s habitus analysis in mind I’d classify this judge as someone from a lower-class background who managed through education to become part of the bourgeoisie. She was clearly a devout Muslim: I do not know if she prayed five times a day, but she had undertaken the hajj with her husband and children. She had lived with her husband in Germany for three years, which had been difficult as she was far from her family, but it had taught her a lot, she said; it had given her life experience. She lived in a rather modest apartment for a family of five, in a new, middle-class but relatively expensive neighbourhood, Hayy Ennasr. In response to my questions based on Schäfer’s praxeological square, she referred consistently to the poverty rate in Tunisian society, repeating that for her this was the worst problem of this time in Tunisia. To illustrate this, she would point outwards (we were sitting on her balcony) all the time, as if pointing to a poor neighbourhood. This confirmed my feeling that she formed part of the Tunisian bourgeoisie, in responding to the regime’s immorality in a different manner than the group described above: people like this judge had turned towards religion and morality, giving every beggar a penny, wishing a good life for everyone, continuously underlining that she was thankful to God that he had given her this life and that she would want this for everyone. When I called her right after the ‘revolution’ to ask her how

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she was doing, she said: ‘The country is in chaos, but it simply had to happen, this government had to go.’ Personality and decision-making That the first judge had an informal approach may have been influenced by her years of experience, her age (she was about ten years older than the other judge), her financial background and I see a connection with her pragmatic attitude towards the regime. She was not judgemental towards the litigants and did not moralize at them. She once told me: ‘I do not judge people.’ When I asked her why, she said that with 14 years experience she was not easily shocked, and that she could ‘see through everything’. Also, her informal approach meant that she did not always apply the letter of the law. According to her, using one’s personal judgement and discretion was one of the tasks of a family judge, who should not always apply the law, as ‘[e]quity takes precedence over the law’. That the second judge had a formal and ‘correct’ approach may have been influenced by her lack of experience as a family judge, her social background and again, her concern for the public good. Her rigidity was sometimes translated in a moral and judgemental attitude, towards the litigants and sometimes even towards me. She said that it was difficult to be a family judge, for example to see that some women simply could not take care of their children, which made her very sad. As a penal judge she had been much less sad, she said, because ‘I punished those who needed punishment’. As a family judge, her goal was to reconcile, and it was only when she was able to do this that she felt that she had accomplished something important which could make her happy. It is possible that what I call the informal and the formal attitude of these judges was reflected in how the reconciliation sessions proceeded. However, as pointed out before, the differences were not necessarily reflected in the final decisions as here, the judges had to deal with their colleagues in their chambers (a total of three judges per Family Chamber).

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CHAPTER 2 A DESCR IPTION OF DIVORCE PROCEDUR E

I: Judicial competence The constitution of 1957 provides a basis for the attribution of adjudicative powers, further developed by Law 67–29 of 14 July 1967 with regard to judicial organization, the Superior Council and the status of the judiciary, amended significantly in 2005. Adjudicative powers are vested in the Cantonal Courts, Courts of First Instance, Courts of Appeal and a Court of Cassation. Special courts are the Administrative Court and a Real Estate Court, and three military courts.1 A High Court is established in cases of high treason (Article 68 Constitution). The Security Court was declared unconstitutional in 1985.2 I limit my description to those fields of law that form the subject of this study: divorce and related issues. The Cantonal Courts are competent in conflicts over maintenance, as well as in adoption cases and in drawing up a list of heirs. The penal judge at the Cantonal Court decides in cases of unmarried cohabitation and polygamy. CFIs are competent in cases concerning marriage, divorce, and paternity, and also in appeals against a decision of the Cantonal Court. The penal divisions of the CFIs are competent in cases of adultery and of sexual relations with a minor. In 1993, a special Family and Children Division was set up in each CFI3 consisting of the following: a family judge, a special family judge for endangered children and a children’s judge for

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cases where minors are suspected of a crime, in addition to two special public prosecutors, one for family matters (non-payment of maintenance or domestic violence) and the other for minor suspects. The family judge presides in the Family Chamber (three members in total) that is competent in cases concerning divorce and paternity. He/she also presides in reconciliation sessions in divorce cases. In larger CFIs – such as the one in Tunis – there are two family chambers, and the family judges are assisted by other judges who preside in reconciliation sessions as well. These are selected by the president of the court from the vice-presidents of the other chambers, such as the Civil Chamber. The family judge is also competent to revise the provisional measures taken at the reconciliation session, and to decide as a single judge in the event of an appeal against a maintenance decision issued by the Cantonal Court. The special family judge for endangered children applies the civil part of the 1995 law for the protection of children,4 which concern custody. He/she sits as a single judge, assisted by a representative of the Child Protection Brigade and a clerk. Judicial independence In his article on the conditions for an anthropology of law in the Arab world, Bernard Botiveau underlines that it should be kept in mind that the judiciary in the region is very close to the government, meaning that judges are not independent.5 This is true for Tunisia, where Eric Gobe writes that: ‘Justice in Tunisia is intensely put into service to assure the continuity and the reproduction of the authoritarian regime, [and] judges are the key actors of the institution of repression.’6 Regardless of this fact, Article 65 of the previous constitution provided that the judiciary is independent, and Article 23 of the Law concerning the judiciary (the status of this law is currently not certain, and several powers are debating on who is to write the new version of this law in order to guarantee judicial independence) states: ‘Judges should adjudicate with impartiality, without any considerations for persons or interests.’ But especially after the ‘revolution’, it turned out that it had always been common knowledge that the judiciary was not independent at all.

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That judges were not independent from the government was not only simply a matter of practice: it was clearly institutionalized in the law concerning the judiciary. This provided that the body that decided on the sanctioning of a judge formed part of the government, and that the sanction structures (varying from criminal prosecution to transfer, disciplinary action and even discharge) were imposed by a special organ, the Conseil Supérieur de la Magistrature (CSM),7 which was headed by the President of the Republic, the Minister of Justice and the President of the Court of Cassation8 (after the ‘revolution’, the members of the CSM have been replaced). Moreover, the possibility of an appeal against a transfer decision was significantly curtailed in 2005,9 and the body which decided on the appeal formed part of the body which imposed the sanction (the CSM)10 while in some cases, the President of the Republic was competent to decide in an appeal.11 That Tunisian judges were not independent was confirmed on a number of occasions. For example, when the measures intensifying the government’s control over the judiciary (issued in 2005) were contested by the (independent) Association of Tunisian Judges (Association des magistrats tunisiens, AMT), the organization was immediately abolished.12 Similarly, when the leftist politician Hamma Hammami was about to publish a report on the so-called independence of the Tunisian judiciary, his office was set on fire, destroying the manuscript.13 The instrumentalization of the Tunisian judiciary could take many different forms.14 The judiciary could be utilized to punish someone for politically unacceptable behaviour, as was the case in the Ben Brik affair.15 Taoufik Ben Brik, a journalist who was critical of the Ben Ali regime, provokingly presented himself as a candidate for the presidential elections in 2009. Soon afterwards, when he came to pick up his daughter from school, his car was blocked by a female police officer in plain clothes. When she stepped out of the car, she tried to provoke him and shouted that he hit her. She filed a complaint for harassment, and Ben Brik was sentenced to six months in prison, confirmed by the Court of Appeal. As this case demonstrates, political convictions usually take place on the penal level. But the instrumentalization of the judiciary could also affect personal status law, for example if a politically influential person was involved in a personal status case

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and the judge issued a decision that was contrary to the law, to the benefit of the influential figure. I have never witnessed anything like this happening, but once I had the opportunity to observe traces of it. In this case, where the wife of a minister filed for divorce, I observed the reconciliation session. The couple had been living separately for 15 years, and the wife had always stayed in the marital home, with their now 40-year-old, mentally-ill daughter. The husband failed to attend the reconciliation session that I observed, where the wife, in tears, told the judge that the husband had recently sold the marital home. The judge told her that this was illegal, as the law provides that she can live there after divorce, and expressed her surprise that the woman’s lawyer had not pointed this out.16 The judge called the lawyer to her office, and asked the woman and me to step outside. This was the only time that the judge asked me to leave her alone with a lawyer, and this might have been because they wanted to discuss something that was illegal.17 Another way in which judicial decision-making may have been influenced by the fact that judges are not independent concerns cases where one of the lawyers representing the litigants in a personal status case was politically active. This was for example the case in an affair concerning a French-Tunisian girl who was kept in Tunisia against her will (see Chapter 10). The girl and her mother were represented by a famous lawyer and human rights activist, Radhia Nasraoui, which may have influenced the decision – possibly, judges were reluctant to have this woman win a case, as it would raise the suspicion that they were on the same side. And finally, a fourth way in which the fact that the judiciary is not independent from the government may influence judicial decisionmaking concerns the extent to which judges are inclined to deviate from official discourses, the féminisme d’état. The most famous example of this concerns Mokhtar Yahyaoui, a former family judge at the CFI Tunis. This judge openly denounced the instrumentalization by the government of feminism and the Tunisian PSC as a mere matter of propaganda, and was dismissed (he has since been restored after the ‘revolution’).18 However, this does not necessarily mean that judges applying the law in a way that does not fit within state feminism

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would be dismissed as well. Indeed, as the official discourse is ambivalent, it is difficult to discern if a judge deviates from it. Corruption Among colleagues who study judicial practice in the region, there is a lively discussion going on about whether our findings actually reflect ‘what is really happening’. The reason for this doubt is that a large part of the practice may occur behind the scene, and most practices may not be informed by understandings of the norms at all, but simply by the amount of money that is being paid or the promises that are made. I interviewed one litigant who accused the court of corruption. She had filed a case of divorce for harm on the grounds of domestic violence, which she had proven with a medical certificate and a p.-v. from the police. These documents had been put into her file. One day during the divorce proceedings, she ran into her husband’s lawyer near the court, and found out that he was having lunch with one of the clerks. The woman was convinced that the lawyer had invited the clerk to have lunch in exchange for a favour, namely to make the evidence of the violence disappear from the file. However, I cannot verify whether this really happened. Indeed, her petition was rejected, but as shall be demonstrated in Chapter 5, a medical certificate and a police p.-v. are insufficient to obtain divorce for harm; the wife needs a penal conviction. In another case, I witnessed a clear rejection of a perceived attempt to pay the judge: in a case before the Family Judge for endangered children, the mother, who wished to obtain custody, told her child to give the judge a present, and the child gave her a purse full of candies. The judge joked that this was an attempt at bribery and refused to accept it. Nevertheless, this reaction might, of course, have been informed by my presence. That I never witnessed handing over money does not mean it did not happen. I heard from several people that the exchange does not take place in court, as there is nevertheless some sort of code of conduct according to which corruption is ‘wrong’. Therefore, judges meet lawyers or litigants in a café, where the deal is closed. Also, ‘corruption’ may take other forms than handing over money. I witnessed a

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reconciliation judge asking a litigant for a favour twice. In the first case, the woman who filed for divorce was working at a telephone company. As the judge was having trouble with her mobile phone, she asked the woman if she could call her to help her out. In another case, the man was a gardener. The judge told him about her lemon tree, and the man offered to come and take a look. The judge said something like ‘a favour for a favour’, and they smiled. I do not know whether the exchange really influenced the outcome of the case. Although I did not observe corruption, I did witness a range of attempts to exercise patronage, in the sense that judges were visited or called up by friends, or friends of friends, or family, who had a favour to ask. ‘Could the judge make sure that ... ?’ was an often repeated question. Favours could vary from asking the judge to talk to the judge who handled their case, but some might have been rather decisive for the case’s outcome – if the judge had acted upon these requests. The judges did not seem to have any problem with this type of request, but I do not have information on the results of such attempts (e.g. whether the judge’s interference was decisive for the outcome of the case).

II: Observations of divorce procedure In the following, I will focus on what I observed during my fieldwork instead of what is written in the law. The decisions and the reconciliation sessions I observed show that there are three routes to divorce: by mutual consent; on the grounds of harm inflicted by one of the spouses; and divorce without grounds.19 As marriages are valid only if they have been registered in accordance with the Code of Civil Status (involving registration of the marriage on the spouses’ birth certificates),20 a marriage can only be nullified in the courts21 (involving a summons to a civil servant to register the divorce in the registers and on the two birth certificates).22 The reasons why a plaintiff chooses a particular type of divorce can be deduced from the judicial practices described in the next chapters and will not be treated here. A standard case of divorce, as witnessed in reconciliation sessions and court decisions, proceeds as follows. The plaintiff or his/her lawyer

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(in divorce cases court representation is not required)23 files a petition for divorce to the CFI,24 and the court clerk fixes a date for the first reconciliation session (jalsa sulhiyya). The petition, containing the date and place of the first session, takes the form of a summons to the defendant, delivered by a bailiff.25 The reconciliation session Reconciliation sessions were held in an office of the special Family and Children Division of the CFI or in the family judge’s office elsewhere in the building. They were presided over by one of the two family judges at this court, or one of the vice-presidents who acted as reconciliation judges. All couples were expected to be present in the waiting room of the Family and Children division at 9 a.m. on the specified day, where they checked a list of the names of the couples summoned that morning and the room numbers of the sessions. Every morning, from Monday to Saturday,26 two to four reconciliation judges presided over some 10–15 sessions each. Shortly after 9 a.m., the clerk brought every reconciliation judge his or her pile of files to be treated that morning, in the order set out in the relevant list. Every file contained one standard form for the judge to fill out during the session. The clerk also handed the judge a list with the dates for the next reconciliation session or for the final court hearing (jalsa hukmiyya).27 If the judge presided over the sessions in the special division instead of in his/her own office, he/she was assisted by ushers, who were present in the division to assist the litigants, and to call out the names of the couple whose turn it was to enter the judge’s office; they were usually the ones who helped me in finding the judge I was looking for, or who brought me a chair to be able to attend the sessions. At the end of the morning, the clerk took back the files. If the couple had children, they were obliged to attend three reconciliation sessions, with an interval of 30 days between each,28 unless they had filed for divorce by mutual consent, in which case only one session was obligatory.29 If the plaintiff was absent during the session, it was annulled and the case was directly transferred to the court session. If the defendant was absent, the judge began by asking for the

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red paper (waraqa hamra), which would prove that he/she had been correctly summoned; if not, the session was postponed.30 If the defendant was absent but he/she had been summoned in person, and the couple had no children, the reconciliation session took place in his/her absence after which the file was directly transferred to the court hearing (jalsa hukmiyya). If the defendant was not summoned in person, or if the couple had children, the defendant would be summoned to attend the second session, but the first took place in his/her absence. If one of the spouses did not speak Arabic, some reconciliation judges would require the presence of a translator, arguing that this is obligatory because otherwise, the litigants may contest the contents of the p.-v. by stating that the judge does not understand French. However, family judges would not require this.31 The reconciliation sessions took place behind closed doors; neither a scribe nor a lawyer nor family members of the couple were allowed to be present.32 The sessions were relatively informal: they were held in Tunisian Arabic instead of Modern Standard Arabic (fusha), sometimes mixed with French. The judge sat behind a desk and the spouses sat in comfortable chairs opposite the judge (at the CFI Sfax, the reconciliation judge even sat between the spouses).33 Both family judges held their sessions in their own office, where they had pictures of their family, which added to the informal ambience; one of them had made her office quite cosy with a mirror, books, a nice pencil-holder, etc. The judges did not wear a robe, although they did wear formal clothes; for example, on a hot day, one of the reconciliation judges showed me how she closed the top of her summer dress with a needle before she allowed the first couple to enter the office. That formal dressing was necessary was confirmed when I was wearing a sleeveless dress on a particularly hot day: the usher immediately told me to cover my shoulders. Nevertheless, the degree in which the session was indeed informal differed from one reconciliation judge to another: there was one reconciliation judge at the CFI Tunis who positioned the chairs at the opposite side of the room, far away from the judge and with some space between them as well. The same was true at the CFI in Le Kef, where the litigants almost had to scream in order for their words to reach the judge and each other.34 As was pointed out in the previous chapter, one

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of the family judges at the CFI Tunis was significantly more formal than the other; this was not reflected in clothing, the positioning of the chairs or the language spoken, but in the way she addressed the litigants: she did not allow the couple to speak at the same time, did not allow anyone to come in and would not pick up the phone if it rang. The informal character of the reconciliation session may have had consequences for the judges’ behaviour, in the sense that they may have invoked norms or sources of law that one would not find in the court decisions. Indeed, as will become clear in the next chapters, the only times that judges explicitly invoked Islam or ‘sharia’ was in reconciliation sessions. Furthermore, some norms were only invoked in reconciliation sessions but not confirmed in court decisions. If both spouses were present or if the defendant was absent but was correctly summoned, the reconciliation judge began with a number of formalities: he/she asked the spouses to show their ID card or their passport and wrote down their names, dates of birth, address and ID numbers on the standard form. If one of the parties did not bring his/ her ID card (or a copy of this, or a passport), the session was postponed, while in cases where the party did not have an ID, the judge called in a witness to testify to the spouse’s identity, which happened in a session I observed concerning a young Algerian woman: her friend entered the office to testify to the woman’s identity.35 In Tunisia, it is not unusual for people not to have an identity card, for example because the person in question does not have a family name because he or she has been born out of wedlock and no name has been attributed on the grounds of the 1998 law (because the father’s identity is unknown). I actually witnessed an adoption case at the Cantonal Court in Tunis where an 18-year-old girl wished to be adopted by her aunt and uncle in order to obtain a family name, to be able to have an ID card, with which she could search for work. The forms for reconciliation sessions differed from one court to another.36 At the CFI Tunis, the reconciliation judge filled out the following data: level of education, job, income, names of the children and their dates of birth, as well as whether or not the spouses were related to each other (qaraba), whether this was their first marriage and, if not, how the previous marriage had ended (by divorce or death

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of the former spouse).37 The latter two questions were asked, so a family judge told me, in order to elicit data for the sondages (survey statistics).38 As soon as these formalities were completed, the reconciliation judge invited the plaintiff to explain why he/she filed for divorce, and the other spouse was given the opportunity to reply. This seemed to have a double function: to enable the reconciliation judge to try and reconcile the couple, and to gather material that might serve as evidence in the divorce case. The reconciliation judges’ efforts to reconcile the spouses differed from one case to another: in those where children were involved, the judge would invoke their interest and discourage the plaintiff, saying, for example: ‘You must realize that you will only lose 50 per cent while the children will lose 100 per cent.’39 Also, the judge may refer to their understanding of ‘social norms’, for example by saying to a female plaintiff, ‘People accept a widow, but they do not accept a divorcee.’ 40 They would also use other arguments to make people reluctant to file for divorce, such as ‘divorce is the beginning of psychological problems’,41 or they would make the plaintiff feel guilty, saying for example, ‘Why would you divorce her, she is a widow!’42 Judges would also compliment couples by saying how well they went together, and what a perfect couple they seemed to be (pretty, from the same class background, etc.). In some cases, judges referred to the fact that the litigants were religious, based on their outer appearances. For example, to a wife who was wearing the hijab, a judge said: ‘In your din (religion) divorce is prohibited,’43 while in another session, a judge asked the (male) plaintiff why he had a mark on his front (usually a signal that a person prays a lot); when the man pointed out that it was not a prayer mark, and once he had left the room, the judge explained to me that she had meant to use his religiosity as an argument to discourage him from filing for divorce. On some occasions, judges would also encourage the litigants to do something together; for example, in one case a judge said to the couple: ‘Go shopping together on Sundays!’44 But in many cases, the judge would not try to reconcile the couple; some judges explained this to me by saying that they only made the attempt if they believed that reconciliation was still possible.45

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Sometimes, this seemed to be based on a biased view; for example, if the couple was young, from a Tunisian upper-class background, welleducated, rich and ‘Westernized’, judges would try to reconcile them, especially if they had children. But I observed repeatedly that if the wife was Tunisian and the husband came from another Arab country, the exact opposite occurred: in one session, the judge exclaimed: ‘But why did you even marry an Algerian? What were you thinking?’46 And in another: ‘Why did you marry an Egyptian? Are Tunisian men not good enough?’47 Also, in cases of a class difference, or a difference in education or income, the judges would not try to reconcile, especially if they considered the man ‘not good enough’ for the woman in question. This was for example observed in a session concerning a wife who had a university degree and who worked as a manager in a centre d’appel (call centre), earning 500 dinars per month, who had married an uneducated waiter in an Arab café, who earned around eight dinars daily. After this session, the judge showed her incomprehension that this woman had married this man, and she seemed relieved that they would divorce, even if they had a small daughter. Many of the reconciliation sessions I observed were characterized by identical discussions, both between the spouses, and between one of the spouses and the judge. Such discussions started when the judge was still filling in the answers to the standard questions: the question about the husband’s income could cause a lengthy quarrel between the spouses. I observed frequently that as soon as the husband had mentioned an amount, the wife would protest; this reaction could take the form of rolling her eyes, exhaling strongly, sniggering, laughing, or calling him a liar.48 Reconciliation judges would not react to this, telling the wife to remain quiet and noting down what the husband said. At the court hearing, the wife could provide a pay slip or other such evidence to be put in the file, but the reconciliation session was not intended to verify the husband’s income. Nevertheless, I also witnessed discussions between the husband and the judge about his income, because even if the reconciliation session was not about verifying his exact income, he should name an amount, and I witnessed often that the husband would reply: ‘It depends’, or ‘I don’t know’. The reconciliation judges responded to this in an irritated manner, insisting that

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he mentioned an amount. Often, I witnessed continued vagueness on the husband’s part: ‘Really, it depends, some days I earn eight dinars, sometimes ten dinars, and sometimes nothing.’ ‘I’m writing down [for example] 150 dinars, all right?’ judges would respond in such a case.49 This demonstrates that judges were aware of litigants’ strategies to lie about their income in order to evade large maintenance claims. If the reconciliation judge invited the plaintiff to explain why he/ she filed for divorce, and the defendant was given the opportunity to reply,50 reconciliation judges often found it difficult to prevent the spouses from talking at the same time. Most litigants seemed very eager to go into detail about their marriage, sometimes even pushing the judge to say (for example): ‘I’m not interested in your private life. We’re here for a divorce case.’51 The spouses’ stories would consist for the most part of accusations that their wife/husband was guilty of ‘bad behaviour’, such as domestic violence, non-payment of maintenance, withholding of sexual relations, ‘bad words’ (klam khaiba, this could mean insults, swearing or blasphemous talk), drinking alcohol, adultery, gambling, sitting in the café all day and aberrant sexual desires such as sodomy. Some of these accusations were usually made by the husband (e.g. ‘bad words’, domestic violence, adultery and absence of sexual relations), some more often by the wife (e.g. domestic violence, non-payment of maintenance, withholding of sexual relations, drinking alcohol, adultery and aberrant sexual desires, gambling and frequenting cafés). They could be uttered by the plaintiff, as an explanation for his/her petition for divorce, and by the defendant (even if he/ she had indicated resistance to the divorce). Sometimes, the plaintiff or the defendant would also invoke his/her own ‘good behaviour’, such as prayer, studying the Quran and having been a virgin on the wedding night. At the end of the reconciliation session the judge would take provisional measures, which could provoke yet more debate, namely on the amount of maintenance for wife and children, unless the wife had obtained a separate maintenance decision. In the light of each spouse’s accusation that the other was lying about income and expenses, it seemed difficult for the judges to take a well-thought-out decision on the matter. I retained the impression that the judges simply decided

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on a provisional amount which was open to change later in the process, when the litigants had presented evidence on their financial position. Other discussions concerned the marital home, in that there was often a significant difference of opinion on the question of whether the wife could stay in the marital home, who would pay the living expenses of wife and children and how much these amounted to. This was another decision that was open to change later in the process. Once, these discussions provoked one of the family judges to point out to me that litigants were only interested in the financial part of the provisional measures, adding: ‘As if divorce itself is not important.’52 It was through remarks like this that judges demonstrated their rejection of divorce. At the end of the first reconciliation session, judges took provisional measures with respect to the attribution of child custody and visiting rights and to maintenance for wife and children, as well as to the marital home and living expenses for wife and children.53 The spouses could apply for a revision of these measures before a family judge; in such a session, the spouses could be assisted by their lawyers and the judge filled out a form (mahdar al-muraja‘a) containing their respective pleas and the revisions, if any.54 Judges noted down the litigants’ arguments and the provisional measures in the standard form, which was signed by the judge and the litigants and added to their case file.55 This was a p.-v. of the reconciliation session and as such it had the strength of evidence in the divorce case.56 The two subsequent reconciliation sessions (if any) often began with the judge’s question as to whether the couple had already reconciled (sallahtu walla la?). If there had recently been a holiday, judges would ask something like: ‘Have you reconciled during ‘ed (‘ed al-fitr or ‘ed al-kbir)?’57 If they had, which I rarely witnessed, they were summoned to attend the court session where they would make a statement of that reconciliation. If they had not reconciled, judges would summon them to present their ID card, and would copy the data filled in on the p.-v. of the first session, and would ask again about the causes of their marital breakdown. This was again filled in on the standard form, which was signed and added to the case file. After the last session, the reconciliation judge set a date for the court hearing,58

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which would be held two months later59 and whether the litigants should be present in person or be represented by their lawyer. The court hearing Although the Tunisian Ministry of Justice and Human Rights (a contradiction in terms under the previous regime) had only awarded me an informal authorization to attend court hearings, arguing that reconciliation sessions are private, my authorization from the president at the CFI Tunis was the other way around: he preferred that I attended reconciliation sessions and prohibited me from attending court hearings, arguing that the lawyers would protest. As a result, I mainly attended reconciliation sessions, but after some time, as one of the family judges had come to know me better, she invited me to attend the court hearings that she presided over as well, albeit in an unobtrusive way, so as not to raise suspicion among the lawyers. The lawyers noticed my presence soon enough, and did not seem to be discomfited by it; indeed, they would explain things to me that I didn’t understand. I still do not know why the president of the court did not want me to attend these, but it indicates that lawyers were considered powerful, not subject to the court’s whims. As I was only allowed to attend the court sessions of Family Chamber I (on Monday mornings), the description below applies only to this chamber. The court hearings were held in the courtroom (sala) of the Family and Children Division. The Family Chamber were seated at the back of the room: the family judge would sit in the middle, and the two assistant judges would sit on either side of her at the same desk, while the scribe had another desk in front, close to the lawyers, and the court clerk walked back and forth between the scribe, the lawyers/litigants present in the room and the judges. The usher stood at the entrance, making sure that the room would not be too crowded. The judges wore black robes with white boards, the same as in European civil law countries, while the scribe and the clerk wore normal clothes and the usher wore his uniform, which resembled a police uniform. The room was packed with lawyers, who stood closest to the judges, wearing the same black robes with white boards. They were backed by secretaries

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of law firms, in normal clothes. Most litigants were told to wait outside as the court room was too small; they would come in when their number was called out. When looking through my notebooks, I came across the following description of a court hearing: ‘The family judge is a female giant sitting on her throne surrounded by female dwarfs [the assistant judges and the scribe] who can hardly look over the edge of the desk, and a male help [the clerk].’ I must have written this in a sarcastic frame of mind, but the reason I include it here is not to ridicule, but because it indicates to what extent the family judge reflected authority and power, to speak in the terms of Foucault: it made it clear that the family judge had authority over her colleagues, but also over the other people in the room, the lawyers and, to a greater extent, the litigants. This hierarchy was also stressed by the language that was spoken during the hearings, namely Modern Standard Arabic. For lawyers, this meant that they were forced to communicate in the court’s official language, which not everyone speaks and which leads to a situation where the judges are privileged and have an advantage as they can express themselves more easily and fluently. It is interesting to note that lawyers from the better law faculty, the Faculté des Sciences Juridiques, Politiques et Sociales (FSJPST), in particular are trained in French, which underlines its elitist character, while at the same time it works to their disadvantage, as French is not the language of the court. As this faculty hosted and produced many secularist opponents to the regime (such as Sana Ben Achour), one may even wonder whether the fact that French is the dominant language at this faculty is not a means for the government to exclude these people from society, including the courts, suggesting that teaching and training in this language is not an elitist choice of the faculty itself but is imposed from above. If the lawyers are placed in a subordinate position by the structures of the hearing, the imbalance of power where the litigants were concerned was even greater: they were not allowed to sit in the courtroom, they stood out as they did not wear the official robes and when their names were called out, they had to find a way through the crowd to reach the judges. Once they had reached the judges, they were directed by the clerk to stand behind a small wooden fence, which

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reminded me of the dock used in civil law countries where a suspect in a penal case is supposed to stand to be questioned. The fact that the language of the court was Modern Standard Arabic added to this gulf in power, even more than in other countries, where the existence of a ‘legal language’ makes legal dealings incomprehensible for everyone who did not go to law school. It accentuated the hierarchy between the educated legal elite on the one hand, all speaking in the official language of the court and wearing the same black robes, and the litigants on the other, who were mainly lower-class, uneducated Tunisians who did not speak the official language and were unable to afford a lawyer to speak this language for them. As a consequence, litigants could not understand what was being said to them and about them. On a number of occasions, the miscommunications between litigants and judges led to hilarious yet painful situations, where the judge would make fun of the litigant and the lawyers would all laugh, emphasizing the power-relation even more. Each Family Chamber held one court hearing per week (one chamber on Monday and the other on Tuesday), and on these days, the chambers would treat about 100–150 files. Sessions started at 9 a.m. and could continue until 3 p.m., but would have lasted twice as long if all were considered on their content. All cases where the plaintiff has not been present on the first reconciliation session were dismissed during the hearing. The sessions would proceed as follows. The family judge called out the file numbers through a microphone, followed by the name of the plaintiff and that of the defendant. Most cases were treated by lawyers, in which case the lawyer representing one of the litigants called out that he/she was present (hadir), followed by the lawyer’s own name, the term fi-haqq (‘representing’) and the name of his/her client (the husband or the wife). The lawyers who were present represented only part of the litigants whose cases were being treated, while most cases were actually dealt with by lawyers who had sent their secretaries to the court. These secretaries would ask one of the lawyers who were standing at the front to represent their boss, tapping on their shoulder and passing them a document that was to be handed in to the court. The lawyer called out his/her name, followed by the term fi-niyaba

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(meaning that he or she was representing a confrère) followed by the names of the confrère and the client of the latter (as indicated on the document), and the plea. This was possible as pleas were generally brief: varying from the declaration that the client persisted in his/her claim (tamassaka), to asking for a decision (taqrir) or a delay (ta’khir). This indicates that on the level of the content of the case and the legal arguments, the legal process was generally reduced to writing, a development that is also taking place in other civil law countries, where pleas become less and less important. The documents handed in during the court hearing varied from the form of representation (proving that this lawyer was representing one of the parties), the marriage contract and the birth certificates of the spouses and their children (mostly handed in when the plaintiff files the petition or during the reconciliation sessions), a letter containing a counterclaim (a petition of damages) or a response to such a letter, or evidence (for example a pay slip). I had the impression that the lawyers who were present opted to be so because they were going to plea, or simply because they had another affair at the court. In cases where litigants were not represented by their lawyer, or where they were represented but for some reason wished to say something themselves as well, they would enter as soon as their case was called, yelling ‘Present!’ (hadir) to prevent the judge from continuing with the next case; this would be repeated by the lawyers at the front to make the judge wait. Litigants were invited to hand over their identity card to the clerk. Most litigants simply stated whether they were persisting in their wish to divorce or they had reconciled, some added a few remarks and some handed in documents. After every case that was not dismissed for procedural reasons60 (these files were separated from the others) the family judge dictated to the scribe what had been argued (for example, wa hadara al-muhami X fi-niyaba wa talaba al-ta’khir) and set the date for the next hearing (if a party had filed for a delay) or for the final decision.61 The scribe filled this in, by hand, on a standard form, the p.-v. of the court hearing, and put it in the file. After the court hearing, the pile of files was taken to the office of the family judge, where they were divided among the chamber’s judges

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(the family judge and her two assistants). They agreed on a date when the chamber would deliberate on the cases, and each judge would take the files attributed to her away. They would usually read the files at home, and bring them back to court on the day of the deliberation. I was present once at such a session, which is actually prohibited by law as it is confidential,62 but the family judge had asked me to help her with her English exercises (the judges were taking an English course so as to ‘modernize the court’, as the president told me). I watched as the family judge sat on a chair behind her desk, while the two others sat opposite her, on the chairs normally occupied by the litigants of the reconciliation session. Together with the fact that the judges were wearing their usual clothes, this was one of the factors which contributed to my perceiving the deliberation as professional, yet informal, which was also reflected by the fact that it took place in Tunisian Arabic. As a consequence, it felt as if every judge had the opportunity to speak freely, as they were at ease with the family judge, who was actually their superior. The deliberation took place with each judge in turn working through her files. The judge addressing her files opened them one by one to tell the other judges what the case was about and what documents were in the file. The case would be discussed and when they agreed on the decision, the family judge dictated the judgement to the judge functioning as a scribe, who filled this in on the standard form of the decision (see below). Most cases were treated very quickly, as a matter of routine. But if the case was considered more complex, the file was passed around and discussed. According to the law, decisions are taken by majority vote63 and the youngest judge64 gives her opinion first, followed by the middle one and lastly by the family judge.65 I do not know whether in practice some judges can impose their vote on the others, but as stated before, I did have the impression that all three of them felt free to give their opinion. The judgement The standard forms for divorce decisions differ depending on the grounds for the divorce (mutual consent, harm or without grounds).

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In these forms, part of the decision is stated in advance, delimiting the chamber’s work during deliberation. There are several different standard forms, and I had the impression that this is simply due to the fact that if there are no copies left of one form, the clerk quickly draws up another one on the computer,66 without having an example at hand. The standard form begins with the following data: ‘Tunisian republic, Ministry of Justice and Human Rights, Court of First Instance in Tunis, number of the case [ ... ], date of the decision [ ... ].’ This is followed by the phrase al-hamdu li-llah (praise to God) and the topic of the decision (e.g. talaq insha’). Next, the form states: ‘The Court of First Instance in Tunis competent in cases in the field of personal status issued a decision on her general hearing held in the palace (qasr) in Tunis on [date] under presidency of [name of the family judge] and the membership of the judges [name] and [name] and with the help of the scribe [name].’67 The standard form continues with space to fill out the specificities of the parties. It is important to note that while the standard p.-v.s of reconciliation sessions dictate the filling out of information on the level of education, the job, the income, the question of whether the spouses have been married before and whether they are related to one another, the standard decisions do not refer to this information at all. The characteristics of the parties to be filled out are limited to: their name, their ID number, their place of birth and the date and place of the issuance of their birth certificate, their place of residence or the address of their lawyer if a party chooses residence at his/her office and the lawyer’s name.68 As a result, I do not have any information about the level of education and of the income of the litigants in the cases where my data consist of the decision only. How the rest of the form is organized depends on the grounds of the divorce, but some aspects are standardized for all divorce types. It is divided into five sections: the ‘subject of the claim’ (mawdu‘ al-da‘wa), the ‘proceedings’ (ijra’at), the ‘causes’ (al-mustanadat), the court’s decision (al-mahkama) and a recapitulation of the decision (li-hadhihi al-asbab). Under the first heading (the subject of the claim), the standard form states: ‘The plaintiff stated that he/she [to be deleted as applicable] is married to the defendant with a legal marriage contract

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issued on [ ... ] and that the marriage was/was not consummated and that they do/do not have children: 1. [name of the child], born on [date of birth], 2. [etc.].’ It continues with the object of the petition, which depends on the type of divorce the plaintiff files for. However, in all divorce cases, the object of the claim provides whether it is the first, second or third time that the spouses divorce. This is important as according to legislation and practice, the spouses cannot remarry after their third divorce. I observed that indeed, some couples divorce for the second time, and I attended one reconciliation session where the couple divorce for the third time. The next section, the ‘proceedings’ (ijra’at), provides in the standard form: ‘And for this reason the case was registered at the court in the relevant registers under number [ ... ] and a date was fixed for the reconciliation session and the spouses were present at the family judge and affirmed that they are married and that the marriage is/is not consummated and that they do/do not have children and the husband stated that [ ... ], and the wife stated that [ ... ].’ Here, the form leaves space to fill out the arguments put forward by the spouses during the reconciliation session(s). If one of the spouses was absent at the reconciliation session, the judge strikes out the phrase that both parties were present and marks in the margin that the party was absent and that he or she was (or was not) correctly summoned. The paragraph on the proceedings finishes with the standard phrase, ‘Then the case was subjected to deliberation and to a decision issued on the session held on its date and after deliberation of the law the following decision was taken.’ The next paragraph (‘the causes’) can be read as an introduction to the decision and begins with the standard phrase: ‘Given that the demand was [ ... ]’, followed by the object of the demand. This paragraph can also be employed to describe the positions of the lawyers. The next paragraph (‘the court’) contains the decision and repeats: ‘With regard to the divorce: Given that the demand was to bring about [ ... ] in accordance with Article 31 para. [ ... ] PSC. Given that the marriage was proven with a marriage certificate.’ This is complemented with considerations that differ according to the type of divorce. In principle, the paragraph on the decision addresses the provisional

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measures taken during the first reconciliation session, stating: ‘With regard to the provisional measures: Given that it comes forward from the file that provisional measures were taken.’ Here, the court confirms the measures, and sometimes amends them or adds to them. In decisions on divorce for harm and divorce without grounds, the paragraph containing the decision concerns the financial consequences of the divorce, namely the damages, lawyer’s expenses and procedural expenses, in this order. With regard to the lawyer’s fees and procedural costs the standard form states: ‘Given that the defendant had to pay lawyer’s fees the court obliges the plaintiff to compensate these with [ ... ].’ Followed by: ‘With regard to the procedural expenses: The court decides that procedural expenses are on the plaintiff in accordance with Article 128 CCCP.’69 The last paragraph summarizes the decision. The heading states ‘For these reasons’ (li-hadhihi al-asbab), followed by the phrase: ‘On the grounds of Article 40, 68 and 128 and further of the Code of Civil and Commercial Procedure,70 and Articles 29, 30, 31, 32 and 54 PSC71 and Article 40 of the Code of Civil Status,72 the court pronounces the divorce between [ ... ] and [ ... ] for the [ ... ] time before/after consummation on demand of the husband/the wife and summons the civil servant to register this in the relevant registers.’ The form is signed by the three judges73 and put in the file of the litigants. The files are taken to the clerk, where a summary of the decision is typed out74 (this is the shahada of the judgement) and put in the file. Lawyers and litigants can obtain the outcome of the case and the shahada from the clerk. If a lawyer wishes to obtain a copy of the full judgement (for appeal), he or she should hand in a formal petition.75 Photocopies of all full decisions issued on one particular day are put in a separate folder (only containing the decisions, not the related documents; the latter remain in the case file of each particular case) that is placed in the register in the basement of the CFI Tunis. This is the folder that I photocopied, namely the folders containing the decisions of 5, 6, 12 and 13 January 2009. Until the case has reached a final decision, the marriage remains intact. As soon as the decision in the first instance is taken, the waiting period starts. The waiting period lasts three months or, in cases

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of pregnancy, until the child is born, with a maximum period of one year.76 The wife is not allowed to remarry during this period.77 The final divorce decision in the first instance is open to appeal at the Court of Appeal (mahkamat al-istinaf) and to cassation at the Court of Cassation (mahkamat al-ta‘qib).78 The provisional measures have force of res judicata regardless of an appeal.79

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CHAPTER 3 DIVORCE BY MUTUAL CONSENT

On a Wednesday morning in October, a young couple entered the office of the family judge. Ferdaws was a 24-year-old woman studying law at the Université de Tunis-al-Manar. The 28-year-old Farouk had not continued his studies after his baccalauréat in France, where he was born. He was working as a guard at Orly airport in Paris where he earned € 1,600, as he told the judge. For both, it was their first marriage. Farouk made it immediately clear that he was filing a petition for divorce for harm. The judge asked when they contracted marriage, but I could not hear their answer, and when I asked the judge about the date she replied: ‘They are not married.’ As I looked surprised – we were nevertheless witnessing a divorce case – the judge added: ‘This does not exist in other countries.’ The judge continued by asking them: ‘So when were you supposed to get married?’ The woman replied: ‘On 28 August 2008.’ A discussion followed as the husband insisted that they were supposed to get married much earlier, and the judge asked him why he wanted a divorce. Farouk explained that he had been trying for months to set a date for the wedding, but that she had started to evade him. He said: ‘I did everything possible. I can even show you with the registration from Tunisiana (the Tunisian mobile telephone company) how often I called her, I was really calling her all the time.’ ‘But I was having my exams,’ Ferdaws replied. ‘And then I was attending a marriage in

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Klibia.’1 She added that she had been waiting for him to call but that he never did. The judge asked Ferdaws what she wanted and she answered: ‘I’m the one who is suffering harm (ana madrura).’ This made Farouk angry, but before he could say anything, the judge asked him: ‘Why don’t you file a petition for divorce by mutual consent?’ At this point, Ferdaws said that Farouk simply wanted the money that he would obtain if his petition for divorce for harm was granted. ‘It has nothing to do with money!’ Farouk replied, and again, the judge asked: ‘Then why don’t you file a petition of divorce by mutual consent?’ But now it was Ferdaws who objected, underlining that she had been harmed, and saying: ‘I’m suffering more than he does.’ ‘J’assume,’2 Farouk said, turning to me and suddenly switching to French to explain the lengths he had gone to, doing everything in his power to make this marriage work. The judge interrupted him, again asking: ‘Mutual consent?’ This time, Ferdaws agreed, but Farouk said: ‘That would be too easy on her. I paid so much money and I gave her so many gifts.’ Here, Farouk referred to the gifts that men offer between the moment the couple gets officially engaged and the festivities connected to signing the marriage contract, as well as the expenses for the arrangement of the marriage festivities that, in the case of this particular couple, had not yet taken place. The judge invited Farouk to recount what he had given her, telling Ferdaws that she should return everything. He started by describing clothes and the judge noted it all down, but when he mentioned a Gucci pair of spectacles, the judge looked up and said: ‘Her spectacles? No, absolutely not, she will not return those.’3 The material for this review of judicial practices in the field of divorce by mutual consent consists of a total of 25 court decisions dating from 5, 6, 12 and 13 January, issued by the two Family Chambers of the CFI Tunis,4 together with the reconciliation sessions observed between October 2008 and September 2009 and interviews with the two family judges in the same period. It should be pointed out here that the Family Chambers used two different standard forms for divorce by mutual consent; one was more elaborate than the other (see below). The forms were used

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interchangeably, in that the use of either form was a matter of coincidence: both forms were employed for divorce on demand of the wife and of the husband, and both forms were used for cases where children were and were not involved. Besides, both chambers made use of both types of forms.

Case one: Farouk and Ferdaws5 (CFI Tunis 6 January 2009, 70579) The reconciliation session described at the beginning of this chapter is the only session I observed concerning a couple whose final divorce decision I also obtained. This confirms that divorce proceedings concerning divorce by mutual consent were swift. On 6 October 2008, Farouk (born in France in 1981 and still resident there) filed a petition for divorce for harm at the CFI Tunis. According to the text of the judgement, the petition stated: ‘The plaintiff is married to the defendant with a legal marriage contract issued on 10 December 2006, and they did not consummate the marriage.’ The petition continued, according to the judgement, by stating that: ‘They agreed to do it [celebrate the marriage] in the summer of 2008 and they fixed [the date] for July 2008 and he bought a trinket and arranged for a hall (qa‘at al-afrah) by the sea in Tunis and for a band and for the distribution of the invitations for the party but she refused to go through with the festivities without any justification and despite his numerous attempts and despite the important bank loans he had engaged in and the expensive presents he had given her and [for these reasons] the plaintiff asks a judgement that brings about divorce between them for the first time before consummation on the grounds of harm inflicted by the wife, and a compensation of 10,000 dinars [± € 5,000] of material damages and 5,000 dinars of moral damages and 600 dinars lawyer’s fees.’ Farouk’s wife Ferdaws (born in 1985 and resident in Tunis) was summoned to attend the first reconciliation session that was held on 29 October 2008 at 9 a.m. Both spouses were present, and confirmed that they were married and that the marriage had not been consummated. They agreed to change the petition to one for divorce by mutual

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consent without grounds and that Ferdaws would return the jewellery and the clothes that he had given her, namely a wedding dress, black sandals, a suitcase, four blouses, a pair of high heels, lingerie, a dress, two mobile phones and a silver necklace. No provisional measures were taken during the reconciliation session, and the session was not repeated as the judge immediately transferred the file to the court hearing that was held on 23 December 2008. Here, neither of the spouses nor the husband’s lawyer was present (the wife was not represented by a lawyer). In its decision, the court confirmed that the petition had been changed to one for divorce by mutual consent, that the marriage had been proven with a marriage contract, that the attempt to reconcile the parties had failed and that the wife had agreed to divorce by mutual consent. The court granted the demand. In this case, the couple had signed the marriage contract in the winter of 2006, but they had not celebrated the marriage, reflecting the practice described in Chapter One whereby a marriage consists of the two stages of sdaq and ‘urs. As this case shows, years could pass between the two stages, and in this period, the couple were not supposed to live together nor to have intercourse as they were not yet considered to be married: not the sdaq but the ‘urs justified living together as a married couple, hence the judge’s remark that ‘this couple are not married’. In the decision however, it was stated that they were married, but that the marriage had not been consummated (qabla al-bina’, before consummation), putting celebration on a par with consummation. The husband, who was of Tunisian origin but who had been born and was living in France, stated that they had agreed to have the marriage ceremony in the summer of 2008, but that while he was arranging for the hall, the band and the invitations, and while he took out loans to afford this, the wife had cut off all contact. This behaviour had led the husband to file a petition for divorce for harm in October of the same year. During the reconciliation session, the wife denied having cut off contact with him, but when the judge asked her what she wanted, instead of saying that she wished to go through with it and celebrate the marriage, she insisted that it was her who was

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suffering from harm, not him, suggesting that his petition would be rejected and changed to one for divorce without grounds. A possible explanation for this strategy is that in the event of divorce without grounds, she would receive damages. Another possible reason is that if her husband obtained divorce for harm, this would mean that she was guilty of the divorce, whilst in the case of divorce without grounds it would have been his fault. As a compromise, the judge proposed a third possibility, namely divorce by mutual consent, in which case neither party would have to pay damages. The wife declined at first, but after a couple of minutes she changed her mind and accepted, possibly because she was afraid that her husband’s petition of divorce for harm would otherwise be accepted. However, the husband refused to change his petition, saying that this would be too easy on her. At this point the wife accused him of looking for financial benefit which, according to her, could be the only reason why he had filed a case of divorce for harm in the first place. In order to convince the husband, the judge emphasized that if he changed his petition to one for divorce by mutual consent, his wife would have to return all engagement gifts. This worked: the husband agreed, and enumerated all the gifts he had offered his wife. The judge made a list of the gifts that Ferdaws should return. She did not take any preliminary measures such as the payment of maintenance, and the case was directly transferred to the court hearing, held two and a half months after the moment that the husband had filed a petition and two months after the reconciliation session had taken place. The decision in the Farouk and Ferdaws case reflects the following norms. Firstly, the court’s ruling confirms the norm that men can obtain divorce by mutual consent. This is in accordance with the PSC, which opens up this way of divorce to both spouses, but it is nevertheless fascinating in the light of norms in other countries in the region, where divorce by mutual consent is typically a way for women to obtain divorce (in Egypt, for example).6 This difference confirms the fact that the Tunisian legislation does not distinguish between men and women where access to divorce is concerned, whereas in Egypt, the right to divorce is highly gendered, although less so since the law

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of the year 2000: the khul’ law of that year allowed women to divorce with their husband’s consent and without particular grounds.7 A second norm affirmed in the Farouk and Ferdaws case is that the court shall only pronounce divorce by mutual consent if both spouses agree to contract this particular type of divorce; this becomes clear from the phrasing that the wife agreed to divorce by mutual consent, instead of divorce tout court. This means that if both spouses wish to divorce, but one of them refuses divorce by mutual consent, the court shall not pronounce this type of divorce of law. In this way, the court protects the spouse who wishes to receive damages, such as in the case between Farouk and Ferdaws: here, the court does not pronounce divorce by mutual consent simply because it became clear during the reconciliation session that both wished to divorce, but because both agreed to this type of divorce. This norm allowed for a situation that I observed quite often, namely one in which it was clear that the defendant wished to divorce, but where he/she was determined to receive his/ her haqq (right, in this context, financial rights), namely the damages that the plaintiff would have to pay if the petition was changed to one for divorce without grounds. This norm is not made explicit in the PSC, which simply states that the court pronounces the divorce in cases of mutual consent of the spouses. A third norm reflected in the Farouk and Ferdaws case is that the plaintiff can change his/her petition during the divorce proceedings; Farouk is not obliged to file a new petition when he decides to change his demand. The other norms reflected in the decision above concern the consequences of divorce. It is noteworthy that the decision does not state that the husband must pay maintenance during the waiting period (nafaqat ‘idda, maintenance during the three months following the divorce decision); it does not state clearly that the wife has no right to this either, but simply remains silent on the issue. The norm that a wife does not have a right to nafaqat ‘idda if the marriage has not been consummated is in accordance with legislation: Article 38 PSC states that the husband pays maintenance from the moment of consummation of the marriage to the end of the waiting period; as the marriage

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had not been consummated/celebrated, the duty to pay maintenance was not yet in force. Another interesting issue that the court decided on in this case concerns the gifts: the decision issues the norm that if the marriage has not been consummated/celebrated, the wife should return the gifts offered to her by the husband. This is prescribed by Article 28 PSC, which states that the spouses shall recover from one another the gifts that were given after contracting marriage if the dissolution occurs prior to the consummation, i.e. celebration. This situation should be distinguished from one in which one of the partners breaks off an engagement, i.e. where the couple split up before the sdaq: in that case, Article 2 PSC prescribes that both have a right to restitution of the engagement gifts (before 1993, this article stated that the husband alone had a right to such restitution). It will become clear in the following chapters that, in case of a divorce after consummation/ celebration, the wife keeps all gifts, but she should in principle return the furniture.

Case two: Fatima and Abdelkader8 (CFI Tunis 6 January 2009, 70571) On 30 August 2008, Fatima (1964, born and living in Tunis) filed a petition for divorce by mutual consent at the CFI Tunis. According to the text of the judgement, the petition stated: ‘She is married to the defendant with a legal marriage contract issued on 1 April 1988, they consummated the marriage, and they have two children, Younes, born in 1993, and Selwa, born in 1989.’ According to the judgement, the petition continued by stating: ‘But finally marital life deteriorated between them until the point that it was no longer possible to continue it and the plaintiff asks a judgement that brings about divorce for the first time after consummation on the grounds of Article 31 para. [1 sub] 1 PSC.’ Fatima’s husband Abdelkader (1959, born and living in Tunis) was summoned to attend the first reconciliation session that was held on 28 October 2008 at 9 a.m. Both spouses were present and confirmed that they were married, that the marriage had been consummated and

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that they had two children. They persisted in their demand for divorce by mutual consent. Provisional measures were taken during this reconciliation session with regard to custody (awarded to the wife), visiting rights (awarded to the husband) and child maintenance (180 dinars, for both children together). The reconciliation session was not repeated as the judge immediately transferred the file to the court hearing that was held on 23 December 2008. Here, both spouses were present in person and persisted in their demand. In its decision, the court confirmed that both spouses wished for a divorce by mutual consent, that the marriage had been proven with a marriage contract and that the attempt to reconcile the parties had failed. But it also added the considerations that ‘marriage is founded on respect during the companionship (mu‘ashara)’, that the failure to reconcile the spouses showed ‘a lack of fulfilment of this [respect] between the spouses’9 and that the court could not do otherwise but bring about divorce between them ‘for the impossibility for the plaintiff to live together in an atmosphere of love and kindness’.10 The court thus granted the demand, confirming the provisional measures taken during the reconciliation session. In this case, the 44-year-old mother of two teenage children filed a petition of divorce by mutual consent. Her husband was present at the reconciliation session and agreed to the divorce. The judge took provisional measures, granting custody to the wife and visiting rights to the husband, obliging him to pay child maintenance. The judge did not decide on the marital home or on maintenance for the wife. The case was directly transferred to the court hearing, held four months after the moment that the wife had filed her petition and two months after the reconciliation session. At the court hearing, both spouses were present in person and confirmed that they wished to divorce by mutual consent. Neither of them asked for a revision of the provisional measures. The court decided to grant the demand, and confirmed the provisional measures taken during the reconciliation session; no additional decisions such as on maintenance for the wife were taken. It is noteworthy that unlike in the previous case, the court employed the more elaborate form for this decision, the last sentences cited above.

