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Best Practices on Muslim Family Law Issues
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Family Law IssueCurrent Practice in MalaysiaBest Practices in the Muslim World
Age of marriageThe minimum age of marriage is 16 for females and 18 for males. The Shariah court judge can use discretion to give written permission for the marriage of minors.Morocco: Under the Personal Status Code (2004 revision), the legal age of marriage is 18 for boys and girls. The judge may reduce this age only in justified cases.
Consent for marriageConsent of both parties is mandatory except in the states of Kelantan and Kedah, where if the woman is an unmarried virgin, her wali mujbir (father or paternal grandfather) can marry her to a man of equal status as she is, without her consent.Morocco: No marriage shall be contracted without the mutual consent of the spouses. The offer and acceptance must be expressed in either written form or any clear sign mutually understood by the parties and witnesses. Tanzania: No marriage shall be contracted except with the consent, freely and voluntarily given, by each party. Tunisia: There is no marriage without the consent of the spouses. Consent should be manifested in an indisputable manner by saying "yes" before the officiating officer.
Wali for marriageConsent of wali is necessary for the bride although she may apply for a judge to consent as wali hakim if her wali nasab (father or male relative) unreasonably refuses consent.Morocco: Both husband and wife have the right to contract marriage themselves. Consent of wali is only needed for minors. If the wali disagrees, the Family Affairs Judge rules on the matter. Tunisia: Both husband and wife have the right to contract their marriage themselves or appoint proxies. Sri Lanka, Bangladesh and Pakistan (under Hanafi jurisprudence): A wali is not required for Hanafi women who have attained puberty. Cameroon, Fiji, Gambia, Turkey, Uzbekistan and Kyrgyz Republic: No wali is required.
Witnesses for marriageThe Kelantan Enactment requires male witnesses. The practice in other states also calls for male witnesses, even though it is not explicit in the law.Morocco: Two adult witnesses (public notaries, or adouls) required. The sex of witnesses is not specified. Senegal: Two adult witnesses required, one for each spouse. The sex of witnesses is not specified.
PolygamyContracting polygamous marriages requires permission from the Shariah Court. Conditions vary slightly among the 13 states. Penalties exist for failure to follow procedures. Perak  does not explicitly stipulate conditions for polygamy in its Act. In Perlis, a directive from the Chief Minister’s waives the conditions for polygamy.Morocco: Polygamy is forbidden when there is the risk of inequity between the wives. Polygamy is allowed only under compelling circumstances and stringent restrictions, with the judge’s authorization if he has verified the husband’s ability and exceptional motive. The woman has the right to stipulate in her marriage contract that her husband will refrain from taking another wife. Tunisia: Any man who contracts a polygamous marriage can be jailed for a year or fined 240,000 Tunisian francs, or both. A wife who knowingly enters a polygamous marriage is also liable to the same punishments. The marriage can be nullified by either spouse, guardians, mothers, or the legal department.
NusyuzNusyuz is defined as disobedience of wife. Any woman who wilfully disobeys any order from her husband that is lawful under hukum syara' commits an offence and shall be punished with a fine. Wife is not entitled to maintenance if she is disobedient.Morocco: Husband and wife have joint and equal responsibilities for the household and family; the wife is no longer legally obliged to ‘obey’ the husband. Turkey: The family is based on equality between spouses and both have joint decision-making powers regarding the family. Indonesia: The rights and responsibilities of the wife are equivalent to the husband's in the life of the household and in social intercourse in society. Tunisia: The spouses are to treat each other with kindness, make their conjugal life pleasant, and refrain from causing each other harm.
Divorce Husbands' pronouncement of divorce outside court – even through SMS – is recognized, subject to his paying a fine. A wife who initiates divorce often faces numerous delays and will be ordered to undergo reconciliation and mediation proceedings with no time limit imposed.Morocco: Divorce can be exercised by both the husband and the wife in accordance with legal conditions and under judicial supervision.. If the husband has the right of repudiation, the wife may also avail herself of this right through tamleek (assignation). In all cases of repudiation, it must be ascertained whether the woman has received all her vested rights before the repudiation is authorised. Also, the wife has a right to file for divorce when the husband does not fulfill any single condition stipulated in the marriage contract or for causing harm. Divorce by mutual consent is allowed. Indonesia: A husband married under Muslim law must provide the religious court with a written notification of his intention to divorce. The six grounds for divorce are available to both husbands and wives, before reconciliation meetings are called separately, failing which the court calls the parties to witness the divorce. Revocable divorce is not recognized. Tunisia: Divorce shall only take place in court. There are equal grounds for divorce for husband and wife, including "at the will of the husband or at the request of the wife".
Joint matrimonial propertyHarta sepencarian is claimable by both parties, but in practice claims by wives take considerably longer time. Non-working wives can claim up to one third of harta sepencarian, working wives up to half. Morocco: Allows the couple to agree on a framework for managing assets acquired during marriage, and allows the judge to assess each spouse’s contribution to the development of the family capital.
Mut'ah (compensatory payment by the husband to the wife, paid on divorce through talaq or where the 'fault' lies with the husband)A woman divorced without just cause may apply mut'ah but the amount of muta'ah is left to the discretion of individual courts. Morocco: The court can fix a sum of money, the ‘consolation gift’, that the husband must pay within 30 days to compensate the divorced wife and which is assessed based on the length of the marriage. Apart from this, the amount due to the wife also includes the delayed dowry (if appropriate) and maintenance for the iddat. Tunisia: If a woman is 'wrongfully' divorced, she may be awarded the mut'ah in the form of a lump sum, a property transfer or monthly installments. The amount paid to a woman may be determined by the standard of living the wife was accustomed to. Turkey: The party least at fault and who has suffered injury to their actual or potential interests due to the divorce can claim reasonable compensation, paid monthly or in lump sum.
Custody and GuardianshipThe best interest of the child is the paramount consideration but for young children, it is presumed that their best interest will be served by being in the custody of the mother, if she had not remarried. Guardianship is always vested in the father.Morocco: Custody to be awarded to the mother, the father, the maternal grandmother or the most qualified relative. A child under custody is to be guaranteed suitable accommodation separately from maintenance. Cases concerning maintenance are to be settled within one month. Cameroon & Central Asia Republics: Custody and guardianship can be given to either parent, with the best interest of the child as the paramount consideration. Tunisia: Both parents have equal rights in custody and guardianship during marriage and the court decides custody in the best interest of the child in the event of divorce. If custody goes to the mother, she exercises the authority of guardianship in relation to the child's travel, education and financial affairs.

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