Lebanon (Lebanese Republic)


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


 

Legal Table
Legal Text

Legal System/History

Lebanon under Ottoman rule for three centuries from 1516 with relative autonomy. Under French mandate from 1918 to 1943; French civil law greatly influenced development of Lebanese legal system and judiciary, but French authorities did not affect substantive changes to Ottoman Law of Family Rights 1917 or to uncodified aspects of personal law. During 1920s, borders of Lebanon redrawn and Republic established. Has very heterogeneous population, leading to development of a highly complex system of power-sharing for major religious communities. Proportion of Maronite Christians and Sunni and Shi’a Muslims changed significantly over span of half a century, and updating census data still a contentious matter. Large Palestinian refugee population.  During the late 1990s, there was considerable popular pressure for reform of laws regulation women’s rights.

School(s) of Fiqh

Majority of Muslims are Hanafi or Ja’fari; also Druze, Ismai’li and ‘Alawi/Nusayri minorities; also several Christian denominations (including Orthodox and Catholic denominations and one Protestant church) and small Jewish minority

Constitutional Status of Islam(ic Law)

Constitution adopted 23rd May 1926. Amended numerous times. No official state religion or recognition of shari’a as source of legislation. Accords recognition to heads of legally recognised sects, with respect to personal affairs, freedom of belief, exercise of religious rituals and freedom of religious education.

The National Reconciliation Charter similarly protects freedom of belief.

Court System

 

Communal jurisdiction for Muslims, Druze, Christians and Jews. Two levels of Shari’a courts (with Sunni and Ja’fari Judges): Shari’a Courts of First Instance and Supreme Shari’a Court in Beirut sitting with 3 qadis and a civil judge acting as Attorney-General. Also two levels of Druze courts: Courts of First Instance and Supreme Court of Appeal. Law on Organisation of Shari’a Courts 1962 directs application of OLFR; identifies Qudri Pasha’s unofficial code of personal law as a residual source of law.

Relevant Legislation

 

Ottoman Civil Code (Majalla) 1878

(Ottoman) Law of Family Rights 1917

Decree no. 3503 1926 (relevant to application of Ja’fari law)

Codified (Druze) Personal Status Law 1948

Law on the Rights of the Family 1962

Law on Organisation of the Shari’a Courts 1962

Notable Features

 

The Law of the Rights of the Family 1962 directs the application of Hanafi doctrine to Sunni personal status cases (except for those matters covered by specific provisions of the OLFR), and Ja’fari fiqh and provisions of the OLFR applicable to Ja’faris in Ja’fari personal status cases. There is separate legislation applicable to Druze personal status.

Marriage Age: age of capacity is 18 years for males and 17 for females; scope for judicial discretion on basis of physical maturity and wali’s permission from 17 years for males and 9 for females; real puberty or 15/9 with judicial permission for Shi’a; 18/17 or 16/15 with judicial permission for Druze

Marriage Guardianship: mature female of 17 years may apply to the court to marry and requirement of guardian’s permission may be waived if his objection appears unfounded; wali’s right of ijbar retained for Lebanese Ja’faris

Marriage Registration: obligatory, governed by Family Rights Law and Sunni and Ja’fari Shari’a Judiciary Act; failure to register does not invalidate Muslim marriage; unregistered marriage may be proved by Shari’a Court ruling

Polygamy: express recognition of validity of stipulations inserted into marriage contract restricting husband’s right to marry polygamously and effecting divorce of one or the other co-wife

Obedience/Maintenance: governed by classical law

Talaq: invalidity of talaq uttered while intoxicated or under coercion; husband who repudiates his wife obligated to inform Shari’a Court of his exercise of talaq within 15 days and then Department of Personal Status for registration of divorce; failure to register with Department of Personal Status does not invalidate repudiation, but husband is subject to criminal penalty; for Shi’a, classical rules relating to specific formula and requirements apply