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In the decision in the Fatima and Abdelkader case the court confirmed that women can obtain divorce by mutual consent, which is in accordance with legislation that grants this divorce type to both spouses. The decision also confirms that the court shall only pronounce divorce by mutual consent if both spouses agree to contract this particular type of divorce; this becomes clear from the phrase that they both agreed with divorce by mutual consent, instead of divorce tout court; this condition was also affirmed in the case of Farouk and Ferdaws. That the husband-defendant’s consent is required is interesting in the light of the developments in some other countries in the region (Egypt, Jordan, Algeria and Pakistan), where the consent of the husband is no longer required to obtain divorce by mutual consent at the wife’s demand.11 However, the situation in these countries is different, as women there cannot obtain divorce without grounds and without the husband’s consent, which in Tunisia they can (see the next chapter). But as the court employed the second form, it did not only invoke legislation; the decision added that ‘marriage is founded on respect’, and that it is impossible for the plaintiff to live together in ‘an atmosphere of love and kindness’. This reasoning seems to suggest that the absence of ‘respect’ and ‘love and kindness’ is a condition of pronouncing divorce by mutual consent. This would imply that the court proceeds with an examination of the particular circumstances of the case, to find out whether the couple is indeed failing to be loving, kind and respectful towards one another. However, in practice, judges would not reject a demand for divorce by mutual consent on the grounds that, for example, the spouses still loved each other. As the court states that marriage should be characterized by ‘respect’ and ‘love and kindness’, it is also issuing a norm on what a marriage should look like. The norm of respect and kindness during the companionship resembles a phrase mentioned in Article 23, on the rights and duties during marriage: this article prescribes ‘good companionship’ and that the spouses should ‘refrain from harming each other’. However, the PSC does not say anything about love. Therefore, the norm is based on another source, which is not mentioned in the decision. The fact that the court understands marriage as a bond of love and kindness is interesting in itself, as it challenges the impression

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that some judges gave me that marriage is a business contract rather than a contract based on love. Indeed, during reconciliation sessions, judges hardly invoked the argument of love when trying to reconcile a couple. Furthermore, in relation to me and my relationship (which some of them were curious about), love was not something that seemed to be important for them: judges did not hesitate to tell me that I should find myself another man, who was older than me, who was from a good (Tunisian) family and who earned a decent living (at this moment, my partner was still a student), while the argument that I loved my partner did not convince them. Also, the judge who was more open about her own relationship never said that she married her husband for love, although she did say repeatedly that if he was on a business trip she missed him. This does not mean that love was not important for the litigants: I repeatedly heard them tell the judge that they still loved their spouse. The other norms reflected in the Fatima and Abdelkader affair concern the consequences of divorce, namely maintenance during the waiting period and child maintenance. With respect to maintenance for the wife, the decision reflects the norm that the husband does not pay maintenance during the waiting period. Other decisions confirm that this norm does not only concern cases where women file for divorce by mutual consent: when the husband is the plaintiff, the wife is also denied maintenance during the waiting period. The decisions do not state explicitly that the wife does not have a right to maintenance during this period, but simply remain silent on the issue. The norm that the wife has no right to nafaqat ‘idda upon divorce by mutual consent is not prescribed by the PSC, which states that maintenance should be paid during the waiting period (Article 38 PSC), without making an exception for divorce by mutual consent. It suggests that if the wife agrees to a divorce by mutual consent, she waives her right to maintenance. However, in reconciliation sessions, this norm turned out to be more nuanced: in cases where the spouses agreed that the husband pay damages to the wife, judges pointed out that in cases of divorce by mutual consent, women do not have a right to damages, while they do have a right to maintenance during the waiting period.12 This may indicate that the norm was not that women never have a

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right to nafaqat ‘idda, but that the court does not decide on it of law, meaning that the spouses should agree on it. With regard to child maintenance, the decision in the Fatima and Abdelkader case reflects the norm that even in a case where the wife files for divorce by mutual consent, the husband should pay child maintenance. In reconciliation sessions, judges made clear that the husband should pay child maintenance if the wife had custody.13 In this way, the court affirmed the norm that children will always receive child maintenance, even in cases of divorce by mutual consent. This is in line with the provision in Article 32 para. 6 PSC, which states that the spouses can agree anything when it comes to the measures to be taken in divorce, except anything that harms the best interest of the children. That this norm is upheld by the court is interesting in the light of the practice in neighbouring countries, where in cases of divorce by mutual consent on demand of the wife, she may waive child maintenance in exchange for divorce.14

Other judgements Besides the cases of Farouk and Ferdaws and Fatima and Abdelkader, I have nine other decisions granting divorce by mutual consent at the husband’s demand, and 15 on demand of the wife, which brings me to a total of 26 decisions taken on 5, 6, 12 and 13 January 2009 on petitions of divorce by mutual consent. This is noticeably fewer than my collection of decisions on divorce without grounds, which numbers 38. Although my collection is not necessarily representative, official statistics dating from 2001 confirmed that divorce without grounds takes place much more often than divorce by mutual consent, with 28 against 55 per cent. The reason behind this may very well be financial, in that the defendant may not wish to contract divorce by mutual consent as he/she will be deprived of damages (which he/she may be in case of divorce without grounds as well, as will be shown in the next chapter). In all the decisions I collected, marriage had been consummated, meaning that some of the norms affirmed in the Farouk and Ferdaws

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case do not apply. The decisions affirm the norm that men and women could obtain divorce by mutual consent, that it is required that both spouses agree to contract this particular type of divorce and that the plaintiff is allowed to change his/her petition into one for divorce by mutual consent during the proceedings without having to file a new petition. But the decisions also reflected other norms, which do not concern the access to but rather the consequences of divorce, namely the payment of damages and the maintenance during the divorce proceedings. With respect to damages, none of the decisions on divorce by mutual consent taking place after consummation/celebration state anything on damages, reflecting the norm that in cases of divorce by mutual consent, no damages are paid. This is in accordance with Article 31 PSC, where the issue of damages is specifically related to the two other divorce types (divorce without grounds and divorce for harm). This norm was also confirmed in reconciliation sessions: if spouses agreed that the husband paid damages to the wife, judges would reply that this was not allowed in cases of divorce by mutual consent.15 That the court also confirmed this implicit legislative norm in cases where the wife filed the petition is fascinating in the light of practices elsewhere in the region: in neighbouring countries, such as Egypt, divorce by mutual consent (termed khul‘) is in principle a means for the wife to divorce her husband, and in such cases, the wife can be obliged to pay damages.16

Reconciliation sessions With respect to reconciliation sessions, the most important difference from other types of divorce was that in cases of divorce by mutual consent, it was of the utmost importance that the defendant was present; otherwise, the petition would be rejected. This would only change if the plaintiff altered his/her petition to one for divorce without grounds or divorce for harm (I obtained three decisions where the plaintiff changed his/her initial petition for this reason). The norm that both spouses should be present at the reconciliation session is confirmed in the standard forms containing the decisions on divorce by

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mutual consent; these include the statement, ‘Given that the defendant attended the reconciliation session...’, which is presented as one of the conditions to pronounce a divorce by mutual consent (in other divorce types, the decision may provide that the defendant was absent). The reconciliation session between Farouk and Ferdaws (described at the beginning of this chapter) indicates that the court was clearly in favour of divorce by mutual consent: even though Farouk might have obtained divorce for harm (see Chapter 5), the judge tried to persuade the spouses to agree with divorce by mutual consent. This was a frequently recurring situation in cases where the petition concerned divorce without grounds or divorce for harm. In this way, judges presented this type of divorce as ‘the norm’, which is in accordance with the legislative amendment of 1981, changing the order of the different divorce types and beginning with divorce by mutual consent.17 I do not know why this divorce type should be ‘the norm’, but I can guess at the reasons. The first explanation lies in the judges’ workload, something that I heard the judges complain about regularly. Divorce by mutual consent had the advantage that compared to other divorce types, it was easy for judges to proceed as they did not have to deal with evidence, and as the couple itself decided on the consequences; moreover, couples would only attend one reconciliation session. The second explanation lies in the policy of what I call ‘the protection of the best interest of children’. I do not know whether this policy was imposed on judges by the government, or whether it came from elsewhere (e.g. case law of the Court of Cassation, or the judges’ own convictions). It is clear however that the discourse of child protection was reflected in numerous legislative measures, such as the ratification of the UN Convention on the Rights of the Child in 1992 and the issuance of the Child Protection Code in 1995. Divorce by mutual consent was clearly considered in the best interest of children, as judges pointed out repeatedly that the spouses should agree on the consequences of divorce and part as friends, to ensure their children should suffer as little as possible from their parents’ mistakes. But even if divorce by mutual consent was clearly ‘the norm’, I nevertheless witnessed some sessions where judges encouraged the plaintiff to change his/her petition for divorce by mutual consent into

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one for divorce for harm. This was for example true in a session where the husband had abandoned the marital home; here, the reconciliation judge asked the wife: ‘Are you really not asking anything from him?’, suggesting that she should change her petition into divorce for harm in order to receive money.18 This demonstrates that judges were not only concerned with their own workload or the best interest of children, but also with the best interest of the spouses, and thus that divorce by mutual consent was not always ‘the norm’. Besides the reasons that judges may have had to prefer divorce by mutual consent, this divorce type has a number of advantages for litigants as well. One advantage is financial: as opposed to divorce without grounds, the person filing a petition for divorce by mutual consent is not obliged to pay damages. Another advantage is that this procedure was much faster than other divorce procedures; the procedure of divorce for harm, especially, could take a very long time. Furthermore, divorce by mutual consent allows the couple to part as friends, which may be particularly important when they are related to each other and aim at preventing rancour within the family;19 in this way, ‘mutual consent’ can be interpreted as a weaker form of ‘reconciliation’, as is pointed out by Van Eijk for Syrian judicial practice in the field of divorce.20 Another advantage is the one mentioned above, in the case of Farouk and Ferdaws: here, it may have been for reasons of social acceptability of the divorce that Ferdaws preferred divorce by mutual consent over divorce for harm at Farouk’s demand, as in the latter case, she would have been considered ‘at fault’, not only by the court, but also in the eyes of the outside world. And finally, an advantage of this divorce type was that contrary to divorce for harm, the plaintiff was not obliged to disclose the reasons for the divorce, allowing situations of adultery or domestic violence to remain private; this consideration is similar in other countries in the region where, according to Welchman, people may prefer a khul‘ divorce for reasons of privacy.21 Other norms that were confirmed in reconciliation sessions concerned the consequences of divorce by mutual consent. As was stated above, decisions did not grant maintenance during the waiting period to the wife. In reconciliation sessions I observed that judges

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did not grant maintenance during the divorce proceedings either, even if these could take a few months. Again, this is not provided for by legislation, as the husband is obliged to pay maintenance during the marriage (Article 38 PSC). It suggests that from the moment of the first reconciliation session, the wife waives her right to maintenance. Another issue that became clear during reconciliation sessions is that in cases of divorce by mutual consent the spouses were to agree on everything themselves, not only the divorce but also its consequences,22 and if the spouses continued to disagree, judges would set a date for another reconciliation session and encourage the spouses to find an agreement in the following days, or else the petition of divorce by mutual consent would be rejected.23 In this way, the court affirmed the norm that the spouses themselves should agree on the consequences of the divorce. This is true even though the code does not prescribe that the judge cannot decide on the consequences of divorce in a case of divorce by mutual consent. There were a number of possible ways to agree on the consequences of the divorce. In some sessions, the spouses presented a document drawn up by themselves or their lawyers containing the consequences of the divorce.24 In other sessions, the spouses told the judge what they had agreed upon between the two of them without putting it into writing. Again in other sessions the spouses agreed upon the conditions in front of the judge. These consequences mainly concerned issues with respect to the children, namely custody, visiting rights, child maintenance and housing.

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CHAPTER 4 DIVORCE WITHOUT GROUNDS

One morning at the beginning of November 2009, a couple in their late twenties entered the office of the reconciliation judge. The husband was living and working in Paris, earning € 1,500 a month, and this was his first marriage. The wife was living in Tunis, earned 300 dinars a month and this was her first marriage as well. The couple had gotten married in 2005, but the marriage had not been consummated: they had signed the marriage certificate (sdaq) in 2005, but the marriage festivities (‘urs) had been postponed for three years now. The husband filed a petition for divorce by mutual consent, but the wife did not agree. This irritated the husband, who exclaimed: ‘But you told me that you wanted to divorce as well!’ The wife denied this and stated that she did not understand why the man wanted a divorce, and they quarrelled over the question of whether she had stated that she agreed. The reconciliation judge did not pay any attention, but was taking notes on the p.-v. When the judge looked up from her desk, the wife searched for her support and asked: ‘But what about me?!’ ‘You have a right to damages,’ the judge replied calmly. ‘But I have been waiting for him for three years!’ While the wife tried to hold back her tears, the judge continued to handle the financial aspects of the case, asking if he was paying

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maintenance to the wife (‘no’), and the amount of damages she was filing for (‘I don’t know’). The judge asked the husband how much he was willing to pay and he replied, ‘1,000 dinars’. The wife seemed unable to grasp what was happening. ‘Can he divorce me just like that?’ she asked. ‘Yes,’ the judge replied, ‘according to Tunisian legislation one can divorce if one desires to do so.’1 The material for this chapter consists of a total of 57 court decisions dating from 5, 6, 12 and 13 January, issued by the two Family Chambers of the CFI Tunis,2 as well as the reconciliation sessions observed between October 2008 and September 2009 and interviews with the two family judges in the same period.

Case one: Tarek and Khouloud3 (CFI Tunis, 05 January 2009, 68664) On 24 April 2008, a man called Tarek (born in 1975, who chose to list his lawyer’s address rather than his own) filed a petition for divorce without grounds at the CFI Tunis. According to the text of the judgement, the petition states that: ‘He is married to the defendant with a legal marriage contract issued on 25 November 2000, and they have consummated the marriage and they have two children [twins]. However, the marital bond deteriorated between them and he asks the reconciliation judge to try and bring about reconciliation and if this fails, to bring about divorce (talaq) for the first time after consummation in accordance with Article 31 para. [1 sub] 3 PSC.’4 Tarek’s wife Khouloud (born 1974) was summoned to attend the first reconciliation session, to be held on 21 May 2008 at 9 a.m. At this session, both spouses were present and confirmed that they were married, that the marriage had been consummated and that they had two children. The judgement summarizes what was put forward during the sessions by stating that the husband persisted in his demand and that the wife resisted the divorce; without outlining what has been said during the session. During the first reconciliation session, the following provisional measures were taken:

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Custody of the children, Yasmine and Tahar, was accorded to Khouloud; Visiting rights were accorded to Tarek on Sundays and religious and national holidays from 9 a.m. to 4 p.m. without company (meaning that he can take the children with him); Tarek was obliged to pay 200 dinars child maintenance for the two of them together and 100 dinars maintenance to his wife, to be paid monthly starting on 21 May 2008 until the obligation ended.

The reconciliation session was repeated twice, after which the judge transferred the file to the court hearing to be held on 22 December 2008. Here, both spouses were represented by their lawyers, who, according to the decision, persisted in their respective claims. The wife’s lawyer filed a petition for 10,000 dinars in material damages and 15,000 dinars in moral damages, together with the payment of the rent (sakan, 220 dinars) and an increase of child maintenance to 300 dinars, as well as compensation for the lawyer’s fees (300 dinars). In its decision, the court states that the demand was to bring about divorce (talaq insha’) which was granted as ‘Article 31 para. [1 sub] 3 PSC grants both spouses the right to divorce without justification granting the other spouse the right to ask for compensation for the harm resulting from the divorce’. With respect to the consequences of the divorce, the decision affirmed the provisional measures taken during the first reconciliation session, adding that the husband should pay 120 dinars for the wife’s sakan. On the damages (gharama), the court argued that ‘divorce on the grounds of Article 31 para. [1 sub] 3 PSC justifies the demand of compensation of the harm inflicted on the other spouse’. The decision proceeded with the moral damages, stating: ‘With respect to the moral damages: divorce without grounds inflicts moral harm on the defendant, affecting her honour and her social status, and causing the bereavement of marital life; this harm is eligible for compensation. Taking into consideration the period of co-habitation and the age of the defendant and the impact of the divorce on her feelings and the presence of children in his/her custody and taking into consideration

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the social status of the parties, this harm shall be compensated with 3,000 dinars.’ With regard to the material damages, the court argued that: ‘Divorce inflicts material harm on the defendant because of the abrupt change in her life circumstances, the woman’s costs caused by the divorce add up to the amount of what she takes upon her with the loss of a breadwinner and support. Article 31 PSC grants the woman the opportunity to choose between a compensation of the damages to be paid monthly or as a lump sum. The wife has chosen a lump sum, but the amount was too high and the court decided to alter it and to lower it to be in accordance with the duration of the marriage and the job of the man and his real income and the niveau de vie of the couple, and decided to fix the amount on 4,000 dinars.’ With respect to the lawyer’s fees, the court awarded compensation of 250 dinars and decided that procedural expenses were to be met by the husband in accordance with Article 128 CCCP. To resume, the 33-year-old Tarek filed a petition to divorce the 34-year-old Khouloud, by means of divorce without grounds. The couple had been married for eight years and had four-year-old twins, Yasmine and Tahar. The decision does not give anything away about the reasons for the husband’s petition. With respect to Khouloud’s position, the decision underlines that she resisted the divorce, which is unnecessary as the court will not change the petition to one for divorce by mutual consent of law if the defendant does not resist a divorce without grounds. During the first reconciliation session, the judge took provisional measures, granting child custody to the wife and visiting rights to the husband. The plaintiff was obliged to pay 200 dinars per month for child maintenance and 100 dinars per month in maintenance for the wife until the end of the waiting period; the judge did not decide on the housing of the children. The couple attended two more reconciliation sessions, but with no result: the husband persisted in his demand and the wife continued to resist. After the sessions, the lawyers took over: the wife’s lawyer demanded the amendment of the temporary measures, namely a raise in child

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maintenance and payment of the rent, together with 15,000 dinars in moral and 10,000 dinars in material damages. In its final decision, the court granted the demand with respect to the rent, fixing it at 120 instead of 220 dinars. The same happened to the petition for damages: these were granted, but lowered, as the court awarded 4,000 dinars and 3,000 dinars respectively. In its decision on the case of Tarek and Khouloud, the court affirmed the norm that men can obtain divorce without any grounds whatever and without the consent of their wives, even if the couple have children. This is in accordance with Article 31 PSC, which provides that the court pronounces the divorce on demand of the husband. That the decision is indeed based on this legislative source (instead of, for example, ‘sharia’) is confirmed by the fact that the decision explicitly invokes this source in the phrase, ‘Article 31 para. [1 sub] 3 PSC grants both spouses the right to divorce without justification granting the other spouse the right to ask for compensation for the harm resulting from the divorce’. This consideration formed part of the standard form and can thus be found in all decisions studied here. But even if divorce without grounds is presented as a strictly legislative decision, it is remarkable that the judgement describes the husband’s petition as a petition ‘to bring about talaq’, which may be considered a reference to the classical concept of talaq, the unilateral extra-judicial divorce by the husband. That there is an implicit reference to this classical concept if the husband files a case of divorce without grounds is confirmed by the fact that decisions on divorce without grounds on demand of the wife do not employ this term (see below). The implicit reference to the extra-judicial divorce by the husband can also be found elsewhere: in the final part of the decision, the judgement states that the petition was founded on insha’ min al-zawj (‘creation of the husband’), suggesting that it is the husband himself who ‘creates’ the divorce instead of the court. And again, decisions demanded by the wife do not employ this terminology (see below). But even if these nuances in terminology suggest that it is the husband instead of the court who brings about divorce, court practice does confirm that the husband needs judicial intervention:

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the norm issued by the court is that husbands should go to court to obtain divorce, and this is in accordance with Article 30 PSC. As was stated in Chapter One, this norm issued by the PSC and the court is different from the norm issued by another disciplinary institution, namely the State Mufti, who argued that divorce is brought about by the pronunciation of the talaq. With respect to the consequences of a divorce without grounds demanded by the husband, the court confirmed the norm that female defendants have a right to damages (on custody, visiting rights, housing and child maintenance, see Chapter Six), and that these are divided into moral and material damages. This is in accordance with Article 31 PSC, which provides in its second paragraph that a divorce without grounds gives the defendant a right to moral and material damages. In its decision, the court mentioned this article as the source for its decision to grant damages to the wife, indicating that legislation (and not, for example, ‘sharia’) was indeed the source to grant Khouloud moral and material damages – but it also mentioned other sources. With respect to the right to moral damages, the decision did not only invoke legislation to grant these, but it also stressed that the wife’s ‘honour’ and her ‘position in society’ were at stake – phrases that formed part of the standard form. However, the legislation does not contain a reference to honour and social position. In reconciliation sessions, judges also referred to the social consequences of divorce for women, stating that ‘people do not accept a divorcee’, which suggests that this presumption was based on Tunisian ‘morality’, ‘tradition’, ‘culture’ or ‘custom’. In this way, it seems that the court invoked a second reason (besides legislation) for granting wives moral damages, namely that in Tunisian society, a divorcee is not accepted. This reasoning reflects the court’s perception of norms living in society, but it also cooperates in the construction of this norm by recognizing it. With respect to the amount of moral damages awarded (in this case 4,000 dinars), the decision did not refer to legislation to calculate these. Instead, it invoked the following factors that formed

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part of the standard form: the period of cohabitation, the age of the defendant, the impact of the divorce on her feelings and the social status of the parties. By mentioning these factors, which are not mentioned in the legislation, the court was suggesting a number of interesting issues, and issuing or confirming a number of norms. That the period of cohabitation was of significance for the calculation of moral damages suggests that the wife’s honour and social position would be more damaged after a long period of cohabitation. That the age of the wife played a role in the calculation of damages suggests that women who had reached a certain age were considered more damaged than younger women, a consideration that may have been based on the presumption that after a certain age, women have little chance to remarry. That the social status of the couple was of importance for the amount of damages suggests that the wife’s honour is more harmed in the event of divorce if the couple is from a higher social class. In this way, the court issued or confirmed the norm that divorce is less problematic for lower-class people, suggesting that here divorce takes place more often and/or is less frowned upon than in the upper classes. This coincides with the impression that I obtained during reconciliation sessions, where judges took their task – to try to reconcile the spouses – far more seriously when it concerned an upper-class couple. That the defendant’s feelings were taken into account when calculating the amount of damages suggests that the more hurt the wife is, the higher the damages will become. This may mean that women opposing the divorce received a higher amount than women who did not (in the previous chapter it was argued that if the plaintiff files a petition for divorce without grounds and the defendant does not resist, the court does not pronounce a divorce by mutual consent, in which case the defendant would not receive damages at all). Also, the court issued the norm that women should oppose the divorce, and indeed, that they should be emotionally ‘hurt’. That the decision mentioned the presence of children in the wife’s custody as a factor that influences the amount of damages does not mean that moral damages were higher in order to take care of the children: child maintenance serves

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this goal. Therefore, the importance placed upon child custody may have been for another reason, for example that, in the court’s mind, a wife who has custody would find it more difficult to remarry, which is in line with the principle that the mother who remarries, loses custody (this is provided for by law; see Chapter Six). As stated above, the decision also granted material damages to the wife. With respect to these, the decision added that the wife had a right to these damages not only on the grounds of legislation, but also because she was suffering from an ‘abrupt change in life circumstances, especially the loss of a breadwinner and support’. This consideration formed part of the standard form. As it can be found in Articles 23 and 37 PSC, which stress that the husband is the main breadwinner, it seems that the court was implicitly invoking these articles. For the calculation of the amount of material damages awarded to the wife, the court did not explicitly refer to legislation. But as one of the factors mentioned in the forms, namely the niveau de vie of the couple during their marriage, is mentioned in Article 31 para. 3 PSC, it seems that the court was implicitly invoking this article. In this way, the court confirmed that the couple’s life standards during marriage were the standards used to calculate material damages, suggesting that the wife had a right to maintain these same standards. Other factors mentioned in the decision that are not mentioned in the law are the duration of marriage, the man’s job and his real income. Taking the duration of marriage into consideration to calculate material damages may suggest that the longer the wife had been married, the more accustomed she was to a particular standard of living. That the husband’s job and income were decisive is in line with the notion that the husband is the main breadwinner, and that divorce results in a wife losing her source of economic support. It is interesting that the wife’s job and income are not mentioned here, as I observed during reconciliation sessions that most women work and have their own income. The neglect of the possibility that the wife has a job suggests that the court issued the norm that married women should not work, but since all these judges were married women themselves, this is not likely. Therefore, there may have been

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another reason to neglect the wife’s income, and especially its amount, as in this way her income did not influence the amount of material damages that she would receive: the court may have been protecting women from having to waive material damages, issuing the norm that the wife’s income is an ‘extra’. The idea that the wife’s income is a bonus within marriage is confirmed by the code (Article 23 PSC states that the wife contributed to the expenses of the family, but only if she has the means), and this was also confirmed repeatedly in reconciliation sessions and private conversations with the judges: they were shocked in cases where women earned more than their husband, and they could not understand that in my personal life, I was the main breadwinner. The court also confirmed that the wife could choose to receive material damages in instalments or as a lump sum, which was printed on the standard form. This is in accordance with Article 31, although the latter formulates it slightly differently: here, the principle is the monthly instalments, adding in the last sentence that the wife may also choose to have it paid as a lump sum. Thus, the legislation presents the monthly instalments as the norm, while the court puts both decisions on a par. In practice, I observed that the majority of women chose to have the material damages paid as a lump sum. This may be explained by the fear that otherwise, they would experience continuous conflict with their ex-husband on the payment of these instalments (i.e. that they did not trust their husbands to be either able or willing to pay as ordered). In this way, women affirmed the norm that material damages are not paid in monthly instalments but as a lump sum, a norm that is in conformity with the norm issued by legislations in surrounding countries, namely that the compensation (mut‘a instead of gharama) is paid at once.5

Case two: Emna and Khaled6 (CFI Tunis, 12 January 2009, 68696) On 10 April 2008, a young woman called Emna (born in 1981, choosing to list her address as her lawyer’s office) filed a petition for divorce

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without grounds at the CFI Tunis. According to the text of the judgement, the petition stated: ‘She is married to the defendant with a legal marriage contract issued on 2 August 2007, and they have consummated the marriage and they do not have any children. However, the marital bond deteriorated and she asks to dissolve (fakk) the marital bond on the grounds of the wish of the wife (al-raghba al-khassa min al-zawja) for the first time after consummation in accordance with Article 31 para. [1 sub] 3 PSC.’7 The husband, Khaled (born in 1979), was summoned to attend the first (and only) reconciliation session, held on 23 May 2008 at 9 a.m. At this session, both spouses were present, and confirmed that they were married, had consummated the marriage and did not have any children. According to the decision, the wife argued during the reconciliation session that the couple did not live in harmony, that their characters were incompatible and that the continuance of marital life was impossible. The husband replied according to the judgement that her parents were at the root of their problems, as they were interfering with her affairs, adding that she refused to move with him to Kerkennah,8 where he was originally from (they were living in Tunis). The court hearing was set for 31 June 2008, where Emna’s lawyer as well as Emna herself and her husband were present. Here, the husband pointed out that Emna had failed to return the household goods (adbash), and Emna contested this. The court hearing was postponed until 5 January 2009 when the lawyers of both spouses were present as well as Emna herself who, according to the judgement, persisted in her demand. According to the decision, Khaled’s lawyer argued (in writing) that his client had left the marital home as soon as his wife had submitted a divorce petition, and that he had not removed the household goods or the jewellery that she was hiding from him. The lawyer demanded the return of the household goods and the jewellery, together worth 15,000 dinars, and moral damages of 50,000 dinars and 1,000 dinars for lawyer’s fees. The lawyer stated that he had filed a separate case to oblige her to return the adbash, and that a decision had been issued on

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3 November 2008. Emna’s lawyer in turn argued that her client had already returned the adbash on 8 October 2008, and Khaled’s lawyer confirmed this. Nevertheless, he insisted on the remittance of the jewellery that he had paid for just like the furniture, arguing that ‘the plaintiff cannot keep the jewellery after the husband has spent a large amount of money and engaged in several loans to secure his acquisitions only to file for divorce after only eight months of marriage’. In its decision, the court stated that the demand was to bring about divorce (fakk) which was granted as ‘Article 31 para. [1 sub] 3 PSC grants both spouses the right to divorce without justification granting the other spouse the right to ask for compensation for the harm resulting from the divorce’. Besides, the court argued that the husband had a right to moral damages, stating that ‘[d]ivorce on the grounds of Article 31 para. [1 sub] 3 PSC justifies compensation of the harm inflicted on the other spouse’. With respect to the moral damages, the court continued: ‘Divorce without grounds inflicts moral harm on the other party affecting his honour and his social status and causes the bereavement of marital life and this harm is eligible for compensation. Taking into consideration the period of co-habitation and the age of the defendant and the impact of the divorce on his feelings and taking into consideration the social status of the parties, the court decides to compensate this harm with 1,500 dinars.’ With respect to the return of the goods and the jewellery, the court argued that the Khaled had already taken back the goods, rejecting this part of the petition. With respect to the jewellery, the court argued that these are a gift that belongs to the wife who has consummated her marriage in accordance with Article 28 PSC9 and that she cannot be obliged to return it. To summarize, in this case it was the wife, Emna, who filed a petition for divorce without grounds. She filed her divorce case after only eight months of marriage, and according to the judgement, she had argued in the reconciliation session that they did not live in harmony and that it was impossible to continue marital life. Emna’s husband Khaled argued that it was not his fault that they did not live in

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harmony, but her parents’, and besides, he pointed out that he also had a reason to be angry with her as she refused to move with him to Kerkennah, the fishing islands where he was originally from. In this way, Khaled was accusing her of being ‘disobedient’, as he was suggesting that she was obliged to move with him to the place where he wished to live. Chapter 7 will reveal more about the court’s position on this obligation to move with the husband. At the court hearing, both parties were represented by their lawyers, while Emna was also present in person. The husband’s lawyer asked to postpone the court hearing in order to start a separate procedure concerning the return of the household goods and jewellery. The court rejected the petition to return the household goods, as these had already been returned to the husband. It also rejected the demand to give back the jewellery, as the marriage had been consummated. The court granted the demand of moral damages, which were fixed at 1,500 dinars instead of 50,000 dinars. The court did not pronounce on material damages or on the maintenance to be paid to the wife during the waiting period. In its decision on the case between Emna and Khaled, the court affirmed the norm that women can obtain divorce without the consent of their husband, on the sole grounds that their characters were incompatible; that they had only been married for eight months does not alter this right. That the wife does not need her husband’s consent is in accordance with Article 31 PSC, which allows the court to pronounce divorce at the petition (mutalaba) of the wife. That the decision is indeed based on this legislative source (instead of, for example, ‘sharia’ or considerations of ‘justice and fairness’ or ‘equality’) was confirmed by the fact that the decision invoked this source in the phrase ‘Article 31 para. [1 sub] 3 PSC grants both spouses the right to divorce without justification granting the other spouse the right to ask for compensation for the harm resulting from the divorce’. This consideration formed part of the standard form and can thus be found in all decisions on the wife’s petition for divorce without grounds studied here. However, the paragraph on the decision stressed that ‘marriage is based on good companionship’, that ‘there was no improvement

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to be expected in this respect’, and that there was an ‘impossibility to live together in an atmosphere filled with love and kindness’. This reasoning resembles the one employed in form two on petitions of divorce by mutual consent, except that in cases of divorce without grounds, these considerations were only added if it was the wife who filed the petition. It suggests that if a woman filed a petition for divorce without grounds, there should nevertheless be grounds for the divorce. To follow this line of reasoning would mean that if the court does not think that there are any grounds, it could reject the demand. Another hint at judicial discretion can be found in the terminology of the decision, especially when compared to the terminology employed in the case of Tarek and Khouloud. The judgement describes the wife’s petition as a petition ‘to dissolve (fakk) the marriage’, while decisions on the husband’s demand employed the term talaq (see above). The use of the term fakk may be considered a reference to the classical concept of the judicial divorce (or ‘nullification of marriage’) at the wife’s demand, which is called faskh in Islamic law (both terms mean ‘to dissolve’). As opposed to talaq, which suggests that court interference is not required (even if court practice reflects that it is), faskh in Islamic law and in other countries in the region involves not only judicial interference, but also implies that the judge can grant the demand or not at their discretion, depending on whether the judge is convinced that there are sufficient grounds for the divorce. The implicit reference to the judicial divorce at the wife’s demand can also be found in the final part of the decision, where the judgement states that the petition was founded on the wish of the wife (al-raghba al-khassa min al-zawja), suggesting that the court has a certain discretion to employ: the fact that the wife is asking for a divorce does not mean that she will obtain it. Nevertheless, practice showed that the court always granted the demand, whether it was the wife’s demand or not, without leaving room for discretion. The question arises: why does the court employ such differentiated terminology depending on the gender of the plaintiff, if the norm is that both spouses have a right to divorce without grounds provided

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that they proceed through the court? One possible reason is that the court is inspired by the terminology employed in the legislation: Article 31 para. 1 sub 3 PSC provides that the court pronounces the divorce (talaq) on the grounds of the wish of the husband to create divorce (‘ala raghbat al-zawj insha’ al-talaq) or the petition of the wife for it (aw mutalabat al-zawja bihi). Indeed, on the very first day that I attended reconciliation sessions presided over by one of the family judges, this judge pointed out to me that the terminology in this article is gendered, stating that the divorce is only called insha’ if it is at the husband’s demand, whereas in the French text both petitions are denoted as ‘caprice’. Another reason behind the gendered terminology may be that the court takes into consideration a certain reality, namely that in ‘society’ divorce without grounds would be less acceptable for women than for men. This would reflect the court’s understanding of norms living in society. But it would also mean that the court cooperates in constructing this very reality, as it reinforces this norm instead of disregarding it. Nevertheless, the significance of the fact that the outcome of the decisions reflects the norm that women have equal access to divorce without grounds should not be underestimated. The decision also reflected norms on the consequences of divorce, specifically damages, maintenance during the waiting period and the return of some goods. With respect to damages, the decision shows that the court awarded damages to the husband. This is in accordance with legislation, which provides in Article 31 para. 2 that divorce without grounds gives right to damages, without making a distinction between men and women. That this article was indeed used as a source for the decision to grant damages to Khaled is confirmed by the fact that the decision makes explicit reference to it. However, the court did not grant the same damages to Khaled as it did to Khouloud in the previous case: unlike Khouloud, Khaled received moral damages only, and no material damages. This seems to be in accordance with the law, even if the latter is not specific about it: Article 31 para. 2 states that the court pronounces on moral and material damages, while para. 3 elaborates on the issue of material

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damages by completely focusing on the wife: the paragraph begins with the words, ‘With respect to the wife, material damages shall be repaired through ...’ In this way, both the legislation and the court issued the norm that the husband should be the main breadwinner, as the fact that he does not have a right to material damages suggests that he does not lose a ‘breadwinner and support’ upon divorce. In other words, he is expected to be economically self-sufficient, not reliant on his spouse. With respect to moral damages, the court invoked other sources besides legislation to grant these, and it is fascinating to see that these were the same considerations as the ones mentioned in the case of Tarek and Khouloud: like Khouloud, Khaled had a right to moral damages because his ‘honour’ and ‘position in society’ had been damaged by the divorce. In this way, the court issued the norm that divorce does not only harm the honour and social position of women, but also of men. This is noteworthy as it is generally presumed in Tunisia that women suffer much more from divorce on the social level than men do; this has been pointed out repeatedly, for example by the Femmes Démocrates.10 Furthermore, in reconciliation sessions, judges never pointed at the social consequences for men, but only for women. As a consequence, it seems as if the court issued a different norm in reconciliation sessions than in its decisions. This can be explained against the background of what has been observed in Chapter One, namely that reconciliation sessions were much more informal, which may imply that in these sessions judges were more likely to say what they were ‘really’ thinking. That would mean that actually, judges thought that divorced women did suffer more from divorce than men, which may very well reflect their own vision of divorced women, in the sense that these judges looked down on them – indeed, none of the judges I met had been divorced herself. In order to calculate the amount of moral damages that was awarded to Khaled, the decision mentioned the same considerations as in the case of Tarek and Khouloud. In that way, the court confirmed the same norms as they applied to women, namely that the man’s

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honour and social position were more damaged after a long period of cohabitation, if the couple formed part of a higher social class and if the husband had opposed the divorce (i.e. the divorce hurt his feelings). That the court confirmed that men suffer more from a divorce after he had reached a certain age is interesting in the light of the general presumption in Tunisia (and elsewhere!) that it is easier for older men to remarry than it is for their female counterparts, and that it is more acceptable for older men to have a new relationship than it is for women of the same age group. In this way, the court issued the norm that remarriage is and should be problematic for both women and men. With respect to maintenance upon divorce, it is interesting that unlike the case above, of Tarek and Khouloud, the court did not grant any maintenance to Emna. This is not in accordance with legislation, which provides that the husband pays maintenance from the moment of consummation (i.e. celebration) of the marriage until the end of the waiting period. The court did not explain why Emna did not have a right to maintenance, as the topic of maintenance was simply left out of the decision. In this way, the court affirmed that if a woman has filed a petition for divorce without grounds, she waives her right to maintenance, which brings to the surface the similarities between divorce without grounds on the wife’s demand in Tunisia and divorce by mutual consent on the wife’s demand (khul‘) in neighbouring countries, especially Egypt, Jordan, Algeria and Pakistan: here, the wife does not need the husband’s consent for a divorce, nor does she need any grounds, but she does need to waive her outstanding financial rights. Besides, Emna was obliged to pay damages to her husband, which is comparable to the money that the wife can be obliged to return to the husband in, for example, Egypt.11 A final norm with regard to the consequences of the divorce between Emna and Khaled concerns the adbash (the furniture) and the jewellery: the court confirmed that as soon as the marriage has been consummated, the wife gets to keep the gifts – in the case of Farouk and Ferdaws in the previous chapter, the norm was issued that if the marriage has not been consummated, the wife is to return them. But

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with respect to the furniture, the court issued the norm that despite consummation of the marriage, this should be returned. This norm is in accordance with the legislation that provides that in principle, there is no community of goods unless agreed otherwise, meaning that the spouse who bought something remains its owner even if he or she has gifted it to the other spouse.

Other decisions The collection of court decisions from 5, 6, 12 and 13 January 2009 contains 34 other decisions where the husband filed for divorce without grounds, and 12 where the wife did so. This may indicate that at the CFI Tunis in the years 2008 and 2009, men filed three times as many petitions for divorce without grounds than women, but as I only have the decisions from these four days, I cannot generalize my findings to state that men are more likely to file for this type of divorce than women. Nevertheless, official government statistics from the year 2001 confirm that, indeed, men were responsible for 35 per cent of the petitions for divorce without grounds, and women for 20  per cent in Tunisia as a whole.12 These statistics should be read with caution, as they come from an official governmental source which clearly serves political purposes: the same source asserted that in 2001, only 1 per cent of marriages ended in divorce, a flagrant contradiction of other findings which indicate that the divorce rate is far higher (see Chapter One). But if men are indeed more likely to file this type of petition than women, this would confirm what was mentioned above; namely, that the court anticipated a certain social reality according to which it is less acceptable for women than for men to divorce without grounds. But there could also be other reasons why women filed less petitions for divorce without grounds than men, for example, that women may not be able to afford to pay damages if they are not financially independent. Ignorance is another possible cause, in that women are under the impression that they can only obtain divorce if their husband agrees or if they can prove certain grounds – this perception of the law may be influenced by how the law was before 1956, when this was indeed

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the case. However, that filing for divorce without grounds is less socially acceptable for women seems likely when looking at Egypt, where Sonneveld observed that the general image that people have of women who file for divorce without specific grounds (in Egypt this is the khul‘ divorce) is very negative: they are considered ‘loose’ women who do not take marriage seriously.13 However, I’m not sure that this belief really exists in Tunisia. The other decisions on divorce without grounds confirm the norms derived from the two judgements above: men and women can obtain divorce without grounds, even if their spouse does not agree, they do not have a reason and there are children involved. The only decisions where the demand was rejected mentioned procedural grounds, such as that a foreign court had already decided on the divorce, that the Tunisian court was incompetent, that the plaintiff was absent at the reconciliation session, or the absence of a waraqa hamra proving that the defendant had been properly summoned. The decisions also confirmed that in principle, defendants had a right to damages, namely moral and material damages for female defendants and moral damages only for male defendants. Nevertheless, there were a significant number of cases where the defendant was not granted damages. This was especially true for cases where the wife filed a petition for divorce without grounds: of the 12 cases where the wife filed a petition, only one husband received damages,14 while in 17 out of the 34 cases where the husband filed the petition, the wife was granted these. Most cases where damages were denied concerned the situation where the defendant was absent during the reconciliation session: this was true in 10 cases where the husband was the defendant and in 13 for female defendants. The defendants’ absence was mostly due to the fact that he/she was living abroad: in four of the ten cases where the husbands were absent, the latter, of Tunisian origin, were living in France or Belgium, and in eight of the 13 cases where the wives were absent, they were foreign women (German, Italian, French or Moroccan), living in their country of origin. Thus, the consequence of the norm that the defendant should be present at the reconciliation session is an indirect discrimination

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against spouses who are living abroad, who are deprived of all the financial benefits of a divorce without grounds because they are unable to attend reconciliation session(s) in Tunisia. Other reasons for absence may have been the existence of other obligations, such as having a job: I repeatedly observed litigants pointing out to the judge that they could not take a day off to attend a court session. Of course, it is also possible that they simply did not wish to come, or that they had not been correctly summoned; in principle, the plaintiff should prove that he/she summoned his/her spouse with a piece of red paper but, people could obtain these in illegal ways. The decisions did not explain why these defendants did not have a right to damages, as the part on damages was simply wiped out. It is not prescribed by law that the defendant should be present at a reconciliation session to obtain divorce without grounds. Denying damages to them suggests that the court would not grant damages of law, meaning that if the defendant had not claimed any, the court would not decide on a particular amount on its own initiative. In that case, it would be a merely legal consideration. But another reason underlying these defendants’ lack of damages may be that to the court, absence suggested that they did not take divorce seriously, and hence they did not deserve to receive any damages. It was often reiterated in reconciliation sessions that people should take divorce seriously. Also, some judges pointed out to me that some people do not take marriage seriously anymore: they simply get married when they feel like it and divorce when they feel like it too. The judges clearly disapproved of this attitude to marriage, showing that for them, marriage was something important and for life. Another reason for denying damages was that the marriage had not been consummated, in which case men as opposed to women would not receive any damages. This is not prescribed by law: the provision on damages does not make an exception with respect to the non-consummation of marriage. As the period between the sdaq and the ‘urs is sometimes used as a period to get to know each other, during which the couple can go out together without being frowned upon, this might mean that having gotten to know each

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other better, the spouses developed second thoughts about spending their life together; this may have happened in the case between Farouk and Ferdaws that was described in the previous chapter. That men would lose their right to moral damages suggests that a man’s ‘honour’ and ‘social position’ have not been damaged as long as the marriage has not been consummated (or at least celebrated, which signals to the outside world that it has been consummated), and in this way, the court issues the norm that marriage without consummation does not make men less attractive on the marriage market. In this respect it is interesting to observe that if a man filed a petition for divorce without grounds before consummation, women were awarded damages: while they were denied material damages, they received moral damages. This suggests that according to the court, the honour and social position of women were damaged when the husband decided not to go through with the marriage. In this way, the court issued the norm that while women may have second thoughts after the sdaq, men may not, suggesting that men have more responsibility when deciding to sign a sdaq than women do: they need to be more certain about the marriage. A reason for imposing more responsibility upon men in this way may be that the court anticipates the possibility that people will suspect that even if the marriage has not been consummated, the wife is no longer a virgin and therefore that it will be more difficult for her to remarry. In this way, the court affirmed the norm that a woman should be a virgin when she gets married. That women would not receive material damages if the marriage had not been consummated is in line with the norm that was also confirmed in the case between Farouk and Ferdaws, namely that the husband is not obliged to pay maintenance until the marriage has been consummated. Thus, if divorce takes place before consummation, the woman is not yet considered to be bereaved of a ‘breadwinner and support’. While the decisions reflect that husbands lose their right to damages when absent at the reconciliation session(s) or when the

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marriage has not been consummated, the norms with respect to the wives’ damages were more complicated. As was stated before, women would lose their right to moral and material damages if absent at the reconciliation sessions, and they would be bereft of their right to material damages if the marriage had not been consummated. The decisions reflect that there were two other situations where women were deprived of material damages, namely when they had abandoned the marital home without a valid reason and when they received a substantial income.15 In one case, the court considered it proven that the wife had abandoned the marital home without a valid reason.16 Denying the wife material damages in such a case reflects a norm that was issued in appeal against maintenance decisions from the Cantonal Court, namely that women who have abandoned the marital home without a valid reason lose their right to maintenance, thus asserting the secondary norm that women should not abandon the marital home unless they have a valid reason. This norm shall be addressed in more detail in chapter 7. Indeed, if the wife who abandons the marital home without a valid reason loses her right to maintenance, she will not lose a breadwinner and financial support upon divorce. However, this norm is not prescribed by the legislation: Article 37 requires that the marriage has been consummated, and not that the couple live together.17 Besides, Article 23 on marital duties does not prescribe that the spouses should live together. As the court stated in its decision that there was an ‘error in marital life’ (dull al-hayat al-zawjiyya), the court issued the norm that people should live together within marriage. In another case, the court denied the wife material damages on the grounds that she earned 450 dinars a month. This is noteworthy, as in other cases, the court did not seem to take the possibility that the wife has an income into consideration (see above). That the court did take the wife’s income into consideration in this particular case may indicate that the husband in question did not have an income, making the wife the main breadwinner and releasing the husband from his duty to pay material damages. As was stated above, judges

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did not consider it ‘normal’ if the wife was the main breadwinner, and disapproved of it. With respect to the amount of damages, the factors invoked to calculate these were already outlined above. It is interesting to note that all decisions where damages were granted state that the original amount claimed was too high and needed to be lowered. The collection of decisions shows that women generally chose to receive their material damages as a lump sum, and that they received an average of roughly 2,000 dinars in moral damages and 3,700 dinars in material damages (or 100 dinars a month if they did choose to receive these in instalments). This is interesting because it is a reasonably large amount of money, if one takes into consideration that the average income of the men I observed in reconciliation sessions was around 350 dinars per month. I wondered whether judges were not aware that these amounts were simply too great for people to realistically be able to pay; this may have indicated that the judges treated their own income as the standard by which other people should be judged, suggesting an ignorance of the real economic conditions under which most people live and work. It may even suggest a notion that people have only themselves and their own laziness or fecklessness for earning so little (indeed, that the court considered unemployment to be something that was blameworthy and an indication of bad character, despite the precipitously high unemployment rates in Tunisia, shall be demonstrated in the next chapter). However, it should be kept in mind that the sanctions to enforce payment of the damages (imprisonment) were not always applied, and therefore, they were often not paid in practice. In the only two cases where the husband was awarded damages, the men in question received 1,000 and 1,500 dinars respectively, which is considerably less than the average of 2,500 dinars granted to women. This suggests that men were considered to be harmed less, in terms of their honour and social position, than women, which is confirmed in reconciliation sessions where judges only pointed out that people do not accept a divorced woman. It may also suggest that judges presumed that women earned less money than men and thus could afford to pay less in damages, which

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would be in line with the judge’s idea that the wife’s income is always accessory. With respect to maintenance, the decisions confirmed the norm issued in the cases between Tarek and Khouloud and between Emna and Khaled, namely that if a man filed a petition for divorce without grounds, the wife received maintenance during the waiting period, while if the wife filed this petition, she would lose this right. Besides these norms, the decisions also reflected that if the female defendant was absent at the reconciliation session, she would lose her right not only to damages but also to maintenance during the waiting period.

Reconciliation sessions Reasons for filing for divorce without grounds varied from one case to another. One reason could be that the plaintiff originally wished to file for divorce by mutual consent but the defendant did not agree, either because the defendant did not wish to divorce at all or because he/she wished to receive damages. Another reason could be that the defendant, even if willing to contract divorce by mutual consent, was unable to attend the reconciliation session, for example because he/she was living abroad. Again, another reason could be that the person filing for divorce, having evidence of harm, did not wish to disclose the reasons for the divorce. And finally, it is possible that the person who wished to divorce had specific grounds that may have qualified as harm, but was unable to prove these, preventing him/her from obtaining divorce for harm. I observed that the last reason urged many litigants to change their petition for divorce for harm to one for divorce without grounds. A typical discussion observed during reconciliation sessions in cases of divorce without grounds concerned the plaintiff’s right to divorce. As is shown in the description of a reconciliation session at the very beginning of this chapter, this right was put into question by stating that the plaintiff did not have any grounds for divorce and that the defendant did not agree to it. It is interesting that such

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discussions would be instigated by both men and women, challenging the idea that society would consider divorce to be the husband’s unilateral right – an assumption that would be in accordance with classical perceptions of divorce. If the litigants questioned the right to divorce, reconciliation judges would reply that indeed, the plaintiff had a right to divorce but that the defendant had a right to damages. The only situations in which I saw that a judge was reluctant to grant divorce without grounds were cases when the wife was pregnant: I observed that reconciliation judges strictly opposed divorce during pregnancy, stating that this was haram and invoking a verse from the Quran according to which repudiation during pregnancy is reprehensible.18 And indeed, the idea that divorce is forbidden during pregnancy was shared by litigants; for example, during one session, the wife said that she had wanted to divorce for some time, but could not as she was pregnant.19 Nevertheless, if the plaintiff insisted, the divorce was granted.20 This shows that in the informal setting of the reconciliation session, judges would issue other norms and invoke other sources than in the formal setting of a decision. It also shows that the court issued the norm that people should not divorce during pregnancy, but that they allowed the legislation to prevail over this softer norm. Another discussion witnessed during reconciliation sessions in cases of divorce without grounds concerned the amount of damages: when judges asked how much the defendant wished to receive in damages, some defendants were unprepared for this question. This caused much irritation with the judges, some of whom would yell: ‘Name an amount!’ Litigants would be very hesitant to simply name an amount without talking about it with a lawyer, which indicated that they did not know how much they could ask for. I often had the impression that litigants feared to shock the judge by naming an amount that was too high, which may indicate that it was important for litigants to be respected by the judges and not to seem greedy. At the same time they feared to mention a very low amount and hence be stuck with that, while they would have been able to obtain more. Other defendants were better prepared and mentioned

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an amount. In such cases, some plaintiffs would cry out desperately (or theatrically) that he/she would never be able to pay this and would risk going to jail.21 A specific aspect of reconciliation sessions in cases of divorce without grounds was that the litigants would sum up numerous ‘defects’ of their spouse. This seems reasonable and predictable behaviour on the part of the person who filed for divorce, and could be considered as a means to convince the judge that he/she could really not do otherwise than to file for divorce, anticipating judges’ disapproval of divorce. It seems much less logical when it is the defendant summing up the ‘defects’ of their spouse, as one may expect that if the defendant is so critical of the plaintiff, they would contract divorce by mutual consent. However, as has been stated in the previous chapter, divorce by mutual consent is agreed upon not only because the defendant also wishes to divorce, but also because he/ she rejects his/her right to damages. Nevertheless, it is not necessary for the defendant to accuse the plaintiff of ‘bad behaviour’, as the defendant’s right to damages is not based on the plaintiff’s behaviour during marriage, but on factors connected to the consequences of the divorce. Nevertheless, I had the impression that the behaviour of the plaintiff and the defendant during marriage could influence the amount of damages awarded. Although decisions do not mention spousal behaviour as one of the factors, the family judge once confirmed to me that accusations can be decisive: I had just observed a session where the wife filed a case for divorce without grounds, arguing that her husband was very violent with her. I was surprised that she had not filed a petition for divorce for harm, as she would have to pay damages whereas in a case of divorce for harm she would receive damages. After the woman had left the office, I asked the judge why the woman did not file for divorce for harm, and the judge replied that the woman realized that she would be unable to prove the violence. When I expressed my feeling of injustice evoked by a situation where a beaten woman should pay her husband to be ‘released’, the judge pointed out that if the wife was consistent in her accusations during the three reconciliation sessions,

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these accusations, noted down in the p.-v.s and forming part of her file, would play a role in the calculation of damages that she would have to pay upon divorce, which would be lowered.22 That accusations were indeed taken into account is reflected in some decisions, even if it was not explicitly stated that they were a decisive factor in the calculation of damages. As most decisions made no mention of the accusations uttered during the reconciliation sessions, the ones who did mention these seem to have good reason to do so, especially as almost every session was characterized by a storm of accusations. A clear example is the case of Khaled and Emna, where the decision stated that Khaled had accused Emna of refusing to live with him in Kerkennah; in this way, Khaled accused Emna of being disobedient, and as the chapter 7 will reveal, the court accepted the norm underlying this accusation. Other judgements mentioned other allegations, such as domestic violence,23 non-payment of maintenance,24 absence of sexual relations,25 ‘bad words’,26 the drinking of alcohol27 and adultery.28 However, it is not easy to establish that these accusations influenced the amount of damages: since decisions did not mention the job and income of the spouses, it is almost impossible to make out whether the damages are indeed relatively high or low; the only indicator that may be useful is the address of the spouses which may indicate their socioeconomic status, and indeed, in one decision the correlation between accusations and the amount of damages could be established on the basis of the address. In this case, the wife had been awarded about the average amount, namely 3,000 dinars material damages against an average of 3,700 dinars, and 2,000 dinars moral damages, against the average of 2,000 dinars, although the couple were living in the lower-class neighbourhood of Hayy Ibn Khaldoun, while the wife’s parents (to whose house she had moved) were living in the township of Hayy Ettadamun.29 The decision mentioned that the husband had accused his wife during the reconciliation session of abandoning the marital home. Although it may seem contradictory that the wife received a large amount of damages when the husband uttered accusations against her, it is not: the fact that the wife had abandoned

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the marital home formed an indication in this case that her husband was treating her badly. This presumption was confirmed repeatedly by one of the family judges, who opined that ‘women do not leave without a reason’.30 Besides the bad behaviour of the other spouse, litigants would also invoke their own good behaviour, such as prayer, giving to the poor, reading the Quran and so on. Some women pointed out that they had been a virgin on the wedding night, which affirms that virginity is still important in some social circles in Tunisia.31 The importance of virginity is also confirmed by the fact that in cases of divorce before the wedding celebration, women would ask the judge to state clearly in the judgement that the woman was still a virgin, and judges would be very careful to do this, even if it was clear that the woman was not.32 The importance of virginity is also reflected by an old Tunisian practice that is supposed to protect women from losing their virginity before marriage, called tafsih.33 This ritual, nowadays only practised among the lower classes of Tunis, consists of cutting a wound in a young girl’s knee, which is stitched with a thread while uttering the formula ana hit wa wild el-mra khyt (‘May I be standing like a wall to the thread of a man’). When the woman is ready to consummate her marriage, the same woman who closed the wound should open it, pronouncing the opposite formula ana khyt wa wild el-mra hit (‘May I be soft like a thread when the man is standing like a wall’). And indeed, in some social classes, the mother of the groom calls the morning after the marriage celebration to ask if there was any blood. Some women would make sure to obtain a medical certificate on the eve of the wedding celebration in which a doctor declared that her hymen was intact, just in case she did not bleed. I do not know if doctors would really examine a woman to establish whether this was true, or would simply give her the certificate, but I heard of one doctor who practised his profession several decades ago, who, out of respect for women’s privacy, did not ask questions and offered every woman who came to him on the eve of their wedding night a simple and cheap solution: he would simply give her a piece of alum for her to insert into her vagina

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before the consummation. Despite the existence of this solution, a gynaecologist told me that the reconstruction of the hymen is his principal source of income, although it costs around 750 dinars and may not even be sufficient: there is a rumour that the difference can be detected as the latter bleeds more and the blood has more colour.

