Tunisia, Republic of   DRAFT: UNDER REVIEW

 

Legal Table

Legal Text

 

 

 

Legal System/History

 

Legal system based on French civil law system and Islamic law.

As an autonomous province of Ottoman Empire from 1574, Hanafi fiqh was influential, but never displaced position of Maliki school.  Became French Protectorate in 1881.  Full independence in March 1956.  Law of Personal Status inspired by unofficial draft codes of Maliki and Hanafi family law passed soon after independence.  Applicable to all Tunisians regardless of religion.  Among provisions of TLPS unprecedented at the time were those banning polygamy and extra-judicial divorce.

School(s) of Fiqh

Maliki majority;  also Christian and Jewish minorities

Constitutional Status of Islam(ic Law)

Constitution adopted 1st June 1959.  Article 1  declares Islam state religion, and Article 38 that religion of President must be Islam.

 

Court System

Shari’a courts abolished 1956.  Four levels of courts in judiciary.  Cantonal courts with limited criminal jurisdiction.  Courts of first instance have civil, commercial, correctional, social and personal status chambers.  Three regional courts of appeal and Court of Cassation in Tunis as highest court of appeal.

Relevant Legislation

Code of Personal Status 1956, significantly amended inter alia  by Laws no. 77/1959, no. 1/1964,  no.7/1981, no. 74/1993

 

Notable Features

 

Marriage Age: minimum marriage age is 20 for males and 17 for females; marriage below these ages require special permission from the court, which may be given only for pressing reasons and on the basis of a clear interest for both spouses. Marriage below the age of legal majority requires the consent of the guardian and (since 1993) of the mother; recourse may be had to the judge in the event of their refusal. The age of legal majority is 20 for males and females, but marriage also gives rise to legal majority in personal status affairs and civil and commercial transactions,  provided the party is over the age of 17.

Marriage Registration: marriage can be proved only by official document as prescribed by law.

 

Polygyny: prohibited: offenders liable for a prison sentence of one year and/or a fine.

 

Obedience/Maintenance: spouses are to treat each other well, to fulfil their marital duties ‘as required by custom and usage’, and to cooperate in family affairs including bringing up any children from the marriage; the husband ‘ as head of the family’ is responsible for maintenance of wife and children, while the wife is to share in maintaining the family if she has means.

 

Divorce:  extra-judicial talaq has no effect;  three divorces between a couple creates a permanent prohibition on their remarriage. Court may grant divorce based on agreement of both spouses; a petition from one spouse by reason of injury from the other; or the will of the husband or the petition of the wife. Mandatory reconciliation efforts by family judge to precede any award of divorce.

 

Post-divorce maintenance/financial arrangements: where divorce is not by mutual agreement, the spouse who is injured by the divorce is entitled to compensation; in the case of the wife being the injured party, this may take the form of a lump sum, or of alimony payments until  such time as her circumstances mean she no longer needs it.

 

Child custody and guardianship: on the death of one spouse, custody of children goes to the surviving spouse; in the case of divorce, the judge shall award custody in light of the best interest of the ward. If the mother is awarded custody she exercises the authorities of guardianship in relation to the ward’s travel, education, and financial affairs; she may be granted full powers of guardianship if the guardian is unable or unfit to exercise them.

 

Succession: Obligatory bequest for orphaned grandchildren through pre-deceased parent (father or mother) entitling them to proportion of parent’s share not to exceed one third of the estate, with certain conditions.  Spouse relict shares in radd of estate; daughters as well as brothers may exclude collaterals and other more remote male relatives of deceased from inheritance.

 

Notable Cases

 

Law/Case Reporting System

Law reporting through Journal Officiel.

