Temporary Alimony in Islamic Law: Contributing to the Dialogue on Reforming Poverty (Permanent) Alimony in the Turkish Legal System (original) (raw)
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The study of Financial Effects of Divorce in Iranian and Turkish Lawunder Comparative Approach
2016
Peer review under responsibility of Iranian Journal of Social Sciences and Humanities Research ABSTRACT One of the most important discussions of divorce is the effects of divorce. Based on this, the present research was conducted in a library method aiming at studying the effects of divorce comparatively in Iranian and Turkish law. The effects of divorce stem from two approaches in legal system of both Iran and Turkey. Divorce nature is affected by legislatures' viewpoint of both countries following sovereignty approaches. Iranian legal system has been driven by Islamic law and the subject where Islamic religion is stronger. However, in Turkey, the secular approach changes this attitude and has adopted the effects of divorce more from the roots of Roman, German and Swiss legal systems. As the results of the present article show the financial effects in Iranian law are monthly pension, condition during the property-halving contract, quantum merit of household chores of wife during matrimony and financial matters of children,…but the effects of divorce in Turkish law are personal effects of divorce in Turkish law: marriage contract and loss of possessions subject to death, liquidation of properties and non-personal effects of divorce in Turkish law: children guarding, individual relationships with children and the financial situation of children. It seems that Islamic rules and consequently Iranian legal system are more expressive and more inclined to protect women's rights.
Bustan: Middle East book review, 2013
Maaike Voorhoeve has collected a set of essays whose authors write from the perspective of the anthropology and sociology of law. As social scientists, they are not concerned with the normative features of law, but only with how it operates in practice in specific contexts. Throughout this valuable volume, this descriptive position raises interesting questions about Islam and the Shari'a. In Muslim societies, their foundational constitutions often assign a privileged position to the framework provided by the Qur'an, the hadith and the Shari'a. In Iran Ruhollah Khomeini, claiming there was no need for 'man-made laws', proposed that the Qur'an and the Sunna contain all the laws necessary for human happiness. In the Egyptian Constitution (Article 2), the Shari'a is recognized as the source of law and in Tunisia Article 1 provides that Islam is the state religion and the President must be a Muslim. Yet in these societies, the legal field is an unstable contest between religious and secular courts. Contemporary Muslim societies are characterized by legal pluralism in which there are diverse legal sources-secular law, the Shari'a, 'custom and habit', legal precedent, constitutions, international law, and human rights conventions. Consequently laws governing the everyday lives of Muslims are manifold, resulting legal decisions are often unreliable and inconsistent. Legal pluralism is associated with globalization. However many Middle Eastern societies have historically functioned with different legal traditions and institutions. In Syria, Esther van Eijk shows how the Law of Personal Status is based on Islamic sources, but Druze, Jews and Christians have limited legislative autonomy and access to their own personal status courts. Lebanon is a parliamentary republic with nineteen religious communities, each of which has its own legal codes and religious courts. Within these competing legal traditions, judges have considerable scope for 'discretion'. Because a general law can never cover all particular cases, there is a wide area in which authorities have discretionary powers. Leal discretion expands as judges are confronted by social change producing more complex cases such as inter-faith marriage, the care of illegitimate children, inheritance by non-Muslims, and families in which the income of an employed wife undermines traditional marital arrangements based on maintenance and obedience. The idea of 'judicial discretion' is brilliantly analyzed by Voorhoeve on Tunisian personal status law. It is widely acknowledged that Tunisian law is progressive. It is said to have successfully adapted Islamic law to the empirical complexities of a modern state. However, there are many gaps in the Tunisian system where judges have to exercise discretion for example over establishing 'harm' (darar) as grounds for divorce. Various legal sources can limit judicial discretion including the Shari'a, legal precedent, academic journals, the Constitution and international convention. Despite these official sources, judges often make judgements that clearly contradict the legal code. For example the law does not explicitly prescribe that a woman should cohabit with her husband. However judges will often refer to the reciprocal rights and duties within marriage (Article 23 PSC) under the idea of 'custom and habit'. This umbrella notion offers wide discretion for a judge to regard the absence of regular cohabitation as 'harmful'. Similarly there is a gap between judicial
Between State Law and Religious Law: Islamic Family Law in Turkey
2020
This paper presents the results of a pilot survey that was anonymous and quantitative in nature on how a group of Muslim citizens in Germany understands and applies the classical Islamic family law. This small survey was conducted 2018 in different places throughout Germany, mainly among young educated Muslims. The main questions addressed were related to identifying the role of a European context and its impact on German Muslims' understanding of marriage and divorce, gender roles, as well as matters pertaining to interfaith marriage, mediation, and the role of the secular law. The survey consists of 20 questions divided into three main thematic constellations: a) Marriage, b) family life, and c) divorce. The employed framework corresponds to a shift in research paradigms in modern Islamic theological studies: Rather than emphasising classical Islamic conceptions of family law as laid out in classical sources and regarding these as the exclusive representative argument of a so-called Muslim point of view, the current focus is rather on how Muslims actively comprehend these conceptions and see their role in their respective lived contexts. The survey under consideration took as its starting point classical pre-modern Islamic concepts as they figure in classical Islamic literature 1 as well as modern Western secular conceptions of family law. Both conceptions, i. e. the classical Islamic and contemporary conception of Islamic law, serve as two mirrors for understanding the current conception of marriage and divorce among the group of participants. This helps to understand any aspect of change or continuity within this conception. 2