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CHAPTER 5 DIVORCE FOR HAR M ON THE GROUNDS OF DOMESTIC VIOLENCE

On a Monday morning in the spring of 2009, a couple entered the office of the family judge. The wife had filed a petition for divorce for harm. ‘Why?’ the judge asked her. ‘Because he beats me,’ the wife replied. ‘But you have children together!’ the judge exclaimed, trying to change the wife’s mind and make her abandon her petition. But the woman insisted: ‘I’m filing for divorce for harm.’ ‘But on what grounds?’ ‘He is not living with me,’ the wife added. ‘So what?’ the judge asked crudely, and the wife added more grounds: ‘He uses bad words in front of the children.’ ‘So what?’ the judge asked again, and the wife added: ‘He is not paying maintenance.’ ‘And?’ the judge insisted. ‘Do you have a maintenance decision? If not, it is not possible [to file for harm]. You should file for divorce without grounds.’ At this moment, the husband wanted to give his side of the story and intervened. He stated that his wife had abandoned the marital home, suggesting that he could file a petition for divorce for harm, or at least, that he had an excuse not to pay her any maintenance. ‘But that is only because he beats me,’ the wife replied, starting to sound desperate. But the husband went further in making accusations, stating that he had a medical certificate to prove that it was her who beat him. The judge told both of them: ‘You will have to prove everything you say!’1

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The material on divorce for harm consists of a total of 36 decisions issued by the two Family Chambers of the CFI Tunis in 2008 and 2009, as well as the reconciliation sessions observed between October 2008 and September 2009 and interviews with the two family judges in the same period. But for the study of judicial practices in the field of divorce for harm, I also used additional material, consisting of observation of sessions of the public prosecutor who specializes in family matters (CFI Tunis) and interviews with him, the head public prosecutor at the CFI Tunis and two penal judges (one at the CFI Tunis and one at the Cantonal Court in Tunis). These are all men. I also interviewed two (female) lawyers who are also women’s rights activists and members of the ATFD and the AFTURD, as well as one (female) counsellor at the Centre d’écoute of the ATFD (the centre that provides support to female victims of domestic violence) and three female litigants who were implicated in a case of divorce for harm (Balqis, Narjis and Kmar Balqis).2 Finally, I observed a counselling session at the Centre d’écoute with regard to a woman who was the victim of domestic violence. Only 25 of the 36 decisions from the CFI Tunis on divorce for harm were issued on 5, 6, 12 and 13 January 2009; the other 11 decisions were issued in 2008 and were handed to me by one of the family judges when I asked specifically for decisions on divorce for harm. The reason I asked for these is that cases of divorce for harm are very different from one another, as they concern different types of harm (domestic violence, abandonment, non-payment of maintenance, adultery, etc). In order to deduce a norm from the decisions, I needed more than one or two decisions per type of harm. However, this means that as part of the decisions were selected for me by the family judge, they may not reflect general practices, but instead may be decisions that this judge was particularly proud of or handed me for another reason. Also, it is possible that the judge did not hand me decisions that she thought I should not write about, such as decisions on divorce for harm on the grounds that the wife had not been a virgin on the wedding night, or similar decisions that, in the judge’s eyes, I would reject or respond to negatively.

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The fact that only 25 decisions were issued on divorce for harm on these four days, against 26 on petitions for divorce by mutual consent and 38 on divorce without grounds, indicates that not many people file for divorce for harm and/or that many petitions for divorce for harm are abandoned or changed into divorce without grounds/divorce by mutual consent during the proceedings. The reason for this is that harm remains difficult to prove, and that procedures of divorce for harm take significantly more time than other divorce types. Also, if a litigant filed a petition of divorce for harm, judges would generally encourage him/her to change it. This could be done in different ways; in many cases, judges would argue that the behaviour that the plaintiff was complaining about could not be considered as harmful. Another way of discouraging petitions for divorce for harm would be that the judge immediately pointed out that the evidence requirements could not be met. But in some cases, judges would actually encourage the plaintiff to file for harm. This was, for example, true in a case where a wife filed for divorce without grounds arguing that her husband had left her.3 I also observed some sessions where the husband filed for divorce without grounds stating that his wife had left him4 or that he had moved house while his wife refused to follow him.5

Mounira versus Imed6 (CFI Tunis, 12 January 2009, 65054) On 14 June 2007, Mounira (born 1977) filed a petition for divorce for harm at the CFI Tunis. According to the text of the judgement, the petition stated: ‘She is married to the defendant by means of a legal marriage contract issued on 7 December 2006, and they consummated the marriage and they have one child, but marital life deteriorated because of the deliberate act of the defendant consisting of a violent attack on her (al-i‘tida’ bi-l-‘unf) and [she obtained] a penal conviction namely decision number ... . This inflicted harm upon the plaintiff and she asks to bring about divorce between them for the second time after consummation on the grounds of harm brought about by the husband in accordance with Article 31 para. [1 sub] 2 PSC and [she asks] to

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oblige the defendant to compensate her for her moral damages with 1,000 dinars, 10,000 dinars for material damages, and 600 dinars for lawyer’s fees.’7 Mounira’s husband Imed (born 1971) was summoned to attend the first reconciliation session which was held on 28 July 2007 at 9 a.m. They were both present at this session. According to the judgement, Mounira recounted here that she persisted in her claim of divorce for harm consisting of ‘an attack with violence’ (al-i‘tida’ bi-l-‘unf), adding that she was four months pregnant and that this divorce case had been preceded by another divorce pronounced in 2001 on the grounds of the fact that her husband had kidnapped her daughter; they had married again as he had promised to change and that his treatment of her would improve, ‘but it had started all over again’. The husband replied according to the decision that the accusations were without any grounds, adding ‘[t]he truth is that she attacked herself’, and that the actual reason for the divorce was that she did not wish to move house with him to an independent marital home as they were still living with her parents. The reconciliation judge granted custody of the daughter to Mounira and visiting rights to Imed, obliging him to pay 40 dinars per month of maintenance for the daughter. During the divorce proceedings, Imed’s lawyer stated that the penal conviction had not yet obtained force of res judicata, and presented a witness who declared that Mounira had indeed attacked herself. He demanded that Mounira’s demand be rejected and filed for 1,000 dinars in lawyer’s fees. In its decision, the court argued that, given that the demand was to bring about divorce for harm, and that the marriage was proven and that the reconciliation sessions had failed: ‘As the harm ... consists of an attack with violence, and as the harm consisting of severe violence (‘unf shadid) is proven with a court decision issued on 29 November 2007 ... , this leads the court to pronounce divorce for harm.’ The provisional measures taken during the first reconciliation session were confirmed, adding that Mounira also gained custody of their newborn child, and obliging Imed to pay 30 dinars’ maintenance for the latter every month. Imed was sentenced to pay 1,500 dinars in

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moral damages and 1,000 dinars in material damages, together with 250 dinars for lawyer’s fees. To summarize, the 30-year-old Mounira filed a petition for divorce for harm against her 36-year-old husband with whom she had one child and was pregnant with a second when she started the divorce proceedings. It was their second divorce: the first divorce had, according to her, been due to the fact that he had kidnapped their daughter. They had remarried after he had promised to treat her better, but according to her, he had not kept his promise. She showed a penal conviction that condemned him for domestic violence and filed a petition for 1,000 dinars in moral and 10,000 dinars in material damages. However, during the reconciliation sessions Imed denied the allegations, arguing that Mounira had attacked herself in order to obtain divorce for harm, presenting a witness to corroborate this. Besides, the lawyer pointed out that the penal judgement convicting Imed for domestic violence had not yet obtained force of res judicata, which implies that the decision may be nullified in appeal. Imed argued that it was Mounira who wished to divorce, but that she was lying in order to obtain damages. According to him, they were living with her parents, and she did not wish to move house, which he did; in this way suggesting that actually, it was her who was causing harm and him who was suffering it. Despite these pleas, the court granted Mounira’s demand, stating that the violence had been proven by the penal sentence, regardless of the possibility of annulment in appeal. The court granted Mounira a higher amount of moral damages than she had actually filed for, namely 1,500 dinars instead of 1,000 dinars. On the other hand, she received only one-tenth of the material damages that she had filed for (1,000 instead of 10,000 dinars). In its decision on the Mounira and Imed case, the court affirmed the norm that a wife can obtain divorce for harm. This is in accordance with Article 31 para. 1 sub 2, that provides that the court pronounces the divorce on the grounds of harm (darar). That the decision was indeed based on this source is confirmed by the phrase that ‘the legislature grants both spouses in Article 31 para. [1 sub] 2 PSC the right to demand divorce on the grounds of the harm inflicted on him’. However, the legislation does not explicitly define what acts can be

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qualified as harm, thus leaving room for interpretation on the parts of judges and officials. The decision shows that as serious violence (‘unf shadid) was qualified as harm, the court issued the norm that such behaviour is not accepted within marriage. The Personal Status Code does not state anything specific about violence, but it does state that the spouses should live in ‘good companionship’ and that they should refrain from harming each other. That domestic violence constitutes harm is confirmed in another law, namely the Penal Code: Article 218 of this code specifically deals with domestic violence in which case the punishment is more severe than if it took place outside the conjugal relationship: while intentionally causing injury, by slashing or in another way, is punished with one year in prison, this is doubled if the offender is the spouse of the victim.8 This provision was introduced in 1993, together with the insertion of many articles to enhance women’s rights, but it is still criticized by the Femmes Démocrates and others for providing that the spouse can stop the prosecution or the execution of the punishment by retracting his/her complaint. In its decision on the divorce of Mounira and Imed, the court also issued norms with respect to the financial consequences: Mounira was granted material and moral damages, as well as child maintenance and lawyer’s fees. That the plaintiff has a right to damages is in accordance with Article 31 para. 2 PSC, which provides that in cases of divorce without grounds and divorce for harm, the spouse has a right to damages. The court invoked this provision to explain that Mounira had a right to damages (confirming that this decision is not merely a matter of considerations such as ‘justice’, ‘fairness’, ‘sharia’ or anything else). But besides this legislative provision, the decision, which is a standard one for divorce for harm, invoked other sources too; indeed, the considerations with respect to damages on the standard form for divorce for harm were an exact copy of the considerations in divorce without grounds: moral damages were granted as divorce injures the ‘honour’ and ‘social position’ of the other spouse, and material damages were awarded because the wife loses ‘a breadwinner and support’. This is remarkable, as it shows that the right to damages is based on the fact of the divorce itself instead of the harm causing it: the damages are not supposed to compensate for the violence that Mounira

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underwent, but the fact that she was forced to file for a divorce, which is causing harm to her honour and social position and causing her to suffer the loss of a breadwinner whose responsibility is to support her economically. In the same vein, the parameters invoked to calculate the amount of damages were identical to the ones in decisions on divorce without grounds (the period of cohabitation, the age of the defendant, the impact of the divorce on her feelings, the presence of children in her custody and the social status of the parties), suggesting that the act which caused the divorce was not taken into consideration to calculate the damages. This is especially surprising when it comes to moral damages, but is in accordance with the consideration in the decision that these are awarded because of the divorce, not the violence. And indeed, the amount of moral damages that Mounira received was no higher than the average that women received in cases of divorce without grounds: 1,500 dinars against the average of 2,000. In other words, the nature and extent of the harm that Mounira suffered did not result in her being awarded greater damages. It is surprising that Mounira was not granted maintenance during the waiting period. This may reflect the norm that women who file a case for divorce for harm lose their right to maintenance, but this seems unlikely, especially as in other cases of divorce for harm at the wife’s demand, maintenance was granted (see below).

Other decisions Besides the case of Mounira and Imed, the collection contains six decisions on petitions of women for divorce for harm, mentioning domestic violence as (one of) the grounds; however, the demand was only granted in one other case. The decisive difference between this case and the others is that here, domestic violence had been proven with a penal conviction: the woman argued that her husband had attacked her with a knife which had caused significant injury, even requiring surgery, showing a penal decision convicting him for domestic violence. The woman did not file a petition for damages, but instead of simply remaining quiet on the issue of damages, the decision stated explicitly that she could file for those in a separate civil case.9 This decision

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confirms that the court issued the norm that domestic violence constitutes harm and confers a right to damages, even if the plaintiff did not file for these. However, in this decision the court did not content itself by invoking Article 31 para. 1 sub 2 PSC as the source underlying its decision to grant divorce for harm; the decision is much more elaborate, as the court explained that an attack with a knife ‘constitutes a violation of the marital duties and of the dignity of the wife and of the inviolability of her body’. The invocation of the marital duties forms an implicit reference to Article 23 PSC, but the principles of ‘dignity’ and ‘inviolability of the body’ are not mentioned in the law, even if these certainly underlie the interdiction of violence. And indeed, these are fundamental principles, showing that what has been argued in Tunisian legal literature – namely that female judges take recourse to sources such as international conventions and fundamental principles – is true for the case at hand. But the question arises why the court felt the need to refer to such fundamental principles, which one would expect in decisions of ‘judicial activism’ instead of cases where legislation (in casu the Penal Code) gives a final and definitive answer.10 The explanation seems to lie in practices from the Court of Cassation: the highest court reiterated in its decisions on divorce for harm that ‘harm’ should be inflicted repeatedly to justify divorce for harm, in the sense that it should render marital life ‘impossible’. In an interview, the public prosecutor at the CFI Tunis said that this implies that a single conviction for domestic violence is not sufficient to obtain divorce for harm, as ‘harm’ should be more than incidental,11 while in the case at hand, the attack had occurred ‘only’ once. The invocation of fundamental principles thus indicates that indeed, this decision is one of judicial activism, deviating from the practices of the highest court. In this way, the CFI Tunis issued the norm that a single violent attack with a knife does constitute harm, and thus that a husband should not attack his wife in such a violent way, even if it happens only once. The other decisions where domestic violence was mentioned concerned women who had filed a petition for divorce for harm on the grounds of domestic violence together with other grounds, such as ‘bad treatment’ (su’ al-mu‘amala) and expulsion from the marital home (tarad min al-mahall al-zawjiyya [sic]),12 non-payment of maintenance

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(adam al-infaq) and abandonment,13 contempt and a violation of the wife’s honour,14 criminal activities15 and expulsion from the marital home by taking away all furniture.16 None of these petitions were granted on the grounds of domestic violence (but three of them were granted on other grounds and shall be treated below). It is noteworthy that my collection contains no decisions where the wife (or husband) files a petition for divorce for harm for klam khaiba (‘bad words’), while in reconciliation sessions, this was a recurrent complaint of women. This may be qualified as harm, however, as the Court of Appeal Tunis had already decided in 1968 that harmful words justified divorce for harm.17 That domestic violence should be proven with a penal conviction was confirmed repeatedly in reconciliation sessions and in interviews, while judges added that witness declarations and the husband’s confession constituted alternative means of proof. This is not in accordance with legislation: the provisions in the Civil Code with respect to the proof of obligations provide that the person who invokes the existence of an obligation should prove its existence (Article 420 CC), while no special form is required for the evidence, unless the law prescribes otherwise (Article 422 CC). Means of evidence that are accepted by law are: confession, witness declaration, oral or written evidence and swearing an oath, but also the presumption (Article 427 CC). This suggests that, for example, documents such as a medical certificate and a police p.-v. could effectuate a presumption, in which case the husband would have to prove the contrary. However, I observed numerous sessions where litigants showed medical certificates and a p.-v. from the police or the public prosecutor for family affairs; documents which contained the wife’s declaration and a description of the traces of violence. Such evidence was not accepted: judges insisted that litigants brought the case to the Penal Court to have their spouse convicted; only then could the Family Chamber grant divorce for harm.18 This situation caused significant desperation and a sense of injustice with the women involved, and I asked judges several times why a police p.-v. and a medical certificate were insufficient in a divorce case. One of the family judges explained that generally, women are lying about domestic violence and would even go as far as damaging their

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own bodies to obtain divorce for harm. This notion was confirmed by the family judge in Sfax, who, in order to convince me, gave me the example of a case where a woman had showed a medical certificate and a police p.-v., while it became clear during the divorce procedure that the bruises described in these documents had been caused not by her husband, but by a motorcycle accident that she had had riding on the back of her boyfriend’s motorbike. By requiring a penal conviction, the CFI Tunis (and the CFI Sfax) issued the norm that women should not be trusted when accusing their husband of domestic violence: that normally, women are lying and if they are not, they should prove this by making sure that their husband goes to prison. This suggests that according to the court, women are sufficiently immoral or desperate to damage their own bodies in order to obtain the advantage of divorce for harm. Judges did not explain why women would want divorce for harm that desperately; possibly, in the judges’ minds, women may go to great lengths to obtain damages, or to fend off a social stigma that may be connected to a divorce without grounds; another reason that women may have to go that far (if they indeed do so) is that they do not know that they can obtain divorce without having such serious grounds for it. But whatever the reasons for women to take such extreme measures, the court did not expect that women would go as far as put their husband into prison to obtain divorce for harm: by accepting a penal conviction as evidence, the court issued the norm that if a woman had taken the trouble to put her husband and possibly the father of her children in jail, she was telling the truth. And indeed, the seriousness of such a situation should not be underestimated: taking the step of having the husband imprisoned may have formed a serious obstacle for women, which is why the counsellors at the Centre d’écoute advised these women to file a petition for divorce without grounds. According to the lawyer Bouchra Bel Haj Hamida, the complex evidence requirement of a penal conviction causes divorce for harm to become a more private matter than the possibility of divorce for harm suggests: it imposes important limits to judicial interference in marital life by means of punishing a spouse for the way he treats his wife. Bel Haj Hamida criticizes this practice, arguing that this is

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inconsistent: Tunisian personal status law allows, according to her, for too much interference in people’s private lives (for example through the interdiction of paternity of children born out of wedlock, or the punishment of unmarried cohabitation) in domains where this is not justified, while it does not allow for such interference where it is justified, for example by the best interest of the wife and her right to bodily inviolability. This ambivalence in judicial practice with respect to the extent to which marriage is indeed a private affair is all the more inconsistent when one takes into account how penal judges deal with cases of domestic violence: according to a vice-president of one of the penal chambers at the CFI Tunis, a medical certificate and a police p.-v. do, in principle, constitute sufficient evidence to convict a suspect for domestic violence. This implies significant interference in people’s private lives: in order to obtain divorce for harm on the grounds of domestic violence, the court requires a penal conviction, which involves interference from the police, a public hospital and the Penal Chamber. The fact that the Penal Chamber does accept a medical certificate and a police p.-v. suggests that the Penal Chamber of the same court issued a different norm, namely that if a woman goes through the trouble of obtaining a medical certificate and filing a complaint with the police, and if her body shows the traces of violence, she is telling the truth unless proven otherwise. The practice of the Penal Chamber thus reflects the norm that a woman who files a complaint with the police and shows the physical consequences of violence to a medical doctor is indeed the victim of domestic violence, which seems to be in accordance with findings on the seriousness of domestic violence in Tunisia: according to a study of Jeune Afrique, 20 out of every 100 women are victims of domestic violence in Tunisia.19

Reconciliation sessions During reconciliation sessions, numerous women mentioned domestic violence20 and most of the time, judges would not note such allegations down in the p.-v., confirming my suspicion that the judges’ presumption about domestic violence was that women were making it up. In this way, reconciliation judges exerted significant influence

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on the outcome of the case, which was even more remarkable when the husband confessed: I observed one session concerning a wife who filed for divorce for harm on the grounds of domestic violence, where the wife accused her husband of having attacked her with a chair, which was confirmed by the husband. Nevertheless, the judge did not note it down in the p.-v.21 I had the impression that the judge did not consider this attack with a chair sufficient grounds for divorce for harm, for example because it only happened once and already a few years before. If this was indeed the reason, this judge confirmed the norm issued by the Court of Cassation that one violent attack is insufficient for divorce for harm, and in this way, the judge issued the norm that an incident of domestic violence is ‘normal’. In one reconciliation session, the norm that women should show a penal conviction was abandoned. The woman showed pictures of her bruises, and the judge was clearly shocked, telling me afterwards that she was convinced that the woman was not lying, adding: ‘Did you see those pictures!?’ In the light of the practices observed until then I was surprised by the judge’s reaction, especially since other women had shown more pictures of wounds that had looked more serious than the bruises portrayed here. This particular case concerned the divorce of an upper-class couple, living in the most expensive suburb of Tunis (Sidi Bou Saïd); the woman was of Swiss origin, the man had dual Tunisian-American nationality and their children were attending the expensive French lycée. Like some other divorce cases concerning upper-class couples, their divorce case was lengthy and complicated: it was the wife who had filed the petition for divorce, demanding large amounts of money and invoking different types of ‘bad behaviour’, such as violence. I do not know the outcome of this case, but if the court accepted the pictures as evidence, this would indicate that the norm that in principle women lie about domestic violence is not applied to upper-class women. This distrust and even mépris (contempt) of the lower classes could be detected among the judges during reconciliation sessions as well. I witnessed several reconciliation sessions in which it was the man, not the woman, accusing the spouse of domestic violence.22 Generally, judges would laugh at this instead of taking such allegations seriously,

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but I know about one case where the husband obtained divorce for harm on the grounds of domestic violence; this violence consisted of throwing an ashtray at his head, which was confirmed by his secretary who had been present at the scene. I learned about this case through one of the lawyers who had represented the wife, Narjis, and who proposed that I contacted the latter to learn more about her case. When I visited Narjis in her home to listen to her story, she did not deny the incident, but insisted on telling me what had preceded it, and her story proved very informative regarding the dynamics of providing evidence. She started from the beginning, showing me their wedding pictures which testified to extreme wealth; she stated that she had been very young (in her early twenties) when she married her husband, that she was from a simple and poor family while he, much older than her, was making lots of money. Being ‘flattered that he had chosen her’ (the pictures showed that she had been stunningly beautiful) is how she explained her ‘mistake’ of marrying him, but the marriage had been ‘hell’ from the start: according to her, he talked to her as if she was his servant and beat her as soon as she did not show respect. He had two faces, however, because he could also be very loving. They had three daughters, a nice home and went on holidays together, but nevertheless, she decided after a while that she wished to divorce. Being aware that she would need either a penal conviction or witness declarations to obtain divorce for harm, she tried to file a complaint at the police station on a number of occasions after he had beaten her, but without success: the officers at the nearest police station knew her husband, and would simply refuse to draw up a report on him. When she tried it at another police station, they would send her to the one closest to her home, saying that they had no jurisdiction in her district. On one occasion he had beaten her so badly that the neighbours had come down to intervene. They had heard everything and called the police, but as they had not seen it happening, their declarations were not accepted. When she finally filed a petition for divorce without grounds, the court rejected her demand on the grounds that she had filed the case at the wrong court, and shortly afterwards her husband filed a petition for divorce for harm, which was granted. However, according to Narjis, the ashtray had not even hit him. This case shows

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not only that a man can also obtain divorce for harm on the grounds of domestic violence, but also how difficult it can be to file a complaint about domestic violence, which further complicates the divorce procedure. Indeed, besides the complications witnessed by Narjis (the police who had jurisdiction knew the husband personally), the Social Institutions and Gender Index observed that the perceived ‘private character’ of domestic violence makes police officers reluctant to take on complaints.23 (In their guide for women living abroad, the Femmes Démocrates advise that if a woman encounters difficulties at the closest police station, they should address the special public prosecutor for family matters.24) All these obstacles together (evidence requirements, the behaviour of the police, etc.) make obtaining divorce for harm on the grounds of domestic violence very complicated in Tunisia and in this way, it resembles the surrounding countries; indeed, Welchman writes: ‘The attitudes of the judiciary towards domestic violence ... and problems in proving the husband’s abuse of his wife ... may obstruct a wife’s access to divorce on these grounds’, adding that ‘[s]ocial attitudes to divorce and domestic violence may further complicate the viable remedies available to a woman wishing to leave her marriage on these grounds’.25 This may explain why, in the light of the numbers given by Jeune Afrique, the number of divorces on the grounds of domestic violence is rather low.

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CHAPTER 6 DIVORCE FOR HAR M ON THE GROUNDS OF NON-PAYMENT OF M AINTENANCE

On 15 May 2008, Sana1 (born 1973) filed a petition for divorce for harm at the CFI Tunis.2 According to the text of the judgement, the petition stated: ‘She is married to the defendant by means of a legal marriage contract issued on 16 June 2000, and they have consummated the marriage and they have one child, Amel, but marital life deteriorated because of a deliberate act of the defendant consisting of the neglect of his wife and his non-payment of maintenance to her and a court decision was issued against him convicting him to imprisonment for neglect of his family (ihmal ‘iyal).3 This inflicted harm upon the plaintiff and she asks to bring about divorce between them for the first time after consummation on the grounds of harm brought about by the husband in accordance with Article 31 para. [1 sub] 2 PSC and [she asks] to oblige the defendant to compensate her for her material damages with 10,000 dinars and the same amount for her moral damages together with 500 dinars for lawyer’s expenses.’ Sana’s husband Abdallah (born in 1962) was summoned to attend the first reconciliation session held on 3 July 2008 at 9 a.m. However, he did not come, and Sana declared that she persisted in her demand, repeating that he did not fulfil his duties with regard to her and to their daughter

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and that she had obtained a maintenance decision (hukm nafaqa) and a (penal) decision for neglect of the family (hukm ihmal ‘iyal). The judge awarded child custody to Sana and visiting rights to Abdallah, and after three sessions the case was transferred to the court hearing. Here, Sana’s lawyer was present, but Abdallah was again absent and had not responded in writing either. Sana’s lawyer submitted a copy (shahada) of the penal conviction of the husband. In its decision, the court argued as follows: ‘As with Article 31 para. [1 sub] 2 PSC the legislature grants the spouse who suffers from harm the right to file a petition for divorce on the grounds of harm inflicted on him, and as it has been proven with two copies of penal decisions issued on 22 December 2006 and 15 May 2008 that the defendant has been convicted for neglect of the family and that he has been imprisoned, and as the conviction of the defendant for neglect of the family has been proven while he did not contest it, and as this forms a violation of the maintenance obligation imposed on him by Article 23 PSC and his abandonment of his wife and his daughter in a condition of neglect and poverty, this forms harm [inflicted by] the defendant which is proven and which obliges the court to pronounce divorce in the sense of Article 31 para. [1 sub] 2 PSC.’ The court confirmed the provisional measures taken during the first reconciliation session, and granted 2,000 dinars of moral and 3,000 dinars of material damages, together with 250 dinars of lawyer’s fees, and convicted the husband to pay for court expenses. In this decision, Sana filed a petition for divorce for harm on the grounds of non-payment of maintenance for her daughter and herself and asked the court to sentence the husband to the payment of 10,000 dinars of material and 10,000 dinars moral damages. She showed two penal decisions, dating from the years 2006 and 2008 and sentencing the husband to imprisonment for neglect of the family (ihmal ‘iyal). The husband did not respond to the petition. The court granted the demand, arguing that the neglect of the family had been proven and that this constitutes a violation of Article 23 PSC which justifies divorce for harm according to Article 31 para. 1 sub 2 PSC. The wife was granted 2,000 dinars of moral and 3,000 dinars of material damages.

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In this decision, the court issued the norm that non-payment of maintenance constitutes harm in the sense of Article 31 para. 1 sub 2 PSC. This is in accordance with the legislation, in the sense that non-payment of maintenance involves a violation of the marital duties described by law: Article 23 PSC obliges the husband to provide for the family, and Article 38 PSC prescribes that the husband provides for the wife from the moment of the consummation of marriage until the end of the waiting period. That the court based its decision on legislation is confirmed by the invocation of Article 23 PSC: the court stated that the husband’s act entails ‘a violation of the maintenance obligation imposed on the husband by Article 23 PSC’. By confirming this legislative norm, the court issued the norm that husbands should maintain their family during marriage. The norm that women can obtain divorce in case of the husband’s failure to pay maintenance is rather general in the region, with the most important difference that in Tunisia, women can obtain divorce without grounds and without their husband’s consent while in some of the neighbouring countries, women need such grounds to be able to divorce in the first place. With respect to evidence, the court decided in the case of Sana and Abdallah that a penal conviction for the crime of neglect of the family constitutes sufficient evidence to obtain divorce for harm. The procedure to obtain such a conviction was as follows. If the husband did not pay maintenance, she could file a petition at the Cantonal Court to obtain a decision declaring the amount that the husband should pay per month. A special maintenance judge would convene the parties in a session resembling reconciliation sessions in divorce cases, which are held behind closed doors and where the wife was given the opportunity to prove how much money she needed and the defendant could establish how much he could afford. The maintenance judge would set a date for a court hearing, where the judge (a single judge) decided on an amount; this decision is the hukm nafaqa, a civil judgement that should be considered a declaratory decision: it declared the amount that the husband should pay per month. The defendant was given one month to start paying, and in the event that he failed to do so, the wife could file a complaint with the public prosecutor in family matters. The latter would summon the husband to give him the opportunity

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to pay immediately, and if he failed to pay or did not come, the case was transferred to the penal judge at the Cantonal Court. The latter could convict the husband to a term of imprisonment between three months and one year a fine between 100 and 1,000 dinars (Article 53 bis PSC); this decision is the hukm ihmal ‘iyal (conviction for neglect of the family). With respect to the financial consequences of divorce, the court decided in the case of Sana and Abdallah that the husband should pay both moral and material damages to the wife, and that he should reimburse the money she laid out to bring about this divorce, namely the fees of her lawyer and the court fee. The court did not decide on maintenance during the waiting period, nor on child maintenance, but this is due to the fact that the wife had already obtained a maintenance decision, which provided the amount that the husband would pay and which (as far as the wife is concerned) is due until the expiration of the waiting period. The norm that the husband should pay moral and material damages is in accordance with the law, which provides in Article 31 para. 2 PSC that in the event of divorce for harm and without grounds, the spouse has a right to moral and material damages. That the court employed this provision is confirmed in the standard reference to it. As in decisions of divorce for harm on the grounds of domestic violence, the phrases concerning damages in the standard forms are identical to the phrases in decisions on divorce without grounds, invoking the same sources (harm of the honour and social position, and the loss of a breadwinner and support) and the same parameters to calculate the amount of damages, meaning that also in cases of divorce for harm on the grounds of non-payment of maintenance, damages did not compensate for the act (or lack thereof) that constituted harm (here, neglect of the family), but the fact of divorce in and of itself. It is remarkable that the husband who did not pay maintenance is sentenced to pay damages, if one suspects that the husband did not pay maintenance because he could not. That the court obliged the husband to pay damages suggests that according to the court, the husband did not provide for his family because he would not, not taking into consideration the possibility that the husband did not have sufficient money. Indeed, Abdallah was sentenced to pay 5,250 dinars,

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an enormous amount of money for an average Tunisian. In this way, the court issued the norm that if a husband does not provide for his family, this is due to his refusal to do so, not because of his incapacity; ‘normally’, men who do not maintain their families are simply refusing to do so, without any reason. The possibility that the husband is unemployed, for example, is not taken into consideration, as shall be demonstrated below in a case where the court explicitly stated so.

Other decisions My collection contains eight other decisions on wives petitioning for divorce for harm on the grounds of non-payment of maintenance. Six of these were granted, namely those where the wife showed a penal conviction. This confirms that the court issued the norm that nonpayment of maintenance is qualified as harm, and that it should be proven with a penal conviction. In this way, the court issued the same norm as in cases of domestic violence, namely that harm should be established with a penal conviction, even if the legislation does not make it explicit how harm should be established. However, whereas in cases of domestic violence the court’s practice reflected the norm that ‘women who accuse their husbands of domestic violence should not be trusted’, in cases of neglect of the family the reason for requiring a penal conviction seems to be different: in one decision, the court explained that a penal conviction is required (and that a civil maintenance decision is insufficient) by saying, ‘It comes forward from the spirit of Article 31 PSC that “harm” justifying divorce is the harm that makes marital life impossible. It is thus insufficient if [non-payment of maintenance] is a mere act of recalcitrance.’4 In this way, the court deduces from the spirit of Article 31 PSC that harm consisting of nonpayment of maintenance should not be merely incidental: non-payment of maintenance can only be qualified as harm if it is consistent, which is proven with a penal conviction. The idea that ‘harm’ requires that the act was more than an isolated incident resembles the norm issued by the Court of Cassation and one of the family judges with respect to domestic violence. But the notion that women are lying about their husband’s actions was nevertheless present here as well: according to

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one of the lawyers it was quite difficult to obtain a penal conviction for ihmal ‘iyal, as penal judges did presume that women were lying and that they were taking advantage of the opportunity to put their husbands in jail for non-payment of maintenance.5 This suggests that the Family Chambers relied on a penal conviction as if this was present, a penal judge had already decided that the woman was not lying. And thus, both norms – namely that women who file for divorce for harm should not be trusted and that incidental harm is normal – apply in both cases of domestic violence and non-payment of maintenance. Three out of the six decisions where divorce for harm was granted on the grounds of non-payment of maintenance concerned petitions where the wife had stated that the husband did not maintain his family and that he was violent with her; these cases were mentioned in the previous chapter. That the court focused on non-payment of maintenance instead of domestic violence confirms the problems connected to divorce for harm on the grounds of domestic violence, and the mere fact that these women had based their petition on two different grounds, including the maintenance issue, affirms that ‘[w]omen seeking divorce may submit their petition on the grounds most likely to achieve the aim of dissolution, and these may change according to place, time and court practice’.6 And indeed, it seems that Tunisian women addressing the CFI Tunis are not the only women who predict that a petition on the grounds of non-payment is most likely to succeed: Bernard-Maugiron and Dupret observed that in Egypt, lack of maintenance is the cause most often referred to in divorce cases instigated by women.7 The collection contains one decision where divorce for harm was granted although the husband was unemployed.8 Article 39 PSC provides that ‘[i]f the husband is in financial straits, maintenance shall not be incumbent upon him’, but that after a period of two months, the wife has a right to divorce. However, the last phrase of this article states that if the wife was aware of her husband’s financial difficulties at the time when they contracted marriage, ‘she shall not be entitled to seek a divorce’. However, in the decision, it is not made explicit that the husband became unemployed after the couple got married. On the contrary, the court states: ‘The sense of

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responsibility vis-à-vis one’s family should urge someone to work and to improve his means in order to reinstate the family. The perpetuity of unemployment is in flagrant contradiction with the sense of responsibility vis-à-vis one’s family.’ This suggests that everyone should work (and implies that everyone who wants to work is able to do so), which was stated repeatedly in reconciliation sessions as well. Besides, judges showed much disrespect for married men who said that they were unemployed (ana battal).9 The non-acceptance of (male) unemployment was in accordance with the practice of maintenance judges at the Cantonal Court who explained that ‘everyone can work’, giving the example of collecting plastic bottles, which paid around 100 dinars per month, and indeed, in my neighbourhood I often saw people collecting plastic bottles, searching for these in people’s garbage. In this way, both courts issued the norm that unemployment is not ‘normal’, which is of course remarkable in the light of the unemployment rates in Tunisia. While, according to the World Bank, Tunisia’s unemployment rated ‘only’ 15.3 per cent among the male work force in the year 2000,10 it is common knowledge that Tunisia employed several tricks to lower the rates; for example, as long as people were enrolled in an educational institution such as university, they did not count as unemployed, even if they neither study nor work. Besides, the court’s practice clearly reflects a choice with respect to the interpretation of the wife’s duty to maintain the family that is mentioned in Article 23 PSC: according to Ferjani, this provision, confirming that the wife also has a financial duty towards her family, creates uncertainty in cases where the husband is unemployed: is the wife obliged to maintain the family, or does the husband’s duty persist and take precedence over the wife’s duty?11 The CFI Tunis and the Cantonal Court opted for the second interpretation. In all decisions where the wife’s demand was granted, the court sentenced the husband to pay moral and material damages, to reimburse lawyers’ fees and the court fee and to pay maintenance during the waiting period and child maintenance. This is remarkable in the case of the unemployed husband, who was clearly not capable of paying damages. Besides, like in the case described above, of the woman who

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had been attacked with a knife, in one of the neglect-cases, the court awarded damages although the wife did not file for these. The collection does not contain decisions where the husband was granted divorce for harm on the grounds of non-payment of maintenance by the wife. This is remarkable in the light of the aforementioned specificity of Article 23 PSC, which states that the wife also has a financial duty towards her family. That there are no decisions on such cases suggests that for the court, but also for litigants, it is not ‘abnormal’ to be unemployed. This is interesting in itself as only 16.9 per cent of Tunisian women were unemployed in the year 2000,12 indicating that unemployment among women was almost as ‘normal’ or ‘abnormal’ as it was for men. It is also interesting that the judge did not disapprove of unemployment for women as these judges were employed themselves. But indeed, not all of them had always been so: one of the family judges had accompanied her husband to Germany where they had lived for three years and where she had been unemployed, and even if this had been special for her as she had had all her time to be with her children, she told me that it had been problematic for her not to have a job.

Reconciliation sessions During reconciliation sessions, numerous women accused their husbands of not paying maintenance.13 In the majority of these cases women enumerated a range of accusations, neglect of the family being merely one of them. Judges would not react to such allegations and I’m not even sure that they noted them down. But if women made clear that they wished to obtain divorce for harm, judges would respond, mostly with the mere aim to discourage this, pointing out that they would need a penal conviction. This happened also if the woman could present a civil judgement, as judges stressed that this was insufficient evidence.14 And indeed, the civil judgement is merely a declaration of the amount that the husband should pay, and does not indicate that the husband is not paying – and women could also obtain such a judgement if they thought their husband was not paying them enough. Thus far, the discussions on these grounds for harm resemble

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the discussions concerning domestic violence: judges insisted that it was necessary that the husband had been convicted by a penal judge. But I had the impression that there was one important difference between cases of domestic violence and non-payment of maintenance: in my mind, the latter was much more frequent, even if on the bureaucratic level, both procedures were equally complicated, and both cases involved the (possibly quite emotionally damaging) consequence of sending one’s spouse and the father of one’s children to prison. If there was indeed a difference in frequency, this may have been for several reasons: possibly non-payment of maintenance occurred more often than domestic violence, or women were more inclined to accept domestic violence than non-payment of maintenance, or they would take recourse to strategies other than divorce such as enlisting the help of their family or abandoning the marital home until their husband would promise to change. According to one of the lawyers, women were reluctant to make the issue of domestic violence, which is considered intrinsically private, into a public affair in front of the police, in hospital and in court. I observed a number of reconciliation sessions where the fact that the wife had obtained a (civil or penal) maintenance decision had urged the husband to file a petition for divorce, stating that he felt betrayed. It is possible that this was part of women’s strategy, giving their husband an incentive to file for divorce without grounds. One may argue that this is illogical, as in such cases the woman may as well file a case for divorce for harm. But the benefit of being divorced without grounds by the husband is that she would receive damages, without needing to send the father of her children to prison.

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CHAPTER 7 DIVORCE FOR HAR M ON THE GROUNDS OF ABANDONMENT OF THE M AR ITAL HOME

On 20 August 2008, Chokri1 (born 1977) filed a petition for divorce for harm at the CFI Tunis.2 According to the text of the judgement, the petition stated: ‘He is married to the defendant by means of a legal marriage contract issued on [?]3 August 2007, and the marriage has been consummated and they do not have children, but marital life deteriorated because of the deliberate act of the defendant consisting of the abandonment of the marital home in Tunis by returning to her home town in Egypt and she refuses to return despite that she was summoned to do so through a bailiff (‘adl al-tanfidh).4 This inflicted harm on the plaintiff and he asks to bring about divorce between them for the first time after consummation on the grounds of harm brought about by the wife in accordance with Article 31 para. [1 sub] 2 PSC.’ Basma (no date of birth mentioned, living in Cairo) was summoned to attend the first reconciliation session that was held on 20 October 2008 at 9 a.m., but she did not come. She was absent at the other sessions as well and the case was transferred to the court hearing. Here, the wife was again absent, and she had not replied in writing either, although she had been correctly summoned. The husband was represented by a lawyer.

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In its decision, the court argued that: ‘As the harm insisted upon consists of the wife’s abandonment of the marital home, which lies in Tunisia, and the wife’s return to stay in Egypt. And as it has been proven with the documents in the file that the wife is living in Egypt since the summons has attained her in Egypt. And as she was not present, has not denied the claim in any way and has not justified her abandonment with a legal justification. And as the violation of the obligation to cohabit inflicts harm on the husband, the court grants the demand.’ The wife was convicted to pay the procedural expenses. In this case it was the husband who filed a petition for divorce for harm, the grounds being that his wife violated the duty to cohabit. He argued that his Egyptian wife had returned to Egypt, while the marital home was in Tunis, and that she refused to come back despite his summons to return (the ‘adl al-tanfidh brought her the summons). The wife did not respond to the claim although she had been correctly summoned. The court agreed that the marital home was in Tunis, and considered the wife’s violation of the duty to cohabit proven with the summons, demonstrating that she had left for Egypt. As the wife had not replied, she had not given a justification for her abandonment either. In this way, she was ‘violating the obligation to cohabit’ which was qualified as harm. The court did not grant any damages to the husband. In the decision on the case of Chokri and Basma, the court issued the norm that the wife’s refusal to cohabit constitutes harm. Legislation does not provide for this: Article 23 PSC on the rights and duties within marriage does not prescribe that the spouses should live together. Nevertheless, such a duty did exist according to the court, as it explained that Basma’s return to Egypt constituted ‘a violation of the obligation to cohabit (musakana)’. The court did not indicate where this obligation was prescribed, but as this was general practice among Tunisian courts including the Court of Cassation,5 jurisprudence may lay at the heart of this decision, meaning that these disciplinary institutions issued the norm that a wife should cohabit with her husband. It is remarkable that in a decision from 1996, the highest court of Tunisia invoked custom and habit (al-‘urf wa-l-‘ada) as the sources that

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prescribe that spouses should cohabit – although these are mentioned in Article 23 PSC as the sources determining the marital rights and duties, I have no decisions from the CFI Tunis which explicitly invoke these sources. Another source underlying this decision may be the court’s perception of Islamic law, as the court denoted the violation of the duty to cohabit as nushuz, ‘rebellion’ or ‘disobedience’. This term was also employed in other decisions on the wife’s abandonment of the marital home. The notion of nushuz is of importance in classical Islamic law and continues to play a role in several legislations in the region, albeit in several different forms. While in Tunisia, the wife’s abandonment from the marital home constitutes nushuz, practices in other countries may reflect the norm that a wife is also considered ‘disobedient’ if she goes out for work.6 Such an interpretation was abolished in Tunisia in 1983, when the Court of Cassation decided that having a job outside the home cannot be qualified as nushuz if it is important for the interest of the family, as ‘the interest of the family takes precedence over the interest of the husband’– a remarkable decision when one realizes that at this moment, married women still needed their husband’s consent when signing a labour contract (this was the case until the year 2000).7 It should be kept in mind that in other countries, as well as in common interpretations of Islamic law, the importance of nushuz lies in the husband’s duty to pay maintenance and not in divorce, as men generally do not have a right to divorce for harm. In Tunisia, nushuz may also be important for maintenance, in the sense that men are not obliged to pay maintenance when their wife has abandoned the marital home without a valid reason.8 It is remarkable that in this decision, the court simply accepted that the marital home was in Tunisia, without explaining why this would be the case: indeed, the decision does not give any reason why the couple was supposed to live in the husband’s home country instead of the wife’s, such as that they agreed to live in Tunisia, or that they got married there. It suggests that the court issued the norm that the marital home is where the husband wishes it to be. Legislation does not prescribe this, and although this norm was upheld in some other decisions, it was not in all. This shall become clear below.

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With respect to evidence, the court confirmed in this decision that Basma’s return to her home country had been proven by the fact that the summons issued by the bailiff in Egypt had been received by her. This means that the husband sent a letter asking her to come back, that a bailiff went to the house where she was living and that she signed for receipt. In this way, it was established that she was in Egypt, that she knew that he wished her to come back, but that she did not return despite this. This shows that the court issued the norm that the wife’s abandonment should be proven, instead of accepting the claim on the grounds that she had not denied the accusation. This is in accordance with the norms with respect to domestic violence and nonpayment of maintenance. Also, the reason why the wife’s abandonment should be proven with a summons resembles the reasons for the evidence requirements described above: in interviews, judges pointed out to me that the court suspected men of lying about the wife’s abandonment. This shows that the court, who issued the norm that women who accuse their husbands of inflicting harm should not be trusted, issued the same norm with respect to men. The difference however is that since the wife’s abandonment is not punishable by law, the court does not require a penal conviction, but a summons issued by the bailiff, relying on a bailiff instead of the Penal Chamber. With respect to the financial consequences of the divorce, the court decided only on the court expenses; it did not grant damages to the husband nor maintenance to the wife. That the court does not award maintenance is in accordance with the norm that was already described briefly in the previous chapter, namely that if a wife abandoned the marital home without a reason, she loses her right to maintenance. This is not prescribed by law, as Article 23 PSC does not require cohabitation, and Article 38 PSC prescribes that the husband should pay maintenance from the moment of the consummation of marriage, without requiring cohabitation. Here, the court issued the norm that women are not allowed to abandon the martial home without a reason, and that if they do, not only does their husband have a right to divorce for harm, but they also lose their right to maintenance. With respect to damages, the court did not grant damages to the husband although his petition of divorce for harm was granted. This

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is not in accordance with legislation: Article 31 prescribes that divorce for harm gives the plaintiff a right to damages, without making an exception for cases of the wife’s abandonment from the marital home. It is unclear why the husband did not receive any damages: the decision is completely silent about the issue as the entire paragraph dealing with damages in standard decisions is crossed out. It seems as if the husband did not file for damages, as in the description of the decision, neither the petition nor the reconciliation session testify to a financial claim. This suggests that the court issued the norm that if the plaintiff had not filed a petition for damages in cases of abandonment, he had no right to these, which would imply that the wife’s abandonment is qualified differently than domestic violence and non-payment of maintenance, where the court decided on damages of law. The court may qualify abandonment as less ‘abnormal’ than these other acts, but the difference may also lie in the defendant’s gender.

