Yemen, Republic of


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


Legal Table
Legal Text

Legal System/History

 

 

Legal system based on Islamic law, Turkish law, English common law, and local customary law.

Region was ruled by Zaydi dynasty from 897; under nominal Ottoman control from 1517 until 1636 when Zaydi rulers reasserted sovereignty. British established Aden Protectorate in 1839, and made series of treaties with local rules to extend influence to southern Yemen. By 1849, Ottomans reasserted control over all of Yemen not in British hands, but revolt against Ottoman rulers led to Zaydi Imam gaining autonomy in 1911. British recognised Yemen’s independence in 1925, and succeeded in extending their South Arabian Protectorate as far as Hadhramawt by 1950s. Military coup in 1962 ended centuries of Zaydi rule and Yemen Arab Republic established in the north in 1967. By 1960s, British control of southern Yemen limited to Aden; guerrilla fighting and British withdrawal in 1967 culminated in establishment of People’s Democratic Republic of Yemen in the south. Relations between two Yemens strained during 1970s, but improved by 1980s and reunification was planned. Proposed reunification took place in 1990 and survived subsequent civil war. Personal status in YAR was governed by Law no. 27/1976 issued by Revolutionary Council. In PDRY Family Act 1974 governed personal status. Yemeni Law of Personal Status 1992 represents unified Yemen’s personal status legislation, following Presidential Decree abolishing previous personal status codes. Current YLPS more closely resembles former-YAR’s legislation. Article 349 provides that strongest proofs in Islamic shari’a are residual source of law. Penal law also provides for application of hadd penalties for certain crimes, although extent of implementation unclear.

School(s) of Fiqh

Shafi’i and Zaydi majorities; also Jewish, Christian and Hindu minority communities.

Constitutional Status of Islam(ic Law)

Constitution adopted 16th May 1991 and amended 29th September 1994. Article 1 declares Yemen an “Arab Islamic State”. Article 2 declares Islam official state religion. Article 3 states that “Islamic shari’a shall be the source of all legislation”.  Article 23 states that inheritance is regulated by shari’a. Article 26 states that “the family is the basis of society and its pillars are religion, custom and love of the homeland”.   Article 31 states that women “have rights and duties, which are guaranteed and assigned by shari’a and stipulated by law”.

Court System

Courts of first instance in each district have jurisdiction over personal status, civil, criminal and commercial cases. Appeals go to Courts of Appeal in each of 18 provinces with Civil, Criminal, Matrimonial and Commercial Divisions, each consisting of three-judge benches. Supreme Court is highest court of appeal and sits in San’a; has eight divisions: Constitutional, Appeals’ Scrutiny, Criminal, Military, Civil, Family, Commercial, and Administrative.

Relevant Legislation

Judicial Authority Act (no. 1/1990)

Judicature Law 1991 (no. 1/1991)

Civil Code (no. 19/1992)

Personal Status Act 1992 (no. 20/1992)

Penal Code 1994 (no. 12/1994)

Notable Features

 

Marriage Age: minimum marriage age is 15 for males and females

Marriage Guardianship: invalidity of marriage by coercion; judge can overrule guardian if his objection to marriage of ward is considered unjust, with proviso that the wife receive her proper dower from husband of equal status

Marriage Registration: husband and wali responsible for registration of marriage within one week of contract; penal sanctions for non-compliance

Polygamy: permitted subject to equitable treatment of co-wives, financial means, lawful benefit, and notification of prospective co-wives

Obedience/Maintenance: the husband must maintain his wife and the wife must be obedient to her husband in matters affecting the family’s interests; wife may leave marital home to work so long as there is no breach of honour or of her marital duties and husband consents; arrears of maintenance may be claimed for period of up to one year prior to date of claim, unless spouses had agreed to other conditions

Talaq: talaq ineffective if uttered while intoxicated or with intent to coerce; talaq to which number is attached only effective as single revocable (except third of three)

Judicial Divorce: dissolution available to either spouse on grounds of defect (right is forfeit if defect was accepted explicitly or implicitly, except for insanity, leprosy and other communicable diseases difficult to cure); and inequality of social status;

annulment effected if husband becomes Muslim and wife is not kitabiyya or if wife becomes Muslim and husband refuses conversion to Islam or on grounds of either party’s apostasy; wife may request decree of dissolution (lesser irrevocable) on following grounds: husband’s non-maintenance; husband’s absence or disappearance for one year if husband left no provision for maintenance or two years if he provided for wife’s maintenance; husband’s imprisonment for three years or more after one year of sentence; husband’s breach of maintenance or accommodation obligations towards co-wives; incompatibility (after reconciliation efforts, and if husband refuses to pronounce talaq, in exchange for wife’s return of her dower); husband’s proved addiction to alcohol or narcotics