 

International Conventions (with Relevant Reservations)

ICCPR & ICESCR – signature 1968, ratification 1969 without reservations

 

CEDAW – signature 1980, ratification 1985 with declaration regarding adherence to the convention being subject to there being no conflict between it and Chapter 1 of Tunisian Constitution and reservations to Arts. 9(2), 16(c), (d), (f), (g) & (h), 29(1) and further declaration to Art. 15(4) particularly that part relating to choice of residence and domicile must be interpreted in light of provisions of Tunisian Law of Personal Status on that subject as set forth in Chapters 23 & 61

 

CRC – signature 1990, ratification 1992 with declarations re:  any provisions contrary to statutes, legislation or the Constitution,  re:  implementation of the Convention being limited by means, and re:  Art. 6 not being interpreted as an impediment to Tunisian legislation on the voluntary interruption of pregnancy;  and reservations to Art. 2 not being interpreted as an impediment to the application of Tunisian personal status legislation, esp. as related to marriage and inheritance, Art. 40(2)(b)(v) being a general principle to which exceptions may be made under national legislation, and to Art. 7 not being interpreted as prohibiting implementation of national legislation on nationality esp. to cases where nationality is forfeited

 

 

Legal History:  The Legal system is based on the French civil law system and Islamic law.

As an autonomous province of the Ottoman Empire from 1574, Hanafi fiqh was influential, but never displaced the position of the Maliki school.  Tunisia became a French Protectorate in 1881 and attained full independence in March 1956.  The Law of Personal Status, inspired by unofficial draft codes of Maliki and Hanafi family law, was passed soon after independence.  The TLPS was extended to apply to all Tunisian citizens in 1957, thus ending the application of rabbinical law to Jewish personal status matters and the French Civil Code to personal status cases relating to non-Muslim Tunisians.  Among the most controversial provisions of the TLPS were those banning polygamy and extra-judicial divorce.

 

Schools of Fiqh:  The Maliki school is the predominant madhhab in Tunisia. 

Constitutional Status of Islam(ic Law):  The Constitution was adopted 1st June 1959.  Article 1 declares Islam the state religion, and Article 38 provides that the President of the Republic must be a Muslim.

 

Court System:  Shari’a courts were abolished in 1956.  There are four levels of courts in the judiciary.  Cantonal courts have limited criminal jurisdiction.  Courts of first instance have civil, commercial, correctional, social and personal status chambers.  Three courts of appeal (in Tunis, Sousse and Sfax) have civil, correctional, criminal and accusation chambers (the final one being similar to a grand jury).  The Court of Cassation in Tunis is the highest court of appeal, with three civil and commercial chambers and a criminal chamber.

 

Notable Features: 

The minimum age of marriage is 20 for males and 17 for females. Marriage below these ages requires  special permission from the courts, which may be given only for ‘pressing reasons’ and on the basis of a ‘clear interest’ or benefit to be realised by both spouses by the marriage. Marriage below the age of legal majority requires the consent of the guardian and (since 1993) of the mother; recourse may be had to the judge in the event of their refusal. The age of legal majority is 20 for both males and females, but marriage gives rise to legal majority for matters of personal status, civil and commercial transactions provided the party concerned is over the age of 17 (see Article 153).  Marriage can proven only by official document as prescribed by law. Polygyny is prohibited, and offenders are liable to a prison sentence of one year and/or a fine.

 

During marriage, spouses are to treat each other well, to fulfil their marital duties ‘as required by custom and usage’ and to cooperate in running family affairs, including the upbringing of children.  As ‘head of the family’ the husband is responsible for the maintenance of his wife and children, while the wife is to contribute to family maintenance if she has the means to do so.

 

Divorce is a strictly judicial matter; extra-judicial talaq has no validity.  The occurrence of three divorces between a couple creates a permanent prohibition on their future remarriage. The court may grant divorce based on 1) agreement of the spouses 2) a petition from one spouse by reason of injury caused by the other; or 3) the will of the husband or the petition of the wife. No divorce may be decreed until after the family judge appointed by the court has tried and failed to reconcile the couple.  Where divorce is not by mutual agreement (ie in either of the last two cases) the court may award compensation for that injury. If the injured spouse is the wife, this may take the form of a lump sum or of regular alimony payments until she no longer has need of them – that is, she dies or remarries or otherwise her social circumstances change.