Other decisions I collected 12 other decisions where the husband accused his wife of violating the duty to cohabit, often termed as nushuz,9 but the demand was granted in only two other cases. In neither one of these were damages granted (or asked for), which confirms that the court issued the norm that abandonment should be distinguished from nonpayment of maintenance and domestic violence. In the first case where the demand was granted, the husband wished to move house, and as the wife refused to go along with him, he argued that she violated her duty to cohabit. Again, the court had to answer the question of where the marital home was: where the wife lived, or where the husband lived. As in the case between Basma and Chokri, the court decided that the marital home was where the husband wanted it to be, but the difference with the aforementioned case was that this couple had spent their entire married life in the house where the wife was still living. Nevertheless, the demand was granted because, according to the court, the husband had proven that marital life could not continue where it had been situated because the couple had been living in the same building as the wife’s parents, which had

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become ‘unbearable’ for the husband, since the wife ‘spends more time with her family than with him and their children’. That they could not afford to rent a second apartment while they owned the one where they used to live, as was stated by the wife, did not alter this decision, nor that her parents needed her care. In this way, the court confirmed the norm that the marital home is where the husband wished it to be, while adding a slight nuance: if the marital home had always been somewhere else, the husband should provide evidence of the necessity to change its location. It is remarkable that in this very decision, the court stressed that ‘[t]he spouses should live in the marital home that was chosen by the spouses’. The court explained that the wife’s behaviour constituted harm as she violated the duty to cohabit that, according to the court, is prescribed by Article 23 PSC.10 In the other case where the husband’s petition was accepted, the wife had abandoned her husband to live with her (adult) children, arguing that her husband wished to move back to his hometown of Le Kef (a beautiful town in north-west Tunisia, in the mountains near the Algerian border), and that she would not be able to be so far away from her children. The court granted the husband’s demand as she had confessed to leaving him, and as her defence was invalid because her husband never left for Le Kef. Here, the court affirmed the norm issued in the case of Chokri and Basma, namely that women should stay with their husband and should not abandon him to live somewhere else, even if this is with the children they had together. The decision employed the same reasoning as in the case of Basma and Chokri, namely that the wife violated the duty to cohabit, without mentioning a legislative provision, such as Article 23 PSC.11 In two cases, the husband’s demand was rejected as the husband had not proven where the marital home was. Both cases concerned couples of Tunisian origin who had spent their married life in France, until the husband had returned to Tunisia to spend his retirement there, while the wife refused to follow him. In both cases, the court stated that it had not been proven that the marital home was indeed in Tunisia.12 This confirms the norm described above, namely that the husband decides where the marital home is unless the couple has spent its married life in a specific place and the husband wishes to move; in

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that case, the husband should prove why the marital home changed location, and while the husband succeeded in the case described before, these husbands did not. In another decision, the husband wished to move house, while the wife argued that this would require that their children changed schools during the school year; the husband’s demand was rejected, as the wife had proven that the marital home was where they spent their married life. In this way, the court issued the norm that in principle, the husband decides where the marital home is, unless the wife proves that the marital home is elsewhere; here, the interest of the children was decisive.13 In some of the cases, the demand was rejected for other reasons than the location of the marital home, namely because the wife presented a justification for her abandonment, and because this was accepted by the court. In this way, the court issued the norm that in some cases, women are allowed to abandon the marital home, and the circumstances that were qualified as valid justifications are that the husband failed to pay maintenance or was being violent.14 These decisions are in accordance with the legislation which forbids violence and obliges the husband to pay maintenance, and in one decision, the court explained why such behaviour releases the wife from her duty to cohabit, pointing at Article 246 CC, which provides that if one party is breaching a contract, the other party is allowed to suspend the execution of his duties prescribed in that same contract.15 In this way, the court confirmed that marriage is a civil contract involving specific rights and duties, and that if one party does not fulfil his/her duties, the other is not obliged to fulfil theirs. This concept of marriage seems to be in line with what was pointed out before, that I often had the impression that for judges, marriage is a rational bond instead of a question of ‘love’. I had the impression that in principle, the husband’s demand was rejected if the wife was present at the reconciliation session and presented a justification for her abandonment, although it was necessary that the justification was qualified as valid, which was true for violence and non-payment of maintenance, and also that the marital home was not ‘correct’, as was confirmed in numerous reconciliation sessions, the meaning of ‘correct’ depending on the social status of the couple (see below). Indeed, one of the decisions shows that the wife was

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not even obliged to prove the existence of such a justification: here, the wife simply stated that her husband behaved badly and that they were having an argument about the maintenance, and the court accepted her justification and rejected the husband’s demand, stating that he did not deny the wife’s accusations ‘in a serious manner’.16 In this way, the court issued the norm that if the wife abandoned the marital home and accused her husband of ‘bad behaviour’, she was given the benefit of the doubt, which is in striking contradiction with the norm that women should not be trusted when they file for divorce for harm accusing their husbands of non-payment of maintenance or violence. In order to explain this ‘presumption of innocence’ in abandonment cases, judges told me that ‘women do not leave without a reason’, suggesting that if a wife abandons the marital home, this is probably the husband’s fault. And thus, the court issued the norm that women who have abandoned the marital home should be believed, while their husbands should not, unless their husbands proved the contrary. This was also confirmed in reconciliation sessions: when husbands accused their wives of abandonment, the judges would insist, asking: ‘Are you sure you didn’t harm her?’, or: ‘Are you trying to tell me that your wife left without a reason?’ The law is silent on a presumption of innocence with respect to women who abandon their husbands, but one judge explained to me on several occasions that this presumption of innocence is based on ‘Islamic law’: ‘In Islamic law, women have almost no possibility of divorce and therefore, a woman who abandons the marital home must have a very good reason.’ In this way, the judge was suggesting that despite the existence of legislation that grants women equal access to divorce, women live in accordance with the prescriptions of (the court’s understanding of) Islamic law, where access to divorce is much more restricted for women. The question arises as to why women would abandon the marital home in cases of domestic violence and non-payment of maintenance, instead of simply filing for divorce. I think that there are different answers, depending on the particular circumstances of the case. In some cases, the answer may lie in the difficulty of obtaining divorce for harm on the grounds of domestic violence and non-payment of maintenance, pushing the wife to file a petition for divorce without

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grounds, in which case she may be obliged to pay damages. In other cases, divorce may not be a solution from a social perspective, in that the wife is afraid of the social attitudes with respect to divorced women. And again in other cases, abandoning the marital home seems to be a means to negotiate the conditions of her marriage: she is pushing the husband to change his behaviour, and otherwise she will not return. Her parents, with whom these women are usually staying, may be involved in such negotiations too. In some cases, the demand was rejected because the husband could not prove that the wife had indeed abandoned the marital home. If the wife was present at the reconciliation session, she would generally admit that she abandoned the marital home,17 and no further evidence was required. But if she was not, the husband was required to prove that she had abandoned the marital home, that he had invited her to return and that she would not. This was sometimes easily established, as is demonstrated by the case of Chokri and Basma: the husband sent a letter to the wife’s home address by registered post inviting her to return, and the wife signed for receipt, without returning. In this way, it was established that she was not living at the marital home (the letter reached her at a different address) and that she refused to return. However, if the wife’s whereabouts were unknown, there was a more lengthy procedure: the husband should send at least three letters by registered post at three different days and at different hours to the marital home. If the wife was absent on all occasions, it was proven that she was not living there anymore. The family judge explained that this procedure is required as men may abuse their wife’s being away from home for justified reasons, such as a job or a stay in hospital. In one decision, the court addresses the question of whether the declaration from the children forms sufficient evidence of the wife’s abandonment.18 In this case, the bailiff went to the marital home to see if she was there, and the children opened the door. The bailiff asked them whether their mother was in, and they declared that their mother had abandoned their home. The p.-v. of this statement was presented as evidence, but the court rejected this, arguing that children are not impartial. These requirements show that the court is careful to establish that the wife’s abandonment is proven, and that the

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husband is not lying in order to obtain divorce for harm. In this way, the court proceeds in a similar manner as in cases of domestic violence, where it is also anticipating litigants’ lies. My collection contains two decisions where the wife filed a petition for divorce for harm on the grounds of the husband’s violation of the duty to cohabit: in one case, the husband had abandoned the marital home while in the other, he had expelled his wife from it. In the case where the husband had left the marital home, the court explained that hajr constitutes harm as it entails a violation of the duty to live together ‘under one roof’, which is prescribed by Article 23 PSC.19 The court added that the marital bond ‘[i]s founded on the necessity to live in one house and to be intimate, with love and kindness’ – this resembles the reasoning in judgements on divorce without grounds and with mutual consent and confirms once again that the court understood marriage as a bond of love and kindness, which is suprising as judges also seemed to view marriage as ultimately an economic matter than a matter of love. This decision shows that the court issued the norm that not only women but also men had a duty to cohabit. Nevertheless, the term employed to denote the act that constituted harm was different: the husband’s act was termed hajr (abandonment) instead of nushuz, ‘rebellion’. Also, the norm that men should not abandon their spouse seemed to be based on a different consideration than the norm with respect to women, which becomes clear from the treatment of abandonment as an act which it is possible to justify: women were not obliged to cohabit in case of non-payment of maintenance, failure to provide ‘correct’ housing and violence, while it seemed that the only justification for men was if they could only earn money to maintain their family by living somewhere else, for example abroad. This difference may be connected to the idea that the husband is the principal provider: he should provide for the family home and maintain the family. The link to maintenance is confirmed by the damages: while in the cases of nushuz, the plaintiff was not granted damages, in this case, the wife was granted 5,000 dinars in material and 4,000 dinars in moral damages. Although the reasoning again indicated that the damages were based on the fact of the divorce instead of the abandonment, the amount suggests that the abandonment was decisive, as the

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damages are much higher than in cases of divorce without grounds. In this way, the court issued the norm that the husband’s abandonment of the marital home is less ‘normal’ than the wife’s. In the case where the husband expelled his wife from the marital home and changed the locks, the court issued the norm that this is qualified as harm because it constitutes a violation of the duty to cohabit that is prescribed by Article 23 PSC.20 This seems rather awkward as one would expect the act to be qualified as harm because the husband is simply harming his wife. In this case, the court granted particularly high damages, indeed, the largest amounts that I have come across: the wife received 10,000 dinars in material and 12,000 dinars in moral damages, although the place of residence (Wardiya) suggests a lower- or middle-class background. This indicates that even if the type of harm is not indicated as a factor determining the amount, the court did issue the norm that expulsion from the marital home is not only not normal, but even less normal than violence, non-payment of maintenance or the husband’s abandonment from the marital home. That men who wish to separate from their wives would not file a divorce case may indicate that for men too, there is shame attached to the act of divorce or the fact of being a divorced man, which would challenge the idea that socially, divorce is much more acceptable for men than for women. But another possibility is that they did not wish to pay the damages resulting from a divorce without grounds.

Reconciliation sessions That the court perceived the obligation to cohabit as part of the marriage was affirmed in numerous reconciliation sessions: judges repeatedly told the litigants that ‘[c]ohabitation is the sense of marriage’,21 thus issuing the norm that it is normal that married couples live together, and that living separately is abnormal. This surprised me, as it suggests excessive interference in people’s private lives. However, this norm would only be imposed if it was invoked by one of the spouses by filing a case for divorce for harm, and it did not reign in all situations. For example, judges did not show any disapprobation in cases where the couple had been living separately for years before filing for divorce

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– possibly because it demonstrates a certain respect for marriage that the couple has not rushed into divorce. Also, judges did not disapprove of situations where Tunisian spouses lived in two different countries, which also recurred quite frequently. Some of the judges lived similar lives, as the husband of one of the family judges worked for Tunis Air and lived in Syria for his job, and the husband of one of the reconciliation judges lived in a country in Sub-Saharan Africa, also for Tunis Air. Even in situations where a Tunisian husband filed for divorce from a Western woman who lived abroad, arguing that he could not obtain a visa, judges did not show any disapproval, even though some of these men would point out that they only married the woman for a visa. It seems that for judges, it was rather normal that young Tunisian men married a foreign woman only to obtain a visa, and apparently in such cases, they did not disapprove of the fact that these men did not take marriage very seriously. I witnessed many reconciliation sessions where husbands accused their wives of abandoning the marital home.22 In some cases, the wife would be present at the reconciliation session and would explain why she had left. Reasons presented by women often included non-payment of maintenance and domestic violence, which were treated before. Other reasons given were complaints about the marital home, such as it being in a bad state or insufficiently furnished or too close to the husband’s family. The latter would only be accepted if the husband had agreed that they would move out, or if they had lived in a separate dwelling before. I witnessed numerous discussions on this issue, and women would be shocked by the fact that they did not simply have a right to a separate dwelling. Indeed, the law does not protect such a right, and in reality, many couples move in with the husband’s or wife’s family for financial reasons and in dwellings that are more or less separate. Many women may agree to move in with the husband’s family until they would have saved enough money to rent their own place, but after a while, the situation would become unbearable for many wives, for example because they felt dominated by their motherin-law. Indeed, judges affirmed on numerous occasions that in many divorce cases, it is the mother-in-law, mainly the husband’s mother, who caused trouble. It is remarkable that living with the family-in-law

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was not a justification for women abandoning the marital home unless the couple had agreed otherwise, while one of the decisions described above demonstrated that it was a justification for men. This suggests that for the court, it was more ‘normal’ that a couple lived with the husband’s parents than with the parents of the wife. The justification that the housing was not ‘correct’ was accepted depending on the social class of the couple. For example, in one case the woman complained that her husband did not pay for rent, electricity or water, and that she had not had a fridge for the past 20 years. It seemed to me that she left the marital home to make it clear that she would not put up with this any longer, but instead of improving his behaviour, the husband filed a petition for divorce for harm. In this case, the woman and the judge discussed whether the husband’s flaws justified her abandonment. The husband argued that his wife had a habit of leaving their home at 6 a.m. to come back late at night, and that she did not clean or cook. The judge reprimanded her for this, and when the woman tried to convince the judge that she nevertheless had a good reason to abandon the marital home, the judge said: ‘People can live without a fridge!’ It seemed that the social background of the couple played a crucial role here: if this had been an upper-class couple, not having a fridge would probably have scandalized the judge, being an indication that the husband neglected his duties, and justifying the wife’s abandonment of the marital home. I also observed reconciliation sessions where the husband wished to move house, filing a petition for divorce for harm on the grounds that the wife refused to follow. In some cases, the judges showed sympathy for the husband, and in other cases, they underlined that the wife was not obliged to follow her husband. A case where the judge showed sympathy for the husband concerned a situation where the spouses had spent their married life in the poor part of La Marsa, a generally rich suburb of Tunis. The husband had found a job far away in the countryside, as he was a farmer, but the wife refused to move because she had ‘[a] certain intellectual level’ and would not leave the city to live in the middle of nowhere. The judge told the wife that she should follow her husband as he was the main breadwinner, and that her defence did not make this otherwise as she was originally from the countryside herself.

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Although the wife replied: ‘Not me, my father, I grew up in La Marsa’, the judge rejected her defence. In this way, the court issued the norm that indeed, the husband decides where the marital home is, suggesting that the wife’s social background may form a justification for her to stay behind, while in this case, the wife being from a farmer’s family herself meant that she could be required to live in the countryside.23 In other cases, judges would show sympathy for the wife. For example, in one session, the husband had found a job in Bizerte, a coastal town in the north of Tunisia, not very far from Tunis. As his wife refused to move, he filed a petition for divorce for harm. The wife argued that she worked as a nurse in Tunis and that she would lose her job if she moved to Bizerte. She added that they needed her income as well, as their son was applying for a concours (exam), which was expensive. The reconciliation judge was convinced by her argument and told the husband to drop his case. In this way, the court confirmed the norm that a valid justification for refusing to follow the husband lies in the best interest of the children. However, I had the impression that he would not change his petition into divorce without grounds, as it seemed as if the reason that he filed the petition in the first place was to make his wife follow him, not because he actually wanted a divorce.24 During reconciliation sessions I also observed situations where husbands’ accusations of abandonment seemed to be a strategy to make their wife come back. In one such case, the judge clearly asked the man whether he really wanted to divorce. ‘No, I don’t,’ he replied, ‘I simply want her to come back.’ The judge was angry, as it was clear that in the husband’s mind, the court could order the wife to return. The judge explained that he had filed a divorce case, and that all she could do was to pronounce a divorce, not to make his wife come back. This is different from practices in some other countries in the region, where the principle of bayt al-ta‘a (house of obedience) still exists. This legal principle allows men to go to court to file a case for nushuz, ‘rebellion’. If the court establishes that the wife is indeed ‘rebellious’, the police are ordered to bring the woman back to her husband. It is remarkable that some reconciliation sessions concerned situations where the husband complained not that his wife had abandoned him, but that she was too often away from home, for example for

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work. In one case, concerning an upper-class couple who went through a terrible divorce (I attended numerous reconciliation sessions of this couple, as they would file for divorce, change the petition, retract it, followed by the other party getting angry and filing for divorce, etc.). At a certain point, the husband complained that his wife was too often away from home for work. The family judge asked how many days she was working, and she replied that she worked three days a week. The man continued by complaining that the problem was more about her business trips and so the judge asked her how often she went away for business. When she replied, ‘One week per year’, the judge reprimanded the husband, saying he should not complain. Indeed, one wonders why the husband even brought this up in the first place knowing that the judge was a working woman herself. But other judges may have responded differently: during my research trip around the country I talked to a (male) family judge in Gafsa, a mining town in the middle of Tunisia. This judge told me that he had awarded divorce for harm to a husband whose wife went away on business trips to Libya. This judge explained to me: ‘The couple had three children, which cannot be combined with a trading business between Libya and Tunisia.’ According to the judge, the wife had betrayed her family. I also witnessed several cases in which the wife stated that the husband abandoned her and that she did not know where he was. The judge would tell these women that they should investigate his whereabouts to prove that he abandoned the marital home.25 Article 40 PSC prescribes that if the wife cannot find him, she should prove that he abandoned her without any resources with a oath. However, I never came across a case where this was applied.

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CHAPTER 8 DIVORCE FOR HAR M ON THE GROUNDS OF ADULTERY

On 25 September 2006, Moncef 1 (born 1954) filed a petition for divorce for harm at the CFI Tunis.2 According to the text of the judgement, the petition stated: ‘He is married to the defendant by means of a legal marriage contract issued on 16 March 1998, and the marriage was consummated and they have two children, but marital life deteriorated because of a deliberate act of the defendant consisting of abandonment of the marital home without a valid reason and having suspicious affairs with a number of people3 which made him suspicious and he filed a complaint for adultery at the public prosecutor in Tunis and the wife was convicted on 18 August 2006 for the crime of adultery and she was convicted to eight months imprisonment and a fine of 200 dinars. This inflicted harm on the plaintiff and he demands to bring about divorce between them for the first time after consummation on the grounds of harm caused by the wife in accordance with Article 31 para. [1 sub] 2 PSC. He asks to order her to pay 30,000 dinars of moral damages and to transfer child custody to him.’ Raja (born 1976) was summoned to attend the first reconciliation session which was held on 4 November 2006 at 9 a.m. Both spouses were present and confirmed that they were married and that they had two children. Moncef persisted in his demand of divorce for harm on the grounds of ‘[t]he proof of her bad behaviour and her conviction for

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adultery’, and he confirmed that their children were with him. Raja replied that the accusations were without grounds, underlining that she had been acquitted after appealing on the grounds of lack of evidence; she resisted the divorce. The reconciliation judge took provisional measures, granting child custody to Moncef and visiting rights to Raja allowing her to take them with her every Sunday until 6 p.m. Raja filed a petition to revise the provisional measures, demanding that the children were transferred to her and that Moncef paid 150 dinars in rent. The demand to transfer custody to her was granted. At the court hearing, both parties were represented by their lawyers, who declared that their clients persisted in their demand, while Raja’s lawyer repeated that the penal conviction had been nullified in appeal. In its decision, the court argued that: ‘As the harm consists of the wife’s adulterous relation with another man together with the issuance of a penal decision convicting her for the crime of adultery. And as the Court of Appeal in Tunis who decided a second time on the case in a renewed composition, decided to nullify the decision that was taken in first instance and to acquit the suspects. And as the evidence of harm in a divorce case differs from the evidence for the commitment of the crime of adultery. And as the p.-v. of the police makes clear that the defendant has confessed that she had an adulterous relation with the suspect Nabil after having contracted marriage with the plaintiff. And as the confessions recorded in the p.-v. of the police interrogatory provide evidence for the violation of the obligation of companionship (mu‘ashara) with her husband and of chastity towards him, the court grants the demand and pronounces divorce on the grounds of Article 31 para. [1 sub] 2 PSC.’ The wife obtained custody and 150 dinars for rent and the husband was awarded visiting rights. The court sentenced the wife to pay 3,000 dinars of moral damages, together with the husband’s lawyer’s fees. In this case, 22-year-old Raja had married then 44-year-old Moncef in 1998, and in the following years two sons were born. In 2008, Moncef filed a petition for divorce for harm on the grounds of abandonment and adultery, demanding a relatively large amount of damages (30,000

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dinars) and child custody. He presented a penal decision that sentenced Raja to eight months imprisonment for the crime of adultery. However, Raja denied the allegation, and pointed out that she had been acquitted in appeal. Nevertheless, the court granted the demand of divorce for harm, on the grounds that adultery is qualified as harm and that Raja had confessed the adultery during the police hearings. According to the court, the p.-v.s of these hearings effectuate sufficient evidence in a divorce case. The court sentenced Raja to pay 3,000 dinars in moral damages, granting child custody to her and obliging Moncef to pay the rent for her children and herself. In this judgement, the court issued the norm that within marriage, a woman should not have sex with someone other than her spouse. This is in accordance with legislation: Article 236 of the Penal Code prohibits adultery for both men and women. However, the court did not invoke this article explicitly, but referred to it in a more implicit way by arguing that she had violated her ‘obligation of chastity’, the duty underlying the prohibition of adultery.4 Also, the court argued that Raja had violated ‘the obligation of companionship (mu‘ashara) with her husband’, suggesting that she violated her marital duties prescribed by Article 23 PSC, which prescribes hasan mu‘ashara. But besides these implicit references to legislation, the court also employs a term that may refer to Islamic law, denoting the act as zina, the Arabic term for sexual relations outside marriage. It is not certain however that this involves a reference to this normative order, as the act of adultery in Article 236 PC is also termed zina. The decision on the divorce of Moncef and Raja also issued a remarkable norm with respect to evidence: unlike the decisions concerning domestic violence and non-payment of maintenance, the court granted the demand despite the fact that Raja had been acquitted in the penal case. The court argued that evidence requirements in penal cases differ from those in divorce ones, and that for the latter, a police p.-v. containing the wife’s confession suffices. This consideration raised my curiosity about those p.-v.s, and as was described in the introduction, I moved heaven and earth to obtain these. At last I succeeded. The file, at that point in the registers of the Court of Appeal Tunis as Raja had appealed against the divorce decision, contained all documents from

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the divorce case and the penal case, the penal decisions taken in first instance, appeal, cassation and again in appeal, as well as the p.-v.s from the police hearings. It is an exciting file because it gives insight into how a divorce case developed and what is more, how the police proceeded during the Ben Ali era. Two aspects of the file I found particularly surprising. First, the file included pictures of the spouses, and as I was wondering why these were put in there, when taking a closer look at the pictures, I could not help but conclude that they were to show that Raja looked like a woman with ‘loose morals’: while Moncef’s picture was rather neutral, one of Raja’s portraits showed her in a white lace camisole, clearly her underwear. As Raja looked tired, with no make-up and with messy hair, it did not look like a picture that she would want to show to anybody, giving the impression that these pictures were taken by the police. A second remarkable aspect of the file was the fact that the p.-v.s contained much sexual detail, and it is exactly these details which underlie the divorce decision. According to the p.-v. of Raja’s hearing at the police station, Moncef had not been interested sexually in Raja for some time, having ‘[e]xpelled her from the marital bed’, leaving her with physical needs ‘[l]ike any other woman’, as Raja pointed out, in this way underlining that this is ‘normal’. The document continues by describing how one day, when she went shopping for clothes in a secondhand shop, she met the owner Nabil. She returned to the shop several times, alone or with her youngest son, ‘[b]ut only if I really needed clothes’, an addition that seemed to underline the normality of these facts. But in the course of the interrogation, she admitted that however innocent all this may seem, Raja’s visits to the shop escalated, and it is here that the p.-v. becomes specific about the sexual aspect of their liaison. The p.-v. mentions ‘[f]ellatio in the fitting room’ on one occasion, and ‘[i]ntercourse in the back of the store’ on another. According to the document, she confessed that her five-year-old son had come with her the second time, waiting for her in the shop. The son then told his father that he was often going to a specific shop with his mother and Moncef became suspicious, as the p.-v. of Moncef’s hearing makes clear. He started to follow Raja, and although the p.-v. does not mention if he actually observed anything, he filed a complaint with the public prosecutor for

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adultery and Raja and Nabil were arrested and interrogated. Besides Raja’s confession, the file also contains Nabil’s confession in which he stressed that Raja had pushed him into the adultery, and the witness declarations of two taxi drivers who had identified Raja from the picture and declared that Raja had given them her telephone number telling them that her husband did not make love to her anymore, that he did not maintain his family and that she needed money. Both witnesses stressed that they had never called her, while one of them added according to the document that he had given her some money to buy yoghurt for her son. These declarations were the ones that, according to the court, established the adulterous relation. This is in itself remarkable, as it was common knowledge that people were generally forced to confess by the police. I witnessed police hearings myself as I was violently robbed in October 2008 and filed a complaint with the police, and observed how police officers beat so-called suspects although I had already pointed out that the person in question did not resemble my attackers. The fact that confessions are often made under duress and the threat or reality of violence was also confirmed by one of my informants, Balqis, who had been accused of adultery and had been kept in the basement of one of the buildings of the ruling party5 for seven hours without food or drink, being continuously interrogated by two male police officers. A few days later, she was invited to court to undergo another interrogation by a public prosecutor, who, when she came in, asked her to take off her coat so that he could see her body, and who wished to know what she liked in bed, what sex was like with her husband, etc. By accepting the p.-v.s as evidence against Raja, the court issued the norm that confessions uttered at police stations are reliable, and in this way, the court does not step out of the authoritarian system but instead plays the game of upholding a façade of the rule of law. However, the Court of Appeal and of Cassation showed themselves to be better custodians of the rule of law (as far as was possible in an authoritarian regime): these courts declared that there had been a violation of procedures: legislation prescribes a cross-examination between suspects and witnesses, and the file does not testify to this.6 By accepting other evidence than a penal conviction, the court does

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not, however, deviate from the norm issued above that a plaintiff in a case of divorce for harm is necessarily lying; for the court, it has been established that Moncef is telling the truth, but this was established by the police instead of the Penal Chamber. With respect to damages, the court issued the norm that the husband who obtained divorce for harm on the grounds of adultery has a right to moral damages, even if these are only one-tenth of the amount filed for. This is in accordance with legislation, as Article 31 para. 2 provides that divorce for harm gives a right to damages. As in the cases described above, the court mentions other grounds for granting moral damages besides legislation, namely that the divorce affects the husband’s honour and social position; again it is noteworthy that it is the divorce itself and not the adultery that is considered to have damaged the husband’s honour and social position. In the same vein, the amount of damages is again calculated on the basis of factors connected to the divorce: adultery is not a factor in the calculation. Nevertheless, the damages are significantly higher than in cases of divorce without grounds at the wife’s demand, where the husband received 1,000 and 1,500 dinars respectively. This suggests that the fact of adultery does nevertheless play a role in the amount. Besides damages, the court issued the norm that the wife does not obtain maintenance during the waiting period. As this issue is wiped out, the court does not explain why she has no right to these. It is not in accordance with legislation. By denying the wife maintenance, the court is issuing the norm that if a wife cheats on her husband, she loses her right to maintenance. In this way, adultery is put on a par with abandonment of the marital home. It suggests that if the wife is violating her duties connected to marriage, namely her duty of chastity, the husband can suspend his.

Other decisions The collection contains three other cases where the husband filed a petition for divorce for harm on the grounds of adultery; two were granted, while one was rejected for lack of evidence. One of the decisions where the husband’s petition was granted concerned a case where the wife

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had been sentenced to eight months in prison for prostitution (termed bigha’ in the decision), although the decision had not yet obtained force of res judicata.7 That prostitution is qualified as harm is in accordance with the law, not only because it implies adultery, but also because prostitution is prohibited: Article 231 of the Penal Code punishes women who offer themselves with gestures or words to passers-by or who prostitute themselves, even if only occasionally, with six months to two years in prison and a fine between 20 and 200 dinars.8 This suggests that the wife in question may have been convicted for prostitution for a one-off incident, where the Penal Chamber had considered it proven that the wife had had sex with someone other than her husband, receiving something in return. The court did not refer to this article: instead, it argued that the wife’s behaviour ‘violates the husband’s honour’, adding that prostitution ‘forms immediate damage to him in his position of her husband’.9 This may involve an implicit reference to Article 23 PSC which provides among other things that the spouses should refrain from harming each other. However, legislation does not mention the concept of honour in any way, and by invoking this concept in such an explicit way, the court issued the norm that the wife should protect her husband’s honour. The concept of honour in societies in the region has been treated in many anthropological works,10 and this is not the place to elaborate on ‘honour’ in Tunisian society. But even if I do not wish to express banalities here on the notion of honour in ‘Arab’ or ‘tribal’ societies, I cannot deny that I observed that honour was clearly important in Tunisia, specifically in relationships. In this decision, the husband was granted 5,000 dinars of moral damages (he had filed for 10,000 dinars), which is even more than Moncef received and which suggests that the court issued the norm that prostitution is less ‘normal’ than the adultery in the case of Raja; however, another explanation for the difference in the amount may be that this couple was more well-off than Moncef and Raja. In the other case where the husband’s petition was granted, the 42-year-old wife had also been convicted for prostitution (termed khina’ in the decision);11 she was absent at the reconciliation sessions as the husband did not know which prison she was in. Also here, the court did not invoke the Penal Code but granted the demand on the grounds

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that the wife’s behaviour ‘violates the husband’s honour’, adding that the wife had shown ‘[d]isdain for marital life’,12 as ‘[m]arriage is based on honour, conjugal community and good treatment’. In this decision, the court’s attachment to the concept of honour is confirmed, while the issues of conjugal community and good treatment seem to refer again to Article 23 PSC on the obligations within marriage. In this case, the husband did not obtain damages and as the paragraph on damages has been erased from the judgement, it is not clear why not. The description of the petition and the reconciliation session does not reflect that the husband filed for damages, which indicates that if the husbandplaintiff does not file for damages in a case of divorce for harm on the grounds of prostitution, they are not granted. In this way, the decision differed from the norm issued in cases of domestic violence and non-payment of maintenance, where women even obtained damages if they had not filed for them. This suggests that for the court, there is a difference between the harm that consists of prostitution and the one that consists of violence or non-payment of maintenance, as if the latter is less ‘normal’; another explanation is that harm caused by the wife is considered more ‘normal’ than when it is caused by the husband. That not only men but also women can file a petition of divorce for harm on the grounds of adultery was confirmed in one decision. The situation was again slightly different here, as it was not an isolated incident: the husband was actually living with another woman as if they were married, and he had been convicted of adultery. The court stated that this situation constituted zina, which may refer to Article 236 PC or the Islamic legal order. The court continued by stating that adultery forms a violation of the basic marital duties as prescribed in Article 23 PSC, thus explicitly referring to the law.13 The decision may have been influenced by existing practice of the Court of Cassation too: a famous decision from 1966 provides that when the husband fréquent a family that is not his, he is harming his wife which allows the latter to file for divorce for harm.14 It is noteworthy that in the case at hand (from the CFI Tunis) the court did not invoke the wife’s honour explicitly, which may justify the suspicion that honour is connected to men instead of women. In this case, the wife did not receive damages, but she was awarded

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maintenance. The court did not explain why it did not award damages, and possibly, the woman had not filed for them. If this is the reason for the omission, then the court issued the norm that in cases of the husband’s adultery, the wife should file for damages to obtain them. Another possibility is that even if the court qualified the husband’s behaviour as ‘harm’, it was not put on a par with harm that justifies damages. Either way, the court issued the norm that the husband’s adultery should be distinguished from domestic violence and non-payment of maintenance, as the latter give a right to damages regardless of whether the wife files for these. This suggests that for the court, the husband’s adultery is less ‘abnormal’ than domestic violence and nonpayment of maintenance.

Reconciliation sessions I observed one reconciliation session where a husband filed a petition for divorce by mutual consent even though his wife had been, according to him, unfaithful. He told the judge that he had become suspicious when one day, he was driving his car with his wife sitting next to him; when he had a flat tyre, he stopped the car, and while he was repairing it, his wife walked away from the car to talk on the phone. He did not like the fact that she could not talk on the phone while he was next to her, and decided to check the incoming and outgoing calls and messages on her phone. He was surprised to find messages that had been sent to her containing sentences such as ‘I can’t wait to hear your voice’, and confronted her with these. His wife had replied that these messages came from a person she did not know, who worked at the Tunisian telephone company Tunisiana, and who had started to call her out of the blue. But the husband had verified this by taking her SIM card from her phone, giving her another one with a different number: a few days later, he checked the phone again to notice that she had been contacted by the same number. The husband did not accept this and argued that his wife was lucky, as he could have filed a petition for divorce for harm; however, he did not do this for the children’s sake. To my surprise, the judge confirmed that he could obtain divorce for harm, pointing out to the woman that she was lucky to have such

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a kind and good husband who did not file for divorce for harm, even if he could. The reason for my surprise is that the man did not argue that his wife had actually met this other man, suggesting that there was no adultery in the sense of Article 236 PC (requiring sexual intercourse). The judge thus issued the norm that adultery constituting harm does not only consist of having sexual relations with another man, but also of flirting with him without ever having seen the person; this was confirmed by the family judge in Sfax, who explained that in such cases, the act cannot be termed zina but khiana, ‘disloyalty’. Also, the judge issued the norm that the court may pronounce divorce for harm without a penal decision, as flirting is not punishable by law and as people are only convicted for adultery in case of sexual intercourse. After the couple had left the office, the judge exclaimed: ‘And this woman is wearing the hijab!’ which suggests that according to this judge, women who are guilty of such ‘bad behaviour’ should not be wearing a hijab. This is remarkable, as it suggests that the fact that a woman wears a hijab is in principle considered a presumption of her being ‘good’ or ‘moral’, and indeed, I observed that litigants played with this, wearing a hijab especially to influence the judge. That flirting may be qualified as harm was confirmed in other cases as well. I interviewed a woman who had been accused of adultery, Balqis, briefly mentioned before. She told me that she had been married for about ten years and that she had been very unhappy but that she stayed with her husband for the children’s sake. One day, a childhood lover contacted her through MSN, and even if they had not seen each other for 30 years (they attended the French lycée in Tunis together and he had then moved to France), they started to chat on a daily basis. Balqis’s husband became suspicious and when she left her laptop in his car, he brought it to a computer specialist to obtain a printout of the conversation. With this document, the husband filed a complaint for adultery, which the police was willing to investigate, but as it could not be proven that there had been physical contact, Balqis was acquitted. The husband then filed a petition for divorce for harm, and by coincidence, the family judge who was handling the case told me about it, without knowing that I actually knew the woman

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in person. The judge was clearly shocked about this case, and told me that she had spent the weekend reading the MSN conversation. She insisted on showing the report to me, but I preferred not to read it as I knew the woman personally. The judge said that it had made her want to vomit (‘J’ai eu envie de vomir’), but that ‘unfortunately’, she would not be able to grant the husband’s demand as the wife had filed a petition for divorce without grounds that dated from before his petition. The judge said that the Family Chamber was deliberating on how to punish this woman, and they were hesitating to take custody from her (see Chapter Ten on how this case ended). When taking an overview of the material described above, one may get the impression that the norms issued by the court are stricter for women than for men: the only decision where a wife obtained divorce for harm on the grounds of adultery concerned a situation where the husband was actually living with someone else as if they were married, while the decisions and the judges’ attitudes in reconciliation sessions suggest that a man may obtain divorce for adultery if it was an isolated incident or even when it was only flirting without ever having met. That the judges issued gendered norms with respect to adultery was confirmed in the following reconciliation session: I observed a case where the husband accused his wife of adultery, stating that he hoped that she went to prison as this would save her from being killed by him. The wife laughed at him, stating that he had been living for years with his ex-wife and his child by the latter. It was remarkable that the reconciliation judge did not respond to the husband’s threats, giving the impression that it did not shock her, that it was ‘normal’. And indeed, this same judge told me once that ‘[i]f you cheat on a Tunisian man, you’d better not tell him, because he’ll kill you’, while in the same conversation this judge confided in me that her own husband was not being faithful to her, adding: ‘I don’t mind, as long as he’s being safe and does not contaminate me.’ This suggests that for this judge, it is normal that Tunisian men wish to kill their wives if the latter are being unfaithful, while it was normal for her too not to care that her husband was not faithful to her. In his dissertation from 1977, Fantah writes that such a gendered

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approach in legislation (until 1968, adultery was only prohibited for women) is due to a ‘strong attachment to the Islamic tradition where marriage is polygamous (meaning that the husband has no duty of fidelity)’. He continues that the legislature ‘had wished to deal with this problem silently: while prohibiting polygamy in Article 18 PSC ... leaving it to the judge to deal with this legislative lacuna.’ According to Fantah, this legislative decision was very wise, since ‘it avoided confrontation with the more traditional milieus still very influential at this time [in 1956], especially in rural areas’.15 But the Court of Cassation decided in 1971 that the husband’s adultery qualified as ‘harm’ as well, which was in line with the legislative step taken in 1968.16 As was already briefly pointed out above, this gendered approach to adultery has consequences for evidence requirements, because flirting cannot be proven with a penal conviction. But even in cases of ‘penetration’, the Family Chamber may have been more lenient in the sense that they would not require a penal conviction. In this way, the court was taking into consideration that it is more difficult to obtain a penal conviction for adultery than for domestic violence, as the latter can be proven with a medical certificate and a police p.-v. that contain a description of the bruises, while such evidence does not exist in cases of adultery. I’m not sure if the CFI Tunis was indeed more lenient, but during my trip around the country, the family judge in Sfax told me that he was. In order to explain why, he gave me the example of a case where the wife had put on her jacket at 9 p.m., telling her husband that she was going out. Her husband became suspicious, followed her, saw her enter the apartment of ‘two bachelors’, as the judge pointed out to me, and called the police. When the policemen entered the place, hoping to catch them in flagrante delicto, the three of them were seated in the salon drinking a glass of wine, and thus the woman was not prosecuted for adultery. Nevertheless, the p.-v.s from the police were sufficient for the Family Chamber to grant divorce for harm on the grounds of adultery, in this way issuing the norm that it is not ‘normal’ to have a glass of wine with two bachelors at their home at 9 p.m. The judge at this

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court confirmed that as the norms with respect to what is normal behaviour between the sexes are stricter for women than for men, divorce for adultery is granted more often to men than to women. He gave the following example: ‘If a man is visiting a woman’s house, he can justify this by arguing that he helped her change the bulbs, while women cannot advance such justifications’. It should be added here that I suspect that if a woman files a complaint for adultery with the police, the policemen will laugh at her.

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CHAPTER 9 DIVORCE FOR HAR M ON OTHER GROUNDS

Besides the grounds mentioned above, court decisions and the observation of reconciliation sessions testify that the court qualified other acts as ‘harm’ as well, including incest, imprisonment, sodomy and the absence of sexual relations.

Imprisonment The collection contains two decisions on petitions where the plaintiff filed for divorce for harm and where the defendant had committed a crime (other than domestic violence, adultery, etc.) and was in prison. One of these, concerning a French couple born in Tunisia (they were Tunisian Jews from La Goulette), was dismissed on the basis that the Tunisian court had no jurisdiction; here, the wife had been sentenced to two years in prison for having robbed her husband’s bank account and the husband filed for divorce.1 In the second case, the petition, filed by the wife, stated: ‘The husband took part in a criminal gang which was involved in numerous cases of payment with uncovered cheques and he was convicted to imprisonment and for this reason the plaintiff stays behind without a family.’2 The husband had been convicted numerous times and had been in prison for a long time. The court granted the demand, granting

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the wife 2,000 dinars for moral damages and 70 dinars per month for material damages, and argued as follows: As the harm justifying divorce is the harm that renders marital life impossible, which involves all harm that is unquestionable and which injures the other spouse directly and which harms his honour and stability. And as marriage is founded on good companionship and cohabitation and peace and as the absence of all that involves that marital life is absent ... . And as the involvement of the husband in numerous penal convictions taking away his freedom ... this is truly qualified as harm preventing the continuity of marital life in an atmosphere of love and kindness and protection and taking away the honour of the wife who stays behind without a family and support. In this decision, the court issued the norm that the husband’s imprisonment constitutes harm, and in order to explain this, the court invoked three sources. First, the court explained that ‘harm’ in Article 31 para. 1 sub 2 PSC includes all acts that injure the honour and stability of the other spouse. This is remarkable as Article 31 PSC does not refer to the notions of honour and stability, notions that are introduced by the court without mentioning the source from which they are drawn. Possibly, invoking these notions involves an implicit reference to Article 23 PSC, which provides for ‘good companionship’ and the interdiction of harming each other. In a second stage, the court explains its notion of marriage, arguing that this is founded on good companionship and cohabitation. Again, the court does not name its sources for these notions, but good companionship is mentioned in Article 23 PSC, and the duty to cohabit was mentioned in the decisions on the abandonment of the marital home. In a third stage, the court explained why the husband’s imprisonment should be qualified as harm, and thus, in what way this situation injures the wife’s honour and stability and the duties of good companionship and cohabitation. The court argued that his imprisonment prevents ‘[t]he continuity of marital life in an atmosphere of love and kindness and protection’, and that it ‘takes away the

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honour of the wife who stays behind without a family and support’. This sentence seems to refer back to the previous considerations: that the wife stays behind without a family and support refers back to the notions of honour and stability, and that the wife has a right to love, kindness and protection refers back to the duty of cohabitation and good companionship. This suggests that imprisonment is qualified as harm for two reasons: because it involves abandonment of the marital home – this was qualified as harm in other cases as well, see Chapter Seven – and because the husband’s imprisonment harms the wife’s honour. It is remarkable that the concept of honour is mentioned here; indeed, in cases of adultery, ‘honour’ was only invoked with respect to men. Invoking the wife’s honour here suggests that while the honour of men is damaged by their wife’s adultery, the honour of women is injured when their husband is imprisoned.

Alcohol The collection contains one decision where the court granted divorce for harm on the grounds that the wife was a drunk. In this case, the husband filed a petition stating that the wife had ‘left the marital home for an unknown place after which she was arrested a number of times for public drunkenness and she was convicted a number of times for the crime of loose morals’.3 That the wife had been drunk in public was proven with several penal convictions for public drunkenness. The demand was granted, but the husband was not awarded damages. That public drunkenness is ‘harmful’ is in accordance with the law: the Penal Code punishes being drunk in public with 15 days in prison and a fine of four dinars and 800 millime (cents).4 However, it becomes clear from the decision that the crime of public drunkenness was not underlying the divorce decision: the judgement stated clearly that ‘the wife’s drinking of alcohol’ (instead of ‘public drunkenness’) qualified as harm, suggesting that the mere fact that the wife drank alcohol constitutes harm to her husband. This is not in accordance with the law: the latter prohibits serving alcohol to Muslims and to people who are drunk,5 but it is silent on drinking alcohol, while in practice, the law is not even applied as alcohol is served and sold in

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certain supermarkets and in bars and restaurants with a license, not only to (Western) tourists but also to Tunisians.6 Therefore, the decision was based on another source than legislation, and indeed, instead of invoking Article 317 PSC (public drunkenness), the court argued that the wife’s drinking constituted ‘a violation of the honour and reputation of the husband and disdain for his social position’.7 This reasoning resembles that employed in cases of the wife’s adultery and as such, may be interpreted as an implicit reference to Article 23 PSC, which provides that the spouses should refrain from harming each other. Thus, the court issued two norms here: that the wife should protect her husband’s honour (confirmed in adultery cases) and that women should not drink alcohol, which implies that a husband may even obtain divorce for harm on the grounds that the wife drinks alcohol without ever having been convicted for it (and thus, if proven in another way than with a penal conviction). The norm that women should not drink alcohol was confirmed by the family judge in Le Kef, who told me that a man can obtain divorce for harm if his wife drinks alcohol since ‘[a] woman who drinks is necessarily a drunk’. When he noticed my surprise the judge explained: ‘We’re not in Europe, where women can drink one glass of wine at supper. Here, if a woman drinks, she cannot control this, and she is necessarily an alcoholic.’ It is clear that this remark neglects the fact that some women do drink alcohol without being a drunk, mainly in the intellectual elite and in certain regions (on the islands of Kerkennah, some lower-class women drink the wine that they produce themselves). This suggests that the norm issued by the judge in Le Kef was informed by his own social background, which may be described as the (conservative) bourgeoisie, and indeed, I observed that bourgeois women and/or women of the financial elite did not drink alcohol, even when their husbands did. That the female judges at the CFI Tunis issued the norm that women should not drink alcohol may have been based on the same circumstances, namely their own social background, and indeed, I’m quite sure that none of them ever drank alcohol. However, when I invited one of the (female) judges at the CFI Tunis to my viva in Amsterdam, she said, half-jokingly half-seriously: ‘Only if there will be champagne!’ I

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hesitated and said: ‘But I thought you did not drink alcohol?’, to which she replied: ‘Only champagne!’ This remark may suggest that for this judge, drinking one glass of champagne in Amsterdam should be distinguished from drinking a glass of wine at home, qualifying the latter as ‘alcoholism’, but it may also be explained differently: it is possible that for this particular judge, drinking alcohol is different when it concerns someone from her own background rather than a lower-class woman, and that the case at hand concerned people from the lower class. I do not have a decision where the husband’s drinking is considered to constitute harm, suggesting that the norms are quite gendered in this respect. This was again confirmed in the court of Le Kef; it is only logical that this court turned out to be so informative when divorce cases involving alcohol were concerned when one realizes that Le Kef is generally called Tunisia’s ‘city of bars’. I observed a session where the wife accused her husband of drinking, but as the judge did not go into this, I asked him why. He replied that for men, drinking alcohol can only be qualified as harm if it is actually ‘harming’ something, for example if he destroys the marital home and beats his wife when he is drunk. In this way, the judge in Le Kef issued the norm that men may drink, while drinking becomes abnormal if they damage goods or people. The judges at the CFI Tunis seemed to issue the same norm, although they did perceive drinking as ‘bad’, even for men, which was pointed out during several reconciliation sessions. This merely concerned lower-class men, and the judges’ reaction seemed to reflect an image of lower-class men who drink as people who are crooks and thieves, who drink all day and start making trouble in the evening. And indeed, in my neighbourhood one could buy cheap alcohol illegally and therefore, the streets were unsafe, especially at night, because of violent drunk men, attacking each other with empty bottles and knives.

Incest The collection contains one decision concerning a case where the husband had been condemned for sexual abuse of the wife’s daughter from a previous marriage.8 That this was qualified as ‘harm’ is in accordance with the Penal Code, which besides adultery, prohibits sex with women

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under 20. By qualifying this act as harm, the court issued the norm that having sex with the child of one’s spouse is prohibited. The husband had been convicted for the crime of having sex with a minor, and it is likely that without such a conviction, the wife’s demand would have been rejected: I observed several reconciliation sessions where women accused their husband of sex with their child, and I noticed that judges were very cautious to believe such allegations. For example, I’ll never forget one of the sessions that I attended on my first day at court, where the wife filed a case for divorce for harm, accusing her husband of sexual abuse of their two-year-old daughter. The woman, who looked devastated and was in tears, described how she had come home from work one evening to find her daughter naked and tied to a chair. The man denied that this had happened and accused his wife of lying.9 After the session I exclaimed ‘How terrible!’, but the judge remained calm, pointing out to me that she had experience with this type of allegation, and that women are often advised by their families to advance such accusations. In another case, the session concerned a woman whose face was familiar to me as she was a lawyer herself and we had passed each other a couple of times in court. This time she was a litigant herself, having filed a petition for divorce for harm. She told the judge that she suspected her husband of having sexual relations with their children, a five-year-old son and a nine-yearold daughter. She described how she had started to become suspicious when her son had asked her to wipe his behind after he had gone to the toilet, and when she refused had said: ‘But daddy does it all the time!’ After this, she observed that her son touched her ‘like a man touches a woman’, and she had taken both children to a paediatrician. She handed the judge a medical certificate, which the judge put in the file, pointing out that it was insufficient and that she would need a penal conviction.10 In this way, the court issued the same norm as in cases of domestic violence: that normally, women are lying on such issues, and this is only different if they have actually addressed a penal judge.

Refusal to have sex My collection of decisions from the CFI Tunis does not contain judgements where the refusal to have sex was qualified as harm.

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Nevertheless, I’m quite sure that it can be qualified as such: I attended several reconciliation sessions where the husband or the wife stated that they did not have a sex life, and here, judges indicated that this could be qualified as harm. For example, I witnessed one session where a recently married couple had not had sex since the wedding night.11 The couple had married quite late: the woman was 40 when the couple celebrated the marriage festivities (‘urs), and she was still a virgin. According to the husband, his wife had refused to ‘allow him to enter her’ on the wedding night, adding: ‘Therefore, I had to force her.’ Since this moment, she had kept him at a distance and they had not had sex a second time. To my surprise, the judge did not show any disapproval of the fact that the husband had forced his wife to have sex with him; on the contrary, she showed disapproval of the wife’s behaviour by commanding her to have sex with her husband. This suggests that the judge issued two norms here: that a wife should have sex with her husband, and that a man can force a woman to have sex within marriage. That the couple is obliged to have sex is not made specific in the law, but the term of hasan mu‘ashara (good companionship) in Article 23 PSC clearly has a strong sexual connotation. This means that this norm may be in accordance with legislation, but it is clear that the judge in question neglected the fact that sex may be highly problematic for women who have not had a sex life until they reached the age of 40; this was indeed pointed out to me by a couple of women who had married late and who were still a virgin – one of these women even told me that she felt that for her, the absence of a sex life almost caused serious mental problems. That the judge in question did not realize this may be connected to her own background, as she had been married at the age of 18. The norm that rape within marriage is not prohibited is not in accordance with legislation, as the Penal Code does prohibit rape without making an exception for married couples. However, the code does not make explicit that rape within marriage is prohibited too, and for this reason, the Femmes Démocrates are lobbying to include this in the Penal Code. I’m not sure if this case resulted in divorce for harm, as it may have been difficult to prove. Indeed, in another case where the husband complained that he had no sex life, the judge replied that he should prove with a

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medical certificate that his wife was still a virgin, but of course, this was of no use in the case at hand. That men can obtain divorce on the grounds that the wife refuses to have sex was confirmed by the Court of Cassation, explaining that sex is one of the principal conditions of marriage.12 This is a very remarkable decision, first and foremost because here, the court granted damages to the husband, while in a decision on a woman’s petition for divorce for harm on the grounds of impotence, no damages were awarded, stating that this is a medical condition that cannot be attributed to the husband’s fault or intention (see below on the husband’s impotence); this suggests that if a woman does not have sex, that is due to her ‘intention’. Another reason why the decision of the highest court, dating from 2007, is remarkable is that it explicitly refers to Islamic law, stating that there is consensus among the Islamic fuqaha’ that sex is one of the foundations of marriage. I have not come across such explicit reference to Islamic law in the decisions from the CFI Tunis. I also witnessed sessions in which not men but women complained about their sex life, and I had the impression that the husband’s refusal to have sex may also have been qualified as harm. In one reconciliation session, the woman complained that the marriage had not been consummated, and the judge told her that she should prove that her husband was impotent with a medical certificate proving that she was still a virgin. But the judge’s reaction in another session suggests that women can also obtain divorce for harm if impotence occurs later in marriage: here the wife, an English teacher, complained that her husband had become impotent, and the judge replied that she should prove this with a medical certificate based on a medical examination of the husband. That the husband’s impotence can be considered to constitute harm was confirmed in various decisions from other courts,13 including the Court of Cassation.14 This practice exists despite differences of opinion on the issue in Tunisian legal literature; some authors argue that divorce for harm is supposed to be based on the idea that the person who harms the other spouse is punished, which implies that the act constituting harm is intentional and blameworthy, something that cannot be said of impotence. For example, Ferjani writes that it is not

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justified to grant divorce for harm on the grounds of impotence in a case where the marriage has not been consummated: In an Arabo-Islamic society, it is not possible to have sexual relations before marriage, and the absence of such relations can thus cause a surprise on the wedding night ... [by granting divorce on the grounds that the husband turned out to be impotent on the wedding night] Tunisian judicial practice is thus encouraging people to have sex before marriage, which is prohibited by penal law especially when such relations violate public mores.15 In this way, Ferjani is suggesting that men too are not supposed to have sex before marriage, a norm that, according to my material, was never confirmed by the court. On the contrary, the family judge at the CFI Le Kef said that even if both spouses are supposed to be virgins before marriage, a woman cannot file a divorce for harm on the grounds that her husband was not a virgin, as men do not have a hymen. He was clearly suggesting that as men do not have a hymen and thus an anatomical feature considered to define virginity, the prohibition of sex before marriage does not apply to men. In the decision from 2004, the Court of Cassation decided that even if impotence is qualified as harm, it does not give a right to damages, as it is not the husband’s intention to be impotent.16

Sodomy The collection does not contain decisions where the court granted divorce for harm on the grounds of sodomy. However, during reconciliation sessions, I observed that it could be qualified as such. Indeed, I witnessed a number of sessions where the wife had come alone, telling the judge that their husband had sodomized them; in many such cases I could not hear what the woman was saying as they would speak in a low voice, indicating that they were ashamed to say it; I would understand it only when it was repeated by the judge, either in response to the woman, or by explaining it to me afterwards. I specifically recall one woman, who attended several reconciliation sessions. She was a

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beautiful young woman who was obviously not doing well, being very skinny and pale, and sitting with a bended back in front of the judge. She had filed a petition for divorce without grounds from her Libyan husband who, according to her, had taken her to Libya, beat her and then had left her in the lurch. She had returned to her family in Tunis and filed for divorce, but she could not track down her husband, which was why her case took such a long time (he could not be summoned to attend the reconciliation sessions). It was at one reconciliation session that she told the judge about the sodomy practices of her husband; she said it in a very low voice, without looking at the judge, as if she was talking to the purse that she kept between her hands.17 The judge was very expressive in her disapproval – and clearly shocked. She asked why the woman had not filed a petition for divorce for harm, which confirms that for the court, sodomy is qualified as harm, issuing the norm that men should not sodomize their wives. This is in accordance with the Penal Code, which prohibits sodomy in Article 230, and establishes that it should be punished with three years in prison. The judge pointed out that the allegation should be proven with a medical certificate, which suggests that a penal conviction was not necessary here – this is remarkable and suggests that judges did not make the same assumption that women were lying when it came to accusations of sodomy, which would imply that the court issued the norm that if women accuse their husbands of sodomy, they are telling the truth. It is noteworthy that the interdiction of sodomy serves specifically to prohibit homosexuality, or the ‘homosexual act’ – homosexual feelings are not prohibited by law. However, there are indications that a man’s homosexual feelings may nevertheless be qualified as harm in divorce cases. During my research trip around Tunisia, I was solicited by the family judge in Sfax to translate a Dutch police report which belonged to the file of a Tunisian woman who had filed a petition for divorce for harm at the CFI Sfax. According to this report, the husband had been living in Holland for some time together with his sister, when he married the woman who migrated to the Netherlands. Here, she found out that her husband was homosexual as her husband did not have sex with her, did not even sleep with her in the same bed (sleeping in his sister’s room instead) and as two years after

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her marriage she was still a virgin. Her suspicions were confirmed when one day, the woman talked to her Moroccan neighbour and the latter informed her that according to her husband, the husband of the Tunisian woman was a homosexual. The report was quite interesting in itself, as it was completely contradictory. I had the impression that the session with the Dutch police had evolved as follows: the wife had wished to file a complaint that her husband was a homosexual, not realizing that in the Netherlands this is not a crime. When the policeman indicated that she could not file a complaint for this, she added that her husband and his sister had forced her to have sex with other men. However, this is in complete contradiction with her statement that she was still a virgin, and thus, it seems as if she made this up. This is confirmed by the fact that the police did not press charges against the man, making the woman turn to the Tunisian authorities, to file for divorce. And indeed, the judge was clearly shocked by the information about the man’s sexual orientation, completely neglecting the other accusations, as if he realized that these were fictitious. The judge said to me that he would grant the woman’s demand, on the grounds that the husband was a homosexual and did not have sex with his wife. In this way, this judge issued the norm that homosexuality is qualified as harm, at least if it means that the husband does not have sex with his wife. That homosexuality was considered ‘abnormal’ corresponds to the reaction of a judge at the CFI Tunis in a custody case: here, the child in question put on his mother’s make-up which according to the judge was the fault of the person who brought him up, as this is not ‘normal’ (see Chapter Nine).

