Tunisia, Republic of

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 1 June 1959 and amended on 12  July 1988.  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 having 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

Law of Personal Status 1956

Penal Code 1991

Notable Features

Marriage Age: minimum marriage age is 20 for males and 17 for females; scope for judicial discretion with wali’s consent and for compelling reasons and apparent benefit for both parties; if wali withholds consent and parties are adamant, matter must be taken to courts

Marriage Guardianship: marriage of males or females below legal age of discernment requires wali’s consent (or judicial decision overruling wali’s refusal)

Marriage Registration: obligatory under Civil Status Act 1957, only formal document shall prove existence of marriage; unregistered marriage deemed void with three effects: establishment of paternity; immediate onset of ‘idda from date of voidance declaration; and creation of prohibited degree on basis of affinity

Polygamy: prohibited; penal sanctions for polygamous husband and wife who knowingly enters into polygamous marriage are one year’s prison sentence and/or fine

Obedience/Maintenance: the law provides for equal cooperation in managing family affairs

Talaq: extra-judicial divorce prohibited; irrevocable divorce becomes permanent impediment to remarriage between divorced spouses

Judicial Divorce: available (after reconciliation efforts) at request of either party; in issuing decree of divorce, Court shall also assess maintenance, custody, housing and visiting rights

Post-Divorce Maintenance/Financial Arrangements: husband obliged to provide maintenance during ‘idda or, if there is an infant, until the child is weaned; if divorce was husband’s will, judge may determine what financial compensation is due to wife (or vice versa if divorce was at request of wife)

Child Custody and Guardianship: divorced wife has right of custody over boys until age of 7 and girls until age of 9, after which custody reverts to father if he requests it, unless judge considers child(ren)’s mother better suited to maintain custody

Succession: Book 9 of TLPS on succession introduced obligatory bequests in favour of orphaned grandchildren through sons or daughters, limited to first generation of grandchildren and to maximum of one-third of estate; introduced and extended doctrine of radd (return) to allow surviving spouse to share in residue of deceased partner’s estate; also provision that if deceased has only surviving daughters, estate shall go to children and not to paternal uncles

Notable Cases

 

Law/Case Reporting System

Law reporting through Journal Officiel.

International Conventions (with Relevant Reservations)

Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages – accession 1968 without 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 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 1 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 an American 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 marriage age is 20 years for males and 17 years for females. There is scope for judicial discretion with the wali’s consent and for compelling reasons and apparent benefit for both parties. If the wali withholds his consent and the parties are adamant, the matter must be taken to the courts. Marriage of males or females below the legal age of discernment requires the wali’s consent.

Registration is governed by the Civil Status Act 1957.  Under its terms, only a formal document shall prove the existence of marriage.  Unregistered marriages are deemed void, giving rise to three effects: the establishment of paternity; the immediate onset of the ‘idda from the date of the voidance declaration; and the creation of a prohibited degree on the basis of affinity.

Polygamy is prohibited; penal sanctions for the polygamous husband and the wife who knowingly enters into a polygamous marriage are one year’s prison sentence and/or a fine.

Since 1993, the law no longer requires a husband to maintain his wife and a wife to obey her husband.  Instead, equal cooperation in managing family affairs is expected of both spouses.

Talaq or extra-judicial divorce are prohibited. An irrevocable divorce becomes a permanent impediment to remarriage between divorced spouses. Judicial divorce is available, after reconciliation efforts, at the request of either party. In issuing the decree of divorce, the court shall also assess maintenance, custody, housing and visitation rights. The husband is obliged to provide maintenance during the ‘idda. If the divorce was at the husband’s request, the judge may determine what financial compensation is due the wife (or vice versa if the divorce was effected at the request of the wife). The divorced wife has right of custody over boys until the age of 7 years and girls until the age of 9, after which custody reverts to the father if he requests it, unless the judge considers the child(ren)’s mother better suited to maintain custody.

Succession is covered in Book 9 of the TLPS. In 1959, the Tunisian legislators introduced obligatory bequests in favour of orphaned grandchildren through sons or daughters, limited to the first generation of grandchildren and to a maximum of one-third of the estate. The doctrine of radd (return) has also been extended to allow surviving spouse to share in residue of the deceased partner’s estate. Another reform provides that if the deceased has only surviving daughters, the estate is to go to the children and not to paternal uncles.

Notable Cases:

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 in 1969 without reservations.  In 1968, Tunisia also ratified the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages 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 Staet, and Political Liberalization: Middle Eastern and North African Experiences, New York, 1998; Mahmood, "Tunisia" in Family Law Reform in the Muslim World, Bombay, 1972; 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.