Kuwait, State of


*Please note this is just a draft and all contents are still under revision.*


 

Legal Table
Legal Text

Legal System/History

 

Ottoman Empire ruled present-day Kuwait as part of Iraqi Basra province from late 17th to late 19th century when Treaty of Protection placed Kuwait under British extra-territorial control. Matters relating to civil and commercial law and procedure codified in 1960s in codes inspired by European models and drafted with input from Egyptian jurist ‘Abd al-Razzaq al-Sanhuri. Civil Code promulgated in 1980 and Kuwaiti Code of Personal Status in 1984.

School(s) of Fiqh

Maliki (following the school of the ruling al-Sabah family); also significant Ja’fari Shi’a population

Constitutional Status of Islam(ic Law)

Constitution adopted 11th November 1962. Article 2 states "[t]he religion of the State is Islam, and the Islamic Shari’a shall be a main source of legislation". Article 1(2) of Civil Code also directs that, in absence of legislative provision, judges are to adjudicate according to custom (‘urf), and in absence of applicable custom, be guided by most appropriate principles of Islamic jurisprudence (fiqh).

Court System

 

Kuwaiti courts competent to hear all disputes concerning personal status, and civil, commercial and criminal matters. Three levels of courts: courts of first instance (several divisions, including personal status); High Court (5 divisions, including personal status); and Supreme Court (2 divisions, High Appeal and Cassation). For purposes of personal status, courts divided into 3 sections, Sunni, Shi’i, and non-Muslim (for laws applicable to religious minorities). 

Relevant Legislation

 

Decree issuing Law Regulating the Judiciary 1959 (no. 19/1959)

Law on Obligatory Bequest 1971 (no. 5/1971)

Code of Personal Status 1984 (no. 51/1984)

also:

Civil Code 1980 (issued by Law no. 67/1980)

Notable Features

Marriage Age: no substantive minimum marriage age identified; capacity to marry requires parties to be of age (puberty) and of sound mind, however, no notarisation or registration of marriage permitted where female has not reached 15 years or male 17 years

Marriage Guardianship: marriage concluded by wali’s offer and groom’s acceptance; woman who has been married previously or has attained 25 years has "freedom of choice" in marriage, however, cannot conclude contract herself (must still be concluded by her wali); invalidity of marriage under coercion or intoxication

Marriage Registration: no notarisation or registration of marriage contract permitted where girl has not reached 15 years or boy 17 at time of registration; no claim arising from marriage to be heard if parties are under-age at time of claim or if claim is not established by official documentation of marriage (except for paternity cases where decree of paternity shall be taken as decree of marriage)

Polygamy: governed by classical law; may be subject to stipulations in marriage contract

Obedience/Maintenance: maintenance considered a debt against the husband from date when he fails to provide maintenance, and maximum of two years’ arrears of maintenance may be claimed for period preceding court claim; judgement for obedience cannot be imposed by force; wife’s working not deemed a violation of her marital obligations if her working is not contrary to family’s interests

Talaq: talaq uttered by man who is insane, feeble, under coercion, intoxicated, mistaken, disoriented, or enraged shall not be effective; statement of talaq must be immediately effective; talaq to which a number is attached effective as single revocable only (except third of three); rules on khul’ include explicit prohibition of coercion in khul’ and invalidate any condition by father stipulating his custody over children from the marriage

Judicial Divorce: woman may seek judicial divorce on following grounds: husband’s non-maintenance; ila’; husband’s absence of one year or more without good reason, giving rise to injury to wife; and husband’s imprisonment for three or more years; either spouse may apply for judicial divorce on grounds of injury/prejudice caused by such word or action as makes continued matrimony impossible, established by testimony of two male or one male and two female witnesses (after reconciliation efforts, with possibility of award of appropriate compensation to aggrieved party); annulment available on following grounds: defect of either spouse such as makes cohabitation harmful or hinders conjugal relations (e.g., disease, impotence); and difference of religion arising after marriage that renders marriage invalid according to rules of shari’a and either party may demand dissolution on grounds of non-compliance with any valid stipulation recorded in marriage contract

Post-Divorce Maintenance/Financial Arrangements: maintenance obligatory during ‘idda for divorce, annulment, irregular contract or invalid marriage; divorcée entitled to compensation equal to not more than one year’s maintenance in addition to maintenance during ‘idda, except for cases of divorce for non-maintenance due to husband’s poverty, divorce for darar caused by wife, divorce by wife’s consent, or annulment at wife’s request

Child Custody and Guardianship: divorced mother’s right to custody ceases at puberty for boys and majority or marriage for girls

Succession: 1971 Law introduced obligatory bequest in favour of orphaned grandchildren by predeceased sons (how low soever) and daughters (first generation only)

Law/Case Reporting System

Laws and summaries of important Court of Cassation decisions published in Kuwaiti Official Gazette.

