Syria (Syrian Arab Republic)


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


Legal Table
Legal Text

Legal System/History

 

 

Syria centre of Umayyad caliphate until Abbasid Revolution of 756. Succession of Arab, Crusader, Kurdish, and Mamluke rulers, then under Ottoman control from 1516. Following expulsion of Ottomans after WWI, League of Nations declared French mandate over region in 1922, from which Syria gained independence in 1946. Ottoman Law of Family Rights continued to govern matters of personal status until 1953. Syrian Law of Personal Status 1953 covers matters of personal status, family relations and intestate and testamentary succession. Article 305 of SLPS directs that residuary source of law is most authoritative doctrine of Hanafi school. Major amendments made to SLPS in 1975, particularly relating to areas of polygamy, dower, maintenance, mut’a, cost of nursing, custody of children, and guardianship.

School(s) of Fiqh

Hanafi majority; Ja’fari, Druze, Isma’ili and ‘Alawi minorities; also several Christian denominations and very small Jewish communities in Damascus, Al-Qamishli, and Aleppo.

Constitutional Status of Islam(ic Law)

Constitution adopted on 13th March 1973. Article 3(1) declares that religion of the President of the Republic shall be Islam. Article 3(2) declares Islamic jurisprudence a main source of legislation.

Court System

 

Separate legal systems for civil and criminal matters and for personal status matters. 

The lowest courts for civil and criminal matters are peace courts, followed by courts of the first instance (1 in each of the 14 districts) with jurisdiction over civil and minor crimes.  There are also courts of Assize for more serious crimes, a Court of Appeals in every district, and a Court of Cassation.  There is also a Supreme Constitutional Court which determines the constitutionality of laws

Courts with jurisdiction over personal status matters are shari’a courts for Sunni and Shi’i Muslims, madhhabi courts for Druze, and ruhi courts for Christians and Jews. One single-qadi shari’a court of first instance per district (except Damascus and Aleppo having three each). Each of three types of court has its own appellate courts. Final appeal lies with Family Section of the Court of Cassation in Damascus. Code of Personal Status applied to Muslims by shari’a courts, separate tribunals for Druze, Christians and Jews.

Relevant Legislation

Law of Personal Status 1953 (no. 59/1953, as amended by Law no. 34/1975)

Civil Code 1949

Code of Civil Procedure 1953

Code of Civil Status 1957

Law of Judicial Authority 1965

Notable Features

Marriage Age: minimum marriage age is 18 years for males and 17 for females; judicial discretion for males of 15 years and females of 13 years; judge may withhold permission for marriage if court finds incompatibility in age between betrothed parties

Marriage Guardianship: under age of full capacity, both parties need permission of wali; wali’s objection to marriage of girl under 17 years may be overruled by judge

Marriage Registration: obligatory; penal sanctions for failure to register

Polygamy: judge may refuse permission for polygamous marriage unless husband establishes lawful cause and financial capacity

Obedience/Maintenance: wife’s financial rights forfeited if she works outside the home without husband’s consent or she is deemed disobedient due to leaving matrimonial home without lawful justification or refusing to cohabit with husband; arrears of maintenance shall be awarded wife from date that husband fails to maintain her, up to four months prior to date of claim

Talaq: talaq uttered while intoxicated, disoriented/enraged, under coercion, during death sickness or grave illness, or in order to coerce deemed ineffective; talaq to which number is attached shall be considered single irrevocable (except third of three)

Judicial Divorce: wife may seek judicial divorce on following grounds: defect in the husband preventing consummation (though such right is forfeit if wife accepted defect except in cases of husband’s impotence); husband’s insanity; husband’s absence without justification for one year; husband’s sentencing to three years’ imprisonment after serving one year of sentence; and husband’s non-maintenance – if non-maintenance is due to husband’s inability, judge shall grant grace period of up to three months; either spouse may seek judicial divorce on grounds of discord causing such harm as makes cohabitation impossible (after reconciliation efforts)

Post-Divorce Maintenance/Financial Arrangements: husband obliged to pay maintenance for ‘idda after talaq, judicial divorce or annulment, up to maximum period of nine months; divorced wife may be awarded compensation of up to three years’ maintenance (in addition to maintenance during ‘idda) if judge finds husband’s exercise of talaq to have been arbitrary