The wife was not a virgin I never witnessed a case at the CFI in Tunis where the lack of virginity was invoked. This is remarkable as I did observe that virginity was important for litigants. When I asked the judges at the CFI Tunis whether they would qualify the lack of virginity as harm, one of them replied that they did not, as the law does not oblige a woman to be a virgin at the time of marriage. The judge invoked a tendency in jurisprudence according to which the term bikr (virgin, spinster) in the

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marriage contract does not mean that the bride is a virgin, but that she is unmarried at the moment of signing the sdaq. Indeed, in a decision from 1968, the CFI Grombalia decided that the spouses can insert the condition of virginity in the marriage contract on the grounds of Article 11 PSC, suggesting that if such a condition has not been inserted, there is no condition of virginity.18 However, the family judge at the CFI of Le Kef did qualify nonvirginity as harm if the wife had not said before the wedding night that she was not a virgin, which would constitute ‘delusion with respect to the person’ as the husband had the right to believe that she was a virgin. This is in accordance with Article 46 of the Civil Code, which provides that delusion with respect to the person or his/her qualities of one of the parties to a contract, does not give a right to dissolution of the contract unless the person of the other party or his/her qualities were one of the principal reasons for concluding such a contract. Nevertheless, the judge stressed, he had only granted divorce for harm on the grounds of non-virginity in one case, as it was difficult to prove: there were no witnesses and a medical certificate could not help either. Therefore the only accepted proof was the confession of the wife, and the case where the judge had granted the demand concerned indeed a wife who had confessed that she was not a virgin on the wedding night, as the man who was now her husband had taken away her virginity before marriage. The judge had granted the husband’s demand as his allegation was proven, and as the woman could not prove that it was the husband who had taken away her virginity.19

Infertility I witnessed some reconciliation sessions where the husband complained about his wife’s infertility, but I had the impression that judges would not easily grant divorce for harm on such grounds.20 On the contrary: judges would try to reconcile such couples, stressing that with today’s medical science, everyone can get pregnant. In one case, the woman, who was already 40 years old, had tried everything, including IVF. Nevertheless, the judge told her: ‘Don’t give up! Medical science advances very rapidly, and you’re still young.’ Although this suggests

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that according to the court, infertility does not harm the other spouse, the court confirmed that married couples should have children.

Mental illness I obtained one file concerning a case where the wife filed a petition for divorce for harm mentioning several grounds, namely that the husband had expelled her from the marital home, that he did not pay maintenance to her and their son, that he was violent with her and insulted her and that he was mentally ill. This was the only other case of which I obtained the entire file (together with the one of Moncef and Raja), and here, it was one of the family judges who gave it to me in secret and allowed me to copy it by hand. Besides the petition, the file contains the p.-v.s from three reconciliation sessions together with the lawyer’s correspondence and certificate proving statements made by the parties. The p.-v. of the first reconciliation session stated that the couple got married on 24 July 2004, and that they had a child who was born on 9 September 2005; the wife declared that her husband had been away from the marital home for three years which had forced her to go back to her parents in Le Kef, and that he did not pay maintenance and never contacted her. She submitted a shahada from a hukm ihmal ‘iyal (penal conviction for neglect of the family). The husband was absent at all sessions, but he was represented by a lawyer who wrote a letter in defence of his client. The letter provided that the plaintiff had filed a petition for divorce for harm on the grounds of non-payment of maintenance and expulsion from the marital home. The husband’s defence with respect to the allegation of non-payment of maintenance was that he had become mentally ill after they got married, meaning that he could not be expected to fulfil his duties. Moreover, the wife had decided herself to abandon the marital home, which constituted a violation of her duty to take care of her husband when he is ill. The husband’s illness was proven with a medical certificate from psychiatric hospital al-Razi in La Manouba, issued on 20 February 2008 and stating: ‘I certify that X is currently hospitalized in our service for a period of indetermined duration’, and a decision issued by the CFI Tunis on 25 August 2005,

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placing the man in the custody of his mother in accordance with Articles 160 and 161 PSC on the grounds of his psychological situation. The husband asked the court to pronounce divorce with mutual consent. In response, the wife’s lawyer answered that his client persisted in her demand of divorce for harm on the grounds that the husband violated his duty to cohabit (mu‘ashara) and demoralizes her life, and that his neglect with respect to her and their son was persistent and harmful. The lawyer filed for 10,000 dinars moral damages and the same amount in material damages, together with 300 dinars for living expenses for her and her son. In its decision from 24 August 2008, the court decided to grant the wife’s demand of divorce for harm on the grounds of the husband’s mental illness.21 I’m not sure whether the husband was obliged to pay damages. This case contains some interesting features. In the first place, it confirms that the court issued the norm that mental illness can be considered to constitute harm, justifying divorce for harm. Another interesting feature of the case is that initially the plaintiff put forward the issue of mental health as grounds for her divorce together with other grounds, such as non-payment of maintenance, while in the remainder of the procedure, she focused on the expulsion from the marital home and non-payment of maintenance entirely; this is probably due to the fact that this is the only issue that she can prove. The husband then picked up on the allegation of mental illness by using it as his defence: that he is mentally ill means that the charge of nonpayment of maintenance is without grounds, as he is not obliged to pay maintenance. Although this seems quite smart, it turns out only to work against him: now, the court will not pronounce divorce on the grounds of non-payment of maintenance, but on the grounds of his mental health problem, for which he himself has provided evidence with a custody decision and a medical certificate. By focusing on his mental illness, the court remains silent on the question of whether being ill indeed invalidates the duty to pay maintenance. That the wife focused on the issue of non-payment of maintenance can be explained by the fact that for her, it was impossible to obtain evidence for this: in an interview with a psychiatrist at psychiatric hospital al-Razi, the latter told me that the hospital does not give out

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medical certificates about people’s mental situation to anyone except the person whom it concerns. The reason for this was, according to the same psychiatrist, that such certificates are used to obtain divorce for harm. The psychiatrists did not wish to cooperate with such practices, enabling the spouses of their patients to obtain divorce for harm, as it was not in the best interest of their patients’ health. But my informant added another reason: this particular psychiatrist was the head of a ward of women, and according to her, many of her patients had simply been driven mad by their husbands. She explained this by saying that women are emancipating themselves, increasingly having jobs, going out with friends etc., while men have not adjusted to the developments in society. They are, according to this psychiatrist, frustrated, try to keep their wives at home and beat them, which drives these women crazy. For the psychiatrist the fact that these women’s mental problems were caused by their husbands in the first place, was another reason to refuse to cooperate with the husbands in their procedure for divorce for harm, as indeed, it was the husbands who caused the harm in the first place.

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CHAPTER 10 THE CONSEQUENCES OF DIVORCE WHEN CHILDR EN AR E INVOLVED: CUSTODY AND VISITING R IGHTS

On a hot Wednesday morning in the summer of 2009, the family judge for endangered children at the CFI Tunis received a 13-yearold girl named Fathiyya together with her mother and their lawyer. The judge invited them to tell their story, and the mother began: she had been married to Fathiyya’s father, a man of Tunisian origin with double nationality (Tunisian and French), and Fathiyya was their only child. They had spent their married life in Paris, and upon their divorce, the French court granted child custody to the mother. The father continued to live near mother and child, and they saw each other frequently; the mother even maintained him financially as he did not have a job. Fathiyya spent every summer with her father and their family in Zarzis, a small coastal town in the south of Tunisia, near Jerba. This was also true for the summer of 2008. At the end of the summer holidays of 2008, a few days before school began in Paris, her father took away Fathiyya’s French passport, telling her that she would stay with her grandmother in Zarzis. He took off to France, while the girl lived with her old and senile grandmother, who did not prepare her food and did not provide for any clothing for the winter; she had not seen her father since the end of the summer.

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Fathiyya’s mother travelled back and forth to Tunisia to try to get her back to France: she filed a petition at the CFI in Mednin to have the French custody decision recognized, but the demand was rejected. In the meantime, the father had obtained a decision from the president of the CFI Tunis providing that Fathiyya was forbidden to leave the country – a decision that legitimized his act of taking away his daughter’s passport. After five months, the mother decided to quit her job in Paris and moved to Tunisia to live with her daughter in Carthage (Tunis) – the father was still living in Paris. At the session of the family judge, Fathiyya and her mother were represented by Mrs Radhia Nasraoui, an internationally famous human rights activist who was then president of an anti-torture organization and who was very much disliked by Ben Ali’s regime. Nasraoui filed a petition for a provisional (24 hours) measure that would consist of a temporary suspension of the judgement from the president of the court, which would enable mother and daughter to return to France together. Nasraoui was desperate: ‘How could this situation occur?’ she exclaimed. ‘This child has lived all her life in France! She does not even speak Tunisian!’ The judge asked Fathiyya what she wanted; did she want to go back to France? ‘Yes,’ the girl replied. ‘Why?’ the judge asked. ‘Don’t you like Tunisia?’ ‘No, not really, I like France better, because my friends are there,’ the child replied. The judge, probably intending to console the girl, said ‘Well, when I was in France last year, I was very unhappy and extremely homesick. I don’t like France at all.’ The judge deliberated with the representative of the Children Protection Service who advised against allowing the child to leave, arguing that because the child had Tunisian nationality (she had dual nationality), she should grow up in Tunisia. He pointed out that if they granted a provisional measure, the child would leave Tunisia and never come back. The judge followed the representative’s advice and rejected the demand.1 The material for this chapter is more hybrid than the material used to describe divorce practice, which is due to the fact that besides the usual material for divorce procedure (reconciliation sessions, 44

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divorce decisions where children who were minors were involved and interviews), I also looked at the procedures of the family judge for endangered children. While issues relating to children are decided in the first reconciliation session and the final divorce decision when it concerns a divorce case, the family judge for endangered children takes decisions on child custody and visiting rights in other circumstances than during divorce proceedings, such as when the plaintiff has not yet filed for divorce, when the divorce decision obtained force of res judicata, when one of the parents died, or when one of them is simply unfit to obtain custody. In order to examine the practices of this institution, I observed custody sessions at the CFI Tunis and interviewed the two judges (both women) who act as such, as well as the representative of the Child Protection Brigade (a man); I did not obtain any decisions issued by this judge as I was not allowed to photocopy the decisions.

Case one: Souhayma versus Fawzi2 (CFI Tunis 5 January 2009, 68470) On 27 February 2008, a woman called Souhayma (born and living in Tunis) filed a petition for divorce without grounds at the CFI Tunis. According to the text of the judgement, the petition stated: ‘She is married to the defendant by means of a legal marriage contract issued on 5 March 2004, and they consummated the marriage and they have one child, Ala. However, the marital bond deteriorated between them and she asks to bring about divorce between them for the first time after consummation on her demand in accordance with Article 31 pars. [1 sub] 3 PSC.’3 Souhayma’s husband Fawzi (born and currently living in Tripoli, Lebanon) was summoned to attend the first reconciliation session, held on 5 May 2008 at 9 a.m., but he was absent, although he had been correctly summoned. During this session, custody was awarded to Souhayma, while Fawzi was granted the right to visit his daughter and take her with him on Sundays and religious and national holidays from 9 a.m. to 4 p.m.. He was obliged to pay 100 dinars in child maintenance.

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The reconciliation session was repeated twice, but Fawzi did not come. The case was transferred to the court session where Souhayma was represented by a lawyer, while Fawzi was again absent. In its decision, the court confirmed the provisional measures taken during the first reconciliation session, arguing that Article 46 PSC obliges the father to pay child maintenance. With respect to child custody, the court argued, ‘As it comes forward from Article 67 PSC that if marital life has come to an end, custody is awarded to one of the spouses or someone else in accordance with the best interest of the child. And as the reconciliation judge awarded custody to the mother, granting visiting rights to the father without company. ... And as this decision is in accordance with legislation and is in the best interest of the child, it is confirmed.’4 This case concerned Souhayma, a Tunisian national living in Tunis, and her Lebanese husband living in Lebanon. They had married in 2004 and had one daughter, Ala. Souhayma filed a petition for divorce without grounds, and her husband did not present any defence. The court pronounced the divorce, granting custody to Souhayma and visiting rights to Fawzi on Sundays from 9 a.m. to 4 p.m., and on religious and national holidays, when Fawzi could see his daughter on his own, meaning that he could take her with him for example to the zoo; the court neglected the fact that Fawzi was living in Lebanon. He was also obliged to pay 100 dinars in maintenance for the child, while nothing was stated on the housing of mother and child (see the second part of this chapter). In the decision on the divorce of Souhayma and Fawzi, the court issued the norm that in a divorce case where children who are minors are involved, the court should decide which parent obtains child custody, which according to Article 54 PSC consists of the child’s ‘upbringing and protection’ and in practice involves living with the child. That such a decision should be taken upon divorce is in accordance with Articles 57 and 67 PSC: while Article 57 states that custody lies with both parents during marriage,5 Article 67 prescribes in its second paragraph that upon divorce, custody is awarded to the father, the mother or a third person. That Article 67 indeed underlies the court’s decision is affirmed as the court argued: ‘It comes forward from Article 67 PSC

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that if marital life has come to an end, custody is awarded to one of the spouses or someone else.’ In this way, the court issued the norm that upon divorce, the existing custody arrangement changes, and shall be attributed to one person instead of to both parents. This is interesting in the light of the fact that in some European countries, custody is awarded to both parents upon divorce, as this is considered to be in the best interest of the child.6 The Tunisian legislature has not taken this step, despite its politics of prioritizing the rights of the child. The court also issued a norm with respect to the question of who shall obtain custody upon divorce: it decided to award custody to the mother, arguing that the attribution of custody should be in the best interest of the child. That this is the decisive factor is in conformity with legislation: Article 67 para. 3 PSC provides that custody is awarded in accordance with the best interests of the child, a phrase that can be found in many codes in the region concerning child custody7 and which was added in Tunisian legislation in 1993 as part of the politics of child protection; before this date, custody was in principle awarded to the mother. However, in this particular case the court did not explain why it was in the best interests of this child, Ala, to live with her mother. The lack of explanation suggests that the court issued the norm that it is ‘normal’ that children live with their mother. That this norm does not only concern young girls but all children who are minors is confirmed by the fact that in almost all decisions where minor children were involved (40 out of 43), custody was granted to the mother. This is remarkable as in most countries in the region, legislation provides that children go to their father when they have reached a certain age, at least when their father files for custody. That the mother obtained custody in 40 out of 43 cases, including all types of divorce (divorce for harm, divorce without grounds and divorce by mutual consent) indicates that indeed, women did not give up custody rights in exchange for divorce, a practice that was reported by Welchman,8 or due to particular socioeconomic circumstances as reported by Shehada.9 With respect to visiting rights, the court issued the norm in the case of Fawzi and Souhayma that the fact that the child lived with one of the parents – in this case the mother – should not deprive the child and the other parent, here the father, from seeing each other.

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This is in accordance with the PSC, which provides in Article 66 that neither the mother nor the father can be denied the right to visit their child who is in the custody of the other parent or a third person. It is remarkable that regardless of the judges’ discourse on the ‘best interest of the child’, which is decisive for the attribution of child custody, the court did not point at this principle when it concerned visiting rights: in this decision, awarding visiting rights to the father is simply explained with reference to legislation, which focuses on the right of the parent to see his/her child instead of the other way around. In some reconciliation sessions, however, judges would explain that it is important for the child to see its father on a regular basis, suggesting that the best interest of the child was a consideration that judges had in mind. This was especially pointed out by judges in situations such as the case between Souhayma and Fawzi, which was an international situation: in such cases, judges would insist that the mother took care of contact between father and child, for example through travel during the summer holidays. It is likely that this had been discussed in the reconciliation session of Souhayma as well, even if it is not noted down in the decision. Indeed, I observed in reconciliation sessions that judges made mothers promise to make arrangements, pointing out that they would nevertheless note the ‘Sunday-rule’ in the p.-v., stating: ‘I have to write down specific hours in the p.-v.’10 Such international situations occurred rather often, and would generally concern Tunisian couples who used to live abroad, mainly in France, while one of them decided to return to Tunisia and the other stayed in France. The ‘Sunday-rule’ indicates that the court did not only issue the norm that father and child should see each other, but also that this should take place once a week, between 9 a.m. and 5 p.m. This means that in principle, visiting rights would not include the night, which is in accordance with legislation: Article 60 PSC provides that the child can only spend the night in the house of the caretaker. Nevertheless, in international cases, it is possible that the child did spend the night in the caretaker’s home. In the decision on Souhayma and Fawzi and their daughter Ala, the court also decided on the place where the contact between father and child would be: it decided that this would be ma‘a istishab, meaning that Fawzi could take Ala with him, for example

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to the zoo, and was not obliged to stay in the caretaker’s home. This is remarkable in the light of legislation: Article 62 provides that the father can only take the child from its residence with the mother’s consent, except if the court considers it in the best interest of the child that the father takes it with him. In practice, judges obliged fathers to visit their child in the caretaker’s home if they were very young, but when they had reached the age of four, the court would grant visiting rights ma‘a istishab without asking the mother’s consent. This suggests that the court issued the norm that it is in the best interest of children over four to go out with their father on Sundays. It is noteworthy that although the court issued the norm that upon divorce, a decision should be taken on custody, the decision on Souhayma and Fawzi is silent on guardianship; in this way, the court issued the norm that divorce does not change guardianship arrangements. This is in accordance with legislation: Article 154 PSC provides that the father is the child’s guardian, and does not make mention of divorce, suggesting that divorce does not change this situation. Indeed, according to the PSC, guardianship shall only shift to another person, such as the mother, upon the father’s death or in case of incapacity of the latter. Nevertheless, Article 67 PSC provides that upon divorce, something changes with respect to guardianship as well: if the mother obtains custody, she enjoys certain guardianship rights as well, namely those connected to the child’s travel, its studies and financial matters.11 According to one of the lawyers, judges do not apply this with regard to the right to travel, requiring the father’s consent for the child’s travel abroad.12 This was confirmed by several female informants, who, if they travel alone with their child(ren), are sometimes required to show a written agreement from the father of the child, at least at Tunis airport. However, this depends entirely on the douaniers present at the airport, as some of them will not pay attention to this while others may accept money or a smile from the woman.

Case two: Balqis My first interview with the lawyer Bouchra Bel Haj Hamida took place during the month of Ramadan, at her home in 2008. She invited

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me to her home as she was cooking dinner for a group of friends, and as I was sitting at her kitchen table, she and her bonne were preparing several typical Tunisian dishes, while the lawyer answered my questions. When I asked her about the concept of adultery in divorce cases, she replied that she had invited one of her clients to dinner, and that she would make sure that I’d be seated next to her. She began by telling me the story of this client, who I will call Balqis. The missing bits and pieces of the story were later added by Balqis herself, and by the family judge who was treating her case. Part of Balqis’ story was already treated above (Chapter Eight), so I will focus on the custody side of it here. In the year 2006, Balqis found a summons from the Child Protection Brigade on her doorstep, which was addressed to her 16-year-old daughter from a previous marriage. The latter was invited to come to the Brigade’s headquarters, and was interviewed by a social worker and a psychologist. A few days later, Balqis was summoned herself to the Brigade, to be interviewed by the same people, and she was told that the Brigade had been warned by the police, who had found e-mail conversations between the girl and her boyfriend that referred to sex. At this moment, Balqis realized that her missing laptop had not been stolen from the car, as her husband had told her, but that it had been taken by someone who had brought it to the police. The Brigade announced that they would start proceedings to take the eldest daughter away from the mother, but this was soon taken back when Balqis’s ex-husband, an influential Tunisian living in the US, intervened. After some time, she received another summons, this time from the Brigade de moeurs, a division of the police that specializes in cases such as rape and adultery, and was questioned by the police and the Public Prosecutor. These people confronted her with her own conversation with her childhood lover, which had been found in the same computer. In the end, the charges were dropped as there was no evidence of adultery. In the meantime, she filed a petition for divorce without grounds, and during the divorce proceedings Balqis realized that her husband

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had filed a petition for divorce as well, on the grounds of adultery, and that he demanded custody over their two young girls. The family judge who was treating Balqis’s case told me in private that she was treating a case concerning a woman who had had an internet conversation with another man; that it had disgusted the judge and which made her doubt whether she could award child custody to this mother, because a woman like this ‘[c]annot be a good mother’, as she would not be able ‘[t]o teach her children morality’. Besides, the judge told me, she had also read the e-mails of the woman’s daughter from a previous marriage, revealing that the girl was having sex with her boyfriend, although ‘[g]irls that age are supposed to be a virgin!’13 In the end, the Family Chamber awarded child custody to Balqis, and the judge explained to me that she could not do otherwise as the father was a busy man and would leave the education of the children to a bonne. This case reflects that there are exceptions to the norm issued by the court that the mother should have custody over the children: the interview with the judge reveals that indeed, the court takes into consideration the best interest of the child and that in some circumstances, it is not considered to be in the child’s best interest to live with the mother upon divorce. In the case of Balqis, the court issued the norm that children should not live with an unfaithful mother. But this is not a hard-and-fast rule: ultimately, the court decided that living with an adulterous mother is still more in the best interest of children than being brought up by a bonne. The case also reflects another norm, namely that 16-year-old children are not supposed to have a sex life. The latter was issued not only by the judge, but also by the Child Protection Brigade. That the custody case with respect to Balqis’s eldest was dropped when her ex-husband intervened confirms something that is common knowledge in Tunisia: the intervention of influential people can change the course of events in all disciplinary institutions, and can cause that some norms issued by such institutions are no longer applied. This was true for the court, but also for other institutions, such as the douane (see before).

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The norm that children should not be brought up by an unfaithful mother was confirmed in two other decisions. Indeed, two out of the 43 divorce decisions where minor children were involved awarded custody to the father on the grounds of the woman’s adultery.14 In the case of Moncef and Raja,15 however, custody was granted to the mother in the end. When I asked the family judge who had been on this case why Raja had nevertheless obtained custody although the preliminary measures awarded custody to Moncef, she replied that in this case, ‘[t]he father was not very catholic (!) either’.16 This indicates that even if a mother is not considered ‘a good mother’, this will not justify that the children are brought up by their father if he is considered to have ‘bad morals’ too. That all decisions in my collection where the husband filed for custody (three decisions) concerned cases of divorce for harm on the grounds of adultery is not a coincidence: according to one of the lawyers, the two are intertwined.17 This may be true in two ways. In some cases, such as that of Moncef and Raja, it seemed that the husband filed a petition to obtain custody to punish the wife for her adulterous relations. In other cases, I had the impression that the reason for the divorce was not adultery, but something else; accusing the wife of adultery simply served as a means of taking the children away from her. This seemed to be the case in the situation of Balqis, where the husband had searched for something that indicated that she was unfaithful as soon as he discovered that she wished to divorce; by accusing her of adultery, the husband could punish Balqis as it would allow him to take away the children from her. That men are generally reluctant to file for custody except if it is to punish the mother was confirmed by Hoodfar for Egypt.18 Besides the adultery cases, the collection of divorce decisions contains one other case where custody is attributed to the father.19 This case concerned a mixed marriage as well (like the case of Souhayma and Fawzi), except that here, it was the father who was a Tunisian national while the mother was of Moroccan origin. The child had been living with its mother in Morocco, while the father had returned to Tunisia. Before filing the divorce petition, the father had filed a petition to obtain child custody, arguing that custody should no longer be

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with both parents, but should be transferred to him. In the custody case, the family judge for endangered children (instead of the Family Chamber) was competent, which is why the divorce decision was silent on the issue of custody as it awaited the decision from the family judge for endangered children. And indeed, the latter decided to transfer custody to the father. The procedure for this judge, who takes a seat in the Family and Children Division at the CFI as well, is as follows.20 If a child is endangered, for example because of maltreatment by the parent(s), every person is entitled to warn the Child Protection Brigade; the plaintiff may be someone outside the family (e.g. a neighbour), but also a family member; I witnessed numerous cases that came before the family judge for endangered children where the custody conflict was between parents or between parents and grandparents. A conflict between the parents could concern a situation where one parent had obtained child custody after divorce, and where the other parent argued that the child was endangered by the caretaker; another possible situation was that the caretaker argued that the child was endangered by the other parent, stating that visiting rights should be taken away from the latter. A conflict between parents and grandparents could concern a situation where one of the parents had died, leaving the children with the other parent, and where the grandparents argued that the child was endangered, or where the children were brought up by their grandparents while the parents realized that they were endangered by this situation. In such cases, the Brigade, applying the Child Protection Code, started an investigation (see the case of Balqis’s daughter) and if the Brigade qualified the situation as dangerous, it filed a petition at the family judge for endangered children, advising to take the child away from its caretaker(s). Then, a date was set for a court hearing, which took place in the office of the judge behind closed doors. The only people present were the judge, a scribe, a representative of the Brigade, the child, the caretaker and his/her lawyer, and sometimes the plaintiff and his/her lawyer.21 The cases before the family judge for endangered children were informative as they reflected the norm issued by the court with respect to custody, and even if these norms were issued in situations other

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than divorce, these norms would probably apply to divorce cases as well. In the case of the Tunisian man and the Moroccan woman, the husband had filed a petition to transfer custody to him on the grounds that the child was living with its mother in Morocco although it had Tunisian nationality. According to the husband, this was a dangerous situation for the child, suggesting that it concerned a case of ‘child abduction’, as the mother was keeping the child with her in Morocco although it was supposed to live in Tunisia. I did not obtain the decision of the family judge for endangered children, but I found out that the court granted the husband’s demand as one day, when walking down the hall with one of the judges, a woman clutched on to the judge, crying and begging to give her back her child. The judge shook her off and told her that she should simply come and live in Tunisia. When I asked the judge afterwards what this was about, she said that this was a Moroccan woman who had been living with her child in Morocco, until her Tunisian husband had filed for custody. This was granted, ‘as the child has the Tunisian nationality’. In this way, the court issued the norm that if a child has Tunisian nationality, it should live in Tunisia, meaning that in the event of divorce, custody over a Tunisian child is awarded to the mother unless the latter is not living in Tunisia. This case resembles the one concerning Fathiyya that was described at the beginning of this chapter, where the court confirmed the norm that Tunisian children should be brought up in Tunisia. This was also confirmed in reconciliation sessions concerning Tunisian nationals where the mother was living abroad (mostly in France): in such cases, judges would disapprove of the woman staying abroad with the child, even with the husband’s consent,22 and in one of those cases, the reconciliation judge said: ‘You are Arabs, you are Tunisians!’ (antuma ‘arab, antuma twensa!).23 In the case of Fathiyya, one may be surprised that the French government did not simply issue a new passport, allowing the girl to leave the country. However, as is pointed out by the ATFD, everyone with Tunisian nationality is obliged to show this passport upon entry and departure of the country.24 Like the norm with respect to ‘adulterous women’, the norm that women living abroad cannot obtain custody was not a fixed rule. The court would not grant custody to the husband of law (without a petition

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to this end), but only if the husband filed a petition for it. But even if the husband did so, the court may reject the petition: in the case of Fathiyya, the family judge for endangered children did not seem certain about her decision; once the litigants and their lawyers had left the office, she turned to me and asked me what I thought of the situation. When I expressed my surprise about the fact that the Tunisian court would not recognize the French custody decision, the judge confided in me that actually, she would have wanted to grant the provisional measure to allow the child to go back to France. The reason why she could not do so lay in the judgement on the passport issue, as ‘[a] judgement [from the president of the court] has a higher hierarchical value than a provisional measure, I cannot go against it’. The judge added that she was disappointed with the mother’s lawyer: ‘If she had simply kept quiet about the judgement, I would have pretended not to know and I could have granted the provisional measure.’ Another reason why the court rejected the demand in this particular case was pointed out to me by a Tunisian friend of mine, an activist in the same ‘camp’ as the woman’s lawyer, Radhia Nasraoui. This friend suggested that the demand was rejected because Radhia Nasraoui was a political activist, who was so much disliked by the regime that, according to my informant, judges would be reluctant to have her win any case at all, as they would fear the repercussions of being suspected to be on the same side as this woman. The case of Fathiyya thus does not necessarily confirm the norm that women living abroad should not have custody over a Tunisian child, a norm that was issued without doubt in the case of the Moroccan woman. In a special guide for foreign women and Tunisian women living abroad, the Femmes Démocrates advise women to describe clearly in their marriage contract where the marital home is situated; according to this guide, this would prevent judges from deciding that the marital home is in Tunisia and thus that the child should be in this country, as was decided in the cases of the Moroccan woman and of Fathiyya.25 With respect to custody of a Tunisian child in an international situation, it should be pointed out that the norm issued by the court is not related to religion, but to nationality: indeed, in the case of the Moroccan woman, who was a Muslim (she was wearing a headscarf),

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custody was awarded to the father as well. In this way, Tunisian judicial practice deviates from the norms that were reported in other countries in the region, namely that the children of a Muslim man are supposed to be Muslim and are to be brought up as Muslims.26 In addition to these two exceptions to the norm that mothers obtain custody upon divorce, I derived another exception from a session before the family judge for endangered children. In this session, the child’s parents filed a petition to transfer child custody over their 14-year-old son back to them – the boy had been living with his grandfather for years while his parents were living in Milan for work. The reason for their petition was that on their last trip to Tunis they had realized that their son was behaving strangely: his mother had caught him in her bedroom in front of her mirror, putting on her make-up. The boy, who was present at the session as well, remained silent and seemed afraid to look the judge in the eyes. The parents argued that the boy was endangered with his grandfather, as this change in the boy’s behaviour was the latter’s fault. When the litigants had left the office, the judge and the representative of the Child Protection Brigade showed their disgust, since ‘the boy is a homosexual’. I asked whether custody would be transferred to the parents and the judge said it would. She pointed out that this was not necessarily because of the particularities of the situation, but because under all circumstances, the right of the parents to have custody takes precedence over the grandparents. But when I asked the judge if she would also have transferred custody if that was not the case, on the grounds that the boy was endangered, the judge said: ‘Of course, this child is in danger!’ The judge and the representative emphasized that as this boy was, in their eyes, homosexual, this was the grandfather’s fault as in their mind, people cannot be born this way. As in their eyes, the problem here was the boy’s homosexuality (as opposed to, for example, experimenting), the court issued the norm that homosexuality is ‘abnormal’, and that it is the fault of the caretaker. This suggests that upon divorce, the court may decide to transfer custody to someone other than the mother, on the grounds that the child is homosexual. This is not prescribed by law, which only prohibits the homosexual act of sodomy. That homosexuality is ‘abnormal’ was also confirmed by a penal judge at the Cantonal Court

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in Tunis; when I talked to him about prohibited (sexual) relations he pointed out that homosexuality is forbidden, both for men and for women. When I objected to this (the interview had become more of a discussion than an interview proper), our discussion resembled a conversation between deaf people. He asked me: ‘You have a husband, right?’ ‘Yes,’ I replied. ‘Is he a homosexual?’ he asked me. ‘Why, no, of course not,’ I answered. ‘Would you mind if he was a homosexual?’ the judge continued. ‘Yes, of course!’ I said. ‘But you just told me that you do not object to homosexuals!’ he exclaimed.27 It is remarkable that I did not come across a single case where the court transferred custody to the father on the grounds that the mother had remarried, as the law provides that in such cases, the husband may obtain custody, provided he files a petition for it within one year (Article 58 PSC).28 However, I did have the impression that judges disapproved of remarriage. I observed one reconciliation session where the wife had filed for divorce without grounds, telling the judge that she and her husband had too many disagreements on the upbringing of their four-year-old daughter. She gave the example of ballet: her daughter wished to take a ballet course, but her husband prohibited this. ‘La danse est un art!’ (‘Dance is an art!’) the wife exclaimed, suddenly talking in French (I often noticed that when people talked about something that they associated with the West, they would switch to French). She stressed several times that despite the divorce, she would never stop loving her husband as he was the father of her child and as he had been her ‘first’. The reconciliation judge awarded custody to her and visiting rights to the father, but at the end of the session, right before leaving the office of the reconciliation judge, the wife asked quickly if she would keep custody in the event of remarriage. The judge, suddenly not very kind, said something like: ‘We’ll cross that bridge when we get there’, and as soon as the couple had left the office, the judge turned to me and exclaimed: ‘And this woman is wearing the hijab!’ She was very disappointed and even shocked by the last question, which for her, indicated that the woman had fallen in love with someone else. This reaction may indicate that the court issued the norm that custody was transferred to the husband if the wife remarried. However, according to Article 58, custody shall not

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be taken away from the mother of law: the husband should file for custody within one year after the marriage. Article 58 is the object of advocacy of women’s rights organizations for discrimination, as the husband does not lose custody if he remarries. Another situation where the court was inclined to grant custody to the father instead of the mother concerned cases where the mother was having mental problems, in this case suffering from depression. I observed one session where the husband stated that his wife was depressed and had tried to commit suicide three times, and that he wished to have custody. In this case, the judge awarded custody to the father as a preliminary measure, reflecting the norm that in cases of psychological distress, the woman should not take care of the children.29 In this case, the woman did not deny that she was depressed, and she agreed that her husband should have custody. However, it is possible that judges would also award custody to the father if the woman denied depression and opposed such a decision, although they would probably require evidence for the woman’s mental situation, such as a psychological report. The above shows that the norm that a mother should obtain custody upon divorce knows exceptions. Nevertheless, I observed several reconciliation sessions where the judge rejected or even outright neglected the husband’s petition to obtain custody. For example, in one session the husband stated: ‘If she wants a divorce, she can have it, but I want the children.’30 According to him, he had been the primary caretaker for the children for years, as his wife was not interested in being a mother or a wife, preferring to be a career woman instead. The judge nevertheless granted custody to the wife, indicating that the mere fact that the wife was a career woman did not make the judge transfer custody to the husband. It is remarkable that the court issued the norm that in some cases, the father can obtain custody: even if Article 67 PSC provides that custody can be awarded to the father, the mother or a third person, Article 58, prescribing the conditions that the caretaker must fulfil, prescribes that if the caretaker is a man, he should have a woman at his disposal who can take the caretaking duties upon her. This is in accordance with most legislations in the region.31 In reconciliation

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sessions where judges awarded custody to the man, they did not ask whether he had a woman at his disposal, which suggests that for the court, this was not necessary. On the contrary: in the case of Balqis, the court decided to transfer custody back to Balqis as the father would leave the education of the children to a bonne. In this way, the court issued a norm according to which men are quite capable of taking care of children, although in principle, it is better for children to grow up with the mother. There were also exceptions to the norm that the father obtained visiting rights upon divorce. I witnessed some reconciliation sessions where the father’s visiting rights were contested, such as the two divorce cases where the wife accused her husband of sexual abuse of the children. In one of these cases, the judge did not respond to the allegations, but in the other, the judge provided that the husband could only visit his children in the presence of his brother. I also witnessed sessions of the family judge for endangered children where the father’s visiting rights were contested, such as a case where the mother accused her husband of physical violence with their children.32 I do not know the outcome of this case, but I do remember from another case that the judge for endangered children did not tolerate physical violence against children: this case concerned a 17-year-old girl who was beaten by her father, causing the family judge for endangered children to release the father from custody (the parents were still married, which is why the father had custody in the first place).

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CHAPTER 11 THE CONSEQUENCES OF DIVORCE WHEN CHILDR EN AR E INVOLVED: CHILD M AINTENANCE AND HOUSING

Selwa versus Fathi1 (CFI Tunis 5 January 2009, 68538) On 15 March 2008, Selwa (born in Tunis in 1983 and still resident there) filed a petition for divorce by mutual consent at the CFI Tunis. According to the text of the judgement, the petition stated: ‘She is married to the defendant by means of a legal marriage contract issued on 31 May 2003, and they consummated the marriage and they have one child. But finally marital life deteriorated between them until the point that it was no longer possible to continue it and the plaintiff asks a decision to bring about divorce for the first time after consummation on the grounds of Article 31 para. [1 sub] 1 PSC.’ Selwa’s husband Fathi (born in Tunis in 1978 and still living there) was summoned to attend the first reconciliation session that was held on 13 May 2008 at 9 a.m. At this session, both spouses were present, confirming that they were married, that the marriage had been consummated and that they had one child. They persisted in their demand for divorce by mutual consent.

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During the reconciliation session, provisional measures were taken with regard to custody (awarded to the wife) and visiting rights (awarded to the husband). The husband was sentenced to pay child maintenance (100 dinars). The wife was staying in the marital home and the husband would pay the rent. The judge transferred the file to the court hearing that was held on 22 December 2008. Here, both spouses were present and persisted in their demand. In its decision, the court granted the demand, confirming the decisions on custody, visiting rights, child maintenance and housing that were taken during the reconciliation session. In this case, the wife, mother of one child, filed a petition for divorce by mutual consent. During the first reconciliation session, the reconciliation judge granted custody to the mother and visiting rights to the father, obliging the latter to pay child maintenance and rent. In its decision on the case of Selwa and Fathi, the court issued the norm that the father should pay child maintenance. This is in accordance with Articles 37, 43 and 46 PSC, which establish that the father should maintain his children until they have reached their majority or until they have finished their studies, and which does not make an exception with respect to divorce, suggesting that this obligation exists during marriage and upon divorce (as opposed to the obligation to maintain the wife, which ends upon divorce). Article 32 PSC provides that the reconciliation judge should decide on maintenance (including maintenance for wife and children) by means of a temporary measure, and that the Family Chamber confirms or amends this measure in the final divorce decision. With respect to the amount of child maintenance, the court did not explain why it decided on 100 dinars. The legislation provides in Article 52 PSC that the amount of maintenance depends on the wealth of the person who shall provide for maintenance and the needs of the person who is entitled to it, taking into consideration the costs of living. This provision does not only consider children, but addresses all maintenance obligations, including maintenance during marriage and maintenance of children vis-à-vis their parents. The court also issued the norm that the father should pay for the housing of the caretaker and the children. This is in accordance with

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Article 56, which provides in para. 1 that the father should take care of housing for the child and the caretaker if the latter does not have any housing; this applies during marriage and upon divorce, while the next paragraphs provide that the child and its caretaker shall live in the house that is the father’s property; otherwise, the father is obliged to rent a place for them. With respect to the amount that is due, Article 56 prescribes that the father shall provide for living expenses in accordance with his means and the needs of the child, taking into consideration the costs of living. These paragraphs were inserted in 2008, together with a new article, 56 bis, which punishes the person who denies the caretaker and the child the right to occupy the home that was designated by the CFI with three months in prison and a fine of 100–1,000 dinars.2

Child maintenance Out of the 43 decisions in which children who were minors were involved, only 27 obliged the husband to pay child maintenance. In the decisions where the court did decide on child maintenance, this amounted generally to an average of 100 dinars per child. However, some decisions deviated significantly from these averages; for example, in the case of Mounira and Imed, where Mounira obtained divorce for harm on the grounds of domestic violence, the court convicted Imed to pay 40 dinars for their two-year-old and 30 dinars for the baby. I’m not sure why the amount was so much lower here; the fact that the children were very young may have played a role, although babies can be especially expensive because of the price of diapers. Besides, although many mothers leave their children with their parents when they are at work, it is also quite common for women to have a bonne who is paid around 10 dinars a day or 250 dinars a month, although poor people may pay as little as 100 dinars per month for a bonne, if the latter takes care of the children of several families at a time. The decisions that did not stipulate the payment of maintenance do not explain why no maintenance was awarded, as they simply remained silent on the issue. In cases of divorce by mutual consent, the lack of a decision may be due to the existence of an agreement

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between the spouses. Another possibility is that the wife obtained a separate maintenance decision. Indeed, in reconciliation sessions I often had the impression that for reconciliation judges, the situation where the wife obtained a maintenance decision was considered to be the norm, while situations where the wife did not were the exception. This became clear during a reconciliation session where the wife had filed a petition for divorce by mutual consent. The judge asked: ‘‘andik hukm nafaqa?’ (do you have a maintenance decision?). ‘No,’ the wife replied. ‘What do you mean? What will we do next?’ (Kifesh tawwa?) the judge exclaimed.3 Again another possible reason that so many decisions are silent on child maintenance is that the court simply did not decide on the issue if the spouses did not indicate that they had a disagreement on this. In the case of Moncef and Raja the court also remained silent on child maintenance and here, the question arises whether this implies that the court denied Raja child maintenance because of her behaviour. However, I’m reluctant to confirm this, as this would suggest that the children can be punished for their parents’ behaviour, which does not seem to be in line with the court’s practices. For example, in cases of divorce by mutual consent, the court issued the norm that the parents cannot agree that the father does not pay child maintenance. In reconciliation sessions in divorce cases where children were involved, judges would ask if the children were going to school (yaqraou). In cases of children over 18 years old, this question was connected to child maintenance: if the children were studying, the father would be obliged to pay child maintenance until they had reached the age of 25. In this way, the court issued the norm that the father should continue to pay for children over 18 if they are studying, which is in accordance with Article 46 PSC. It is remarkable, however, that judges would also ask this question if the children were younger. Possibly, this question fits the judge’s perception of their function not only as an arbiter and judge, but also as an educator of ‘the people’; in that way, the question functions more or less like a reprimand or an encouragement. It is interesting in this respect to note that according to the World Bank, in 2003, 96.5 per cent of children reached grade five of primary school, against an average of 83 per cent in the MENA

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region while 81.3 per cent were enrolled in secondary school (collège and lycée), and 28.6 in higher education (university).4 The collection contains one decision that mentioned ujrat al-hadana, wages for the caretaker, meaning that the parent who does not have custody of the children should pay a salary to the parent who does.5 The wife who had obtained custody filed for such wages, but the decision does not state what was decided on this. I never witnessed that the court decided on wages. However, Article 65 PSC provides explicitly that the person who has guardianship does not touch wages except for the washing powder, food and other services, ‘in accordance with custom’. That the court did not decide on these, suggests that the court issued the norm that people should not pay caretaker wages, which suggests that single mothers should pay for such items themselves.

Housing Out of the 40 decisions in which children were involved and where the wife had obtained custody, only 19 decided on housing. These decisions provided that the man paid rent for his ex-wife and children, while one decision affirmed that the wife would stay in the marital home ‘as this was her property’. I did not come across a decision where the court awarded the mother the right to stay in the marital home when it was the husband’s property, which is remarkable as Article 56 PSC does protect this right. I did come across one reconciliation session, mentioned in Chapter One, concerning a woman who was living with her 40-year-old daughter with mental health problems. In this session, the judge showed that indeed, in such a case, the husband cannot sell the marital home and expel the wife, even if the house is his property. Nevertheless, this did not happen often, which may suggest that in principle, the court issued the norm that the caretaker cannot stay in the marital home if it is the husband’s property. This would be in accordance with what has been observed in other countries in the region, namely that this norm is the subject of severe public debates; for Egypt, Najjar observed that a similar norm in Jihane’s law of 1979 was the most controversial one issued by this law that was ‘innovative’ in many more ways.6

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If the court decided that the husband was to pay the rent of a house rented by the custodian of the children, the court generally awarded around 150 dinars, depending on the social class of the couple; 150 dinars would be sufficient in this period for an average apartment in the city centre which is quite popular and poor, or a lower-class suburb such as Hayy al-Khadhra. However, women would have to make an effort to find something decent for this price that was large enough for mother and child(ren). That judges did not award more is probably due to the fact that these husbands would earn around 350 dinars and would also have to pay child maintenance; thus, it was simply not possible for them to pay more. However, sometimes, the judge would award much more, namely if the woman was living in a rich suburb such as La Marsa or Les Berges du Lac, or in Europe. In such cases, the husband could be sentenced to pay as much as 1,200 dinars, or even more. It is possible that these practices changed, as rent prices increased significantly since the 2011 ‘revolution’. This is due to a number of factors, such as the immigration of Libyans during the Libyan uprisings, who were willing to pay much more, and the overall price increase due to lack of state control on, for example, food prices. In the cases where the court did not decide on housing, the decisions did not explain this as it was simply left out of the judgement. A lawyer told me that in such cases, both spouses would tend to remain in the previous marital home: the wife as she would consider it her right and the husband as he had nowhere else to go and could not afford to pay for two houses.7 I had the impression that the main reason not to decide on housing is that women were expected to move back in with their parents, which was considered to be the norm. This is in accordance with Article 56 PSC which provides that the husband should take care of housing if the caretaker does not have any. Indeed, that women were supposed to move back in with their parents was confirmed in one reconciliation session: in this case, the wife filed for divorce by mutual consent and asked about the housing, when the reconciliation judge replied: ‘What do you mean? Will you not move back in with your parents?’8 The presumption that women move in with their parents suggests that the woman’s father is to take care of his daughter as soon as she has divorced. But in reality, it is not

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always this easy: I often witnessed reconciliation sessions where the wife pointed out that her parents had moved to a small house since the children were grown up, making it impossible for them to move back in, or that the parents did not want their daughter to move back in, for example because they were growing old and would not be able to cope with the presence of small children. Also, some women would require a housing pension from their husband if they moved back in with their parents, as she could not expect her parents to take care of her and her family. These issues can be considered to be one of the features of a more general development in Tunisia, where the role of the extended family is decreasing and the nuclear family is left to its own devices to a greater extent. In reconciliation sessions, the wife’s housing could be the subject of long discussions. Spouses would disagree on who had the right to stay in the marital home, and even on who owned it. If the marital home was rented, they would disagree on how much the rent was. If the spouses agreed that the wife moved out (or if she already had), they would quarrel about the question of how much it costs to rent a house that is acceptable for the wife and children. For example, in one reconciliation session, the marital home was in Berges du Lac, a very expensive suburb of Tunis. The wife wished to remain in the marital home, but the husband argued that he would not be able to afford this, together with child maintenance and the rent for a place for himself. The judge stated that she should move out and rent a cheaper place, but as she insisted on staying in Les Berges du Lac, she demanded that her husband paid 1,000 dinars for housing alone. The judge did not want to grant this much, and took a preliminary decision of 500 dinars. The wife was furious: ‘I will never be able to find a decent house for that price!’ I also observed one session concerning a young Algerian woman who was pregnant. The husband wished to divorce her, and argued that he could not pay for any housing for her and the baby. However, his parents owned a farm in north Tunisia, and he insisted that she moved there. The wife refused: she argued that it was in a very bad state, and that it was far away from everything. ‘You cannot even buy bread there!’ she exclaimed. Also, she pointed out to the judge that she was Algerian, that she had left her family behind, that she did not

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know anyone in Tunisia and that she was lonely; she would not be able to stand it to live in the middle of nowhere too. The judge agreed, and decided that the husband should pay for housing in Tunis. In this case, the woman was clearly aware that she could not simply move back to her parents, as her husband would file for custody.9 During one reconciliation session that I briefly referred to in the second chapter (involving an ex-minister), it became clear that the family judge presiding over this session applied the newly introduced provision (2008) that prohibits the sale of a house accorded to the caretaker.10 In this case, the wife was living with her 40-year-old daughter who was mentally ill. She wished to divorce her husband after having lived separately for the past 15 years, but when the husband found out that his wife had filed for divorce, he sold the marital home in Sidi Bou Saïd, where the woman was living with her daughter. The reconciliation judge intervened immediately, stating that the sale of the house where the caretaker is to live is prohibited by law, and started to make a phone call to the civil department of the court. The judge found out that the sale had been annulled and asked the wife: ‘What kind of lawyer do you have?! He should have resolved this for you!’11

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CONCLUSION

Ever since the promulgation of the Personal Status Code in 1956, there has been discussion about judicial practice, reflecting serious concern amongst Tunisian jurists about what judges are doing with the law in the field of personal status. The authors state that judges are applying ‘sharia’ and ‘custom’ together with legislation, while recent writings testify to the ‘development’ that judges increasingly apply the constitution, fundamental rights and international conventions.1 According to Sana Ben Achour this development resulted in a gender-neutral application of the law, connected to the feminization of the judiciary. The present study examined recent practices (2008– 09) of female judges at the CFI Tunis in the field of divorce. From the practices of these judges, I derived the norms that were issued by the court, and the sources that the court invoked. This enabled me to examine what is normalized by the court, whether judges invoked ‘sharia’, ‘custom’, the constitution or international conventions and to what extent these female judges issue norms that can be qualified as ‘gender-neutral’. This concluding chapter proceeds as follows. Section I elaborates on the issue of normalization, while section II tries to unpick the role that legislation, ‘sharia’, ‘custom’, the constitution and international conventions play in judicial practice. Section III studies the degree to which the court’s practices can be called ‘gender-neutral’, and I will conclude this study with a brief insight into events after the revolution of 14 January 2011 that might influence judicial practice at the CFI Tunis.

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I: Normalization Foucault argued that norms do not exist, but that they are produced. The production of norms is an instance of the production of truth: if powerful institutions such as psychiatric hospitals or courts define behaviour A as ‘the norm’ and behaviour B as ‘abnormal’, these institutions are producing what ‘normal’ behaviour is.2 This is what Foucault called ‘normalization’: the act of making the norm.3 The norms affirmed by the court in the light of the idea of normalization and the production of truth reflect norms with regard to divorce, but also with regard to marriage and other topics. With regard to contracting marriage, the court affirmed and thus produced the norm that a marriage should take place in two phases, and that the couple should not live together or even have sex before the marriage celebration, making sex before the marriage celebration ‘abnormal’. Also, the spouses should have sex on the wedding night, meaning that force is allowed. The wife should be a virgin upon marriage, except if it is not her first. Also, the court affirms and thus produces the norm that the mahr should be negligible, but that the wife receives jewellery instead, which become her property upon celebration. Other goods obtained before (furniture and the trousseau) and during marriage remain the property of the spouse who bought them, and thus, the court confirmed the norm of separation of goods in marriage. With respect to marital life itself, the court produced the norm that the couple should have sex, and that they should live together, at least if the husband wishes to do so. However, if the wife abandons the marital home, it is ‘normal’ that she has a reason. It is normal that the couple live with the husband’s family, but it is not that they live with the wife’s. Spouses should not be violent with one another, meaning that it is abnormal to be consistently violent or to attack someone in such a severe way that the other needs surgery, but according to the court this is a rather abnormal situation as normally, women who complain about violence are fabricating their accusations. It is not normal for a married man to live with a woman other than his wife

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as if they were married. For women, it is abnormal to flirt with other men. Women should not be drinking alcohol, which is not normal, while for men it is, unless they become violent because of it. If the husband wishes to move house, it is normal for the wife to follow him, even if she does not want to, except if this harms the best interest of the children. The husband should maintain the family, even if he is unemployed, and his duty to maintain the family is more important than the wife’s. With regard to divorce, the court produced the norm that both husband and wife can divorce without any grounds and without the consent of the other spouse. It is abnormal for a couple to divorce when the wife is pregnant. It is also normal that the spouse who files a petition for divorce without grounds pays damages, which is not normal if the spouses agree on the divorce. It is normal for the spouse who caused harm to pay damages to the other spouse. It is normal that the wife obtains maintenance during the waiting period upon divorce, which lasts three months, except if she filed the petition for divorce without grounds or agreed with divorce by mutual consent, or if her husband filed a petition for divorce for harm against her. It is normal that husbands receive moral damages and the wife moral and material damages, and it is not quite normal to receive the latter in instalments. After divorce, it is normal that the children live with their mother. Also, it is normal that the father visits them once a week. If father and child live in different countries, it is normal that they see each other during the holidays. It is normal that the child lives with the father if the mother cannot be considered a good mother because she has been unfaithful or has a mental illness, or if she lives abroad. It is normal that the father pays maintenance for the child, and that mother and child move back in with the wife’s parents. Besides these norms concerning marriage and divorce, the court also produced the following norms: men should not be homosexuals, they should not have a sexual relationship with a minor and they should not sodomize their wives. Parents should not beat their children and they should send their children to school.