Al-Kuwait al-Yawm

International Conventions (with Relevant Reservations)

CRC – signature 1990, ratification 1991 with general reservation to all provisions of the Convention "incompatible with the laws of Islamic shari’a and the local statutes in effect"; and declarations to Arts. 7 & 21

CEDAW – accession 1994 with reservations to Arts. 7(a), 9(2), 16(f) & 29(1)

ICCPR & ICESCR – accession 1996 with interpretative declarations to Arts. 2(1) 3 & 23 and reservation to Art. 25(b) of ICCPR and Arts. 2(2), 3, 9 & 8(1)(d) of ICESCR

Legal History:

The Ottoman Empire ruled present-day Kuwait as part of Basra province from the late 17th century, and the Ottoman legal and judicial system functioning in Iraq was applied to Kuwaiti territory. However, the local rulers adhered to the Maliki school. In the late 19th century, a Treaty of Protection placed Kuwait under British extra-territorial control, and Kuwait became an administrative subdivision of ‘British India’. While the British did establish a western-style judicial administration, it only served the non-Arab inhabitants of Kuwait.

The British protectorate in of Kuwait ended in 1961, by which time Shaykh ‘Abdullah al-Salim al-Sabah had begun the process of legal and judicial reform; the process of codification of was initiated by the country’s leaders during the early 1960s. In 1959, Shaykh ‘Abdullah enlisted the services of the renowned Arab jurist ‘Abd al-Razzaq al-Sanhuri, leading to the enactment of a number of codes inspired by Egyptian and French models. While matters relating to civil and commercial law and procedure were codified in the 1960s, it was not until the 1980s that the Civil Code 1980 and the Kuwaiti Code of Personal Status 1984 were enacted.

Schools of Fiqh: The Maliki school is the official madhhab in Kuwait. There is also a significant Ja’fari Shi’a minority.

Constitutional Status of Islam(ic Law): The Constitution was adopted on 11th November 1962. Article 2 states that "[t]he religion of the State is Islam, and the Islamic Shari’a shall be a main source of legislation". Article 1(2) of the Civil Code also directs that, in the absence of a specific legislative provision, judges are to adjudicate according to custom (‘urf), and in the absence of an applicable principle of custom, be guided by the principles of Islamic jurisprudence (fiqh) most appropriate under the general and particular circumstances. Following the Iranian Revolution, Kuwait’s rulers stated that they would begin Islamizing the law and enacting laws which were fully in agreement with the shari’a.

Court System: Under the 1959 Law Regulating the Judiciary, Kuwaiti courts are competent to hear all disputes concerning personal status, and civil, criminal and commercial matters. There are three levels of courts: courts of first instance (having several divisions, including personal status) in every judicial district; High Court (with five divisions, including personal status); and the Supreme Court (divided into the Division of High Appeal and the Cassation Division). For the application of personal status laws, there are three separate sections: Sunni, Shi’i and non-Muslim (for the application of family laws of religious minorities). After judgements by the courts of first instance, appeals lie with the High Court, and then with the Cassation Division of the Supreme Court.

Notable Features: No substantive minimum marriage age is specified, rather, capacity to marry requires a party to have reached puberty and be of sound mind. The contract may not be registered where the female has not reached 15 years or the male 17 years. No claim arising from marriage shall be heard if either party is under-age at the time of the claim or if the claim is not established by official documentation of marriage. A woman who has been married previously or has attained 25 years has "freedom of choice" in marriage, however, she cannot conclude the contract herself and still requires her wali to do so, in accordance with classical Maliki rules. Polygamy is governed by classical law.

Maintenance is considered a debt against the husband from the date he fails to provide maintenance, up to a maximum period of two years’ arrears from the date of the claim. Judgements for obedience cannot be forcibly executed. A wife’s going out to work is not deemed a violation of her marital obligations if her working is not contrary to her family’s interests.