Post-Divorce Maintenance/Financial Arrangements: husband required to pay maintenance during ‘idda; judge may award compensation equivalent to up to one year’s maintenance to wife who is arbitrarily divorced without just cause

Child Custody and Guardianship: mother’s custody ends at 9 years for boys and 12 years for girls; unlimited (i.e., undefined) possibility for extension of mother’s custody if it is deemed in wards’ best interests, and wards may choose which parent they wish to live with once period of custody ends

Succession: obligatory bequests for orphaned grandchildren by predeceased sons (how lowsoever) or daughters (to first generation only), up to portion their dead parent would have received or up to bequeathable third, depending on circumstances, i.e., grandchildren through sons may inherit if they are poor, and grandchildren through daughters if their father is poor; also Qur’anic heirs permitted shares in residue of estate in proportion to their shares, but spouse relict does not share in radd

 

Law/Case Reporting System

Law reports or indexes of decisions published in several law journals issued by law faculties of Universities of San’a and Aden, Jurists’ Union, and Ministries of Justice in San’a and Aden from pre-unification period. Law since reunification published in al-Jarida al-Rasmiyya.

International Conventions (with Relevant Reservations)

CEDAW – accession 1984 with reservation to Art. 29(1)

 ICCPR & ICESCR – accession 1987 with general declaration

 CRC – signature 1990, ratification 1991 without reservations

Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages – accession 1987 without reservations

Legal History:

Yemen was ruled by the Shi’i Zaydi dynasty of Sa’da, founded by Yahya ibn Husayn ibn Qasim ar-Rassi, from 897 CE until well into the current century, although the region came under nominal Ottoman control from 1517. The first period of Ottoman rule ended in 1636 when the Zaydi rulers reasserted their sovereign rule. The British established the Aden Protectorate in Yemen in 1839, and made a series of treaties with local rulers with the aim of extending British influence to southern Yemen. By 1849, the Turks reasserted control over all of the Yemen that was not in British hands. A revolt against the Ottomans led to the granting of autonomy to the Zaydi Imam in 1911, and the Turks retreated from the region altogether within the span of eight years. The British recognised Yemen’s independence in 1925. The British succeeded in extending control as far as Hadhramawt by the 1950s, where a ‘violet line’ separated Turkish Arabia and the South Arabian Protectorate. A military coup in 1962 led by Colonel ‘Abdullah al-Sallal established the Yemen Arab Republic in the north and brought an end to centuries of Zaydi rule and ushered in an era of civil war between the Saudi-supported royalists and the Egyptian-backed Republicans. The civil war continued until Egypt’s disengagement in 1967 and Saudi Arabia’s extension of recognition of the YAR in 1970. By the 1960s, the British presence in southern Yemen was mainly confined to Aden, and guerrilla fighting throughout the decade hastened the British withdrawal from Aden in 1967, leading to the establishment of the People’s Republic of South Yemen (later the People’s Democratic Republic of Yemen), an Arab Marxist state. Relations between the two Yemens were strained, as evidenced by a series of border conflicts throughout the 1970s, but relations began to improve by the early 1980s, and a constitution was drafted with the aim of eventually merging to the two states. The proposed reunification did not take place until 1990, however, and not without disagreement over the terms of unification between the north and south resulting in a period of civil war in the summer of 1994.

Following the unification of the two Yemens, Republic Decree Law no. 20 constituting the Yemeni Law of Personal Status was passed in 1992. The legislation followed a Presidential Decree abolishing the 1978 code of personal status of the Yemeni Arab Republic and the 1974 code of personal status of the People’s Democratic Republic of Yemen. The post-unification Law of Personal Status closely resembles the former-YAR’s legislation. Article 349 provides that the strongest proofs in the Islamic shari’a are to serve as the residual source of law in absence of specific textual provision. The penal law of the unified Yemen also provides for the application of hadd penalties for certain crimes, although such penalties are not often applied in practice.

Schools of Fiqh: The Shafi’i and Zaydi schools are the predominant madhahib in Yemen. 

Constitutional Status of Islam(ic Law): The Constitution was adopted on 16th May 1991 and amended 29th September 1994. Article 1 declares Yemen an "Arab Islamic State". Article 2 declares Islam the official state religion. Article 3 states that "Islamic shari’a shall be the source of all legislation".  Article 23 states that inheritance is regulated by shari’a. Article 26 states that “the family is the basis of society and its pillars are religion, custom and love of the homeland”.   Article 31 states that women “have rights and duties, which are guaranteed and assigned by shari’a and stipulated by law”.