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II: Sources Legislation In Tunisian legal literature it is argued that if legislation deviates from the ‘values’ of society, it is not ‘effective’ in the sense that it is not applied by courts.4 Nevertheless, all divorce decisions invoked legislation: Article 31 PSC was the legal basis to grant divorce, be it by mutual consent, without grounds or for harm and to grant damages, which is thus presented as the heart of Tunisian divorce law. With respect to the rights and duties during marriage, the court repeatedly referred to Article 23 PSC, which states that the husband should pay maintenance during marriage, that husband and wife should live together and that the husband should not cheat on his wife. Article 37 PSC was invoked as the provision obliging the husband to pay maintenance only after the wedding, while the court cited Article 246 CC to explain that if the husband does not pay maintenance, the wife cannot be obliged to cohabit. For the attribution of custody and visiting rights the court invoked Articles 66 and 67 PSC. Besides, there seems to be a wide practice of implicit reference to legislation, such as in cases of domestic violence, adultery, incest and the like. This lack of reference to legislation might indicate that the court considers these norms as a matter of common sense, which are applied as a matter of routine.5 The statement that judges do not apply legislation should thus be nuanced in the sense that part of the decisions in the field of divorce contains reference to legislation. But indeed, in many cases legislation is not invoked as an argument that justifies the norm and a factor that curtails judicial discretion. ‘Sharia’ In Tunisian legal literature, it is argued that in the situation where the legislation contains lacunae, judges are applying ‘sharia’. For example, Sana Ben Achour argued that previously, judges applied ‘sharia’

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in cases of mixed marriage.6 And indeed, the material showed that in some cases, the court makes implicit reference to ‘sharia’ or its understanding of this source. This is true when the court pronounced divorce by mutual consent and divorce without grounds, and in cases of harm in the form of the wife’s abandonment of the marital home, and adultery. However, explicit reference to this normative order was only made in the more informal setting of reconciliation sessions and conversations/interviews with the judges. This was true for the norm issued by the court that people should not divorce during pregnancy, and that if women abandon the marital home, this is normally with a good reason. The overview indicates that while the statement that judges employ sharia to interpret legislation is to a certain extent confirmed by the material, it should nevertheless be nuanced: invoking ‘sharia’ does not mean that it takes precedence over legislation: although judges stated that divorce during pregnancy is haram, they did grant divorce if people insist. And when the judges stated that ‘women do not leave without a reason’, they presented their understanding of ‘sharia’ as a tool to apply legislation, as the use of notions of nushuz, hajr and zina are tools to interpret the very vague term of ‘harm’. The concepts of talaq and faskh are presented as additional reasons to allow divorce; the court is merely indicating that it is applying legislation that is in conformity with Islamic law without allowing the latter to take precedence over the first. Besides, it is remarkable that the CFI Tunis never referred explicitly to ‘sharia’ in its formal setting of judgements, which suggests that the judges were instructed not to do so, for example by the Ministry of Justice or the president of their court. This seems logical in the light of the ‘secularist’ and ‘modernist’ politics under Ben Ali, where it would probably be ‘not done’ to invoke sharia in decisions. However, the Court of Cassation did refer to this normative order in an explicit manner (e.g. in the decision on the obligation to have sex), meaning that the ministry cannot be behind the ‘secularist’ practice at the CFI. Besides the possibility that the various courts had different ‘politics’ with respect to the invocation of Islamic law, the difference may lie in the type of

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judgements: indeed, the decision where the highest court invoked ‘sharia’ concerned a case of judicial activism, as the court decided that divorce for harm can be pronounced even if the cause of the divorce is not due to the intention or fault of the defendant. It has been argued repeatedly in literature on judicial reasoning that activist decisions, that is, decisions that deviate from existing practices, require the invocation of additional sources. The invocation of ‘sharia’ may thus have been justified by the particularities of the case. And indeed, the judgements from the CFI Tunis studied here were generally ‘routine’ cases, while there were not many instances of judicial activism (e.g. the single attack with a knife, non-payment of maintenance during unemployment and the wife’s duty to follow her husband who moves house because he does not wish to live with her parents). It is possible that in such instances, the CFI Tunis can choose from a range of sources, while the fact that in the decisions studied here it did not employ ‘sharia’ may be a matter of coincidence. ‘Custom’ In Tunisian legal literature it is argued that ‘custom’ is applied instead of or together with legislation. The material does not contain any (explicit) reference to custom to justify or explain a decision. But the fact that some of the norms outlined in the section on ‘normalization’ were not justified in any way may suggest that these were (considered to be) in conformity with the norms shared in society. This is true for the norm that a marriage should take place in two phases, and that the couple should not live together or even have sex before the marriage celebration – the court affirmed this norm in several decisions without explaining where this is prescribed. On the other hand, I also witnessed that judges affirmed norms that seemed to deviate from the norms shared by the litigants. For example, in cases where a husband complained that the wife abandoned the marital home and wanted the judge to force her to return, reconciliation judges would make clear that a woman cannot be forced to return even if these men did consider this to be normal court

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interference. Similarly, in cases where women had abandoned the marital home because they did not want to live with the husband’s parents, reconciliation judges affirmed that they were obliged to stay, even if women would not consider this normal. In cases where the husband was unemployed, reconciliation judges would underline that he had an obligation to provide for his family, despite the unemployment rates making unemployment quite normal. And when the couple had divorced, judges would consider it normal for the woman to move back in with her parents, even if some women argued that this was impossible as their parents did not consider this normal. Fundamental rights, the constitution and international conventions Tunisian legal literature testifies to a development in the field of the adjudication of cases of mixed marriage, in the sense that courts increasingly refer to fundamental rights, the constitution and international conventions.7 The material contains one decision where such sources are invoked: in the case where the wife filed a petition for divorce for harm on the grounds that her husband attacked her with a knife, the court stated that this constitutes harm as it is a violation of the wife’s ‘dignity’ and ‘inviolability of the body’. Although this is only one decision, this particular case does confirm this development. In an interview with one of the family judges, however, the judge affirmed with respect to the constitution that this has a lower hierarchical position than Islamic law. The interview concerned the possibility of establishing legal paternity when a child is born out of wedlock: the judge stated that the child cannot inherit from its biological father because this is contrary to Islamic law, and when I pointed at the equality principle in the Tunisian constitution, the judge replied that the sharia takes precedence over the constitution. These seemingly contradictory examples can be explained by the fact that the issue of paternity outside wedlock is in accordance with existing practice: courts did not establish paternity if children are born out of wedlock (but they did attribute a family name). The issue of the violent attack on the other hand is a case of judicial activism, and

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indeed, in such cases the court may invoke fundamental rights and maybe also the constitution and international conventions. The example given above where the Court of Cassation invoked ‘sharia’, however, indicates that in such cases, the court may choose from a range of normative orders, fundamental rights being only one of them. Other sources of law Besides the sources that are the object of Tunisian writings (‘sharia’ and ‘custom’, the constitution and international conventions), there are other sources which may curtail judicial discretion, and the use of which is not as sensitive. A crucial example is jurisprudence. Like fundamental rights, this source is mentioned in one decision which can be characterized as an act of judicial activism: it concerns the case where the court decided that the wife should follow her husband who wishes to move house, even if, as the court acknowledged, both spouses decide where the marital home shall be; the fiqh al-qada’ is invoked as an argument to underline that cohabitation is crucial within marriage. That jurisprudence is not mentioned explicitly in other decisions does not mean however that the court does not apply it as a source of law: in some cases, it appears that the court is applying it silently. This is, for example, true when the court underlines that the act which constitutes harm should be repeated rather than an isolated incident. In some cases, the court seemed to deviate from existing practices, such as in the case of the attack with a knife; here, the deviation involved an act of judicial activism, requiring additional justification. However, I also had the impression that judges did not always know the important decisions taken by the Court of Cassation. For example, I witnessed a discussion between Bouchra Bel Haj Hamida and a judge that was filmed by a camera crew making a documentary on this feminist lawyer. Bel Haj Hamida asked one of the family judges in front of the camera whether marriage between a Muslim woman and a non-Muslim man is valid, to which the judge answered no. In response, Bel Haj Hamida exclaimed: ‘Judges should know jurisprudence!’8 And one of the family judges told me once that she had just learned at the yearly conference for Tunisian family judges

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that in paternity cases, the biological father’s refusal to cooperate with a DNA test is sufficient evidence that he is the father. This surprised me, as even I knew that this was strong jurisprudence of the Court of Cassation since the year 2000, as could be read in the bulletin of this court (Nashriyat al-mahkama al-ta‘qibiya), of which the judge had a copy in her office.9 This may indicate that these judges are not à la hauteur of (up-to-date) jurisprudence, for example because of their workload. But it may also indicate that they are not supposed to apply jurisprudence, in the French tradition of the Trias Politica.10 Besides jurisprudence, there were other ‘sources’ which directed the court’s practices; for example, in an interview, one of the family judges at the CFI Tunis told me that her decisions are also directed by the continuing education of family judges. This education consisted of an annual meeting for all family judges in the country, organized by the Ministry of Justice and Human Rights, where the application of the law is discussed around a theme.11 It was here that one family judge learned about the aforementioned practice of the Court of Cassation in paternity cases. The second instance of continuous education concerned monthly meetings of the two family judges at the CFI Tunis with the president of the court, which aimed at preventing differences between the two chambers. A large part of these meetings concerned the amounts of damages awarded, to prevent one chamber from awarding more damages than the other, causing a practice of forum shopping on the part of lawyers and litigants. Another issue that had been decided on this occasion concerned the competence of the Tunisian court in international cases: previously, one Family Chamber qualified the Tunisian court as competent in an international case if the spouses did not contest it, while the other only accepted competence in cases where the jurisdiction of the Tunisian court had been explicitly accepted (as prescribed by Tunisian international private law), in the absence of which it would only accept competence as the ‘court of necessity’ (e.g. if it was impossible for one of the parties to go abroad, due to lack of a visa, criminal proceedings or the costs of a legal procedure abroad). The second norm was approved by the president of the court. Besides these factors, it is remarkable that neither of the family judges referred to their education in law school as a factor

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that curtailed their judicial discretion, while a judge in training at the ESM clearly was influenced by what he was taught in university when we discussed personal status law. This difference might be explained by the time lapse between law school and practice: the two family judges had attended law school more than 15 years before, and the knowledge collected there might have lost influence on their practice. With respect to patronage and corruption as factors that curtail judicial discretion, I refer to Chapter Two: as I never really witnessed that money and patronage directed the court’s decision, I cannot confirm that this took place. I do know however that for Tunisians it is common knowledge that the judiciary was corrupt. This does not mean that all judges were party to this or guilty of it. In this light I wish to refer to the explanation of a friend of mine, which was illuminating for me. He said that the previous regime(s) created people who were primarily concerned about their private gain and the interest of their own families, people who were not intrinsically ‘bad’, but pragmatic; such people, according to my informant, were the ones who could not be trusted by persons outside their direct family, as they would go to extreme lengths to attain what was best for them, willing to employ means such as lying and, in their professional life, bribery. Other people, on the other hand, would respond in a different way to the ‘immoral’ regime: they would turn to religion and extreme morality as a means to obtain ‘justice’. These people would impose their morality on other persons, not only in their direct environment but everyone, and would not be corrupt. That the factor was not addressed in legal literature at the time is of course due to fear of the authoritarian regime.

III: Gender Sana Ben Achour argued that the developments in Tunisian jurisprudence were connected to the feminization of the judiciary in the sense that practices of female judges were gender-neutral. When examining whether the norm imposed by the court was indeed gender-neutral, I did not compare the norms issued by the female

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judges with the ones imposed by their male colleagues. Thus, I cannot conclude whether the norms imposed by female judges are indeed more gender-neutral, but I can state to what extent they are gender-neutral in themselves. The right to divorce The material showed that at the CFI Tunis, men and women had a right to divorce without the consent of the other spouse and without specific grounds; the only condition was that they went to court. This norm is gender-neutral and differs from the norm in many other countries in the region, where women can only obtain divorce by mutual consent or on specific grounds. This restriction of women’s access to divorce in Muslim countries has often been justified with a perceived lack of ratio, in the sense that women are not considered rational enough to decide about issues of marriage and divorce – the argument advanced in the critique of the Egyptian khul‘ law.12 As the CFI Tunis affirmed that women have their own fate in their hands, it confirmed its trust in female rationality; that it required judicial intervention does not change this fact. Nevertheless, the judges were not blind to gender differences as they demonstrated an awareness (and thus confirmed) that divorce was more problematic for women than for men in everyday life. That divorced women were not accepted by society was confirmed repeatedly by women’s rights activists; for example, Hayet Jawwar, lawyer and member of the Femmes Démocrates, declared on a radio show in 2011 that ‘[d]ivorced women are usually the object of rumours [ ... ], it’s society that rejects her and accuses her of having bad morals even if the only thing she has done is living the échec [failure] of a marriage. Even if our societies progressed, divorced women remain the victims of a number of idées fixes, and guilty of a crime they did not commit.’13 In the same vein, the judges showed particular concern for women in regard to the financial consequences of divorce, granting higher moral damages to women than to men, which, in the light of the reasoning employed in decisions, suggests that the court believes that women’s ‘honour and social status’ are more damaged than men’s upon divorce.

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Types of divorce Although both men and women had a right to divorce at the CFI Tunis, the extent of gender equality differed from one divorce type to another. Divorce by mutual consent was entirely gender-neutral, in that neither men nor women needed any grounds and neither of them would pay damages; besides, the court would prohibit any deviation from this gender-neutral norm through the agreement providing that a wife had a right to damages. This divorce type does thus not take into consideration that divorce may be more problematic for women than for men, and the judges would encourage couples to contract this type of divorce. This reminded me of the study conducted in Brazil, where female judges accorded much lower pensions after divorce than their male colleagues; the author explained this difference by stating that female judges wish to help other women to develop their potential as human beings.14 Tunisian (female) judges may have insisted on this divorce type for this very reason: as the wife waived her right to damages, it is a way of empowering women. When it concerns divorce without grounds, men and women were treated equally in the sense that they did not need their spouse’s consent nor any grounds. Also, the duty to pay damages was not gendered in that the plaintiff would be convicted to pay damages, regardless of gender. This suggests that according to the court, it is not necessary to protect women’s factual (financial) access to divorce by absolving them of the duty to compensate the spouse. In that way, the court affirmed women’s capacity to carry the financial consequences of divorce, perceiving them as rational beings that can make the choice between staying in a marriage that they do not like and escaping from it against compensation. Nevertheless, the court did take into consideration that women had less money than men in the sense that women paid less damages (see below). When it concerns divorce for harm, men and women were treated equally in the sense that both could obtain this type of divorce. Nevertheless, the grounds for harm were gendered. For example, even if men could file for divorce on the grounds of domestic violence, I witnessed sceptical reactions from reconciliation judges when the

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husband accused his wife of beating him, suggesting that this does not ‘normally’ happen, confirming the image that violence is typically ‘male’. With respect to adultery, the court was stricter to women than to men, which suggests that for these judges, it is ‘normal’ for a man to have an affair while for women it is not, and thus, that the interaction with the opposite sex is subjected to stricter norms for women than for men, a norm that the Femmes Démocrates have tried to rebuke when lobbying for the prohibition of sexual harassment. By issuing the norm that women could be expected to live with their family-in-law while men could not, the court issued a norm that is not gender-neutral, suggesting that it is ‘normal’ that upon marriage, women enter the family of the husband, instead of building their lives around the nuclear family. With respect to the abandonment of the marital home, the court issued the norm that it is normal for women to abandon the marital home if their husband violates his marital duties, while it is abnormal for men to abandon the marital home. With respect to alcohol, the court issued the norm that drinking alcohol is normal for men while for women it is not. In these ways, the court did confirm a gendered view of male and female duties within marriage. Some grounds for harm were however gender-neutral, namely the absence of sexual relations (the court confirmed that both men and women have sexual needs). Financial duties within marriage and upon divorce Divorce practices of the CFI Tunis confirmed the gendered norm with regard to financial duties within marriage, according to which the husband is the provider. Indeed, the court allowed only women to file for divorce for harm on the grounds of non-payment of maintenance, to receive nafaqat al-‘idda upon divorce as well as material damages for the loss of ‘a breadwinner and support’ and because upon divorce, their niveau de vie would drop. The idea that women earned less than their husbands and are financially dependent on them is surprising in the light of the fact that the judges themselves were working women who seemingly would not suffer a drop in their niveau de vie if they divorced. Also, the norm that even if women work, they cannot be

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held responsible for maintaining the household, meaning that women may be unemployed while men may not, is surprising as it indicated how these female perceived their own careers as some sort of ‘hobby’; a perception that does not seem realistic for many couples who lived in a situation where the wife’s income was an absolute necessity. Other consequences of divorce The right to obtain custody upon divorce was highly gendered as in the majority of cases the mother would be granted custody. This suggests that according to these judges, women were more capable than men of bringing up and caring for children. In this way, their image of male-female relations is indeed very gendered, in the sense that even if the judges do not consider women less rational, they do expect them to work less than their husbands and to be financially dependent on them, and to be better with children. To summarize, my material shows that the statement that female judges adjudicate in a gender-neutral way should be nuanced. The female judges at the CFI Tunis confirmed that women are sufficiently rational to decide to have a divorce, but even if women are not perceived as irrational beings, the judges did perceive men and women as intrinsically different on other levels.

IV: Recent developments Since 14 January 2011, Tunisian society has been going through a period of transition. With the abolition of authoritarianism, where norms were imposed from above, there is now room for a renegotiation of both legislative and ‘social’ norms. This may influence judicial practices in two ways: by legislative amendments and through changes in mentality. Legislative changes There is a serious fear among part of the Tunisian people that women’s rights shall suffer from the revolution of 14 January 2011. This fear

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emerged when shortly after Ben Ali’s departure, the leader of the ‘Islamist’ party Ennahda returned from exile on 30 January 2011 and when this party was legalized on 1 March 2011. Feminists and other so-called left-wing intellectuals and artists, suspicious of the ‘secret agenda’ of Ennahda, were extremely vigilant, organizing demonstrations ‘to protect our achievements’ and publishing articles in national newspapers under headings such as ‘Nous sommes tous des femmes tunisiennes’ (we are all Tunisian women).15 The interim government that governed the country between January 2011 and the end of the same year tried to appease these factions with a highly symbolic gesture: Tunisia abrogated almost all reservations to CEDAW – an issue for which the Femmes Démocrates had been fighting for decades.16 Although a relief for many, some realized that the general and most significant reservation remained in place, namely the one providing that CEDAW only applies as far as it is in conformity with the Tunisian constitution. As the contents of this constitution are yet to be defined, the abrogation of the other reservations might very well be an empty gesture. The fear among part of the Tunisian people sky-rocketed when Ennahda obtained 40 per cent of the vote at the elections of 23 October 2011. It should be kept in mind that only 1 in 5 Tunisians voted Ennahda, as around 50 per cent of those eligible to vote did not. Besides, the reasons for voting for Ennahda may vary, and are not necessarily related to a wish to introduce ‘sharia’ in the Tunisian legal system.17 Nevertheless, the outcome of the elections and the formation of the government that followed (Ennahda obtained some important ministries such as the Ministry of Justice) added to the fear that women’s rights would be corrupted. Although Ennahda’s leaders declared several times that they would leave the PSC untouched, the party nevertheless added fuel to the fire with ambivalent declarations. For example, the Ennahda party program for the elections proposed a pension for women who stop working to stay at home. But the most important declaration in this respect was issued three days after the elections, when Ghannouchi confirmed in a radio show that indeed he would not touch the PSC, except the provisions on polygamy and adoption, ‘as these are contrary to sharia’.18

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At the time of writing, however, there have been no legislative changes whatsoever in the field of personal status law. This is due, among other things, to the restricted legislative competence of the governments (both that led by Caïd Essebsi, from January 2011 until the end of that year, and the current government of Moncef Marzouki).19 Nevertheless, the interim government under Caïd Essebsi took the symbolic measure of revising the decree on identity cards: it eliminated the prohibition against wearing a veil in the picture on one’s ID card.20 The interim government under Marzouki did not take measures so much as it deliberately refrained from interfering in the violation of certain laws and decrees that are considered important by women’s rights activists. An example is the decree that prohibits religious dress at universities: when a group of students claimed the right to wear the niqab, the government did not interfere. When criticized for its lack of action, the minister argued that ‘[a]ll depends on the outcome of the debate on the role of the sharia in the Tunisian constitution’.21 The role of sharia in the future Tunisian constitution is generally considered crucial. Those who fear an erosion or outright violation of women’s rights have been afraid that the Tunisian constitution would include a similar provision as Article 2 of the Egyptian constitution, which provides that ‘the principles of the Islamic sharia are the principal source of legislation’. As this would mean that Tunisian legislation should be in conformity with ‘sharia’, it might involve the abolition of laws such as the PSC. However, the draft constitution that was presented on 1 June 2013 copies Article 1 of the 1959 constitution, stating that ‘Islam is Tunisia’s religion’. This has been a relief for many, who are convinced that the progressive wing of Ennahda had won this battle.22 Others, however, fear that this is merely a pragmatic step: it is argued that the role of ‘sharia’ in the Tunisian public, legal and political sphere does not so much depend on the constitution but on people’s mentality.23 These people argue that Ennahda is trying to Islamize society par le bas (bottom-up), for example through education. For them, the failure of the government and specifically Ennahda to intervene in issues such as the niqab is a way to push society in an Islamist direction.24

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Mentality At present, the role of Islam and ‘sharia’ in the public, political, legal and private spheres is the subject of heated debate throughout Tunisian society. On one side, there are the defenders of secularism and women’s rights, described above. On the other side stand the supporters of Ennahda and more extreme Islamists, such as adherents of Hizb al-Tahrir and Ansar al-Sharia. Of course, the dichotomy is not as clearcut as presented here: the majority of Tunisians are probably situated somewhere in between these two positions. Nevertheless, it cannot be denied that the ‘revolution’ resulted in a schism in Tunisian society, and that the role of Islam and ‘sharia’ is the battleground for the struggle between the different factions. As was explained in Chapter Two, the differences over women’s rights and Islam had been silenced under Ben Ali, and thus, it seems only logical that with the emergence of a democratic state, people take their opportunity to speak out. But the ‘revolution’ also seems to have sharpened the differences between the factions, which can be explained by several factors. First, since imams have more freedom to speak and extremist members of organizations such as Hizb al-Tahrir replaced imams in a couple of hundred mosques, people who attend prayer in these mosques may be reinforced in certain ‘conservative’ opinions on women and Islam. Second, women’s rights and secularism are often associated with Ben Ali and dictatorship, and thus, rejecting dictatorship is accompanied by a rejection of everything that went with it. Third, the laws with regard to marriage and divorce, adoption, the veil and female participation in the labour market may be associated with Europeanization, colonization and the loss of Tunisian culture and identity, and since the ‘revolution’ one can witness strong invocations of the Tunisian, Arabic and Muslim identity, which is for example reflected in the wish to replace the tourists coming from European countries by Arab tourism. Thus, the dichotomy is sharper than before, and is reflected in a struggle in several disciplinary institutions with regard to ‘the norm’. An example of such a struggle in a disciplinary institution is the

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battle over the niqab in universities. The Faculté de la Manouba in particular has functioned as the battleground when a handful of female students claimed their right to wear the niqab. Illustrative for the renegotiation of the norms concerning salafist dress was the situation where a group of young male salafis entered the dean’s office to protest and defend their female comrades, calling for the right of women to study and the freedom to dress as they wish, in the name of democracy. While the male students were standing on the ground floor with their banners, the professors and the dean were on the balcony, looking downwards to their students, singing the stanza of the Tunisian national anthem that was sang during the uprisings: ‘When one day the people wishes to live / Destiny is obliged to respond / The darkness shall clear away /And the chains shall shatter.’25 The negotiation resulted in a decision from the dean that the munaqabat can attend their classes, but cannot take their exams with a covered face. This means that under social pressure, the norm in this disciplinary institution has altered. Possibly, a similar renegotiation of norms takes place in the disciplinary institution of the court. There are indications that this is already happening in branches of law other than divorce. For example, when the television channel Nessma TV broadcast the French animated movie Persepolis, people went out in the streets to protest, arguing that the cartoon had shown the image of God, which the protesters considered blasphemy. A group of lawyers filed a complaint against the channel’s president for ‘violation of the sacred’, and the government pronounced itself against the channel as well, stating that the freedom of expression should have its limits in ‘the provocation of religious feelings’.26 The public prosecution decided to charge Nessma, but as the court continued to postpone its verdict it gave the impression that it awaited a clear message from society. After some months, when other cases of blasphemy, violation of the sacred and violation of public morals had evoked severe polemics as well, the court was ready to pronounce on the Nessma issue and convicted its president. Although current struggles in the disciplinary institution of the court focus on blasphemy, future topics of public debate and

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demonstrations may concern issues connected to the PSC, such as polygamy, adoption and divorce. Protests against female access to divorce, for example, may influence divorce practice. That this is not exaggerated is confirmed by the fact that decisions already indicate a certain awareness that the free access to divorce without grounds for women may be problematic on the social level. For this reason, it would be interesting to repeat this study in a few years time, to examine to what extent mentality influenced the norms issued by the CFI Tunis, and especially the degree of gender neutrality maintained by this court.

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APPENDIX ENGLISH TR ANSL ATION OF THE TUNISIAN PER SONAL STATUS CODE1

BOOK ONE MARRIAGE Engagement Article 1 A promise and an exchange of promises to marry do not constitute marriage and shall not be actionable. Article 2 [Modified by Law 93–74 of 12 July 1993, replacing ‘the man’ by ‘the fiancés’] Both fiancés shall recover the gifts presented to the other except if he or she broke his or her promise or a special stipulation exists. Marriage Article 3 Marriage shall not be concluded save with the consent of both spouses. A valid marriage requires that two reliable witnesses be present and that the dower to the wife be specified.

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Article 4 Proof of marriage shall not be established save by formal deed, such deed to be regulated by a special law. Proof of marriage carried out abroad shall be established in accordance with the laws applicable in the country in which the marriage was concluded. Article 5 [Modified by Decree-Law 64–1 of 20 February 1964, ratified by Law 64–1 of 21 April 1964, eliminating the phrases ‘Both spouses should have attained the age of puberty. The woman is considered to have attained the age of puberty on the completion of 15 years of age and the man on the completion of 18 years’ and ‘a special judicial authorization which shall only be granted upon proof of attainment of physical maturity’, changing the minimum marriage age to 17 and 20 years respectively. Law 2007–32 of 14 May 2007 changed the minimum age to 18 for both sexes.] The future spouses should not fall within one of the legal/sharia impediments (mawani‘ shar‘iyya). Moreover, a spouse who has not attained the age of 18 cannot conclude marriage. Below this age, one can only conclude marriage with a special judicial authorization which shall only be in the case of serious circumstances and in the best interest of both future spouses. Article 6 [Modified by Law 93–74 of 12 July 1993, adding the requirement of the mother’s consent, and adding that the judge’s decision is not open to appeal.] The marriage of minors is subjected to the consent of a guardian and the mother. In the event that the guardian or the mother refuse their consent and the minors persist in their demand [to marry], the matter shall be referred to the judge. The decision is not open to appeal. Article 7 The marriage of a person interdicted for prodigality shall not be valid save with consent of a guardian. The latter may, prior to its consummation, request the judge to annul the marriage.

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Article 8 The guardian is the agnatic relative and should be sane, of the male sex and have attained the age of majority. The father or his executor is the natural guardian of his minor child, be it male or female. In the absence of a guardian the judge shall act as one. Article 9 Marriage may be concluded by the husband and wife themselves or by their delegated agents. A guardian, too, has the right to delegate others. Article 10 No special qualifications shall attach to the marriage agent mentioned in the preceding article, save that he shall not delegate his mandate without the consent of his principal. The act of delegation shall be executed in a formal deed expressly designating the spouses in default of which it shall be considered null and void. Article 11 It is admissible to include stipulations in the marriage contract. If the stipulation is non-realizable or violated, the aggrieved party may apply for dissolution of the marriage by divorce. Such dissolution shall not give cause for any indemnity, provided it occurs prior to the consummation of marriage. The Dower Article 12 [Modified by Law 93–74 of 12 July 1993, eliminating the phrase: ‘The dower shall not be anything that is valueless or its maximum limited.’] Anything which is lawful and has monetary value may be designated as dower. The dower is the property of the spouse. Article 13 The husband shall not, in default of payment of the dower, force the woman to consummate the marriage. After consummation of the

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marriage, the dower shall constitute an unsecured debt which the wife may only claim payment thereof. Refusal to pay the dower shall not be cause for divorce. Marriage Impediments Article 14 The impediments of marriage are of two types: perpetual and temporary. The perpetual impediments are: blood relationship, or affinity by marriage, or fosterage, or triple divorce. The temporary impediments are: the existence of a non-dissolved marriage or the waiting period. Article 15 The women prohibited because of blood relationship are the man’s ascendants and descendants, the offspring of parents and the offspring of every ascendant to whatever degree removed. Article 16 Women prohibited because of affinity by marriage are the ascendants of wives by the mere conclusion of the contract, the descendants of wives, provided the marriage has been consummated, the wives of ascendants and descendants of whatever degree removed by the mere conclusion of contract. Article 17 Prohibitions by fosterage are the same as those pertaining to blood relationship and affinity by marriage. The foster child in particular, and to the exclusion of its brothers and sisters, shall be considered the child of the foster-mother and her husband. Fosterage shall not constitute an impediment to marriage save where it has occurred during the first two years. Article 18 [Paragraph one, last part (‘even if ...’): modified by Law 58–70 of 4 July 1958 and paragraphs 3, 4, 5 were added by Decree-Law 64–1 of 20 February 1964, ratified by Law 64–1 of 21 April 1964] Polygamy is prohibited.

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The person who is bound by marriage and concludes another one before dissolving the first, shall be punished with one year’s imprisonment and a fine of 240,000 francs or either of these even if the new marriage is not contracted in conformity with the law. Liable to the same penalty is the person who, having contracted a marriage in violation of the forms prescribed by law 57–3 of 1 August 1957 concerning civil status, contracts another liaison and continues to live with his first spouse. Liable to the same penalty is the person who, consciously, contracts marriage with a person who falls within the dispositions above. Article 53 of the Penal Code does not apply to the offenses provided by this Article. Article 19 A man is prohibited from remarrying his divorced wife of a triple divorce. Article 20 Marriage to the wife of another man or to a woman who is observing the waiting period of her former husband is prohibited. Irregular Marriages Article 21 [Modified by Decree-Law 64–1 of 20 February 1964 ratified by Law 64–1 of 21 April 1964, adding Article 18, and paragraphs 2, 3 and 4.] An irregular marriage is one to which a stipulation contrary to the substance of the contract has been attached, and which has been concluded in contravention of the provisions of the first paragraph of Article 3 and the first paragraph of Articles 5, and the articles 15, 16, 17, 19 and 20 of this code. In the case of penal prosecution under Article 18, both the offense and the irregularity of the marriage shall be decided upon as part of one decision. The couple whose marriage has been nullified and who continues to live together shall be punished with 6 months imprisonment. Article 53 of the Penal Code does not apply to the offenses provided by this Article.

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Article 22 An irregular marriage is necessarily annulled without divorce. The marriage contract in itself shall have no legal effect. The following effects only shall flow from the consummation of such marriage: a) The wife is entitled to claim the specified dower or the judge fix a dower for her b) Lineage is established c) The wife is obligated to observe the waiting period which commences from the time of separation d) The impediment of affinity by marriage. The Reciprocal Duties of Spouses Article 23 [Modified by Law 93–74 of 12 July 1993, changing ‘the husband’ in paragraphs 1 and 2 to ‘Both spouses’, inserting paragraph 3, and abolishing the phrase ‘The wife ... shall respect her husband in his capacity as head of the family, and, within these prerogatives, obey him in whatever he orders her’.] ●









Both spouses shall treat each other with benevolence, live with each other on good terms and refrain from causing harm. Both spouses shall perform their marital duties in conformity with usage and custom. Both spouses shall cooperate in running the business of the family, a good upbringing of the children, and the management of the affairs of the latter including their education, travel and financial transactions. The husband, being the head of the family, shall support his wife and children in accordance with his means and their situation in the light of the components of maintenance. The wife shall contribute if she has the means.

Article 24 The husband is not the guardian of his wife’s property.

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In the Matter of Disputes Between the Spouses Article 25 If one of the spouses complains of injuries prejudicial to him or her but fails to produce any proof thereof and the judge is unable to determine the responsible party, the latter shall appoint two arbiters to look into the complaint and where possible to reconcile the spouses. In any case the arbiters shall put the matter up to the judge. Article 26 In the event of a dispute between the spouses over the ownership of the furniture of the home and in the absence of proof by either, the husband’s word on oath shall be accepted for those items which customarily belong to the man and the wife’s word on oath for those items which customarily belong to the woman. Properties of the nature of merchandise shall be attributed, upon oath, to whichever spouse happens to be the merchant. Items which customarily belong to both men and women shall, upon oath by each, be divided between them. Article 27 If a dispute has arisen, upon death of one of the spouses, between the surviving spouse and the heirs of the deceased over the furniture of the house, the heirs assume the position of the deceased spouse in the preceding article. Article 28 [Modified by law 93–74 of 12 July 1993, changing ‘the husband shall recover the gifts’ into ‘the spouses shall recover the gifts’.] In the case of dissolution of the marriage for reasons attributable to one of the spouses, the gifts offered after the conclusion of the marriage contract shall be recovered in their current consistency even if they have altered. If the dissolution occurs after dissolution of the marriage, no part of the gifts may be recovered.

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BOOK TWO Divorce Article 29 Divorce is the dissolution of the marital bond. Article 30 No divorce shall take place save before the court. Article 31 [Modified by Law 81–7 of 18 February 1981, changing the sequences of the grounds for divorce from harm, mutual consent and without grounds into mutual consent, harm and without grounds. Also, it is added that divorce for harm gives a right to damages. Paragraph 3 is new.] ●

The court pronounces the divorce: 1. In pursuance of the mutual consent of both spouses; 2. In pursuance of an application by the husband or the wife for harm; 3. In pursuance of the husband’s desire to divorce or the request of the wife for the same.





The court shall decide on the reparation of material and moral damages afflicted to one of the spouses resulting from the divorce pronounced on the grounds of paragraph 2 and 3 above. Concerning the wife, material damages shall be repaired in monthly instalments from the moment of the expiration of the waiting period, in terms of the niveau de vie to which she was accustomed during marriage, including housing. These damages are reviewable and may be lowered or increased, taking possible fluctuations into consideration. The instalments continue to be due until the death of the woman or certain changes in her social position by remarriage or if she no longer needs it. The instalments become a debt that enters

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the supine of the inheritance upon death of the spouse and should be liquidated amicably with the heirs or through court with a lump sum, taking the age of the beneficent into consideration. This does not apply if the wife prefers to receive the damages as a lump sum. Article 32 [Modified by Law 93–74 of 12 July 1993, adding the institution of the family judge in paragraph 1 and adding paragraphs 3–11.] ●















The president of the court chooses a family judge from his vice presidents. The divorce is not pronounced until after the family judge has made an effort to bring about a reconciliation, which remains unfruitful. If the defendant is absent and this person has not been summoned correctly, the family judge shall postpone the examination of the affair to another session and shall invoke the assistance of every person that can be useful to summon the party personally or to discover this person’s real domicile in order to make him or her attend. In the case of where there are one or more minor children, three reconciliation sessions shall be held with intervals of 30 days between each time. During this period, the judge shall try to reconcile the couple, and shall require the assistance of every person whom he considers helpful in this respect. The family judge shall, even of law, take all provisional measures concerning the housing of the spouses, maintenance, custody and visiting rights. The parties can expressly agree to renounce this or part of it, provided that this renunciation does not harm the best interests of the children. The family judge fixes the amount of maintenance, taking into consideration the elements of estimation obtained during the reconciliation sessions. Provisional measures are immediately enforceable and are not open to appeal or cassation. Nevertheless, they may be revised by the family judge as long as they are not final.

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The court decides on the divorce after a period of reflection of two months after the court hearing. It decides on all its consequences, fixes the maintenance for the wife during the waiting period, and decides on the provisional measures taken by the family judge. The judge may shorten the procedure in cases of divorce by mutual consent, provided that this does not harm the best interests of the children. The decisions concerning custody, child maintenance, maintenance during the waiting period, housing and visiting rights are directly enforceable, regardless of appeal or cassation.

Article 32 bis [Added by Law 93–74 of 12 July 1993.] The spouse who employs fraudulent measures to prevent that the other spouse is summoned shall be punished with one year’s imprisonment. Article 33 If the divorce occurs prior to the consummation of marriage, the wife shall be entitled to half of the specified dower.

BOOK THREE The Waiting Period Article 34 It is incumbent upon every woman whose husband has left her as a result of divorce after cohabitation and every woman who survives, whether prior or subsequent to cohabitation, the death of her husband, to observe the waiting period stated in the following article. Article 35 The duration of the waiting period for the divorcee who is not pregnant is three complete months. The duration of the waiting period for the wife who survives the death of her husband is four months and ten complete days, or if she be pregnant until delivery, the maximum

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period of pregnancy being one year from the date of divorce or the date of death. Article 36 The wife of an absentee shall, following a court decision designating him a missing person, observe the same waiting period as that applicable in the case of death.

BOOK FOUR Maintenance Article 37 The causes of maintenance are: marriage, blood relationship, and contractual obligations. Article 38 It is incumbent upon the husband to support the wife after consummation of marriage and during the waiting period in case of divorce. Article 39 If the husband is in financial difficulties, maintenance shall not be incumbent upon him. The judge shall, however, after allowing the husband a period of two months and if after the said period having lapsed, the husband fails to provide his wife with support, grant the wife a divorce from the husband. If at the time of contracting the marriage the wife was aware of her husband’s financial difficulties, she shall not be entitled to seek a divorce. Article 40 If the husband does not own any property and goes away without leaving his wife the support she needs or delegating someone to support her in his absence, the judge shall grant the husband a period of one month to return, failing which he shall grant the wife a divorce upon proof of the foregoing facts and upon the woman’s testimony under oath to that effect.

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Article 41 If the wife ensures her own support with the object of being compensated by her absentee husband she shall be entitled to make such a claim against him. Article 42 The wife’s maintenance claim shall not become barred by statutes of limitation. Article 43 [Modified by Law 93–74 of 12 July 1993, changing the first paragraph from ‘paternal grandparents to whatever degree removed’ into what follows below.] Those eligible for maintenance are: 1. The father and mother, the paternal grandparents to whatever degree removed and the maternal grandparents to the first degree. 2. Descendants to whatever degree removed. Article 44 [Modified by Law 93–74 of 12 July 1993, changing the phrase from ‘paternal grandparents’ into what follows below.] It is incumbent upon a wealthy child or children, be they male or female, to contribute to the support of those who are in need among their parents and their paternal grandparents to whatever degree removed and their maternal grandparents to the first degree. Article 45 If there be several children, the cost of support shall be divided among the wealthiest of them and not in accordance with their number or their share in the inheritance. Article 46 [Modified by Law 93–74 of 12 July 1993; before this date, support to male descendants was due until they had reached the age of 16, and to female descendants until marriage.]

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Descendants are eligible to maintenance until they have reached the age of majority or, until they have finished their studies, provided that they have not reached the age of 25. Female descendants are entitled to maintenance as long as they do not have any resources of their own or until marriage. Continuing to be eligible for maintenance are handicapped descendants who are incapable of earning a living, regardless of their age. Article 47 In the event of the father’s poverty, the mother shall precede the grandfather in providing support for her child. Article 48 In the event the mother is unable to nurse the child, the father shall undertake the duties of fosterage in accordance with custom and habit. Article 49 Whoever undertakes for a specified duration the support of another, whether old or young, shall be held responsible for the obligations he has assumed. His word shall be accepted as to the duration if that alone has not been specified. Article 50 Support includes food, clothing, shelter, education and all that which by custom and habit is considered of the nature of necessities. Article 51 Maintenance ceases with the extinction of its cause. A creditor shall be refunded with whatever he was forced to pay unduly by way of support. Article 52 The amount of maintenance shall be determined by the capacity of the person giving and the need of the person receiving the support and in accordance with the costs of living. Article 53 Where there are several persons eligible for support and the person who should provide for it is incapable of supporting all of those eligible, the

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wife shall have precedence over the children and minor children over the ascendants. Article 53 bis [Added by Law 81–7 of 18 February 1981 and modified by Law 93–74 of 12 July 1993.] The person who has been condemned to pay maintenance or damages in case of divorce and who willingly refrained from paying during one month, shall be punished with three months to one year’s imprisonment and a fine of 100 to 1,000 dinars. Payment stops prosecution, conviction or the execution of punishment. The Alimony and Damages Guarantee Fund proceeds in the payment of maintenance or damages in accordance with the conditions prescribed by the law creating this fund, upon decisions which have obtained force of res judicata with respect to divorced women and their children with the debtor, but which have not been executed by the latter. The fund takes the right to the sums that it has paid over from the beneficiaries.

BOOK FIVE Custody Article 54 Custody consists of the protection of the child in his or her home and his or her upbringing. Article 55 The caretaker who desists from performing the duties shall not be forced to continue in the custody of the child, save where a substitute is not available. Article 56 [Modified by Law 2008–20 of 4 March 2008, adding paragraphs 2–7.]

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The costs of the child’s custody shall be defrayed from his property if he has any, or, if the child does not own any property, of his father’s property. If the caretaker does not have a home, the father shall also permit the caretaker to live with the child. If the father is obliged to provide housing for caretaker and child, then the caretaker has the right to live in the house that is owned by the father until the right ends due to the extinction of the duty. If the father is obliged to provide for housing for the child and the caretaker in a house that is rented by him, then he should pay rent until the extinction of his duty. If the father is obliged to pay a pension for housing for the caretaker and the child, then the amount of this pension depends on the means of the father, the needs of the child and the costs of living. The right to live in a home owned by the father does not prohibit the latter from transferring it, or placing a mortgage on it, provided that the right of caretaker and child is mentioned in the contract. The judgement with respect to housing of the caretaker can be changed in case of a change of circumstances. In this case, the CFI decides on the demand of revision on conformity with the relevant procedures, pronouncing on the motifs of revision and taking into consideration the best interests of the child. Temporary measures with respect to housing of the caretaker and the child that were taken by the family judge remain open for revision, in conformity with the relevant procedures. Article 56 bis [Added by Law 2008–20, 4 March 2008.] Whoever transfers willingly, for free or against payment, or who puts it under mortgage, the home that the father is obliged to provide for caretaker and child, without mentioning the latter obligation in the contract with the intention to deprive caretaker and child from their rights, is punished with three months to one year’s imprisonment and a fine of 100–1,000 dinars. The same sanctions shall apply to the father who denies the caretaker and child the right to occupy the home that was appointed by the CFI, by willingly nullifying the rental agreement or by refusing

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to pay the past rent, or, if he is obliged to pay a housing pension, by refraining from doing so for one month. In the previous two situations, the father cannot be prosecuted at the same time for this violation and the violation of the duty to pay maintenance. Payment stops prosecution, conviction or the execution of punishment. Article 57 [Modified by Law 66–49 of 3 June 1966, abolishing the phrases which provided that upon divorce or death, ‘custody shall devolve upon the following in the order stated: the child’s mother, maternal grandmother, maternal aunt, the mother’s maternal aunt, the mother’s paternal aunt, the father’s paternal grandfather, the child’s maternal grandfather, first cousin, paternal uncle, second cousin. The full brother shall supersede the uterine brother, the uterine brother the consanguine brother at all degrees where possible. Where those entitled to the custody of the child are of the same degree, the most suitable, followed by the eldest, among them shall have priority. Agnatic relationship is conditional upon unity of religion’.] Custody belongs to the father and the mother during marriage. Article 58 [Modified by Law 81–7 of 18 February 1981, adding the possibility that if the female caretaker remarries, the judge can decide that she shall keep custody if this is in the best interest of the child.] The person entitled to custody of a child must have attained majority, be trustworthy, capable of undertaking duties of custody, and free of infectious diseases. If the person entitled to the custody of a child be a male, he shall, in addition to the above conditions, have available a woman to assume the duties of custody, and if the child be female, he must be of a prohibited degree in marriage. If the person entitled to the custody of a child be a female, she must be unmarried, save if the judge estimates the contrary in the best interest of the child, or if the husband is of a prohibited degree to

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the child or is the child’s guardian, and save where the person entitled to custody does not for a period of one year after he is aware of the marriage claim custody or if the woman is breastfeeding it or if she is its mother and guardian at the same time. Article 59 If the woman who is entitled to the custody of the child is of a different religion from that of the child’s father, her custody will not be valid save where the child has not attained five years of age and there exists no risk that the child shall become inclined to a religion other than that of its father. The provisions of this article shall not be applicable to the mother. Article 60 [Modified by Law 93–74 of 12 July 1993, adding ‘mother’.] The father, the guardian and the mother are entitled to look after the affairs of the child, his or her education, and to send him or her to institutions of learning, provided that child does not spend the night except with the caretaker except if the judge decided otherwise in the best interest of the child. Article 61 If the person having custody of the child moves house to a distance which would make it difficult for the guardian to perform his duties towards the child, the caretaker loses custody. Article 62 The father shall not, save with the consent of the mother, remove the child from the mother’s home while she has the custody and where the interests of the child may not require otherwise. Article 63 The person who became caretaker for any other reason than the physical incapacity of the caretaker shall not, at the risk of losing the right to custody, live with the previous caretaker without the guardian’s consent.

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Article 64 [Modified by Law 66–49 of 3 June 1966, replacing the phrase that custody evolves on the next person in the list of Article 57.] The person entitled to the custody of a child may renounce his or her right therein. In that case, the judge appoints another caretaker. Article 65 The caretaker shall be entitled to remuneration only with regard to services rendered to the child, such as cooking, laundry and the like, in accordance with custom and habit. Article 66 [Modified by Law 2006–10 of 6 March 2006, adding para. 2.] If the child is in the custody of one of the parents, the other parent shall not be denied the right to visit and to look after the child, and if the latter asks that the child is transported to him or her for the purpose of visiting, the expenses of the trip shall be paid by the parent making the request. The family judge decides on the demand to exercise visiting rights in accordance with the relevant procedures. Article 66 bis [Added by Law 2006–10 of 6 March 2006.] If one of the parents of the child dies, the grandparents can exercise visiting rights. The family judge decides on this, taking into consideration the best interest of the child. The family judge decides on the demand to exercise visiting rights in accordance with the relevant procedures. Article 67 [Modified by Law 93–74 of 12 July 1993. Until 1966, the article provided that boys under seven and girls under nine remained with the caretaker; after this moment, the father could require that they be transferred to him except if the judge decided that this was not in the interest of the child.] In case of dissolution of marriage by death, custody is transferred to the surviving father or mother.

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If marriage is dissolved through divorce, custody is confined to one of them, or a third person. The judge decides taking into consideration the best interests of the child. In the case where custody is transferred to the mother, the latter enjoys certain prerogatives of guardianship when it concerns travel, studies and financial matters. The judge may give the mother who obtained custody over the child the rights of guardianship, if the guardian is prevented from securing its exercise, or proves to abuse his right, neglect to fulfil his duties properly or abandons his home becoming homeless, or for any other reason that harms the best interest of the child.

BOOK SIX Paternity Article 68 Paternity is established with marriage or with the recognition by the father or by the testimony of two reliable witnesses or more. Article 69 In cases of denial of paternity, paternity is not established if it is proven that the mother did not have sexual relations with her husband, or if the child was born more than one year after the dissolution of marriage through divorce or death. Article 70 Recognition of paternity has no effect if there is evidence to the contrary. A child of unknown lineage however may establish his parentage by acknowledging the fatherhood of a man or the motherhood of a woman, by the fact that these have children who resemble the said child, and by the fact that the child is believed to be telling the truth. In this case the child and its acknowledged parents shall have the rights and obligations of rightful parents and child.

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Article 71 The paternity of a mother’s husband is established if the baby is born six months or more after contracting marriage, whether valid or irregular. Article 72 A break in the child’s parental lineage shall act to exclude the child from consanguinous relationship and the right to maintenance and inheritance. Article 73 The recognition of paternity which affects a third party, such as a brother, a paternal uncle, a grandfather and a grandchild, shall not be proof of lineage. Such declaration shall be valid as regards the person making it, provided that the third party concurs and the former has no heirs save the child whose lineage he acknowledged. Otherwise the child shall not be entitled to inherit. In determining whether heirs exist or not, the date of the death of the person making the declaration shall be decisive. Article 74 If paternity is denied by a man after having been acknowledged by him, the child shall, if it survives the death of the father, inherit from him and if the child dies before the father, the latter shall not inherit from the child. In the latter case the property shall be placed in trust and shall upon the death of the father devolve upon his heirs. Article 75 In the case of a husband’s denial of paternity of an embryo or a child born within marriage, the paternity shall not, save by a decision of the judge, be operative. All legal means of proof shall in such cases be admissible. Article 76 In the case of proof of the denial of paternity, the judge shall decree the break in lineage and the perpetual separation between the spouses in accordance with the provisions of the preceding article.

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BOOK SEVEN The Foundling ...

BOOK EIGHT The Missing Person ...

BOOK NINE Succession ...

BOOK TEN Interdiction and Maturity Causes of interdiction are: minority, insanity, feeblemindedness and prodigality. Article 153 [Modified by Law 93–74 of 12 July 1993, adding para. 2.] A person who has not attained majority, which is 20 years of age, shall be considered interdicted by reason of minority. The minor attains majority through marriage if he has reached the age of 17, and this with respect to his/her personal status and the management of civil and commercial affairs. Article 154 [Modified by Law 81–7 of 18 February 1981. Previously, the article provided that if the child has no father or executor, the judge shall nominate a guardian.]

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The father is the guardian of the child who is a minor, and, in case of death or incapacity of the father, the mother becomes legal guardian, save the dispositions of Article 8 of this code with respect to marriage. The father’s will becomes effective only after the mother’s death or if she becomes incapable. In case of death of both parents or their incapacity, and in the absence of a guardian appointed by a will, the judge shall nominate a guardian. Article 155 [Modified by Law 81–7 of 18 February 1981, adding the mother.] Guardianship of the minor child pertains to the father of law, then to the mother and then to the guardian appointed by a will. Guardianship does not end save by judicial decision for legitimate reasons. Article 156 The minor child who has not attained 13 years of age is considered incapable of discrimination and all his acts are null. The minor child who has attained 13 years of age is considered of sufficient discrimination and his acts are valid, provided they are entirely for his own benefit, and null if entirely to his disadvantage. In all other cases, the validity of such acts shall be subject to the approval of the guardian. Article 157 If a minor child has attained 20 years of age and has not been interdicted for any reason other than that of minority, he shall as of law become of maturity, fully capable of exercising his civil rights and all acts shall be valid. Article 158 A judge may emancipate a minor whether an absolute or restrained emancipation. He may also, if he considers it necessary, end the emancipation. All acts of an emancipated minor, within the limits of his emancipation, are valid and operative.

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Article 159 A minor who has not attained 15 years of age cannot be emancipated. Article 160 An insane person is one who has lost his or her mental faculty, whether his or her insanity is persistent at all times or intermittent, recovering his or her sanity at intervals. The feebleminded is one who is lacking in his mental powers, who mismanages his or her affairs, who fails to keep up with current transactions and is swindled in buying and selling. Article 161 Interdiction in the cases envisaged by the preceding article shall be instituted by an order of the judge. The latter, in so doing, shall take the opinion of specialists in the matter.

BOOK ELEVEN [Added by Law 59–77 of 19 June 1959.] The Will ...

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Introduction 1 ‫   ا ال ا‬, decree of 13 August 1956 promulgating the PSC, first published in Journal Officiel Tunisien no. 104 of 28 December 1956. 2 Ben Achour, Sana 2005–2006; 2007a; Ben Jemia et al. 2006; Bouguerra 2000; 2005; Chékir 1986; 1998; Mezghani, Ali 1975; 2000; 2005; Méziou 1992; Charfi 1997. 3 Méziou 1992, 268; Bouguerra 2005, 566–7; Ben Achour, Sana 2007a. 4 Ben Achour, Sana 2005a; 2005–2006; 2007b; Ben Achour, Souhayma 2003a; 2003b; Ben Halima 2005; Ltaief 2005. 5 In this study I refer to Muslim-majority countries as ‘the region’. Although I am well aware of the vagueness of this term, I prefer it to the ways in which these countries are addressed in other studies, such as ‘Islamic countries’ (only Iran and Pakistan identify themselves as Islamic states in their respective constitutions), ‘the Muslim world’ (a region where there are many non-Muslims) and even ‘Muslim-majority countries’, as this term also denotes countries according to the religion of their inhabitants. Although I prefer a geographic term over a religious one, ‘MENA’ (the Middle East and North Africa) is still problematic, as it neglects the fact that Indonesia has the largest Muslim population in the world, not to mention that India, China and other countries in the Far East also have Muslim populations. 6 Pessers 2003. 7 See Peters 2005 on the process of codification of family law and the rhetoric of ‘remaining within the orbit of sharia’. 8 Except Turkey which adopted the Swiss civil code in 1926, albeit in a somewhat amended form. On the implementation of Swiss personal status law in Turkey, see Velidedeoglu 1957; Örücü 2006; 2008; Miller 2000; Özsu 2010. 9 In comparison the Moroccan Mudawwana of 2004 retained polygamy, repudiation, marriage guardianship (although in an amended form) and the interdiction on full adoption.