Child Custody and Guardianship: divorced mother has right to custody over boys until age of 9 and girls until age of 11; qadi may order wards to stay with mother if guardian is not father, until marriage for girl or until boy or girl reaches rushd; qadi may also order children to remain with mother if court finds that father is not to be trusted with them

Succession: governed by Hanafi fiqh as embodied in SCPS; reforms extending doctrine of radd (return) to allow surviving spouse to share in residue of deceased partner’s estate and introducing obligatory bequests in favour of orphaned grandchildren through predeceased sons

Notable Cases

 

Law/Case Reporting System

Law reporting through the Official Gazette.

Cases are not reported.

International Conventions (with Relevant Reservations)

ICCPR & ICESCR – accession 1969 with reservations to Arts. 48(1) of ICCPR and 26(1) of ICESCR

CRC – signature 1990, ratification 1993 with general reservation and reservations to Arts. 14, 2 & 21

Legal History:

Syria served as the centre of the Umayyad caliphate until the Abbasid Revolution of 756. After a succession of Arab, Crusader, Kurdish, and Mamluke rulers, Syria came under Ottoman control in 1516. Following the expulsion of the Ottomans after World War I, the League of Nations declared a French mandate over the region in 1922, from which Syria gained independence in 1946.

The Ottoman Law of Family Rights continued to govern matters of personal status until 1953. The Qadi of Damascus, Shaykh ‘Ali al-Tantawi, drafted a comprehensive treatise on personal law, based on takhayyur according to principles most suitable to changing social conditions. After the publication of al-Tantawi’s treatise, the government established a Commission to prepare a draft code of personal law. The Commission based its draft on principles from al-Tantawi’s code, the OLFR, various Egyptian laws enacted from 1920 to 1946, and the unofficial code prepared by Egyptian jurist Qudri Pasha. The Syrian Law of Personal Status (Qanun al-Ahwal al-Shakhsiyya) 1953 produced by the Commission covers matters of personal status, family relations and intestate and testamentary succession and was the most comprehensive code issued in the Arab world to that date. Article 305 of the SLPS directs that, for matters not specified in the text, resort shall be had to the most authoritative doctrine of the Hanafi school. Major amendments were made to the SLPS in 1975, particularly relating to the areas of polygamy, dower, maintenance, mut’a, cost of nursing, custody of children, and guardianship.

Schools of Fiqh: The Hanafi school is the predominant madhhab in Syria, and there are Ja’fari, Druze, Isma’ili and ‘Alawi minorities. There are also several Christian denominations and very small Jewish communities based in Damascus, Al-Qamishli, and Aleppo.

Constitutional Status of Islam(ic Law):  The Constitution was adopted on 13th March 1973. Article 3(1) declares that the religion of the President of the Republic shall be Islam. Article 3(2) declares Islamic jurisprudence a main source of legislation.

Court System: Courts having jurisdiction over personal status matters are shari’a courts for Sunni and Shi’i Muslims, madhhabi courts for the Druze, and ruhi courts for Christians and Jews. There is one single-qadi shari’a court of first instance per district (except Damascus and Aleppo where there are three each). Each of the three types of courts has its own appellate courts. Final appeal for all the religious courts lies with the Family Section of the Court of Cassation in Damascus, the highest court of the regular system.

Shari’a courts have both general jurisdiction (relating to all Syrians without respect to religion and to non-Syrians originating from countries where Islamic personal status laws are applied- i.e., over matters of guardianship, succession, ascertaining capacity, missing persons, filiation, matrimonial issues, and maintenance of relatives) and special jurisdiction (relating to Muslim Syrians in matters of personal status including marriage, dissolution, mahr, custody and maintenance, and awqaf). The Code of Personal Status applied to Muslims by the shari’a courts has specific exemptions for Druze, Christians and Jews.