Court System: Courts of first instance in each district have jurisdiction over personal status, civil, criminal and commercial cases. Appeals go to the Courts of Appeal in each of the 18 provinces with Civil, Criminal, Matrimonial and Commercial Divisions, each consisting of three-judge benches. The Supreme Court is the highest court of appeal and sits in San’a. The Supreme Court has eight divisions: Constitutional, Appeals’ Scrutiny, Criminal, Military, Civil, Family, Commercial, and Administrative.

Notable Features: The minimum marriage age is 15 years for males and females. Marriage by coercion is invalid. The judge can overrule the guardian if his objection to the marriage of his ward is considered unjust, with the proviso that the wife receive her proper dower from her husband of equal status. The husband and wali are responsible for the registration of marriage within one week of the contract, with penal sanctions for non-compliance.

Polygamy is permitted subject to equitable treatment of co-wives, financial means, lawful benefit, and notification of prospective co-wives.

The wife may leave the marital home to work so long as there is no breach of honour or of her marital duties and her husband consents. Arrears of maintenance may be claimed for a period of up to one year prior to the date of the claim, unless the spouses had agreed to other conditions.

Talaq is ineffective if uttered while intoxicated or with intention to coerce.  Talaq to which a number is attached is only effective as a single revocable repudiation (except the third of three).

Judicial dissolution is available to either spouse on grounds of defect (this right is forfeit if the defect was accepted explicitly or implicitly, except for such defects as insanity, leprosy and other communicable diseases difficult to cure); and inequality of social status. An annulment is to be effected if the husband becomes Muslim and the wife is not kitabiyya or if the wife becomes a Muslim and the husband refuses conversion to Islam, or on grounds of either party’s apostasy. The wife may request a decree of dissolution (lesser irrevocable) on the following grounds: husband’s non-maintenance; husband’s absence or disappearance for one year if he left no provision for maintenance or two years if he provided for his wife’s maintenance; husband’s imprisonment for three years or more after one year of the sentence has passed; husband’s breach of maintenance or accommodation obligations towards co-wives; incompatibility (after reconciliation efforts, and if the husband refuses to pronounce talaq, in exchange for the wife’s return of her dower); husband’s proved addiction to alcohol or narcotics. The wife may also obtain a khul’ in exchange for compensation. The husband is required to pay maintenance during the ‘idda.        The judge may award compensation equivalent to up to one year’s maintenance to a wife who is arbitrarily divorced without just cause. The divorced mother maintains custody until the age of 9 years for boys and 12 for girls, and this period may be extended if it is considered to be in the best interests of the wards. As well, wards may choose which parent they wish to live with once the period of custody is over.

The YLPS provides for obligatory bequests for orphaned grandchildren by predeceased sons (how lowsoever) or daughters (to the first generation only), up to the portion their dead parent would have received or up to the bequeathable one-third, depending on the circumstances of the heirs. That is, grandchildren through sons may inherit if they are poor, and grandchildren through daughters if their father is poor. The YLPS allows Qur’anic heirs to share in the residue of an estate in proportion to their shares, but does not allow radd to the spouse relict.  

Notable Cases:

Law/Case Reporting System: Law reports or indexes of decisions were published in several law journals have been published by the law faculties of the Universities of San’a and Aden, the Jurists’ Union, and the Ministries of Justice in San’a and Aden, from the pre-unification period. Laws are now published in al-Jarida al-Rasmiyya.

International Conventions (with Relevant Reservations): The Republic of Yemen acceded to the CEDAW in 1984 with a reservation to Article 29(1) relating to arbitration over interpretation or application of the Convention.

Yemen acceded to the ICCPR and ICESCR in 1987 with a general declaration pertaining to non-recognition of the state of Israel.  Yemen also acceded to the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages in 1987.

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

Background and Sources: Amin, Middle East Legal Systems, Glasgow, 1985; El Alami & Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World, London, 1996; Mahmood, "North Yemen", "South Yemen" & "United Yemen" in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; Lackner, "Women and Development in the Republic of Yemen," pp. 71-96 in Gender and Development in the Arab World, Khoury & Moghadam, eds., London, 1995; Molyneux, "Women’s Rights and Political Contingency: The Case of Yemen, 1990-1994," Middle East Journal, vol. 49(3), 1995: 418-431; Redden, "North Yemen" & "South Yemen" in Modern Legal Systems Cyclopedia, vol. 5, Buffalo, NY, 1990; Shamiri, "Yemen," Yearbook of Islamic and Middle Eastern Law, vol. 1 (1994): 369-34; Würth, "A Sana’a Court: The Family and the Ability to Negotiate," Islamic Law and Society, vol. 2(3), 1995: 320-340.