Max Planck Society

Max Planck Institute for Comparative and International Private Law

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Online version Handwörterbuch des Europäischen Privatrechts
Egypt’s Marriage Laws – A Matter of Flexibility or Confusion?

Having reference to the examples of religious marriages in Egypt, Jordan and Tunisia, Nora Alim examined the question of how state law is to respond when individuals decide to establish family law relationships outside the formal state framework. Does an individual’s freedom of self-definition include the decision to act outside of a given regulatory system in a manner allowed religiously but not contemplated by state law? In all three countries, matters of personal status touch upon the fundaments of Islamic law, taking priority over the otherwise applicable French-influenced law. The development of modern nation-states in the Arab world is, however, connected with the need for greater legal certainty in matters of personal status. This need is reflected in the law requiring the registration of marriage, a rule imposed by all of these nations, but one which is unknown to Islamic law and thus quite illustrative of the discrepancy between Islamic and state law. To what degree can a state regulatory scheme assert a binding effect in a legal arena dominated by Islamic law? How are such rules to be implemented and what legal consequences should attach to their non-adherence? The selected countries have chosen different paths in order to implement a regime of registered marriage. In Jordan, registration is prescribed by law, but whereas non-observance of this requirement may carry criminal law consequences, an unofficial marriage is effective under civil law. Similarly, in Tunisia unofficial marriages are subject to criminal law sanction. Yet unlike Jordan, an unregistered marriage is expressly void: the marriage cannot be the basis of any legal claims despite remaining capable of projecting certain effects such as being an impediment to subsequent marriage. In Egypt, finally, the legal nature of unofficial marriages is not explicitly regulated: nonetheless, considerable limitations are in place in respect of the viability of legal claims arising from an unofficial marriage. It is against this background that the inquiry asks what significance Islamic law holds in the individual countries. The legal status of an unofficial marriage is expressly regulated in Tunisia and a strong orientation on the model of French law can be recognised. In Jordan, however, the effectiveness of a marriage does not depend on its registration; rather, it is exclusively the principles of Islamic law which determine whether or not a marriage is of effect. Accordingly, Jordanian law adopts the principles of Islamic law as the baseline of interpretation. Egypt, by contrast, tries to find a middle way. Whereas the Egyptian legislator has since the onset of the 20th century attempted to modernize its family law system, it has at the same time been unable to fully free itself from the influence of religious and traditional interest groups. Consequently, Egypt strives to follow a path capable of unifying these two positions. This attempt at compromise has led to the result that while an unofficial marriage is principally effective in Egypt, it cannot be the basis for legal claims. Simultaneously, however, divorce claims are allowed in connection with an unofficial marriage so as to prevent the wives of unregistered marriages from being hobbled by a “limping legal status”. The tension between state and religious law has since 2011 been further exacerbated by the “Arabellions”. All Islamic countries, particularly Egypt and Tunisia, face new challenges, and these recent developments are reflected upon in Nora Alim’s analysis of the significance of Islamic law in personal status matters. Furthermore, the work incorporates the findings of multiple field research trips conducted in Egypt in 2011 and 2012. The dissertation was completed in 2013.