Notable Features: The minimum marriage age is 18 years for males and 17 for females, with scope for judicial discretion for males of 15 years and females of 13 years if either the father or grandfather serving as wali consents and the parties appear physically able. If the court finds incompatibility in age between betrothed parties, the judge may withhold permission for marriage. Both parties require their walis’ permission for marrying under the age of full capacity, though a judge may overrule a wali’s unreasonable objection to the marriage of his female ward (conditional upon equality of status or kafa’a between the betrothed parties).

Marriage registration is obligatory and applications for marriage must be submitted to the judge, requiring documentation attesting to identity, age, residence, guardian’s identity, medical certificate, civil status, etc. of the betrothed parties. Marriages contracted out of court are not to be certified without such procedures with the exception of cases where the wife is pregnant or a child has been born, though extenuating circumstances do not prevent the application of legal sanctions for non-compliance with registration requirements.

The judge may refuse permission for a polygamous marriage unless the husband is able to establish lawful cause and financial capacity. The wife’s financial rights are forfeit if she works outside the home without her husband’s consent or if she is deemed disobedient due to leaving the matrimonial home without lawful justification or refusing to cohabit with her husband. Arrears of maintenance shall be awarded the wife from the date her husband fails to maintain her, up to four months prior to the date of the claim.

Talaq uttered while intoxicated, disoriented/enraged, under coercion, during death sickness or grave illness, or in order to coerce is ineffective. Talaq to which a number is attached shall be considered a single irrevocable repudiation (except the third of three).

The wife may seek a judicial divorce on the following grounds: a defect in the husband preventing consummation (though such right is forfeit if the wife accepted the defect except in the case of husband’s impotence); husband’s insanity; husband’s absence without justification for one year; husband’s sentencing to three years’ imprisonment, after he has served one year of the sentence; and the husband’s failure to maintain – if non-maintenance is due to the husband’s inability to provide maintenance, the judge shall grant a grace period of up to three months. Either spouse may apply for a judicial divorce on grounds of discord causing such harm as makes cohabitation impossible (after reconciliation efforts). The divorced wife may be awarded compensation of up to three years’ maintenance (in addition to the maintenance owed her during her ‘idda) if the judge finds the husband’s exercise of talaq to have been arbitrary. The divorced mother has right to custody over boys until the age of 9 and girls until the age of 11. The qadi may extend the mother’s custody over girls until marriage, or over boys or girls until they attain rushd, if the guardian is not the father, or if the court finds that the father is not to be trusted with the children.

The law relating to succession is based mainly on Hanafi fiqh, as embodied in the Code of Personal Status, although it is influenced by Egyptian reform legislation from the 1940s. The doctrine of radd (return) was extended to permit surviving spouses to share in the division of the residue of their deceased partners’ estates. Obligatory bequests have also been introduced to benefit orphaned grandchildren through predeceased sons.

Law/Case Reporting System: Law reporting is through the Official Gazette.

International Conventions (with Relevant Reservations): Syria acceded to the ICCPR and ICESCR in 1969, submitting the following reservations: the first reservation relates to non-recognition of the state of Israel; the second reservation (relating to Articles 48(1) and 26(1) of the ICCPR and ICESCR, respectively) states that these provisions are incompatible with the aims of the Covenants, as they do not allow all States "without distinction or discrimination" to become parties to the Covenants.

Syria signed the CRC in 1990 and ratifying it in 1993, with a general reservation to any provisions that are not in conformity with Syrian legislation or the principles of the Islamic shari’a, with particular reference to Article 14 on children’s freedom of religion, and Articles 2 and 21 concerning to adoption.

Background and Sources: Amin, Middle East Legal Systems, Glasgow, 1985; Anderson, "Syrian Law of Personal Status," Bulletin of the School of Oriental and African Studies, 17(1955): 25-59; Berger, "The Legal System of Family Law in Syria," Bulletin d’Études Orientales, 1997 (XLIX): 115-127;  El Alami & Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World, London, 1996; el-Hakim, "Syria," Yearbook of Islamic and Middle Eastern Law, vol. 1 (1994): 142-155; Mahmood, "Syria" 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 Law, 2nd ed., London, 1987; Redden, "Syria" in Modern Legal Systems Cyclopedia, vol. 5, Buffalo, NY, 1990.