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Max Planck Institute for Comparative and International Private Law

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The Gulf States: Towards a Modern Law for the Family? The Codification of Personal Status Law in Bahrain, Qatar and the United Arab Emirates

Following the earlier lead of Kuwait and Oman, in the 2000s the three smallest monarchies in the Arab Gulf enacted family law codes for the first time (the United Arab Emirates in 2005, Qatar in 2006 and most recently Bahrain in 2009 for its Sunni population). This leaves Saudi Arabia as the only Muslim state without a codified law of personal status. In her dissertation,Lena-Maria Möller examined the newly codified rules governing marriage, divorce and custody in Bahrain, Qatar and the United Arab Emirates.

The dissertation first studies the evolution of European notions of codification as well as its influence on Islamic law. Family law, in particular, has a rather brief history of codification in the Muslim world. As opposed to civil, criminal, and administrative law, in the area of personal status, Muslim countries were somewhat hesitant to adopt European-based statutory laws in order to reform traditional religious law. It was not until the mid-20th century that most Muslim countries of the Middle East and North Africa enacted statutory family codes upon their gaining independence. The Arab Gulf States, however, did not follow suit. To understand the reasons for the Arab Gulf States’ cautious stance toward family law codification, the dissertation further considers the political and legal background against which the new family codes must be understood. Three similarities of the Arab Gulf States are of particular interest: first, the continuing existence of an authoritarian governmental structure, second, the relatively young legal system and third, the influence of Egyptian law – the birthplace of the majority of jurists active in the region – on the development of the legal regimes in the three Gulf States following independence in 1971. One reason for the apparent neglect of family law reform in the Arab Gulf monarchies has been the distinctive economic status of all three states: Qatar, the United Arab Emirates, and (to a lesser extent) Bahrain are rentier states. Their oil and gas revenues allowed them to ‘cushion’ some of the negative social and economic side effects of traditional Islamic law through the distribution of generous governmental benefits. In addition, legislative activities in the area of family law prior to enactment of comprehensive codes can be characterized as fragmentary. A broader vision of family law was clearly missing in all three Arab Gulf States and gave rise for demands for reform. Against the background of the codification process, the dissertation then explores the actual outcome of the codification process, i.e. the new legal rules on marriage, divorce and custody as well as their judicial application. Among other aspects, inquiry is made as to the extent to which the three legislative bodies adopted a comparative law approach and followed the model of other Arab states and their methods for reforming family law. The study demonstrates that in the area of divorce law and custody, all three legislatures have shown considerable flexibility. The codes have introduced reforms that can be attributed to intra-Arab comparative research. They also reflect very recent trends and dynamics of legal development in Islamic family law. Common to the three new family codes of the Arab Gulf States is that they do not comprehensively regulate the area of personal status. Rather, they all present gaps that must be resolved by courts with reference to the provisions of traditional Islamic law. The dissertation therefore considers the margin of appreciation which is afforded the courts in family law disputes and analyzes the application of the newly codified statutory law in the Arab Gulf States.

In February and March 2012, Lena-Maria Möller conducted two months of field research in the United Arab Emirates and Qatar. The primary aims of the visit were to assess the codification process more precisely and to procure materials relating to the implementation of the new family codes by the courts. A trip to Bahrain was not possible at that time due to the unstable situation resulting from on-going demonstrations and was undertaken instead in January 2013. The dissertation was completed in 2014 and was published in German by Mohr Siebeck in January 2015.
 

Lena-Maria Möller, Die Golfstaaten auf dem Weg zu einem modernen Recht für die Familie? Zur Kodifikation des Personalstatuts in Bahrain, Katar und den Vereinigten Arabischen Emiraten (Studien zum ausländischen und internationalen Privatrecht, 325), Mohr Siebeck, Tübingen 2015, XXII + 259 pp.

– reviewed by: Schneider Kayasseh, EJIMEL 3 (2015), 111-115.
– reviewed by: Krüger, RabelsZ 79 (2015), 899-900.