Talaq uttered by a man who is insane, feeble, under coercion, intoxicated, mistaken, disoriented, or enraged is not effective, nor are forms of talaq that are not immediate effective. Talaq to which a number is attached shall be effective as a single revocable talaq, except for the third of three. The wife may obtain a khul’ from her husband in return for appropriate recompense. The rules on khul’ include explicit prohibition of coercion in reaching a khul’ agreement and invalidate any condition of the settlement by the father stipulating his custody over children from the marriage.

The wife may seek a judicial divorce on the following grounds: the husband’s non-maintenance; ila’ , should the wife request a divorce; the husband’s absence of one year or more without proper justification (on the basis of darar/injury); and the husband’s imprisonment for three years or more. Either spouse may apply for a judicial divorce on grounds of darar/injury caused by such word or action as makes continued matrimony impossible or for any breach of a valid stipulation recorded in the marriage contract; darar/injury is established by the testimony of two male or one male and two female witnesses and divorce on such grounds follows reconciliation efforts, with the possibility of an award being made as compensation for the aggrieved party. Annulment is available on following grounds: defect of either spouse such as makes cohabitation harmful or interferes with conjugal relations; and difference of religion arising from conversion or apostasy after marriage. The divorcée is entitled to compensation equal to not more than one year’s maintenance in addition to maintenance during ‘idda, except for cases of divorce for non-maintenance due to the husband’s poverty, divorce for darar/injury caused by the, khul’, or annulment at the wife’s request. The divorced mother’s right to custody ceases at puberty for boys and majority or age of marriage for daughters.

The 1971 Law on Obligatory Bequest introduced obligatory bequests to favour orphaned grandchildren; this applies to descendants through sons how low soever and through daughters, the first generation only.  

Notable Cases:  

Law/Case Reporting System: Laws and summaries of important Court of Cassation decisions are published in the Kuwaiti Official Gazette.

International Conventions (with Relevant Reservations): Kuwait signed the CRC in 1990 and ratified it in 1991 with a general reservation upon signature to all provisions of the Convention "incompatible with the laws of Islamic shari’a and the local statutes in effect"; and declarations upon ratification relating to Article 7 and its relation to Kuwaiti Nationality Law as applicable to orphans born in Kuwait and Article 21 on adoption as a system not recognised by the Islamic shari’a, "the main source of legislation".

Kuwait acceded to the CEDAW in 1994 with reservations to Article 7(a) relating to gender equality in suffrage and eligibility for election ("inasmuch as the provision… conflicts with the Kuwaiti Electoral Act under which the right to vote and run in elections is reserved for men")* ; Article 9(2) on gender equality in nationality rights ("inasmuch as it runs counter to the Kuwaiti Nationality Act, which stipulates that a child’s nationality shall be determined by that of his father"); and Article 16(f) on equal rights of guardianship, wardship, trusteeship and adoption ("inasmuch as it conflicts with the provisions of the Islamic shari’a, Islam being the official religion of the state").

Kuwait acceded to the ICCPR and ICESCR in 1996. Kuwait submitted a number of interpretative declarations relating to the following Articles of the ICCPR: Articles 2(1) and 3, relating to the provisions of the Kuwaiti Constitution (especially Article 20 thereof), and the exercise of rights within the limits set by Kuwaiti law; and Article 23, relating to the supremacy of Kuwaiti national law ("which is based on Islamic law") in areas where there is conflict between national personal status laws and the provisions of the Convention. The reservation to Article 25(b) states that Kuwaiti electoral law restricts the right to stand and vote in elections to males.  Kuwait also submitted two interpretative declarations and a reservation to the ICESCR. The interpretative declaration to Articles 2(2) and 3 is almost the same as Kuwait’s first declaration to the ICCPR.

Background and Sources: Amin, Legal System of Kuwait, Glasgow, 1991; Amin, Middle East Legal Systems, Glasgow, 1985; Ballantyne, Commercial Law in the Arab Middle East: The Gulf States, London, 1986; El Alami & Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World, London, 1996; "Kuwait," Civil Society, vol. 8, issue 90 (June 1999): 10-11; Mahmood, "Kuwait" in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; Nasir, The Islamic Law of Personal Status, 2nd ed., London, 1990; Pearl, A Textbook on Muslim Personal Law, 2nd ed., London, 1987; Redden, ‘Kuwait’ in Modern Legal Systems Cyclopedia, vol. 5, Buffalo, NY, 1990.