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10 Ben Achour, Sana 2005a; 2005b; 2005–2006; 2007a; Ben Jemia et al. 2006; Bouguerra 2000; 2005; Chékir 1986; 1998; Mezghani, Ali 1975; 2000; 2005; Méziou 1992; Charfi 1997; Ben Achour, Souhayma 2003a; 2003b; Ben Halima 2005; Ltaief 2005. 11 Ben Achour, Sana 2005a; 2005b; Ben Achour, Souhayma 2003a; 2003b; Ben Halima 2005; Ltaief 2005. 12 Mixed marriage: CFI Tunis 29 June 1999, Court of Appeal Tunis 14 June 2002, 82861, Revue de jurisprudence et de législation, December 2002, 85–86 (summary in French) and 75–85 (text in Arabic); Court of Cassation 20 December 2004; succession: CFI Tunis, 18 May 2000, 7602, Court of Cassation 5 February 2009, 31115; child custody: Court of Cassation 2 March 2001, 7286–2000, Revue de jurisprudence et de législation, January 2002, 87–8 (summary in French) and 183–95 (Arabic text). 13 Chékir 1998, 279–80. 14 CFI Tunis 29 June 1999 and 18 May 2000, 7602. 15 At this court, both family chambers (a family judge and two assistant judges each) consist only of women. Similarly, the children’s judge who makes decisions in custody cases, and seven of the eight reconciliation judges in divorce cases are female. 16 Ben Achour, Sana 2007a; 2007b. 17 See for example the 2008 special issue on gender and judging of the International Journal of the Legal Profession and the 2003 volume on gender and judging edited by Schultz and Shaw. 18 Monique Cardinal has written on female judges in Syria, and Elise Hélin has examined Tunisian female judges, but neither addressed her subjects’ practices. 19 For an outline of the repressive attitude towards ‘political feminisms’, see: Ben Achour, Sana 2001; Bessis 2004; Charrad 1998; Cotton 2006; Daoud 1993; Lamloum and Toscane 1998; Tessler et al. 1978. 20 Geisser and Gobe 2008; they were proved right on 14 January 2011 when Ben Ali fled the country. 21 Héritier 1996. 22 The events of 14 January 2011 have been called ‘La Révolution du Jasmin’ in the media, but ironically the ‘revolution’ of 7 November 1987, when Ben Ali came to power, is known by the same title in Tunisia. 23 For example the demonstrations on 13 August 2011 (National Women’s Day, and the 55th anniversary of the PSC) in Tunis and other large cities in Tunisia, in order to ‘defend our achievements’. 24 Among the few NGOs permitted during Ben Ali’s reign was the Association Tunisienne des Femmes Démocrates. Other NGOs were AFTURD (women’s

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rights), LTDH (human rights) and an anti-torture organization. See Chapter One. On the sharia in constitutions, see for example Brown and Sherif 2004. Link and Hall 2004. Ibid. See for example Foucault 1975, 185: ‘La pénalité perpétuelle qui traverse tous les points, et contrôle tous les instants des institutions disciplinaires, compare, différencie, hiérarchise, homogénéise, exclut. En un mot: elle normalise’ (cited in Link and Hall 2004, 15). Foucault 1975. See also Paternek 1987, 97. Foucault 1972: the historical study of psychiatry ‘shows’ how the norm develops in the sense of what is ‘normal’ and what is not. Ross 1929; 2004. See also Strômholm 1980 and Millard 2007. Foucault 1972. Foucault 1976. See also Taylor 2009, 46. For a typology of State Muftis, see Skovgaard Petersen 2004. On the relation between the judge and the mufti see Paradelle 1995. Arfaoui 2008. Griffiths 1986. For other works on legal pluralism, see Tamanaha 2000; 2008; Engle Merry 1988; Falk Moore 1973; De Sousa Santos 1995; Schiff Berman 2007; Galanter 1981; Fuller 1994; Hoekema 2003. On legal pluralism in the Arab World see Dupret et al. (eds.) 1999. Bix 1991. Borderline cases are cases in which it is unclear whether the norm applies to a particular situation. Hart 1994 gives the example of the norm ‘No Vehicles in the Park’, arguing that roller skates are a borderline case, as it is not clear whether they qualify as a ‘vehicle’. Hart 1994. Kennedy 1998. There are many other theories on the sources or on factors that might influence judicial decision-making. See for example Soeharno, 2010; Van Manen 1996; Newman 1995–96; Lev 1994–95; Schauer 1991. See for example Örücü 2008, on the implementation of the Swiss Code in Turkey. See for example Lindroos-Hovinheimo 2006; Guastini 2005; Charnock 2007. On the flexibility of the notion of ‘sharia’, see Shehada 2009a. Von Savigny 1975 [1831]. See also Cotterrell 1992, 22. Roche 1964, 353–4. See also Cotterrell 1992, 23. In this respect, it should be noted that the same problem occurs when relating judicial practice to so-called ‘social norms’. As Basu (1998, 1) states: ‘Like

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cows, social norms are easier to identify than to define.’ On social norms and their definition(s), see also Cooter 2000; O’Donnell 2007; Friedman 2006; Posner 2000; Clouser 2006; Bowen 1998; 2001. Dupret 2005a. A good example of a study of law against the background of ‘sharia’ is to be found in the doctoral thesis of Papi 2009. He studies to what extent law in the region has Islamic influences, and in order to examine this he describes ‘what sharia is’, to compare contemporary legislation with the ‘Islamic rules’ that he found in the fiqh, etc. Garfinkel 1967. For an ethnomethodological study of judicial practice, see Manzo 1994. In this way, the ethnomethodological study of judicial practice differs from the study of judges proposed by Alf Ross, as the latter argues that by studying judges one can only see what ‘law’ is, not why judges decide in a certain way. For Ross, examining what sources direct the judges’ decision-making is a matter of behaviourism. For a similar reasoning, see Coutin and Yngvesson 2008. Gross and Dearin 2003, xi. For more writings on the rhetorical study of legal argumentation, see the writings of Perelman and Olbrechts-Tyteca, but also for example Benesh and Czarnezki 2009; Moor 1997; Kloosterhuis 2008; Ruiz-Fabri 2009; Petzold-Pernía 1986; Legros 1978; Vanwelkenhuyzen 1978; La Torre 2002; McLeod 1985. Voorhoeve 2011. Gross and Dearin 2003, xi. On judges and their audiences, see also Baum 2006. D’Amato 1984, 60. See also Kennedy (1998; 2004) on the notion that arguments deployed in judicial decisions are post hoc rationalizations, as well as Bourdieu (1979; 1986). On the rhetorical power of arguments of ‘tradition’, see Foriers 1986. On the rhetorical power of religious arguments, see Faust 2008. Gilligan 1982. Butler 1993. Hunter 2008. Schultz 2010, lvi. Bogoch 2003. Botelho Junqueira 2003, 448. Interview, 9 July 2010. It has been argued elsewhere that presidents prefer women in these positions so as to reserve the more ‘legal’ positions to men. However, this is not true for the president of the CFI Tunis, as four of the female reconciliation judges were vice-presidents of a civil or commercial chamber.

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63 My visits to other courts around Tunisia enabled me to collect some material from male family judges as well, but this was nowhere near enough to serve as comparative material. 64 The need for integration in the society studied is stressed by several sociologists of law. Friedman argues that ‘every study of a human phenomenon has an ethnographic element’. There are hard facts, but ‘to know, you have to look, smell, examine, touch, feel, observe’ (2002, 187). This is also true for the study of court decisions (Merry 2002 and Friedman 2002). Nader writes: ‘Long-term ethnographic work allows ... the ethnographer to identify with those she studies and amongst whom she lives’ (2002, 191). According to Starr, as a rule, researchers need as a rule at least 12 months of ‘social embeddedness’ in order to understand the social context (Starr and Goodale 2002). 65 Court decisions allowed me to check to what extent my presence in court sessions and in interviews influenced the judges’ discourses. 66 Revue tunisienne de droit, Revue de jurisprudence et de législation and Ahdath. 67 The first cases I obtained were handed to me by the family judges, and concerned divorce for harm. At the end of my fieldwork, I decided to go down to the archives myself, as I wanted to be sure that the decisions handed to me reflected the practices of these judges (I had gained the impression that they handed me the decisions of which they were particularly proud). I also wished to gain a better understanding of what types of cases were the most important/most frequent in the practice of these judges. I therefore photocopied all the decisions taken over four days in January 2009 by the two family chambers. This enabled me to examine possible differences between the chambers (the decisions taken on 5 and 12 January were issued by one chamber, and those on 6 and 13 January by the other). 68 Mainly cases of non-payment of maintenance. 69 These did not provide me with much information: the family chamber treats about 150 cases each morning, in a room full with lawyers, and the pleading remains limited to statements such as ‘present’ (hadir) and ‘demand to adjourn’ (talaba al-ta’khir). This procedure, where the judge reads aloud the cause list, is part of the civil law system. 70 Mainly published in the Revue tunisienne de droit and Revue de jurisprudence et de législation. 71 Bouchra Bel Haj Hamida and Yosra Frauss. 72 This is a legal counselling centre of the Tunisian women’s organization Association Tunisienne des Femmes Démocrates. 73 Kamel Sharfeddin, Moncef Bouguerra and Sassi Ben Halima (all at the University of Tunis-el-Manar), and Sana Ben Achour, Monia Ben Jemia,

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Malik Ghazouani, and Kalthoum Méziou (all at the Faculté des Sciences Juridiques, Politiques et Sociales in Ariana). I interviewed three female (ex-)litigants who were involved in a case of divorce for harm. CFI Tunis 21 April 2008, 61660 (see Chapter Five on divorce for harm on the grounds of adultery). I obtained this file at the Court of Appeal of Tunis, where the vice-president was informed by his secretary that I had a research permit (which I did not). Had I insisted more with the lawyers I knew, I might have obtained more case files, but the lawyers were always very busy and it was difficult to insist as they were already giving me much information by allowing me to see them in their spare time (on Friday evenings, during Ramadan or on Sundays). CFI Tunis 6 January 2009, 70579. Court decisions allowed me to check to what extent my presence in court sessions and in interviews influenced the judges’ discourses. Weber 1968, 978. See specifically Powers’ chapter on Kadijustiz versus qadi-justice in Morocco in the Middle Ages (2002, 23–52). Rosen 1989. Layish 1982; 1988; 1991; 1995a; 1995b; 2006; 2011. Shaham 1997. Welchman 2000. Mir-Hosseini 2000. Rosen 1995. Layish 1982; 1988; 1991; 1995a; 1995b; 2006; 2011. See for example Öcürü 2008 on Turkey. See for example Bowen 2001 on Indonesia and France. Carlisle 2007a; 2007b; 2008. Shehada 2004a; 2004b; 2005a; 2005b; 2008; 2009a; 2009b; 2009c; 2009d. See also Manzo 1994. Dupret 1998; 2005a; 2006b; 2006c. Said 1978. Huntington 1996.

Chapter One 1 Chékir 1998, 279. 2 Charfi 1973, 12. A decade later, he writes: ‘No Arab Muslim country has gone as far as Tunisia (in its codification of personal status law)’ (1983, 420). In their report on Tunisian judicial practices in the field of personal status

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law, Ben Jemia et al. write that ‘the Tunisian example is unique in the Arab Muslim countries’ (2006, 1). Ben Jemia et al. 2006, 1. See also Méziou 1992, 251. Méziou 1992, 252. Ben Halima 2005, 130. Court of Cassation 31 January 1966, 3384. Circulaire du Secrétariat de l’Etat, 17 March 1962, in État civil, recueil des textes et circulaires relatifs à l’état civil, au nom et au livret de famille, issued by the Ministry of the Interior, Imprimerie officielle de la République Tunisienne, 1976, p. 82, followed by a circulaire issued by the Ministry of Justice, 5 November 1973, in Revue de jurisprudence et de législation, November 1973, No. 9, p. 83 (Ben Achour, Souhayma 2003a, 1203). Cited in Mezghani, Ali 1975, 63–4; Méziou 1992, 268; Chékir 1986, 450; 1998, 286–7; Ben Jemia et al. 2006, 7; Bouguerra 2000, 26–33; Ben Achour, Sana 2005–2006, 65–7. Court of Cassation 31 December 1963, 2000 and Court of Cassation 18 March 1969, 28744; cited in Ben Halima 1976. See Chékir 1986, 451–2; Ben Halima 2000, 135–6; Bouguerra 2000, 63–72; Ben Achour, Sana 2005–2006, 66; Méziou 1992, 271–2. For example CFI Tunis 17 April 1978, 57554, Revue tunisienne de droit, 1979, 127–31 (revocation adoption). Cited in Chékir 1998, 287–289; Ben Achour, Sana 2005–2006, 66; Méziou 1992, 271–2; Bouguerra 2000, 73–7. See for example Court of Cassation 3 June 1982, 7422, Nashriat al-mahkama al-ta‘qibiya 1982, 3, 1983, 143–4 and Court of Cassation 19 October 1985, 14220, Nashriat al-mahkama al-ta‘qibiya 1985, 1986, 61–3; Méziou 1992, 271–2; Ben Halima 2000, 133–4. Chékir 1986, 452. Ben Achour, Sana 2007a. Bouguerra 2005, 566–7. See also Ben Jemia et al. 2006; Bouguerra 2000, 40. Chékir 1998, 279–80. Court of Appeal Tunis 14 June 2002, 82861, Revue de jurisprudence et de législation, December 2002, 85–6 (summary in French) and 75–85 (text in Arabic); 4 May 2004, 3351, unpublished, and 6 January 2004, 120 (cited in Ben Achour, Souhayma 2003a, 1207). Court of Cassation 20 December 2004. CFI Tunis 18 May 2000, Revue tunisienne de droit, 2000, 247, annotated by Ali Mezghani. CFI Tunis 18 May 2000, 7602, Revue tunisienne de droit, 2000, 247, annotated by Ali Mezghani. Ben Achour, Souhayma 2003a, 1208–12.

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21 Court of Cassation 8 June 2006, 9658, Revue de jurisprudence et de législation, March 2009, 94–5. 22 Court of Cassation 5 February 2009, 31115, Revue tunisienne de droit, 2009, annotated by Malek Ghazouani. 23 Court of First Instance Grombalia, 7 March 1977, Revue tunisienne de droit, 1978, 95–107, trans. into French and annotated by Kalthoum Méziou; Court of Cassation 3 June 1982, 7422, Nashriyat mahkamat al-ta‘qib, 1982, 143–4. See also Court of Cassation 19 October 1985, 14220, Nashriyat mahkamat al-ta‘qib, 1985, 61–3. Court of First Instance Grombalia, 7 March 1977, Revue tunisienne de droit, 1978, 95–107, trans. into French and annotated by Kalthoum Méziou. See also: Court of Cassation 20 December 1966, 3984, Revue tunisienne de droit, 1966–1967, 191–6, summarized in French and annotated by Eméritienne de Lagrange (in this case, the wife, who did not receive any compensation after divorce, moved to where her parents lived, which was considered ‘too far away’. ‘Distance’ was interpreted with the invocation of the fiqh, arguing that the fiqh prescribes a maximum of six ‘relais de postes’). 24 Ben Halima 2005, 134–5, and Ben Achour, Yadh 2005. 25 Court of Cassation 2 March 2001, 7286–2000, Revue de jurisprudence et de législation, January 2002, 87–8 (summary in French) and 183–195 (Arabic text). 26 Mezghani, Ali 1975, 65; Chékir 1986, 449 ; Ben Halima 2000, 131. 27 Bouraoui 1983, 426. 28 Charfi 1983, 420; Bouguerra 2005, 566–7. 29 Chékir 1998, 280. 30 Méziou 1992, 268. 31 Contra legem: Mezghani, Ali 1975, 426; Chékir 1986, 452; 1998, 280; Ben Halima 2000, 131. 32 Mezghani, Ali 1975, 70. 33 Chékir 1998, 280 (‘religious and cultural references’). 34 Méziou 1992, 268; Bouguerra 2005, 566–7; Ben Achour, Sana 2007a. 35 Charfi, 1983, 35–6. Similarly Ben Achour, Yadh 1992. 36 Méziou 1992, 268. 37 Chékir 1986; 1998. 38 Charfi 1983, 420 (‘incompatible with the spirit of the code’). 39 Chékir 1986, 452; 1998, 280. 40 Chékir 1998, 280. 41 Mezghani, Ali 1975, 63. 42 Ben Achour, Yadh 1990a, 69. Similarly: Ben Nasr and Klai 2005, 25. 43 Méziou 1992, 252. See also Ben Halima 2005, 130. 44 Ben Achour, Sana 2005–2006.

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45 Ltaief, Wassilia 2005; Ben Achour, Sana 2005a; 2005c; Ben Achour, Souhayma 2003a; 2008. 46 Lapidus 1999, 299–300. 47 Ben Achour, Yadh 2005, 147. 48 However, there were no Khariji qadis, so Khariji/Shi‘ai law was not applied. See Jambu-Merlin 1960, 113. 49 The most important sources of the Maliki doctrine were Sahnun (Mudawwana, d. 854), Ibn Abi Zaid al Qayraqani (Rissala, d. 996), Abul Hasan al Lakhmi (al-Tabsira, d. 1058), Ibn al Hajib ( Jami‘ al-umahat, or al-Mukhtasar, d. 1248), Ibn Arafa (al-Mukhtasar, d. 1401) and Khalil Ibn Ishaq (al-Mukhtasar, d. 1374), most of whom were of Tunisian origin. These works formed the basis of more recent, influential and instructive works, such as Mohamed Bechir Touati’s nineteenth-century Kitab al-’ifada fi ‘ilm al-shahada (Ben Achour, Yadh 2005, 148). 50 Charfi 1997, 103–4. 51 See Vikør 2005. 52 Brunschvig 1965, 28. 53 Brunschvig 1965. 54 The Ottoman Mecelle, 1876 and the Ottoman Law of Family Rights, 1917. 55 The Husaynid dynasty ruled from 1704 until 1956. Tunisia was subject to the first Arab conquest in 670. The Sunn Aghlabid dynasty lasted until 909, followed by the Fatimids (909–972), the Zirides (972–1160), the Almohads (1160–1227) and the Hafsids (1227–1574). It was not until the Ziride dynasty (972–1160) that the population (apart from some Jewish tribes) was completely Islamized (Ben Achour, Yadh 2005, 147). 56 Ben Achour, Yadh 2005, 149–50. On this process, see also Hallaq 2003– 2004 and Peters 2005. 57 In 1857, the Bey and the consuls of Britain and France signed the Ahd al-Aman (security covenant), which contained a number of civil and political rights (‘[t]he security of life and of property, the equality of all in regard of the law and taxes, the freedom of religion’ for all inhabitants, and ‘the freedom of commerce and the right to obtain property and to exercise all professions’ for foreigners) and proclaimed an intention to codify. In 1861, the Ahd was implemented in a Constitution (Perkins 2004, 18–9, 24–30). 58 Perkins 2004, 18–19, 24–30. 59 Ben Achour, Yadh 1990a, 66. See also Zubaida 2005, 121–57. 60 Auzary-Schmaltz 2007. 61 Santillana (1855–1931) was a Tunisian Jew, born in Tunis of Spanish descent, a jurist and Arabist and expert in Islam; he was later naturalized British and then Italian, and died in Rome (Charfi 1997, 108).

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62 In 1899, the draft was examined by a group of ‘ulama’ (religious scholars): the shaykh al-Islam, two Maliki muftis, one Hanafi mufti and two professors of Zaituna (Ben Achour, Sana 1995, 59). 63 Santillana explicitly referred to the Ottoman Mecelle and Qadri Pasha’s works as sources of inspiration, as well as Sahnun’s Mudawwana and Khalil’s Mukhtasar. When choosing between different solutions drawn from Islamic law, the principle that was closest to French law was chosen (Ben Achour, Yadh 2005, 165–7; Mellouli 1995; Bagbag 2002). 64 1910, replaced in 1957 by the Code of Civil and Commercial Procedure (CCCP). 65 1921, replaced in 1968. 66 French courts applied French law and were competent in all cases (both civil and criminal) in which a European was involved. The French tribunals were competent when the defendant was a French national. The decree of 5 May 1883 extended this competence to cases in which foreigners agreed to bring their case to the French court. It was again extended when the French courts were declared competent in civil cases in which one of the parties was European (31 July 1884), and again in 1885 when the French courts were declared competent in all criminal cases in which one party was European (5 September 1885) (Charfi 1997, 108). Tunisian nationals brought their cases to either the religious courts in family and inheritance cases, or to the wuzara’ (national courts), which applied decrees and legislation. Their decisions became effective after receiving the approval of the Bey. See Hélin 1995, 93. 67 In Tunisia, there were several sharia courts, presided over by a qadi. Tunis had two sharia courts, one Maliki and one Hanafi, each consisting of six judges: a shaykh al-Islam, a qadi and four muftis. A case brought before the qadi could be transferred (on demand of one of the parties or of law) to a council (majlis) consisting of the qadi and muftis. Appeal was from the qadi to the majlis, from the majlis to the majlis of Tunis and from here to the Bey. Representation by a lawyer did not exist, although the parties could appoint a wakil (Hélin 1995, 93). 68 Of course, whether these codes are indeed relevant in practice depends on the question of whether they are actually applied or not. In the following chapters no reference will be made to the law on the maintenance fund or to the one on the optional community of goods within marriage, because in divorce cases at the CFI Tunis these codes were not relevant in the sense that no mention of them was made. 69 Magnin 1966, 314, 318. 70 The consent can be replaced by the judge’s consent. The mother’s consent has been obligatory since 1993 (Law 93–74 of 12 July).

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Article 31 PSC. Article 36 PSC. Interview with the Family Judge at the CFI Gafsa, 2 February 2009. Latreille 2008. Some people pay a little more, around 50 DT. Law 2007–32 of 14 May 2007. Law 64–1 of 20 February 1964. Beaujot 1986, 855. The World Bank 2008. See the recent writings of Amin Allal and Michaël Béchir Ayari. Article 15 PSC prohibits marriage between a man and his ascendants and descendants, his sisters, as well as the descendants of his brothers and sisters, his aunts, his great-aunts and his great-great aunts. This means that a man cannot marry his niece, but he can marry his cousin. Article 16 prohibits marriage between the man and his (ex-)wife’s ascendants from the moment of marriage, with her descendants from the moment the marriage is consummated and the wives of his ascendants and descendants from the moment the marriage is celebrated. Article 17 PSC. Article 19 PSC. Article 20 and Article 35 PSC. Articles 21 and 22 PSC. Marriages that are null and void also have consequences for the wife’s right to the bride price, her obligation to observe the waiting period and marriage impediments resulting from alliance. Law 58–70 of 4 July 1958. See Krichen 1979. See Larguèche 2011 and Ben Achour, Sana 2007a. Law 64–46 of 3 November 1964, Arrêtée of the Ministers of the Interior of 28 July 1995, and Arrêtée of the Minister of Public Health of 16 December 1995. Ferjani 1999–2000, 27. Law 93–74 of 12 July 1993. Chedli 2007. Article 11 PSC. Court of Cassation 7 November 1960. See Méziou 1984, 260. Law 98–94 of 9 November 1998. By the 1980s, a commission had already been installed to examine the possibility of introducing a community of goods within marriage. See ibid., 256. This law has often been criticized, as it only applies to real estate.

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97 In principle three reconciliation sessions with an interval of 30 days each are required, except in the absence of children or in cases of divorce by mutual consent (Article 32 PSC). 98 Essabah, 8 August 2009, cited in GNet, 10 August 2009. 99 Law 81–7 of 18 February 1981. 100 Méziou 1984. 101 Articles 57 and 154 PSC. Article 57 PSC was modified by Law 66–49 of 3 June 1966 and Article 154 PSC was modified by law 81–7 of 18 February 1981. 102 Article 67 para. 3 PSC. 103 Article 57 – old PSC 104 Law 66–49 of 3 June 1966. 105 Article 154 PSC as amended by Law 81–7 of 18 February 1981. 106 Or if the mother’s husband stands in a prohibited degree to the child, or if he is its guardian. 107 Law 81–7 of 18 February 1981. 108 Article 67 PSC as amended by Law 93–74 of 12 July 1993. 109 Voorhoeve 2009. 110 Law 98–75 of 28 October 1998. 111 Law 58–27 of 4 March 1958. 112 Together with Indonesia, Malaysia, Somalia and Turkey. 113 Article 3–7 of law 58–27 of 4 March 1958. 114 Ibid., Articles 1 and 2. 115 Article 143 bis PSC, introduced by law 59–77 of 19 June 1959. 116 Article 236 PSC, as modified by Law 68–1 of 8 March 1968. 117 Article 227 as modified by Law 85–9 of 7 March 1985 and Law 89–23 of 27 February 1989. 118 US State Department, 2009. 119 Article 227 bis, added by Law 58–15 of 4 March 1958, modified by Laws 69–21 of 27 March 1969 and 89–23 of 27 February 1989. 120 See Ghribi 2012 (note that the title of the article does not reflect reality; the article on rape does not state anything on marriage, this is only true for the prohibition to have sex with a minor). 121 Article 229 PC as amended by Law 89–23 of 27 February 1989. 122 Article 230 PC. 123 Article 231 PC, which was introduced in the original PC of 1913, to be abrogated by the decree of 26 May 1949. The provision was again reinserted under Bourguiba, by law 64–34 of 2 July 1964, and amended by law 68–1 of 8 March 1968. Both the prostitute and the person who has sex with

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124 125 126 127 128

129 130 131

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133 134 135 136 137 138 139

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her are punished with six months’ to two years’ imprisonment. Article 232 PC punishes the souteneur. On this topic, see also a special issue of the internal bulletin of the Femmes Démocrates, 2005. Moore 1965, 51. Except in Senegal, where 90 per cent of the population is Muslim. The same has been argued for Turkey, see Yilmaz 2002, and Örücü 2008. The commission consisted of Mestiri (a lawyer who studied in Paris), Ben Slama (a judge, educated at the ‘secular’ Sadiqi college) and Al-Annabi (a judge, and an alumnus of Zaituna). As Mestiri was appointed Minister of Justice, he left the drafting to Ben Slama and Al-Annabi. Finished on 15 July 1956, the code was signed by the Bey on 13 August 1956, and promulgated on 28 December 1956. Moore 1965, 51. The prohibition of polygamy was extended during the first years of the PSC to informal polygamous marriages by Law 58–70 of 4 July 1958 and Law 64–1 of 21 April 1964. Law 1958–27 of 4 March 1958, amended by Law 58–69 of 19 June 1959. This law was drafted between 5 p.m. and 9 a.m. the next day, and was supposedly instigated by the fact that Bourguiba had a child with his French wife before marriage. Méziou 1992, 252. Installed under Law 96–26 of 1 April 1996. On constitutional councils in the Maghreb, see Bendourou 1995. Ben Achour, Rafaa 1983. It is currently (at the time of writing) suspended. Law 59–57 of 1 June 1959. Ben Achour, Sana 2005–2006. Since 2002, Article 32 has distinguished between treaties that enter into force through publication, and those that should be ratified by law (by the president after approval by the Chamber of Deputies). The Court of Appeal Tunis decided that to enter into force internally, publication of the ratification law is sufficient (Court of Appeal Tunis 8 March 1995, Revue de jurisprudence et de législation, 7, 1996, 121, cited in Djedidi 2002, 164). Signed 24 July 1980, Ratified 20 September 1985. Article 9.2 decrees that ‘States Parties shall grant women equal rights with men with respect to the nationality of their children’. Law of 23 July 1993 amending Article 12 of the Nationality Code. Article 15 states that ‘States Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile’.

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144 Article 16 (c) provides for ‘the same rights and responsibilities during marriage and at its dissolution’; Article 16 (d) protects ‘the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount’; and Article 16 (f) ensures ‘the same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount’. 145 Article 28 PSC as modified by Law 81–7 of 18 February 1981 146 Article 16 (g) protects ‘the same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation’, and Article 16 (h) provides for ‘the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration’. 147 Chaouachi 1997, 198. 148 Signed 26 February 1990, ratified 30 January 1992. 149 1 March 2002 and 23 September 2008. 150 Article 214 Penal Code as modified by Law 65–24 of 1 July 1965, and Decree-law 73–2 of 26 September 1973 ratified by Law 73–57 of 19 November 1973. 151 Ben Achour, Sana 2007a; Gafsia 2004; Salem 1984. 152 Communiqué from Ahmed Mestiri on 13 August 1956, published in L’Action, 65, 3 September 1956, 1, cited in Ben Achour, Sana 2005–06, 58. 153 Ben Halima 2005, 109. The communiqué was published in the first edition of the PSC. 154 Ibid., 109. 155 Speech of 29 June 1966: ‘Discours prononcé à l’occasion du mouled’. For a translation see Bourguiba 1966. 156 Ahmed Mestiri in Révolution Africaine, 157, 29 January 1966, cited in Ben Achour, Sana 2005–2006, 58, 59. 157 Note by the Ministry of Justice, 3 August 1956, cited in Gharbi 1999– 2000, 35 and in Papi 2009, 217). A similar argument had been expressed by the Muslim reformer Muhammad ‘Abduh (see Borrmans 1977, 55–6). 158 Ben Achour, Sana 2001. 159 Speech of Ben Ali on 12 August 2006, cited in Geisser and Gobe 2007, annex 1. 160 Chaouachi 1997, 207. 161 Decree of 18 July 1957 abolishing the habus, modifïed and completed by Law 57–53 of 2 November 1957, Law 57–83 of 31 December 1957, Law 58–55 of 12 May 1958, Law 60–25 of 30 November 1960 and Law 92–44 of 4 May 1992. The law prohibited the establishment of a new habus and

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164

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166 167

168 169 170 171 172 173 174 175 176

177 178 179 180

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installed a commission to abolish the existing ones. See Daoud 1994, 28, where she argues that the reason behind this abolition was that the waqf had previously served to exclude women from inheriting. In 1961. The law on Quranic schools (1980) mandates that the prime minister appoints the heads of all such schools, and access to them is limited to the head of the school, the children and their parents. The law also prescribes the maximum number of hours each child can attend a Quranic school, as well as the topics that are taught (Arrêtée of 6 September 1980). After consultation by the Commission des livres coraniques. See Decree 88–1962 of 6 December 1988 fixing the composition and the functioning of the Quranic books commission, and Law 88–97 of 18 August 1988 with regard to Quranic books. Laying down that the state subsidizes mosques, that it pays imams’ salaries, that only personnel appointed by the government may lead activities within the mosques and that mosques are closed outside the hours of prayer and official ceremonies. For a detailed analysis of this law, see Bras 2005–06. Circulaire by the Prime Minister, No. 108, 1981, prohibiting ‘sectarian outfits’, and Circulaire of the Minister of Education, no. 102, 1986, prohibiting ‘extremist clothing’ for people working in educational institutions. Circulaire no. 35, 2001 prohibits ‘extremist clothing’ for students. Essabah, February 1988, cited in Ben Achour, Yadh 1990a, 69. Radio Zaituna and Zaituna Bank were owned by Sakhr Materi, Ben Ali’s son-in-law, who fled in his private jet to a Gulf State after 14 January 2011. Geisser and Gobe 2007, 350: ‘l’islam du juste milieu’. Moore 1965, 50. See for example Charrad 1998. Geisser and Gobe 2007. Ibid. Geisser and Gobe (2007) disagree; these authors argue that the government did not cease to maintain the law, but the Islamic dress persisted despite repression. See also Murphy 2003; Medimegh-Dargouth 2000. See Pruvost 1968. On the consequences with regard to women’s political participation, see Waltz 2000. Law 59–77 of 19 June 1959 provided that the girl can inherit via her predeceased father, and a widow can inherit the full inheritance in the absence of children (radd). See Roussier 1960.

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181 Gana 2007. Since July 1993, Article 234 of the Tunisian Penal Code punishes violation of the non-discrimination principle in labour relations; see Chaouachi 1997, 199. On the participation of women in the Tunisian labour market, see Zouari-Bouattour, 2000. 182 Law 61–7 of 9 January 1961. 183 Article 214 Penal Code. Decree law 73–2 of 26 September 1973. 184 Law 65–24 of 1 July 1965. 185 Decree 80–954 of 19 July 1980, cited in Chaouachi 1997, 197. 186 Law 68–1 of 8 March 1968. 187 Gana 2007. 188 Centre de Recherche, de Documentation et d’Information sur les Femmes, founded in 1991. 189 Law 93–74 of 12 July 1993. 190 Secrétariat d’Etat à la Femme et à la Famille (August 1992), transformed into the Ministère des Affaires de la Femme, de la Famille, des Enfants et des Personnes Âgées (August 1993). In 1997, a Secrétariat de l’État auprès du Premier Ministre Chargé de la Femme et de la Famille was installed as well (decree of 7 December 1997). 191 Law 1993–0065 of 5 July 1993 192 Law 93–72. 193 Law of 23 July 1993, amending Article 12 of the Nationality Code. See Charfi 1975 on the situation before 1993 and Charrad 2000b on the situation after. 194 Article 11 CSP and Law 98–91 of 9 November 1998. 195 Article 831 COC, abrogated by Law 2000–17 of 7 February 2000. 196 Law 2004–74 of 2 August 2004. 197 Law 2007–33 of 14 May 2007. 198 Law 2008–20 of 4 March 2008. 199 Daoud 1993, 103. 200 Ben Achour, Sana 2001. 201 Daoud 1994, 30. 202 Ibid., 93. 203 Founded in 1976, abolished between 1992 and 1993. 204 Founded in 1982 and legalized in 1989 as the Association Tunisienne des Femmes Démocrates (ATFD). 205 Ben Achour, Sana 2001. Other women’s rights organizations which emerged in the same period were the Tunisian branch of the Movement Mondial des Mères (MMM) (1992), the Chambre Nationale des Femmes Chefs d’Entreprise (1990), the Association de Promotion des Projets Économiques pour la Femme (1990) and the women’s organizations Allysa

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in Hammamet and Faouzia Kallel in Nabeul. See Chaouachi 1997, 206; Farro 1997. This group of women’s organizations from Tunisia, Morocco and Algeria formulated a proposition for egalitarian personal status law in 1995. Actes de la table ronde sur la décennie de la convention de Copenhague 1979– 1989, ‘Pour l’égalité entre les sexes et l’élimination de toutes les formes de discrimination à l’égard des femmes’, brochure, Commission Juridique, ATFD, 6 January 1990, and Actes de la journée nationale sur les droits des petites filles, ATFD, 9 November 1996, (Archives ATFD). Cited in Ben Achour, Sana 2001. Actes de la journée d’évaluation des réformes de 1993, ATFD, August 1993, and declaration of 13 August 1993 (Archives ATFD). Cited in Ben Achour, Sana 2001. Actes de la table ronde sur les régimes des biens entre époux, Tunis, 20 June 1998 (Archives ATFD). Ibid. The current provisions only provide for a community of real estate acquired during marriage. Documents of the Inheritance Commission (Archives ATFD). Ibid. On female resistance to state feminism, see also Ferchaoui 2000. Ben Achour, Sana 2001. See also Bessis 2004. This happened in 1989, together with the legalization of AFTURD (Association des femmes tunisiennes pour la recherche et le développement). Set up in 1993, 1991 and 1992 respectively. Union Nationale des Femmes Tunisiennes; founded in 1959, the organization formed part of the RCD. Such as voiced by Hafidha Chékir, a jurist and women’s rights activist present at the conference. Marzouki 1993, 258. The ‘house of obedience’ is a notion that is codified in Jordan, for example (1976 Jordan Law of Personal Status), meaning that if the wife leaves the marital home, the husband can force her to come back. In Tunisia, the wife cannot be forced by the police, but according to jurisprudence, the husband can suspend his maintenance obligation. See Mezghani, Nébiha 1984. Ben Achour, Sana 2001. The journal was issued by the Club Tahar Haddad. Hôtel Belvédère, Tunis, 19 June 2009. The conference treated the possibility of using Article 11 PSC, which enables husband and wife to insert additional conditions into the marriage contract (such as a community of goods), in cases where a single mother gets married: in this case, it was argued, she should be encouraged to stipulate that he treat her and her child well. This would be necessary as in such cases men often do not respect their wife and mistreat her because she was a single mother, and do not take care of the child. The speakers were a member of Amel who works

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as a psychologist in a home for single mothers, and a guest speaker, Yosra Frauss, a lawyer who is also connected to AFTURD. There were not many people present. Interview on 2 February 2009. Ben Achour, Sana 2007a and b. Hélin 1995, 99–100. Interview on 9 July 2010. Interviews on 8 and 9 July 2010. For example, Schäfer 2009. Hibou 2006.

Chapter 2 1 2 3 4 5 6 7

8 9 10 11 12 13 14 15 16 17 18 19

After the ‘revolution’, a military court of appeal was installed as well. Administrative Court, 1985; see Ben Achour, Yadh 1992, 47–8. Law 93–74 of 12 July 1993. Law 95–92 of 9 November 1995. Botiveau 1996. The same is argued with respect to countries in other parts of the world, such as the United States. See Shapiro 1981. Gobe and Béchir Ayari 2007. See also Rafaa Ben Achour on the Rule of Law in Tunisia (1995). Criminal prosecution depends on the CSM’s consent (Article 22 of Law 67–29), the CSM or, in exceptional cases, the Minister of Justice decides on the transfer of judges (Article 14 of Law 67–29, as amended by Law 85–79 of 11 August 1985) and the CSM imposes disciplinary sanctions (Articles 50–60 of Law 67–29). Article 6, Law 67–29. Law 2005–81, amending Law 67–29. Law 2005–81, amending Law 67–29. Article 61 (new), introduced by Law 91–9, modifying Law 67–29. The association was abolished on 29 August 2005. See Bardi 2006. Geisser and Gobe 2008, 372. On courts in authoritarian regimes, see also Shapiro 2008; Salomon 2007. See Gobe 2007. Law 2008–20 of 4 March 2008. Reconciliation session 5 November 2008. Geisser and Gobe 2007. This is in conformity with Article 31 para. 1 PSC, which provides that the court pronounce divorce in cases of the spouses’ mutual consent (bi-ttaradi), at the request of one spouse on the grounds of harm (darar), or at the request of one of the spouses tout court (without grounds).

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24 25

26 27

28 29

30 31

32 33 34 35 36

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In accordance with Articles 31–39 of the Code of Civil Status. Article 30 PSC: ‘The divorce cannot take place outside court.’ In accordance with Articles 40–42 of the Code of Civil Status. In accordance with Article 68 para. 1, Code of Civil and Commercial Procedure, as modified by Law 86–87 of 1 September 1986. Indeed, I observed that some litigants are not represented by a lawyer at all, while others are represented either from the beginning of the divorce proceedings or only from the moment where the case is transferred to the Family Chamber. In conformity with Article 69 CCCP as modified by Law 86–87 of 1 September 1986. In conformity with Article 70 CCCP as modified by Law 86–87 of 1 September 1986 and Law 2002–82 of 3 August 2002. For the contents of the summons, see Article 6 CCCP as amended by Law 2002–82 of 3 August 2002. In Tunisia, weekends are on Saturday and Sunday. The court has adapted opening hours on Fridays and Saturdays, when it closes at noon. For example: case numbers beginning with 6 have their next reconciliation session on 12 March, and those beginning with 7 on 13 March; the court hearing is on 22 March. In conformity with Article 32 para. 4 PSC. In accordance with Article 32 para. 10 PSC. However, a reconciliation judge pointed out to me that in principle, the couple has three sessions; they only have one session if they ask for it (16 April 2009). Article 32 para. 3 PSC requires that the reconciliation judge will do everything possible to assure that the defendant is summoned. Reconciliation session CFI Tunis 16 April 2009. At this session, the lawyers were acting as translators, leading to a hilarious situation where the lawyers’ French was less good than the judge’s, meaning that in the end, the judge was acting as a translator herself. This practice is in conformity with Article 32 para. 5 PSC. Interview with the family judge at the CFI Sfax, 31 January 2009. Interview with the family judge in Le Kef, 4 February 2009. Reconciliation session 11 December 2008. I compared the standard form that was used during my fieldwork at the CFI Tunis with the ones from the CFI Le Kef as used in February 2009 (obtained during a fieldtrip) and from the CFI Ben Arous as applied in December 2008 (obtained from a PhD student at LSE, Sarah Vincent-Grosso). At the CFI in Ben Arous the reconciliation judge asks how the couple contracted marriage: at the municipality or in front of two notaries (Article 31 para. 1, Code of Civil Status provides for either possibility).

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38 Reconciliation judge CFI Tunis 18 June 2009. I have never seen any of the results nor did I ever hear that these statistics actually exist. 39 For example, reconciliation session CFI Tunis 23 April 2009. 40 Reconciliation session CFI Tunis 8 January 2009. 41 Reconciliation session CFI Tunis 23 April 2009. 42 Reconciliation session CFI Tunis 13 April 2009. 43 Reconciliation session CFI Tunis 16 April 2009. 44 Reconciliation session CFI Tunis 19 May 2009. In two cases where the reason for divorce was the wife’s infertility the judge pointed to the advancements in medical techniques saying: ‘Shortly, infertility will not exist anymore’ (reconciliation sessions CFI Tunis 8 and 21 January 2009). 45 Reconciliation judge CFI Tunis 16 April 2009 and 19 May 2009. 46 Reconciliation session CFI Tunis 11 August 2009. 47 Reconciliation session CFI Tunis 21 May 2009. 48 For example, in one reconciliation session the husband declared he was an engineer in La Fayette, Tunis. As soon as he mentioned his income, the wife sniggered (reconciliation session CFI Tunis 8 January 2009). 49 For example: reconciliation session 13 May 2009 (‘How much do you earn?’ ‘Kulle marra kifesh [‘It depends)’. ‘I’m writing down 150 dinars, ok?’), interview with a reconciliation judge, 13 April 2009: ‘Always when I ask how much they earn, they prevaricate.’ 50 In cases of divorce without grounds or divorce for harm, the other spouse is the defendant; in cases of divorce by mutual consent, the other spouse is a co-plaintiff. 51 For example, during a reconciliation session held at the CFI Tunis on 21 May 2009, the husband expressed his concern about where he would live after the divorce. The reconciliation judge replied: ‘We are not talking about that! We’re doing a divorce case here!’ 52 During the reconciliation session on 13 April 2009, the judge’s remark was inspired by the fact that ‘the couple only started to wind up when the judge talked about the financial measures’. During the reconciliation session on 21 May 2009, the judge’s remark was inspired by her impression that ‘as soon as I mention the amount of money, they get up and leave!’ 53 In conformity with Article 32 para. 6–8 PSC. 54 In accordance with Article 32 para. 8 PSC. 55 If the judge forgets to sign the p.-v., it is invalid. 56 This is of particular importance if for example the wife demands divorce for harm on the grounds of domestic violence, and the husband confesses during the session that he is indeed violent with her. In this case, the p.-v. contains sufficient evidence to grant divorce for harm which otherwise is very difficult to obtain.

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57 For example reconciliation session CFI Tunis 11 December 2008: ‘ma-sallahtush fi-l-‘ed?’ (‘You haven’t reconciled during ‘ed?’, referring to the Greater Eid, when families slaughter a sheep they bought for the occasion). 58 This seems to be a cause-list sitting, given how it is organized. 59 Article 32 para. 9 PSC. The date of the jalsa hukmiyya is indicated on a paper accompanying the pile of files that the reconciliation judge treats that morning. In some cases, I witnessed that the reconciliation judge helped the spouses to get divorced sooner. For example, reconciliation session CFI 23 April 2009: the jalsa hukmiyya was set on 11 May 2009. 60 For example the plaintiff’s absence at the reconciliation session or the fact that the defendant had not been correctly summoned. 61 Article 119 CCCP as amended by law 86–87 of 1 September 1986. 62 Article 121 CCCP as amended by law 86–87 of 1 September 1986. 63 Article 120 CCCP as amended by law 86–87 of 1 September 1986. 64 In terms of anciennité (years of practice). 65 Article 120 CCCP as amended by law 86–87 of 1 September 1986. 66 I have two decisions that are handwritten, which show that the forms used are different from one another. However, the overall contents are largely the same (CFI Tunis 5 January 2009, 69248 and CFI Tunis 12 January 2009, 67138). 67 Article 123 CCCP as amended by law 80–14 of 3 April 1980 requires that the decision mentions which court has issued the decision, what department this court is in, the date and the names of the judges. It does not require that the judgement states al-hamdu li-llah. 68 Article 123 CCCP as amended by law 80–14 of 3 April 1980 requires that the decision contains the names and domicile of the litigants. 69 This article provides: ‘Every party that loses in a procedure is convicted to pay the expenses, except if the tribunal divides the costs between them if both have lost on certain points.’ 70 Article 40 CCCP provides that the CFI is competent in divorce cases, and Article 68 CCCP provides that court representation is not obligatory in personal status cases. 71 Articles 29 PSC defines ‘divorce’ (talaq) as ‘the dissolution of marriage’, Article 30 PSC provides that divorce can only take place through court, Article 31 PSC describes the types of divorce (with mutual consent, on the grounds of harm or without grounds, para. 1), followed by provisions with regard to the damages (para. 2 and 3), Article 32 PSC describes the divorce procedure (reconciliation sessions, temporary measures, etc.) and 54 PSC defines custody (hadana) and therefore is only mentioned in a divorce case where children are involved.

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72 Article 40 of the Code of Civil Status states: ‘The judgements or decisions pronouncing the divorce or declaring the marriage null and void, are, when they obtained force of res judicata, transcribed in the registers of civil status where the marriage was inscribed. The judgement or decision shall be mentioned in the margin of the marriage contract and the birth certificates of the spouses.’ 73 In conformity with Article 122 para. 2 CCCP, as amended by law 86–87 of 1 September 1986. 74 This should be done within ten days, see Article 122 para. 1 CCCP as amended by law 86–87 of 1 September 1986. I do not know whether the court respects this period or whether there is much delay. 75 For this, one needs some sort of seal from an office opposite of the court, which charges about one dinar. This seal is pasted on the original decision with a stamp and the signature of the clerk and additional information (numbers etc.). 76 Article 35 PSC. 77 Article 20 PSC. I have no information on whether this provision is actually applied. 78 Articles 41 para. 1 sub 1 and 42 CCCP. 79 Article 32 para. 11 PSC.

Chapter 3 1 A village on the far north-east coast of Tunisia. 2 Which means something like ‘I take the responsibility for my share of the problems’. 3 Reconciliation session, CFI Tunis 29 October 2008. 4 CFI Tunis 5 January 2009, 64562, 66546, 67138, 67906, 68150, 68266, 68330, 68658, 68664, 69110, 69152, 69466, 69614, 69698, 69702, 69714, 69724, 69749, 69756, 69764, 69776, 69798, 70277, 70498, 70554, 70598, 70670, 70984, 6 January 2009, 68019, 68567, 68585, 69179, 69295, 69299, 69437, 69603, 69645, 69693, 69751, 69899, 69911, 70569, 70601, 12 January 2009, 67835, 68696, 69072, 69258, 69294, 13 January 2009, 67443, 67957, 68351, 69065, 69715, 69985, 70091, 70359. 5 The names are fictitious out of respect for the litigants’ privacy. 6 Sonneveld 2011. 7 Ibid. 8 The names are fictitious out of respect for the litigants’ privacy. 9 ‫و ﺣﻴﺚ اﻧﻪ ﻧﻈﺮا ﻟﺨﻴﺒﺔ ﻛﻞ اﻟﻤﺴﺎﻋﻲ اﻟﺼﻠﺤﻴﺔ و ﻻن اﻟﺰواج ﺑﻨﻲ ﻋﻠﻰ اﻟﻤﻜﺎرﻣﺔ و ﺣﻴﻦ اﻟﻤﻌﺎﺷﺮة و ﻣﺘﻰ ﺗﺒﻴﻦ ﻋﺪم ﺗﻮﻓﺮ ذﻟﻚ ﺑﻴﻦ اﻟﺰوﺟﻴﻦ‬ 10 ‫ﻓﺎﻧﻪ ﻻ ﻳﺴﻊ اﻟﻤﺤﻜﻤﺔ اﻻ اﻟﻘﻀﺎء ﺑﺎﻟﻄﻼق ﺑﻴﻨﻬﻤﺎ ﻻﺳﺘﺤﺎﻟﺔ اﻣﻜﺎﻧﻴﺔ اﻟﻤﻌﺎﺷﺮة اﻟﻤﻄﻠﻮﺑﺔ ﺑﻴﻨﻬﻤﺎ ﻓﻲ ﺟﻮ ﻣﻠﺆه اﻟﻤﻮدة و اﻟﺼﻔﺎء‬ 11 Welchman 2007, 112–122.

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For example, reconciliation session, CFI Tunis 17 June 2009. Reconciliation session, CFI Tunis 23 June 2009. Welchman 2007, 121. For example, reconciliation session, CFI Tunis 17 June 2009. Sonneveld 2011. Law 81–7 of 18 February 1981. Reconciliation session, CFI Tunis, 23 June 2009. For example, reconciliation session, CFI Tunis 10 June 2009: ‘File for divorce by mutual consent, that is easier as you are family.’ Van Eijk 2012. Welchman 2000, 248. For example, reconciliation session, 23 June 2009 a and b. In these two sessions, the couple could not agree on living expenses (the wife, having child custody, was to stay in the marital home). The wife asked the judge to decide, but the judge replied: ‘No, you have to decide, it’s divorce by mutual consent.’ For example, reconciliation session, CFI Tunis 17 June 2009. For example, reconciliation session, CFI Tunis 17 June 2009. In this case, the husband withdrew his consent as he did not agree anymore with the agreement with regard to child maintenance and the marital home.

Chapter 4 1 Reconciliation session, CFI Tunis, 5 November 2008. 2 CFI Tunis 5 January 2009, 64562, 66546, 67138, 67906, 68150, 68266, 68330, 68658, 68664, 69110, 69152, 69466, 69614, 69698, 69702, 69714, 69724, 69749, 69756, 69764, 69798, 70277, 70498, 70554, 70598, 70670, 70984, 6 January 2009, 61923, 68019, 68567, 68585, 69179, 69295, 69299, 69437, 69603, 69645, 69693, 69751, 69899, 69911, 70569, 70601, 12 January 2009, 64948, 67835, 68696, 69072, 69258, 69294, 13 January 2009, 67443, 67957, 68351, 69065, 69715, 69985, 70091, 70359. 3 The names are fictitious out of respect for the litigants’ privacy. 4 ‫اﻻ ان اﻟﺤﻴﺎة اﻟﺰوﺟﻴﺔ ﺳﺎءت ﺑﻴﻨﻬﻤﺎ و ﻃﻠﺐ اﺟﺮاء اﻟﺼﻠﺢ و ﻋﻨﺪ اﻟﺘﻌﺬر اﻟﺤﻜﻢ ﺑﺎﻳﻘﺎع اﻟﻄﻼق ﺑﻴﻨﻬﻤﺎ ﻃﻠﻘﺔ أوﻟﻰ ﺑﻌﺪ اﻟﺒﻨﺎء‬ ‫ م ا ش‬31 ‫ﻃﺒﻖ اﻟﻔﻘﺮة اﻟﺜﺎﻟﺜﺔ ﻣﻦ اﻟﻔﺼﻞ‬ 5 Welchman writes that this requirement, first introduced in Syria (1953), has ‘become a standard feature of statutory law in the region’ (2007, 126). 6 The names are fictitious out of respect for the litigants’ privacy. 7 ‫ﻓﺎﻧﻬﺎ ﺗﻄﻠﺐ إﻳﻘﺎع اﻟﻄﻼق ﺑﻴﻨﻬﻤﺎ ﻟﻠﻤﺮة اﻷوﻟﻰ ﺑﻌﺪ اﻟﺒﻨﺎء ﺑﺮﻏﺒﺔ ﺧﺎﺻﺔ ﻣﻨﻬﺎ‬. 8 A small group of islands opposite Sfax. 9 Providing that if the marriage is dissolved before consummation all gifts are returned, but that no gifts shall be returned once the marriage has been consummated.