 

If the marriage ends by death of one of the spouses, custody goes to the surviving spouse; if it ends by divorce, the judge is required to take the best interest of the ward into account in assigning custody either to one of the parents or to a third party. If the mother is awarded custody, she is authorised to exercise the prerogatives of the guardian in matters related to the ward’s travel, education, and financial affairs; she may be granted full powers of guardianship if the guardian is unable or unfit to exercise them.

 

In succession, the obligatory bequest has been legislated for orphaned grandchildren through a pre-deceased father or mother, entitling them to the proportion of the dead parent’s share to a maximum of one third of the estate. The spouse relict share in the radd of the estate; daughters as well as brothers may exclude collaterals and other more remote male relatives of the deceased from inheritance.

Law/Case Reporting System:  Law reporting is through the Journal Officiel.

International Conventions (with Relevant Reservations):  Tunisia signed the ICCPR and ICESCR in 1968 and ratified them No divorce may be decreed until after family judge has tried and failed in 1969 without reservations.

Tunisia signed the CEDAW in 1980 and ratified it in 1985 with a number of declarations and reservations.  The general declaration states that Tunisia “declares that it shall not take any organisational or legislative decision in conformity with the requirements of this Convention where such a decision would conflict with the provisions of chapter I of the Tunisian Constitution” relating to general provisions as well as to fundamental rights and duties.  Tunisia submitted the following reservations:  the reservation to Article 9(2) states that the provision must not conflict with the provisions of chapter VI of the Tunisian Nationality Code;  Tunisia also does not consider itself bound by Article 16(c), (d), (f), (g) and (h) and that paragraphs (g) and (h) of that Article “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”.  Tunisia also submitted a declaration concerning Article 15(4), stating that requirements relating to women’s right to choice of residence and domicile “must not be interpreted in a manner which conflicts with the (relevant) provisions of the Personal Status Code… as set forth in chapters 23 and 61 of the Code”.

Tunisia signed the CRC in 1990 and ratified it in 1992 with a number of declarations and reservations.  The first general declaration submitted by Tunisia states that it shall not adopt any legislation in conflict with the Tunisian Constitution in the implementation of the Convention.  A further declaration states that implementation of the provisions of the CRC shall be limited by the means at Tunisia’s disposal.  The final declaration states that the Preamble to and provisions of the Convention (particularly Article 6) “shall not be interpreted in such a way as to impede the application of Tunisian legislation concerning voluntary termination of pregnancy”.  Tunisia also submitted the following reservations:  Article 2 of the CRC “may not impede the implementation of the provisions of its national legislation concerning personal status, particularly in relation to marriage and inheritance rights”;  Article 40(2)(b)(v) on the review of judgements applying penal sanctions to minors is to be regarded as a general principle to which exceptions may be made by national legislation;  and Article 7 of the CRC “cannot be interpreted as prohibiting the implementation of the provisions of national legislation relating to nationality and, in particular, to cases in which it is forfeited”.     

Background and Sources:    

El Alami & Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World, London, 1996;  Brand, Women, the State, and Political Liberalization:  Middle Eastern and North African Experiences, New York, 1998;  Mahmood, ‘Tunisia’ in Family Law Reform in the Muslim World, Bombay, 1972;  A.E.Mayer, ‘Reform of Personal Status Laws in North Africa,’ 49:3 Middle East Journal 1995; Nasir, The Islamic Law of Personal Status, 2nd ed., London, 1990;  Nelson, ed., Tunisia:  A Country Study, 3rd ed., Washington, D.C., 1988;  Pearl, A Textbook on Muslim Law, 2nd ed., London, 1987;  Tunisia, Combined Initial and Second Reports to CEDAW, 12 April 1994. See also website: www.jurisitetunisie.com