Judicial Divorce: wife may request judicial divorce on following grounds: husband’s failure to consummate marriage; infirmity or illness making cohabitation without harm impossible; insanity; failure to maintain and his concealment of his whereabouts, absence, disappearance, or intermittent cohabitation with wife; and both spouses may apply on grounds of marital discord (after reconciliation efforts) where judicial decision determines fault and appropriate recompense for aggrieved party; for Druze, divorce only possible by decision of Madhhab judge and if Madhhab judge finds no legal justification for divorce, husband must pay damages to wife; Druze accept annulment by mutual consent before judge and two witnesses; among Druze, divorce creates permanent indissoluble bar between former spouses

Post-Divorce Maintenance/Financial Arrangements: governed by classical law

Child Custody and Guardianship: Sunni divorced mother’s right to custody ends at 7 years for boys and 9 for girls; 2/7 for Shi’a, unless mother remarries and subject to wards’ best interests; 7/9 for Druze

Succession: legislation directs application of classical dictates relating to division of mulk property for Sunni, Shi’i and Druze communities; Druze succession law similar to Sunni except that Druze do not exclude descendants of predeceased heirs; miri property continues to be governed by Ottoman Inheritance Law 1913

Notable Cases

 

Law/Case Reporting System

Law reporting through the Journal Officiel.

International Conventions (with Relevant Reservations)

ICCPR & ICESCR – accession 1972 without reservations

CRC – signature 1990, ratification 1991 without reservations

CEDAW – accession 1997 with reservations to Arts. 9(2), 16(1)(c), (d), (f) & (g), and 29(1)

Legal History:

The legal system draws inter alia on elements of Ottoman law, canon law, and codes based on French models. Lebanon became a part of the Ottoman Empire in 1516 and remained under Ottoman rule, with relative autonomy, for three centuries. It was under a French mandate from 1918 to 1943 and although French civil law had a great influence on the development of the Lebanese legal system and judiciary, the French authorities did not affect any substantive changes to the Ottoman Law of Family Rights 1917 or to uncodified aspects of personal law. During the 1920s, the borders of Lebanon were redefined and the Republic established. Lebanon has a very heterogeneous population, leading to the development of a highly complex system of power-sharing for the major religious communities. However, the proportion of Maronite Christians and Sunni and Shi’a Muslims in the population changed significantly over the span of half a century, and updating the census data providing the bases for the system of power-sharing is an issue that has proved difficult for the modern state of Lebanon to address.

The inequalities inherent in the power-sharing agreement which failed to adapt to changing circumstances, as well as the effects of the Palestinian struggle for self-determination, lead to a descent into civil war in 1975. Lebanon, which has a large Palestinian refugee population, accepted an Arab-brokered peace accord in the early 1990s. During the late 1990s, there was considerable popular pressure for reform of laws regulation women’s rights.

Schools of Fiqh: The Ja’fari and Hanafi schools are the predominant madhahib in Lebanon. There are also Druze, Ismai’li and ‘Alawi/Nusayri minorities. Several Christian denominations are represented, including Orthodox and Catholic denominations and one Protestant church, and there is a small Jewish minority. There are over fifteen different officially recognised religious sects in Lebanon.

Constitutional Status of Islam(ic Law): The Constitution was adopted on 23rd May 1926 and has been amended numerous times. The Constitution guarantees that the personal status and religious interests of the various recognised religious communities of Lebanon are to be respected. 

Court System: Communal jurisdiction over personal status is recognised for Muslims, Druze, Christians and Jews. There are two levels of Shari’a courts (with Sunni and Ja’fari Judges presiding over cases involving Sunni and Ja’fari litigants, respectively), Shari’a Courts of First Instance and a Supreme Shari’a Court in Beirut sitting with 3 qadis and a civil judge acting as Attorney-General. There are also two levels of Druze courts, the Courts of First Instance and a Supreme Court of Appeal.