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10 For example: interview with ATFD representative Hayet Jawwar, in ‘Alech ou kifech, La femme divorcée’, Shems FM, 29 September 2011. 11 Sonneveld 2011. 12 Report of the Office National de la Famille et de la Population, round table on the theme ‘Séparation du couple, différences de genre: rompre sans tout casser’, 9 May 2008. 13 Sonneveld 2011. 14 CFI Tunis, 5 January 2009, 69749. 15 CFI Tunis, 6 January 2009, 69751. 16 CFI, 13 January 2009, 68351. 17 See also Nébiha Mezghani 1984. 18 Reconciliation session, CFI Tunis 5 August 2009 (reconciliation judge cites part of the surat al-nisa’) and 6 August 2009 (‘haram!’). 19 Reconciliation session, CFI Tunis 29 October 2008. 20 CFI Tunis 6 January 2009, 68585. 21 For example reconciliation session, CFI Tunis 16 January 2009. 22 Interview with one of the family judges at the CFI Tunis, 10 June 2009. 23 CFI Tunis 6 January 2009, 69751. 24 CFI Tunis 6 January 2009, 69751. 25 CFI Tunis 6 January 2009, 69751. 26 CFI Tunis 5 January 2009, 64562. 27 CFI Tunis 5 January 2009, 67906. 28 CFI Tunis 5 January 2009, 64562 and 67906. 29 CFI Tunis 5 January 2009, 69614. 30 For example, interview with one of the family judges at the CFI Tunis on 29 October 2008. 31 Ben Smaïl (2012) has different findings. 32 Reconciliation session, CFI Tunis, 11 June 2009. 33 On this ritual, see Ben Dridi 2010.

Chapter 5 1 2 3 4 5 6 7 8

Reconciliation session, CFI Tunis 18 May 2009. These names are fictitious out of respect for the litigants’ privacy. Reconciliation session, CFI Tunis 13 May 2009. Reconciliation session, CFI Tunis 23 June 2009. Reconciliation session, CFI Tunis 26 May 2009. The names are fictitious out of respect for the litigants’ privacy. ‫و ﻗﺪ ﺳﺎءت اﻟﻌﻼﻗﺔ اﻟﺰوﺟﻴﺔ ﺑﻴﻨﻬﻤﺎ ﻟﺘﻌﻤﺪ اﻟﻤﻄﻠﻮب اﻻﻋﺘﺪاء ﺑﺎﻟﻌﻨﻒ‬ Article 218 as modified by Law 93–72 of 12 July 1993.

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CFI Tunis 5 May 2008, 66970. Vanwelkenhuyzen 1978. Interview with the head public prosecutor at the CFI Tunis 13 May 2009. CFI Tunis 12 January 2009, 69211. CFI Tunis 27 October 2008, 63944. CFI Tunis 6 January 2009, 66893. CFI Tunis 27 October 2008, 67558. CFI Tunis 5 January 2009, 69210. Court of Appeal Tunis 14 July 1968, 59009. For example, reconciliation session 19 January 2009 (the wife accuses the husband of domestic violence but a medical certificate is insufficient according to the judge). Pompey 2008. Reconciliation sessions, CFI Tunis, 16 January 2009, 19 January 2009a, 19 January 2009b, 19 January 2009c, 21 May 2009, 10 June 2009, 11 June 2009, 25 June 2009. Reconciliation session, CFI Tunis 19 January 2009. Reconciliation session, CFI Tunis, 16 January 2009, 25 June 2009. Social Institutions and Gender Index 2009. Association Tunisienne des Femmes Démocrates 2001, 4. Welchman 2007, 111.

Chapter 6 1 2 3 4 5 6 7 8 9

The names are fictitious in order to protect the litigants’ privacy. CFI Tunis 12 January 2009, 69314. ‫و ﻗﺪ ﺳﺎءت اﻟﻌﻼﻗﺔ اﻟﺰوﺟﻴﺔ ﺑﻴﻨﻬﻤﺎ ﻟﺘﻌﻤﺪ اﻟﻤﻄﻠﻮب اﻫﻤﺎل زوﺟﺘﻪ و ﻋﺪم اﻻﻧﻔﺎق ﻋﻠﻴﻬﺎ‬ CFI Tunis 27 October 2008, 63944. Interview with a lawyer, 26 June 2009. Welchman 2007, 111. Bernard-Maugiron and Dupret 2006. CFI Tunis 12 January 2009, 67292. For example reconciliation session, CFI Tunis 11 August 2009. The reconciliation judge said: ‘You are a man, you should work!’ In another reconciliation session, the judge stated: ‘you have children, you should work!’ (reconciliation session, CFI Tunis 25 August 2009). 10 The World Bank 2008. 11 Ferjani 1999–2000, 71. 12 The World Bank 2008.

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13 Reconciliation session, CFI Tunis 21 January 2009, 25 May 2009. 14 For example, reconciliation session, CFI Tunis 21 January 2009.

Chapter 7 1 These names are fictitious out of respect for the litigants’ privacy. 2 CFI Tunis, 5 January 2009, 70474. 3 The day is illegible on the photocopy. 4 ‫و ﻗﺪ ﺳﺎءت اﻟﻌﻼﻗﺔ اﻟﺰوﺟﻴﺔ ﻟﺘﻌﻤﺪ اﻟﻤﻄﻠﻮﺑﺔ ﻣﻐﺎدرة ﻣﺤﻞ اﻟﺰوﺟﻴﺔ ﺑﺘﻮﻧﺲ و اﻟﺮﺟﻮع اﻟﻰ ﻣﺴﻘﻂ راﺳﻬﺎ‬ ‫ﺑﺠﻤﻬﻮرﻳﺔ ﻣﺼﺮ اﻟﻌﺮﺑﻴﺔ و ﻗﺪ رﻓﻀﺖ اﻟﺮﺟﻮع ﺑﺎﻟﺮﻏﻢ ﻣﻦ اﻟﺘﻨﺒﻴﻪ ﻋﻠﻴﻬﺎ ﺑﻮاﺳﻄﺔ ﻋﺪل ﺗﻨﻔﻴﺬﻳﺔ‬ 5 See Voorhoeve 2009. 6 Welchman 2007, 97. 7 Court of Cassation 19 April 1983, 7926; Revue de jurisprudence et de législation, 9, 1984, 97. See Rekik, s.d. 8 For example, Court of Cassation 2 March 2000, 75827/99. 9 CFI Tunis 20 October 2008, 66798, 67136/27, CFI Tunis 5 January 2009, 66028, 69156, CFI Tunis 6 January 2009, 61923, 69303, CFI Tunis 12 January 2009, 66946, 67278, 13 January 2009, 67195. 10 CFI Tunis 6 January 2009, 66985 11 CFI Tunis 5 January 2009, 67836. 12 CFI Tunis 5 January 2009, 66028 and CFI Tunis 13 January 2009, 67195. 13 CFI Tunis 12 January 2009, 67278. 14 CFI Tunis 20 October 2008, 66798, 5 January 2009, 67816, 12 January 2009, 69032 and 66946. 15 CFI Tunis 12 January 2009, 69032. However, although the law prescribed that the husband should pay maintenance, the obligation to cohabit is not provided for, and again, the court does not explain where it finds this obligation. 16 CFI Tunis 20 October 2008, 66798. 17 For example, reconciliation session, CFI Tunis 16 January 2009: the husband files for divorce for harm on the grounds of abandonment from the marital home. The wife replies that he beat her and that the house is empty. 18 CFI Tunis 5 January 2009, 70474. 19 CFI Tunis 6 January 2009, 67963. 20 CFI Tunis 12 January 2009, 69211. 21 Reconciliation session, CFI Tunis 19 May 2009. According to one of the lawyers who works for the Centre d’écoute, civil servants refuse to include a condition in the marriage contract that provides that the spouses do not cohabit (for example because the wife is working abroad, in order to prevent

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her husband for filing for divorce for harm on the grounds of abandonment of the marital home) (interview with a lawyer, 26 June 2009). Reconciliation session, CFI Tunis 19 January 2009a, 19 January 2009b, 10 June 2009, 12 June 2009, 23 June 2009, 25 June 2009. Reconciliation session, CFI Tunis 14 January 2009. Reconciliation session, CFI Tunis 23 April 2009. For example, reconciliation session, CFI Tunis 13 April 2009.

Chapter 8 1 These names are fictitious out of respect for the litigants’ privacy. 2 CFI Tunis 21 April 2008, 61660. 3 ‫و ﻗﺪ ﺳﺎءت اﻟﻌﻼﻗﺔ اﻟﺰوﺟﻴﺔ ﺑﻴﻨﻬﻤﺎ ﺑﺘﻌﻤﺪ اﻟﻤﻄﻠﻮﺑﺔ ﺑﻤﻐﺎدرة ﻣﺤﻞ اﻟﺰوﺟﻴﺔ دون ﻣﻮﺣﺐ ﺷﺮﻋﻲ و رﺑﻄﺖ ﻋﻼﻗﺎت ﻣﺸﺒﻮﻫﺔ‬ ‫ﻣﻊ ﻋﺪة اﻃﺮاف‬. 4 ‫اﺧﻼل ﺑﻮاﺟﺐ ﻣﻌﺎﺷﺮة اﻟﺰوج و ﺻﻴﺎﻧﺔ ﻋﺮﺿﻪ‬ 5 A building in the same street as the CFI, Bab Bnet. 6 Court of Appeal Tunis 12 December 2007, 14264. 7 CFI Tunis 26 February 2008, 63237. 8 This article, dating from the introduction of the Penal Code in 1913, was abolished in 1949 and reinserted in 1964; it was then modified by Law 68–1 of 8 March 1968. 9 ‫اﻟﺒﻐﺎء ﻫﻲ ﺟﺮﻳﻤﺔ ﻣﺨﻠﺔ ﺑﺎﻟﺸﺮف و ﺗﺸﻜﻞ ﻣﻀﺮة ﻣﺒﺎﺷﺮة ﻟﻠﻤﺪﻋﻲ ﺑﺎﻋﺘﺒﺎره زوج اﻟﻤﺪﻋﻲ ﻋﻠﻴﻬﺎ‬ 10 See for example the writings of Pierre Bonte. 11 CFI Tunis 20 October 2008, 65040. 12 ‫اﺧﻼل واﺿﺢ ﻣﻦ اﻟﺰوﺟﺔ ﺑﺸﺮف و ﺳﻤﻌﺖ زوﺟﻬﺎ و اﺳﺘﻬﺘﺎر ﺑﺎﻟﺤﻴﺎة اﻟﺰوﺟﻴﺔ و ﻣﺴﻤﻰ ﺑﻜﺮاﻣﺔ اﻟﺰوج‬ 13 CFI Tunis 20 October 2008, 66610. 14 Court of Cassation 14 July 1966, 59009, Revue de jurisprudence et de législation, 1966, 633. 15 Fantah 1977, 195–6. 16 Court of Cassation, 4 May 1971, 7741, Revue de jurisprudence et de législation 1972, 989.

Chapter 9 1 2 3 4 5

CFI Tunis 12 January 2009, 69594. CFI Tunis 27 October 2008, 68110. CFI Tunis 12 January 2009, 69806. Article 317 Penal Code. Articles 317 Penal Code and 575 Civil Code.

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6 Besides, alcohol is produced in Tunisia: it produces beer (Celtia), wine (many brands, such as Mâgon) and liqueurs (Thibarine, boukha, etc). 7 ‫ارﺗﻜﺎب ﺟﺮاﺋﻢ اﻟﺴﻜﺮ ﻫﻮ ﻳﻤﺜﻞ اﺧﻼﻻ واﺿﺤﺎ ﺑﺸﺮف و رﺳﻤﻌﺘﻪ اﻟﺰوج و اﺳﺘﻬﺘﺎرا ﺑﺎﻟﻤﻨﺢ اﻻﺟﺘﻤﺎﻋﻴﺔ‬ 8 CFI Tunis 26 May 2008, 65614. 9 Reconciliation session, CFI Tunis 8 January 2009. 10 Reconciliation session, CFI Tunis, 8 January 2009. 11 Reconciliation session, CFI Tunis 10 June 2009. 12 Court of Cassation 7 June 2007, 12678, Nashriyat al-mahkama 2007, 229–32. 13 Court of Appeal Sousse, 11 February 1971, see Ferjani 1999–2000, 34. 14 Court of Cassation 1 October 2004, 2523, Nashriyyat al-ta‘qbiya 2004, 475–77. 15 Ferjani 1999–2000, 50. 16 Court of Cassation 1 October 2004, 2523, Nashriyyat al-ta‘qbiya 2004, 475–77. 17 Reconciliation session, CFI Tunis 11 December 2008. 18 CFI Grombalia 30 December 1968, 8487, Revue de jurisprudence et de législation, 1968, 164. 19 CFI Le Kef 21 October 2008, 2008/38881. 20 Reconciliation session, CFI Tunis 13 November 2008. 21 CFI Tunis 24 August 2008; I do not have the decision, but this is what the family judge told me that she was going to decide.

Chapter 10 1 Session of the family judge for endangered children, CFI Tunis, 12 August 2009. 2 The names are fictitious out of respect for the litigants’ privacy. 3 ‫ﻟﺪا ﻓﺎﻧﻬﺎ ﺗﻄﻠﺐ اﻳﻘﺎع اﻟﻄﻼق ﺑﻴﻨﻬﻤﺎ ﻟﻠﻤﺮة اﻻوﻟﻰ ﺑﻌﺪ اﻟﺒﻨﺎء ﺑﺮﻏﺒﺔ ﺟﺎﺻﺔ ﻣﻨﻬﺎ‬ 4 ‫ ﻣﻦ م ا ش اﻧﻪ اذا اﻧﻔﺼﻤﺖ اﻟﺤﻴﺎة اﻟﺰوﺟﻴﺔ و ﻛﺎن اﻟﺰوﺟﺎن ﺑﻘﻴﺪ اﻟﺤﻴﺎة ﻋﻬﺪت اﻟﺤﻀﺎﻧﺔ اﻟﻰ‬67 ‫ﺣﻴﺚ ﺟﺎء ﺑﺎﻟﻔﺼﻞ‬ ‫اﺣﺪﻫﻤﺎ او اﻟﻰ ﻏﻴﻬﻤﺎ و ﻋﻠﻰ اﻟﺤﺎﻛﻢ ﻋﻨﺪ اﻟﺒﺖ ﻓﻲ ذﻟﻚ ان ﻳﺮاﻋﻲ ﻣﺼﻠﺤﺔ اﻟﻤﺤﻀﻮن‬. ‫و ﺣﻴﺚ اﺗﺨﺬ اﻟﺴﻴﺪ اﻟﻘﺎﺿﻲ اﻟﺼﻠﺤﻲ ﻗﺮر ﻓﻲ ﻫﺬا اﻟﺼﺪد ﻣﻨﺢ ﺑﻤﻘﺘﻀﺎه ﺣﻀﺎﻧﺔ اﻟﺒﻨﺖ اﻟﻰ واﻟﺪﺗﻬﺎ ﺗﻊ ﺗﻤﻜﻴﻦ واﻟﺪﻫﺎ ﻣﻦ‬ ‫ ﺑﺪون اﺳﺘﺼﺤﺎب‬... ‫ﺣﻖ اﻟﺰﻳﺎرة‬ ‫و ﺣﻴﺚ ﻛﺎن ﻫﺬا اﻟﻘﺮار ﻣﺘﺠﻬﺎ ﻗﺎﻧﻮﻧﺎ و ﻣﺮاﻋﻴﺎ ﻟﻤﺼﻠﺤﺔ اﻟﻤﺤﻀﻮن و اﺗﺠﺎه ﺗﺒﻌﺎ ﻟﺬاﻟﻚ اﻗﺮاره‬. 5 Modified by Law 66–49 of 3 June 1966. 6 In the Netherlands, we have this system of shared custody upon divorce since an amendment from 1998. 7 Welchman 2007, 138. 8 Welchman 2007, 142. 9 Shehada 2009d.

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10 For example, session of the family judge for endangered children, 20 May 2009; this concerned visiting rights of the mother (the father had custody while the mother was living in Libya). 11 Modified by Law 93–74 of 12 July 1993. 12 Interview, 26 June 2009. 13 Interview, Family Judge CFI Tunis 23 June 2009. 14 CFI Tunis 26 February 2008, 63237, and CFI Tunis 20 October 2008, 65040. 15 CFI Tunis 21 April 2008, 61660. 16 Interview held on 22 June 2009. To say that someone is not ‘très catholique’ is a French expression meaning that the person does not meet certain moral standards. The judge used the expression in French. 17 Interview, 21 November 2008 18 Hoodfar 1996, 125. 19 CFI Tunis 13 January 2009, 67957. 20 Law 95–92 of 9 November 1995. 21 Article 58 Child Protection Code. 22 Reconciliation session, CFI Tunis 30 October 2008 (children live in Paris), session of the family judge for endangered children, 20 May 2009 (woman lives in US). 23 Reconciliation session, CFI Tunis 11 August 2009 (woman wants to return to France). 24 Association Tunisienne des Femmes Démocrates 2001, 5. 25 Association Tunisienne des Femmes Démocrates 2001, 4. 26 Welchman 2007, 140. 27 Series of discussions with the penal judge at the Cantonal Court Tunis, August 2009. 28 Modified by Law 81–7 of 18 February 1981. 29 Reconciliation session, CFI Tunis 19 November 2008. 30 Reconciliation session, CFI Tunis 5 November 2008. 31 Welchman 2007, 138. 32 Reconciliation session, CFI Tunis 25 June 2009.

Chapter 11 1 2 3 4 5

These names are fictitious out of respect for the litigants’ privacy. Law 2008–20 of 4 March 2008. Reconciliation session, CFI Tunis 23 June 2009. The World Bank, 2008. CFI Tunis 6 January 2009, 68585.

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301

Najjar 1988, 323. Interview with a counselor at the Centre d’écoute, 25 June 2009. Reconciliation session, CFI Tunis 23 June 2009. Revision session, CFI Tunis 25 June 2009. Article 56 bis PSC, introduced by law 2008–20 of 4 March 2008. Reconciliation session, CFI Tunis 3 November 2009.

Conclusion 1 Ben Achour, Sana, 2001; 2005a; 2005b; Ben Achour, Souhayma, 2003a; 2003b; Ben Halima 2005; Ltaief 2005. 2 Link and Hall 2004. 3 Foucault 1975, 185; Link and Hall 2004, 15. 4 Ben Nasr and Klai 2005. 5 Posner, Richard A. 2008. 6 Ben Achour, Sana 2005c, 233. 7 For example, Ben Achour, Sana 2005c. 8 CFI Tunis 21 April 2009. 9 See for example Court of Cassation 12 October 2001, 10020, Revue de jurisprudence et de législation, January 2002, 88 and 197–201. 10 See Charfi 1997. 11 Ministry of Justice and Human Rights, 2007–08. In this judicial year, the theme of the conference was provisional measures in divorce. The next year, the theme was paternity. 12 Sonneveld 2011. 13 ‘Alech ou kifech, La femme divorcée’, Shems FM, 29 September 2011. Available at http://www.shemsfm.net/fr/actualite/la-tunisie-en-tete-despays-arabes-pour-le-taux-de-divorce?id=5640 (16 June 2013). 14 Botelho Junqueira 2003, 448. 15 Kchir, ‘Nous sommes tous des femmes tunisiennes!’, La Presse, 19 November 2011. 16 This happened a few days after Tunisian women’s day (13 August 2011). See Sonneveld and Voorhoeve 2011. 17 I encountered several people during the period of the elections who confided in me that they were voting Ennahda because for them, this was the only party that had not paid lip-service to the previous regime, and that would not be corrupt – as they ‘feared God’. 18 ExpressFM, 26 October 2011. Available at: http://www.youtube.com/ watch?v=rhoDVJo_dQE (21 February 2012).

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19 The first interim government, under Caïd Essebsi, abolished parliament, as this consisted mostly of RCD members and the RCD was abolished. In the absence of a legislative body, the government ruled by decree, but was not authorized to issue laws (which are of a higher stature). The Commission for Political Reform, headed by Yadh Ben Achour, was authorized to take important decisions on the legislative level, but only concerning political reform – this commission decided that the constitution should be abolished, as well as other laws concerning political powers, and that the democratic transition should begin with the election of an assembly that would form another interim government and would draft a new constitution. After the elections of 23 October 2011, a Constitutional Assembly and an interim government (under President Moncef Marzouki) were formed. However, the assembly does not have a mandate to change legislation as it is not a legislative body stricto sensu; it should draft a new constitution and change other institutional laws (such as the law on public powers and on the legislature), while the government continues to rule by decree. 20 Decree 715–1993. 21 Minister of Education Moncef Ben Salem. See ‘Tunisie: position de Moncef Ben Salem sur le port du niqab’, Investir en Tunisie, 18 February 2012. Available at: http://www.investir-en-tunisie.net/index.php?option=com_ content&view=article&id=13462 (16 June 2013). 22 See for example the interview with Vincent Geisser on Afrik.com: Baldé, 28 March 2012. 23 Interview with Leila Ben Mcharek, scholar and political analyst (and friend). 24 Interview with Khaled Kchir, historian and politician. He calls this the strategy of ‫ﺗﺪاﻓﻊ‬, repulsion. 25 ‫إذا اﻟﺸﻌﺐ ﻳﻮﻣﺎ أراد اﻟﺤﻴﺎة‬ ‫ﻓﻼ ﺑ ّﺪ أن ﻳﺴﺘﺠﻴﺐ اﻟﻘﺪر‬ ‫وﻻ ﺑﺪ ﻟﻠﻴﻞ أن ﻳﻨﺠﻠﻲ‬ ‫وﻻ ﺑﺪ ﻟﻠﻘﻴﺪ أن ﻳﻨﻜﺴﺮ‬ 26 ‘L’essentiel est de respecter des libertés’, Le Monde, 17 October 2011.

Appendix 1 Part of this translation is copied from Sfeir, 1957.

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Welchman, Lynn, 2000, Beyond the Code: Muslim Family Law and the Sharia Judiciary in the Palestinian West-Bank (The Hague, etc.: Kluwer Law International). — 2007, Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy (Amsterdam: Amsterdam University Press). Woodman, Gordon R., 1999, ‘The idea of legal pluralism’, in B. Dupret, M.S. Berger and L. al-Zwaini (eds), Legal Pluralism in the Arab World (The Hague: Kluwer Law international), pp. 3–19. World Bank, 2008, The Road not Travelled. Education Reform in the Middle East and North Africa (Washington: The World Bank). Würth, Anna, 1995, ‘A Sana’a court: the family and the ability to negotiate’, Islamic Law & Society ii/3, pp. 320–340. — 2000, Ash-shari’a fi bab al-yaman: Recht, Richter und Rechtspraxis an der familienrechtlicher Kammer des Gerichts Süd-Sanaa, Republik Jemen (1983–1995) (Berlin: Duncker & Humblot). — 2003, ‘Stalled reform: family law in post-unification Yemen’, Islamic Law & Society, x/1, pp. 12–33. — 2005, ‘Mobilizing Islam and custom against statutory reform: bayt al-ta‘a in Yemen’, Egypte/Monde Arabe iii/1, pp. 277–298. Yaqoubi, Najet, 1995, ‫دراﺳﺔ ﻗﻨﻮﻧﻴﺔ ﻟﺤﺎﻻت اﻟﻌﻨﻒ اﻟﻮاردة ﻋﻠﻰ اﻟﺠﻤﻌﻴﺔ اﻟﺘﻮﻧﺴﻴﺔ‬, in Les violences à l’égard des femmes (Tunis: Association Tunisienne des Femmes Démocrates), pp. 67–72. Yilmaz, Ihsan, 2002, ‘Secular law and the emergence of unofficial Turkish law’, Middle East Journal lvi/1, pp. 113–131. Zouari-Bouattour, Salma, 2000, ‘Femme et employ en Tunisie’, in R. Bourqia, M. Charrad and N. Gallagher (eds), Femmes, culture et société au Maghreb II. femmes, pouvoir politique et développement (Casablanca: Afrique Orient, 2nd ed.), pp. 161–181. Zubaida, Sami, 2005, Law and Power in the Islamic World (London: I.B.Tauris).

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INDEX

abandon 54, 109, 131, 136–7, 139–41, 147, 150, 154, 161–77, 178, 182, 191–2, 202, 231, 234, 235–6, 242, 267, 297–8 abnormal 6, 49, 160, 166, 172, 185, 194, 200, 218, 231–2, 242 abortion 56–7, 62 academia 64 access 2–3, 16, 19–20, 42, 64, 100, 107, 124, 152, 169, 240–1, 248, 286 accusation 85, 135–6, 139, 142, 160, 165, 169, 175, 178, 195, 199, 200, 231 activist 77, 140, 206, 217, 235, 240, 245, 288 ‘adl al-tanfidh 162–3 Administrative Court 74, 289 adoption 2, 25, 32, 45–6, 51, 74, 82, 244, 246, 248, 272, 278, 285 adultery 6, 15–6, 21, 42, 48, 62, 74, 85, 109, 136, 140, 177–9, 181–90, 192–4, 212–3, 214, 233–4, 242, 277 affinity 37, 252 Afghanistan 1 AFTURD 64, 140, 273, 288–9 agreement 41, 110, 211, 224–5, 241, 263, 294 alcohol 39, 85, 136, 192–4, 232, 242, 299 alimony 12, 262 alum 137 ‘amaliyyat 30

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ambivalence 58, 60–2, 65, 149 apostate 25 Arab conquests 30, 280 Arabic (Modern Standard) 14, 81, 88–9 arbiter 225, 255 Article 23 PSC 40–1, 54, 57, 63, 75, 104, 119, 131, 146, 154–5, 159, 160, 163–5, 167, 171, 172, 179, 183–4, 191, 193, 196, 233, 254 Association Amel 65 Association Beity 46, 65 Association of Tunisian Judges 76 Association Tunisienne Des Femmes Démocrates 3, 48, 50, 52, 63–5, 140, 144, 152, 196, 216–7, 240, 242, 244, 273, 276, 284, 287–8, 296, 300 atheist 37, 70 audience 11, 21, 64, 275 authoritarianism 51, 70, 75, 181, 239, 243, 289 authorization 37, 60, 68, 87 bad behaviour 85, 135, 137, 150, 169, 177, 186 bad treatment 146 bailiff 80, 162, 165, 170 bank 61, 98, 190, 286 bayt al-ta’a 65, 175 beard 61 Ben Ali 4, 59–60, 61–2, 64, 68, 71, 76, 180, 206, 234, 244, 246, 273, 285–6

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330

GENDER

AND

DIVORCE L AW

Ben Achour, Sana 3, 5, 12, 20, 26, 29, 51, 53, 58, 60–2, 65–6, 88, 230, 233, 239, 276 Ben Achour, Tahar 51 Ben Achour, Yadh 31, 51 Berber 30 Bey 30–2, 51, 280–1, 284 bigha’ 183 bikr 200 birth 1, 34, 44–5, 56, 82, 92–3, 162 birth certificate 45, 79, 90, 92, 293 blasphemy 247 blood test 25 body 34–5, 146, 149, 181, 236 bonne 69, 72, 212–3, 221, 224 borderline cases 8, 274 bouche de la loi 8 bourgeoisie 70, 72, 193 Bourguiba, Habib 32, 36, 51, 57, 59, 60–1, 64, 283–5 breadwinner 54, 114, 118–9, 125, 130, 131–2, 144–5, 156, 174, 242 breastfeeding 37, 265 bribe 49, 50, 70, 78, 239 bride price 35–6, 41, 282 Brigade de moeurs 212 brothel 49 Butler, Judith 12–3 café 78, 84–5 Cantonal Court 15, 27, 33, 46, 73, 74–5, 82, 131, 140, 155–6, 159, 218, 300 care 12, 44, 46, 56, 66–7, 69, 73, 117, 167, 202, 210, 220–1, 224, 227–8, 288 caretaker 44, 46, 210–1, 215, 218, 220, 223–4, 226–7, 229, 262–66 career 17, 220, 243 CEDAW 29, 53–5, 62, 64, 244 Centre d’écoute 15, 140, 148, 297 chastity 178–9, 182 cheques 190 child abduction 216

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child maintenance 22, 103, 105–6, 110, 113–4, 116–7, 144, 156, 159, 207–8, 222–9, 258, 294 Child Protection Brigade 75, 207, 212–3, 215, 218 Child Protection Code 56, 108, 215 Christian 30 city hall 34–5 Civil Code 31–2, 51, 55, 57, 147, 201, 272 civil servant 25, 33, 35, 39, 79, 94, 297 class 9, 67, 69, 70, 72, 83–4, 89, 117, 125, 136–7, 150, 172, 174, 176, 193–4, 227 clean 174 clothing 60, 76, 81–2, 87, 88, 91, 97, 99, 180, 205, 261, 286 Club Culturel Tahar al Haddad 63, 288 Code of Civil and Commercial Procedure 94, 281, 290 Code of Civil Status 33, 45, 79, 94, 290, 293 cohabitation 21, 33–4, 74, 116–7, 126, 145, 149, 163–8, 171–2, 191–2, 203, 233, 237, 258, 297 Collectif Maghreb Égalité 64 Commission nationale femme et développement 64 communist 37 community of goods 32, 41, 63, 64, 127, 281–2, 288 companionship 103–4, 122, 144, 178–9, 191–2, 196 condoms 62 confession 147, 178–9, 181, 201 confessional system 50 consanguinity 37, 46–7, 264, 268 Conseil national de la femme et de la famille 64 Conseil Supérieur de la Magistrature 76, 289 conservatism 26, 28–9, 35, 70, 193, 246

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INDEX constitution 1, 3, 5–6, 11–2, 22, 26, 28–9, 31, 32, 50, 52, 53, 55–7, 74–5, 230, 236–7, 244–5, 272, 274, 280, 302 constitutional court 53 Constitutional Assembly 5, 302 Constitutional Council 53, 284 consular courts 31 consummation 35, 37, 40, 44, 93, 94, 98–9, 101–2, 106–7, 111, 112, 120, 121, 122, 126–7, 129, 130–1, 137–8, 141, 153, 162, 165, 168, 177, 197–8, 207, 217, 222, 250–4, 258, 259, 282, 294 contempt 147, 150 contract 32–3, 39–41, 55, 63, 90, 92–3, 97–9, 101, 102, 103, 105, 112, 120, 141, 152, 162, 164, 168, 177, 201, 207, 217, 222, 251–5, 263, 288, 293, 297 (see also sdaq) Convention Against Torture 53 Convention for the Rights of the Child 53, 55–6, 64 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages 53 conventions 1, 3, 5, 11–2, 22, 26, 28–9, 52–3, 57, 146, 230, 236–7 cook 174, 212, 266 corruption 78–9, 239 Court of Appeal 16–7, 27–8, 76, 95, 147, 178–9, 181, 273, 277–8, 284, 289, 296, 298–9 Court of Cassation 14, 17, 24–5, 27–8, 41, 53, 74, 76, 95, 108, 146, 150, 157, 163–4, 181, 184, 188, 197–8, 234, 237–8 CREDIF 63 crime 48, 55, 63, 75, 155, 177–9, 190, 192, 195, 200, 240 criminal 32, 51, 76, 147, 190, 238, 281, 289 Critical Legal Studies 8, 10, 67 culture 29, 246

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custody 3, 22, 25–6, 28, 43–4, 46, 50, 54, 63, 75, 78, 86, 103, 106, 110, 113–4, 116–8, 142, 145, 154, 177–9, 187, 200, 203, 205–221, 223, 226, 229, 233, 243, 257–8, 262–267, 273, 292, 294, 299, 300 custom 1, 2, 5, 6, 9–11, 18, 20, 22, 28–31, 40, 52, 57, 58, 116, 118, 163, 226, 230, 235, 237, 254–256, 261, 266 damages 19, 43, 90, 94, 98, 100, 101, 105–107, 109, 111–122, 124–137, 142–146, 148, 153, 154, 158, 156, 159–161, 163, 165, 166, 170–172, 177–179, 182–5, 191–2, 197–8, 203, 232–3, 238, 240–2, 256–7, 262, 292 darar 42, 143, 289 death 1, 27, 44, 48, 82, 211, 255–9, 264, 266–8, 270 defects 42, 135 delay 90, 293 deliberation 68, 91–3 democracy 51, 247 depression 220 desperation 147 dignity 4, 146, 236 disciplinary institutions 7, 47, 49, 116, 163, 213, 246–7 discretionary powers 8 discrimination 56, 128, 220, 270 disdain 193 disgust 213, 218 disobedience 121, 136, 164 divorce rates 63 divorcee 83, 116, 258 DNA 238 doctor 39, 40, 49, 69, 137, 149 documents 15–6, 78, 90, 94, 147–8, 163, 179 domestic violence 15, 19, 21, 47, 65, 75, 78, 85, 109, 136, 139, 140–1, 143–52, 156–8, 161, 165–6, 169,

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171, 173, 179, 184, 185, 188, 190, 195, 224, 233, 241, 291, 296 domicile 54, 257, 284, 292 douaniers 211 Dupret, Baudouin 10, 18–9, 158, 274 duration 114, 118, 202, 258, 261 duress 181 ‘ed al-fitr 86 ‘ed al-kbir 86 Egypt 1, 18, 57, 84, 100, 104, 107, 126–8, 158, 162–3, 165, 214, 226, 240, 245 elite 33, 42, 70, 89, 193 emancipation 4, 13, 23, 29, 59, 65, 204, 270–1 emotion 117, 161 encouragement 83, 108, 110, 141, 225, 241, 288 engagement 33–4, 97, 100, 102, 249 Ennahda 63, 244–6, 301 equality 29, 41, 43, 53–5, 62, 64, 122, 236, 241, 280 equity 59 ethic 12, 66–7 ethnography 14, 67, 276 ethnomethodology 8–11, 19, 66, 275 exegesis 59 experience 1, 9, 12, 19, 37, 67, 72–3, 119, 129, 195 expulsion 146–7, 172, 202, 203 extended family 228 Faculté de la Manouba 247 Faculté des Sciences Juridiques, Politiques et Sociales 3, 88 fairness 8, 122, 144 fakk 120–1, 123 Family and Children Division 74, 80, 87, 215 family-in-law 36, 70, 173, 242, 286 family judge for endangered children 14, 66, 74–5, 78, 205, 207, 215–8, 221, 299, 300

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family planning 57, 62 fatiha 34 Fatimids 30, 280 feelings 113, 117, 121, 126, 145, 199, 247 féminisme d’état 63–5, 77 (see also state feminism) feminist 4, 12, 29, 52, 58, 62–7, 77, 237, 244, 273, 288 festivities 33–4, 97–8, 111, 131, 196 fidelity 188 financial 35, 37, 40, 70, 73, 86, 94, 100–1, 106, 109, 111, 126, 127, 129, 131, 144, 156, 158, 159, 160, 165, 166, 173, 205, 211, 240–3, 254, 259, 267, 291 consequences 94, 144, 156, 165, 240, 241 elite 70, 193 fiqh 2, 11, 30–3, 35, 38, 41–7, 50, 52, 59, 237, 275, 279 flirting 186–8, 232 food 35–6, 181, 205, 226–6, 261 form 8, 16, 76, 78, 80, 82, 86, 90–4, 97–8, 103–4, 107, 115–6, 118–9, 122, 144, 156 formal 58, 71, 73, 81–2, 94, 134, 234, 250–1 Foucault, Michel 6, 7, 10, 21–2, 88, 231, 274, 301 France 21, 30–2, 70, 96, 98–9, 128, 167, 186, 205–6, 210, 216–7, 277, 280, 300 freedom 27, 29, 53–4, 191, 246–7, 280, 284 French 14, 21, 24–5, 30–3, 48–9, 69, 77, 81, 88, 97, 123, 128, 150, 186,190, 205–6, 216–7, 219, 238, 247, 273, 278–9, 281, 284, 290, 300 friend 34, 36–8, 49, 50, 69, 72, 79, 82, 108, 109, 148, 204, 206, 212 fund 32, 63, 262, 281 fundamental 1, 12, 22, 28–9, 52, 58, 146, 230, 236–7,

4/7/2014 8:20:11 PM

INDEX fuqaha’ 197 furniture 34, 36, 102, 121, 126–7, 147, 231, 255 Gafsa 33, 46, 65–6, 176, 282 gambling 85 Ghannouchi, Rached 244 gharama 113, 119 gift 35–6, 97, 100, 102, 121, 126, 249, 255, 294 Gilligan, Carol 4, 12, 66 good fortune 34 grandparents 44, 46, 205, 215, 218, 260, 261, 264, 266, 268 greedy 134 guardianship 2, 32–3, 43–4, 50, 54, 211, 226, 250, 251, 265, 267, 270, 272, 283, 285 gynaecologist 138 habitus 67, 70, 72 habus 60, 285 hadana 43–4, 226, 292 hadiths 9, 51, 59 Hafsid dynasty 30, 280 hajj 72 hajr 171, 234 al-hamdu li-llah 92, 292 hammam 34 Hanafi 30–1, 58, 281 haqq 89, 101 haram 134, 234, 295 harmony 120–2 Hart 8, 10, 274 headscarf 34, 217 henna 34 hepatitis 39, 40 High Islamic Council 61 hijab 61–2, 83, 186, 219 holiday 86, 113, 151, 205, 207–8, 210, 232 Holy Book 59 homosexuality 199, 200, 218–9, 232

MaaikeVoorhoeve_Index.indd 333

333

honour 48, 113, 116–7, 121, 125–6, 130, 132, 144–5, 147, 156, 182–4, 191–3, 240 hospital 6, 149, 161, 170, 202–3, 231 hotel 35–6, 49, 50 household 120, 122, 243 housing 22, 110, 114, 116, 171, 174, 208, 222–9, 256–8, 263–4 hudud 31 hukm hukm ihmal ‘iyal 154, 156, 202 hukm nafaqa 154–5, 225 human rights 4, 28, 53, 77, 87, 92, 206, 238, 274 Hunter, Rosemary 12 Hurriya 24–7 hymen 137, 138, 198 ID card 82, 86, 90, 245 identity 61, 82, 246 ihmal ‘iyal 153–4, 156, 158, 202 ijtihad 51, 59, 60 illegitimate children 32, 45, 65 impartiality 55, 75, 170 implementation 9, 56, 272, 274 impotence 197–8 incapacity 265, 270 incest 48, 190, 194, 233 income 70, 82, 84–5, 92, 114, 118–9, 131–3, 136, 138, 175, 243, 291 indigenous law 9 Indonesia 1, 272, 277, 283 infertility 42, 201–2, 291 informal 17, 68–9, 73, 81–2, 87, 91, 125, 134, 234 informal marriage 16, 284 inheritance 27, 46–7, 52, 55–6, 62, 64, 257, 260, 268, 281, 286, 288 injury 144–5, 321 injustice 135, 147 innovation 1, 3–4, 23, 26, 29, 226 instrumentalization 61, 76–7 insults 85, 202 intellectual 70, 174, 193, 244

4/7/2014 8:20:11 PM

334

GENDER

AND

DIVORCE L AW

intention 29, 58, 60, 62, 144, 197–8, 235, 263, 280 intercourse 40, 99, 186 interest of the child 28, 43–4, 106, 168, 175, 208–11, 213, 232, 257–8, 264–7 International Covenant on Civil and Political Rights 28, 53 International Covenant on Social, Economic and Cultural Rights 28, 53 international law 9 international private law 21, 32, 238 intimate 171 inviolability 146, 149, 236 Iran 18, 272 Islam 1, 2, 4, 5, 9, 18, 23, 25, 27–8, 30–1, 38, 46, 51, 53, 56–7, 59, 60–1, 70, 82, 184, 188, 197–8, 245–6, 272, 275, 280–1, 286, 303–5 Islamic law 24–5, 28, 31, 33, 37–8, 50, 59, 123, 163, 169, 179, 197, 234, 236, 281, 306, 309 Islamist 4, 63, 244–6, 303, 316, 326 Israel 12, 18 IVF 201 jail 135, 148, 158 (see also prison) Jaït 58 jealousy 42, 59 Jerba 30, 35, 205 jewellery 35–6, 99, 120–2 , 126, 231 Jews 30–2, 190, 280 jilab 61 jinayat 31 judicial activism 146, 235–7 jurisdiction 32, 151–2, 190, 238 jurisprudence 8, 31, 50, 163, 200, 237, 238, 239, 288 justice 8, 75, 122, 144, 239 Kadijustiz 18, 277 kafala 46

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IN

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Kairouan 30, 39 Kerkennah 120, 122, 136, 193 Khariji 30, 280 khiana 186 khina’ 183 khul’ 41–2, 101, 107, 109, 126, 128, 240 kindness 103–5, 123, 171, 186, 191–2 kinship 1 labour 55, 62–3, 164, 246, 287 lacunae 24, 29, 50, 52–3, 57, 64, 188, 233 language 8, 69, 82, 88–9 Law faculty 50, 88 law for the protection of children 56, 75, 108, 215, 300 law students 1, 66 laziness 132 Le Kef 66, 81, 167, 193–4, 198, 201–2, 290, 299 legal pluralism 1, 2, 8, 9, 10, 20, 274 legal realism 7–10 legal rhetoric 10, 11, 275 legislative politics 28 legislature 2, 24, 28–9, 52, 58–60, 62, 143, 154, 188, 209, 302 (see also parliament) legitimacy 2, 60–2 Libya 1, 2, 18, 176, 199, 227, 300 lie 19, 85, 143, 147–8, 150, 157–8, 165, 171, 182, 195, 199, 239 life-experiences 12, 72 loan 98–9, 121 love 1, 49, 103–5, 123, 168, 171, 181, 186, 191–2, 212, 219 LTDH 63–4, 274 Maghreb 1, 21, 64, 284 mahr 231 maintenance judge 15, 155, 159 make-up 34–5, 180, 200, 218 Maliki 30–3, 41–7, 52, 58, 280, 281

4/7/2014 8:20:11 PM

INDEX marriage marital duties 26, 40, 57, 101, 131, 146, 155, 179, 184, 242, 254 marital home 6, 26, 34–6, 42, 54, 63, 77, 86, 103, 109, 120, 131, 136–7, 139, 142, 146–7, 161, 162–76, 177, 182, 191–2, 194, 202–3, 217, 223, 226–9, 231, 234–7, 242, 288, 294, 297, 298 marriage age 36–7, 63, 250–1 marriage ceremony 35, 99 marriage contract 32–3, 39, 41, 90, 92, 97–99, 102–3, 112, 120, 129, 141, 153, 162, 177, 201, 207, 217, 222, 251, 254–5, 288, 293, 297 marriage guardianship 2, 32–3, 50, 272 mixed marriage 3, 4, 12, 26, 54, 66, 214, 234, 236, 273 maternity 44 Mecelle 31, 280–1 medical certificate 39, 40, 78, 137, 139, 147–9, 188, 195, 197, 199, 201–4, 296 mental illness 202–3, 226, 232 mentality 29, 243, 245–8 Mestiri, Ahmed 58–9, 284–5 military court 74, 289 Ministère de la Femme et de la Famille 42, 287 Ministry of Justice 42, 59, 87, 92, 234, 238, 244, 278, 285, 301 Ministry of Religious Affairs 61 missing link 11 modernity 26 money 35, 43, 49, 50, 71, 78, 97, 109, 121, 126, 132–3, 150–1, 155–7, 171, 173, 181, 211, 239, 241, 291 morality 72, 116, 213, 239 Morocco 18, 214, 216, 277, 288 Mosaic law 30, 32 mosque 30, 34, 39, 51, 60–1, 246, 286 Mouvement de Tendance Islamiste 63 movement 8, 54, 67, 284, 287

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335

mu’ashara 103, 178–9, 196, 203 murder 47, 63 musakana 163 mut’a 43, 119 nafaqat ‘idda 101, 105–6, 242 Nasraoui, Radhia 77, 206, 217 National Pact 59, 61 National Women’s Day 59, 273 nationality 25, 53–4, 56, 63, 69, 150, 205–6, 216–7, 284, 287 neglect 153–7, 160, 174, 202–3 NGO 5, 273 night 35, 174, 194, 210, 265 wedding night 40, 85, 137–8, 140, 196, 198, 201, 231 niqab 61, 245, 247 al-nisa’ 64, 295 niveau de vie 114, 118, 242, 256 non-Muslim 3, 24–7, 39, 46–7, 237, 272 non-state law 9 normalization 6, 22, 230–1, 235 normative order 9–11, 20, 60, 179, 234, 237 notary 27 nuclear family 228, 242 nushuz 164, 166, 171, 175, 234 oath 147, 176, 255, 259 observation 13–4, 19, 20, 67, 79, 140, 190 Office National de la Famille et de la Population 37, 295 Oman 1 open norms 8 oppression 62, 65 ‘Other’ 21 Ottoman Empire 1, 30 Ottoman Law of Personal Status 31 ownership 41, 255, 285 Palestine 18 parents 25, 34, 37, 43–6, 56, 67, 69, 108, 120, 122, 136, 142–3, 166–7,

4/7/2014 8:20:12 PM

336

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AND

DIVORCE L AW

170, 174, 202, 207, 208–9, 215, 218, 221, 223, 224, 225, 227–9, 232, 235–6, 252, 260, 266, 267, 270, 279, 285, 286 parliament 51–2, 302 (see also legislature) passport 82, 205–6, 216–7 paternity 25, 38, 44–5, 52, 74–5, 149, 236, 238, 267, 268, 301 patriarchy 21, 29 patronage 70, 79, 239 pay slip 84, 90 peace 191 penal penal chamber 15, 149, 165, 182–3 Penal Code 31–2, 47–8, 56, 144, 146, 179, 183, 192, 194, 196, 199, 253, 285, 287, 298 penal judge 15, 33, 73, 74, 140, 149, 156, 158, 161, 195, 218, 300 penetration 188 Perelman, Chaim 10–1, 275 Persepolis 247 personality 71, 73 persuasion 11 police 16, 48–50, 65, 76, 78, 87, 147–9, 151–2, 161, 175, 178–82, 186, 188–9, 199, 200, 212, 288 political preferences 8, 10 politics 28, 62, 64, 209, 234 polygamy 2, 16, 21, 38–9, 50–1, 59, 63, 74, 188, 244, 248, 252, 272, 284 poverty 72, 154, 261 prayer 35, 83, 85, 137, 246, 286 pregnancy 38, 45, 56–7, 65, 95, 134, 142–3, 201, 228, 232, 234, 258–9 press 64 principles 4, 5, 12, 29, 31, 57, 146, 245 prison 76, 144, 148, 161, 183, 187, 190, 192, 199, 224 (see also jail) privacy 109, 137 private 14, 48, 49, 85, 87, 109, 119, 148–9, 152, 161, 172, 239, 246

MaaikeVoorhoeve_Index.indd 336

IN

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procedure 46, 51, 74–5, 109, 141, 148, 152, 161, 170, 181, 203–4, 206–7, 215, 238, 258, 263, 266, 276, 292 profession 54–5, 62, 137, 280, 285 professional 33, 35, 39, 66, 91, 239 propaganda 77 prostitution 48–9, 183–4, 283 protection 46, 56, 67, 75, 108, 191–2, 206–9, 212–3, 215, 218, 262, 300 protectorate 31, 48–9 provocation 247 psychiatry psychiatrist 203–4 psychiatric hospital 6, 7, 202–3, 231 psychiatric treatment 6 puberty 37, 250 public public debates 4, 226, 247 public order 26, 28 public prosecutor 15, 75, 140, 146–7, 152, 155, 177, 180–1, 212, 296 punishment 6, 33, 48, 63, 73, 144, 149, 262, 264 qadi 5, 18, 30, 41, 50, 51, 277, 280, 281 qanun al jinayat wa-l-ahkam al-’urfiya 31 Qanun al-Dawla 31 qaraba 82 Qatar 1 Quran 9, 11, 46–7, 51, 59–61, 70, 85, 134, 137, 286 radd 46, 47, 286 Ramadan 211, 277 rape 12, 34, 48–9, 65, 196, 212, 283 Rassemblement Constitutionnel Démocratique 52, 288, 302 rationalization 11, 275 real estate 41, 74, 282, 288 reality 6, 19, 29, 36, 124, 127, 173, 181, 227, 283 rebellion 164, 171, 175

4/7/2014 8:20:12 PM

INDEX recognition 25, 28, 44, 267–8 reform 29, 31–2, 42, 46, 51, 59, 63, 285, 302 remarriage 38, 43–4, 54, 93, 95, 117, 125, 131, 143, 219–20, 253, 256, 264 rent 34, 36, 41, 69, 113–5, 167, 173–4, 178–9, 223–4, 226–8, 263–4 repression 4, 75, 286 repudiation 2, 21, 42–3, 134, 272 résident-général 31 respect 103–4, 134, 137, 151, 159, 173, 254, 293–5, 297–300 responsibility 130, 145, 159, 293 revolution 4, 22, 31, 37, 49, 51, 53, 71, 72, 75–6, 77, 227, 230, 243, 246, 273, 289 (see also uprisings) ring 34, 36 ritual 137, 295 Rosen, Lawrence 18 Ross, Alf 7, 275 routine 91, 233, 235 rural 35, 39, 188 Sadiqi college 60, 284 sakan 113 Salafis 247 Santillana, David 31, 280, 281 Savigny, Friedrich Karl von 9 school 36, 47, 60, 61, 69, 71, 72, 76, 89, 168, 205, 225–6, 232, 238–9, 286 schools of law 30, sdaq 33–4, 35, 99, 102, 111, 129–30, 201 (see also contract) Security Court 74 sex 12–3, 34, 36, 40, 47–9, 66–7, 74, 85, 136, 179, 180, 181, 183, 186, 190, 194–6, 198, 200, 212–3, 219, 231–2, 234–5, 242, 250–1, 267, 283, 288 sexual abuse 194–5, 221 sexual assault 12 sexual harassment 49, 63, 242

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337

Sfax 46, 66, 81, 148, 186, 188, 199, 294 shahada 25, 94, 154, 202, 280 shame 172, 198 sharia 1, 2, 5, 6, 9–11, 18, 20–2, 24–5, 28–32, 50–3, 57–62, 82, 115–6, 122, 144, 230, 233–7, 244–6, 250, 274–5, 281 shaykh 51, 281 sleeping embryo 45 social social class 67, 69, 117, 126, 137, 174, 227 social norms 9, 18, 83, 243, 274–5 social status 113–4, 117, 121, 145, 168, 240 society 4, 7, 9, 11, 14, 18, 42, 51, 63, 68, 72, 88, 116, 123–4, 129, 134, 183, 198, 204, 233, 235, 240, 243, 245–7, 276 sociology 8 sodomy 48–9, 85, 190, 198–9, 218 spinster 200 spirit 3, 4, 26, 29, 157, 279 state-centred law 9 state feminism 4, 52, 62–3, 65, 77, 288 (see also féminisme d’état) State Mufti 7, 25, 61, 116, 274 strategies 18, 26, 85, 100, 161, 175 structure 10, 18–9, 21, 63, 76 strategies 25, 27–8, 269, 273 suckling 37 suicide 220 Sultan 31 summons 79–82, 86, 93–4, 98, 102, 112, 120, 128–9, 142, 153, 155, 162–3, 165, 177, 199, 207, 212, 222, 257–8, 290, 292 Swiss Civil Code 51, 272 Syria 72, 109, 173, 273, 294 ta’wid 43 ta’zir 31 taboo 64

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AND

DIVORCE L AW

tafsih 137 tafsir 59 talaq 41, 112, 115, 116, 123–4, 234, 292 talaq insha’ 92, 113, 124 Tanzimat 31 Taoufik Ben Brik 76 tatliq 42 television 59, 61, 64, 247 terrorism 60 torture 53, 206, 274 tradition 3, 26, 28, 35, 50, 116, 188, 238, 275 travel 40, 44, 206, 210–1, 254, 267 triple divorce 38 trousseau 34, 36, 231 Turkey 51, 272, 274, 277, 283, 284 ‘udul 33, 42 UGTT 63 ujrat al-hadana 226 ‘ulama 59–60, 281 unemployment 37, 132, 157–60, 232, 235–6, 243 UNFT 64 universal 29 Universal Declaration of Human Rights 28 Université de Tunis-al-Manar 96 unmarried cohabitation 33, 74, 149 uprisings 227, 247 (see also revolution) ‘urf 31, 33

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IN

NORTH A FRICA

al-’urf w-al-’ada 57, 163 ‘urs 33–6, 99, 111, 129, 196 virgin 32, 35, 40, 47, 85, 130, 137, 140, 196–8, 200–1, 213, 231 visa 173, 238 Volksgeist 9 waiting period 38, 40, 43, 94, 101, 105, 109, 114, 122, 124, 126, 133, 145, 155–6, 159, 182, 232, 252–4, 256, 258–9, 282 waqf 60, 286 Weber, Max 17–8, 21 wedding night 40, 85, 137–8, 140, 196, 198, 201, 231 West Bank 18 widow 83, 286 women’s rights 4, 5, 23, 29, 51–2, 58, 62–4, 66, 140, 144, 220, 240, 243–6, 287, 288 work 12, 26, 62, 66, 71, 82, 118, 132, 159, 164, 175–6, 218, 224, 242–4 workload 16, 108–9, 238 World Bank 159, 225 Yemen 1 Zaituna mosque 51, 60, 281, 284, 286 zawiya 34 zina 179, 184, 186, 234 Zirides 30, 280

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