Alimony for muslim Wives in islamic law
The focus of this paper is the reform concerning maintenance. The sharìaa court for appeals in Israel created a substantial reform in sharìaa laws for maintenance. The underline of this reform is increasing the husband's obligation as to his wife. This obligation already exists in classical law and in the Ottoman family law from 1917, but the court emphasized and penetrated it so that the intermingling of Óanafì law, Ottoman family law and the court's ruling only widened the obligation of the husband. Thus, for example, the emphasis is articulated by applying obligation only on the husband, whereas the wife is not urged to go out for work. Moreover, the commitment for maintenance starts the day the contract is signed and not after the common life of the husband and the wife begins; there is no requirement for appointing experts in order to estimate the amount of maintenance; there is a widening of the responsibility for the dwelling; the fortification of the case law for acceptance of a nushùz (disobedience) claim; and control over the amounts decided by the sharìaa courts. In fact, this is a transition from one patriarchal position to another: from a patriarchal position based on a sharp dividing line of gender roles according to which the husband pays and the wife is paid, to another patriarchal position where the husband pays and the wife is paid larger amounts of money. moussa abou-ramadan
Family law in Islam: divorce, marriage and women in the Muslim world
2012
Introduction by Baudouin Dupret Chapter 1: Family Affairs in Muslim and Christian Courts in Syria Chapter 2: Divorce on the Initiative of the Wife (khul') in Islam Chapter 3: Proof and Prejudice: The Role of Evidence in a Tunisian Divorce Court Chapter 4: What a Focus on 'Family' means in the Islamic Republic of Iran Chapter 5: Reclaiming Changes within the Community Public Sphere: Druze Women Activism, Personal Status Law and the Quest for an Extended Citizenship Chapter 6: Informal 'Urfi Marriages in Egypt Chapter 7: Open Norms in the Tunisian Personal Status Code and their Interpretation by Judges Conclusion
The Rights and Obligations of Spouses in Islamic Classic Law
ILIRIA International Review
Islamic Law, the third largest global legal system, next to Civil Law and Common Law, has been far -back subject of an increased interest to the academics. Its main peculiarity is the absorption of theology in the law. There is no clear borderline between juridical and religious regulation. For this reason it is important to understand how certain legal institutes where regulated in the past. In fact, Islamic classic law despite its later evolution is considered the most authoritative legal source, because closest to the Divine Revelation.With regard to the rights and obligations of spouses, they’re conceived in terms of complementary, while their equality is interpreted in terms of moral and spiritual rights and obligations. In order to better comprehend their rights and obligations, it is necessary to analyze the different roles of gender inside the Islamic family.Given the premises, this paper will focus on specific rights and obligations between spouses and with regard to the c...
No Fear of Ṭalāq: A Reconsideration of Muslim Divorce Laws in Light of the Rome III Regulation
Journal of Private International Law, 2014
This article reconsiders divorce laws in contemporary Muslim jurisdictions in light of the latest developments in European Union private international law on matters of personal status. In particular, it questions the alleged incompatibility of current Muslim divorce laws and the public policy clause of Article 10 Rome III Regulation which demands the application of the law of the forum whenever the designated law does not grant one of the spouses equal access to divorce on grounds of their sex. The article analyses how recent reforms of Muslim divorce laws have to be understood with a view to equality between the spouses and suggests modes to accommodate these recent divorce law reforms into European jurisdictions. It is argued that in order to allow for a culturally sensitive application of European Union private international law, it is crucial to distinguish, first, between the statutory provisions of different Muslim countries and, second, between the different divorce procedures existing in each individual jurisdiction.
Al Hurriyah: Jurnal Hukum Islam, 2022
This research discusses the renewal of family law which regulates marriage, child-rearing, inheritance, and so on in several Muslim countries. In line with the times, countries, where the majority of the population is Muslim, have begun to reform their respective country's legal systems, both criminal law, and civil law. The research in this article aims to determine the comparison of one country to another according to the level of secular, liberal, or viewed from another side in efforts to reform family law. The research in this article is qualitative research using the literature study method. The research in this article uses a comparative and historical approach. Sources of data in this study are legal products of Islamic countries, scientific journals, and other supporting documents. The research in this article finds that Syria and Sudan are examples of Islamic countries that still maintain Islamic law and its values in their laws and regulations. Meanwhile, Turkey has gone far beyond Islamic law and adopted Western legal standards. Indonesia did not adopt Islamic law as a whole and also did not adopt Western law as a whole.