Notable Features: The age of capacity is 18 years for males and 17 for females among Sunnis; scope for judicial discretion on the basis of physical maturity and the wali’s permission is from 17 years for males and 9 for females. For Shi’a, the marriage age is real puberty for both, or 15 for males and 9 for females with judicial permission. For the Druze, the marriage age is 18 for males and 17 for females, or 16 and 15 with judicial permission. A mature female of 17 years may apply to the court to marry and the requirement of guardian’s permission may be waived if his objection appears unfounded. The wali’s right of ijbar is retained for Lebanese Ja’faris.

Marriage registration is a requirement governed by the Family Rights Law and Sunni and Ja’fari Shari’a Judiciary Act. The Shari’a Court having jurisdiction over the domicile of either spouse has exclusive authority to solemnise marriage contracts and the personal status officer is only to record contracts solemnised according to the terms of legislation; a copy of the marriage contract must be sent to the Personal Status Administration for official registration. Failure to register does not invalidate Muslim marriages, but such marriages will not be recognised without a Shari’a Court ruling.

Maintenance and disobedience are governed by classical law. There are no restrictions to polygamy other than classical injunctions to treat co-wives equally; there is express legal recognition of the validity of stipulations inserted into the marriage contract restricting the husband’s right to marry polygamously (.e.g, effecting the divorce of one or the other co-wife in case of breach of the stipulation).

Talaq uttered while intoxicated or under coercion is invalid while talaq upon condition (for Sunnis) or deferred until a future time are valid. A husband who repudiates his wife is obligated to inform the judge of his exercise of talaq within 15 days and then the Department of Personal Status. Failure to register with the Department of Personal Status does not invalidate the divorce, but the husband will be subject to criminal penalties. For the Shi’a, classical rules regarding a specific formula under particular conditions apply.

The wife may request a judicial divorce on following grounds: husband’s failure to consummate the marriage; husband’s affliction making cohabitation without harm impossible; husband’s insanity; husband’s failure to maintain and his concealment of his whereabouts, or his absence, disappearance or intermittent cohabitation with his wife; and either spouse may apply for divorce on grounds of marital discord (after reconciliation efforts) where a judicial decision determines fault and appropriate recompense for the aggrieved party. All judicial divorces for such grounds are irrevocable. For the Shi’a, judicial divorce is not recognised, though some Shi’i interpreters do accept judicial intervention. For the Druze, divorce is only possible by decision of a Madhhab judge. If the Madhhab judge finds no legal justification for the divorce, the husband will be obliged to pay damages to the wife. Druze may also annul marriage by mutual consent, before a judge and two witnesses, and this creates a permanent and indissoluble bar between the former spouses. Maintenance during the ‘idda is obligatory except for the woman judged to be disobedient.

Among Sunnis, the divorced mother’s right to custody ends at 7 years for boys and 9 for girls; at 2 years for boys and 7 for girls for the Shi’a (unless the mother remarries) subject to the wards’ best interests; and at 7 years for males and 9 for females for the Druze.

Legislation relating to inheritance law directs the application of classical provisions relating to the division of mulk property for Sunni, Shi’i and Druze communities. Druze succession law is similar to the Sunni except that Druze do not exclude descendants of predeceased heirs. Miri property continues to be governed by the Ottoman Inheritance Law 1913, which gives equal portions to males and females.  

Notable Cases:  

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

International Conventions (with Relevant Reservations): Lebanon acceded to the ICCPR and ICESCR in 1972 without reservations.

Lebanon signed the CRC in 1990 and ratified it in 1991 without reservations.

Lebanon acceded to the CEDAW in 1997 with a number of general reservations to Articles 9(2), 16(1)(c), (d), (f) and (g), and 29(1).

Background and Sources: Bilani, Najjar & El-Gemayel, “Personal Status” in The Lebanese Legal System, vol. 1, ed. El-Gemayel, Washington D.C., 1985; El Alami & Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World, London, 1996; Mahmood, “Lebanon” in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; Nasir, The Islamic Law of Personal Status, 2nd ed., London, 1990; Nasir, The Islamic Law of Personal Status, 2nd ed., London, 1990; Redden, “Lebanon” in Modern Legal Systems Cyclopedia, vol. 5, Buffalo, NY, 1990.