Imperialism in North Africa: Law, Code of Personal Status
Annotation
In 1956 one of the most revolutionary family law codes in the Arab or Islamic world was proclaimed in the newly independent Tunisian state which, paradoxically, had not suffered a political revolution in the way that colonial Algeria would. What historical factors explain why Tunisian women won comparatively more legal and social rights than women in Algeria or Morocco?
While the colonial regime in Tunisia was marked by extensive violence and a refusal to properly educate native girls, there did emerge a Tunisian reform movement focusing upon women’s rights by the early 20th century. The reformers called for modern education for all children, changes to religious (i.e., Islamic) laws and traditions judged prejudicial to women, unveiling, and, eventually, the vote. Movements for modernizing reforms typically attracted the support of middle-class, urban men and women who were tied in one way or another to the nationalist movement. By the inter-war period, Tahar al-Haddad, a Tunisian Muslim reformer, proposed a new reading of women’s rights in Islamic law and campaigned to educate women as national mothers—an entirely new role for Tunisian women, demonstrating the influence of nationalist thinking. Finally, the French colonial regime in Tunisia, while repressive, sought to avoid the errors and excesses committed in Algeria. Tunisian men and women had been obliged to take up arms to fight the French colonial regime to achieve independence but the level of institutionalized violence and social disruption never reached the proportions suffered in Algeria. This allowed nationalist leaders, such as Habib Bourguiba, the first president of Tunisia (1956-1987), to institute far-reaching legal and other types of changes beneficial to women and thus to society as a whole. These were enshrined in the 1956 Code, which governed such critical matters as marriage, divorce, inheritance, alimony, child custody and adoption. Polygamy was outlawed as was the husband’s right to repudiation. Since then, inspired by the spirit of the original family code, Tunisian women have seen their right to education and to equal pay for equal work legislated as well.
Source: Charrad, Mounira. States and Women’s Rights: The Making of Postcolonial Tunisia, Algeria, and Morocco. Berkeley: University of California Press, 2001.; Clancy-Smith, Julia. “Colonialism: 18th to Early 20th Century.” Methodologies, Paradigms and Sources of the 6-volume Encyclopedia of Women and Islamic Cultures, Vol. 1. Edited by Suad Joseph. Leiden: E. J. Brill, 2003.
This source is a part of the North African Women and the French Empire, 1850-2000 teaching module.
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Procedure for Marriage. “Marriage is formed only by the consent of the two spouses,” stated the Majalla, which required the bride to be present at the marriage contract and directly express her consent to the union. The principle of matrimonial guardian was abolished. The law thus no longer sanctioned compulsory marriages, as it took away the father’s or guardian’s legal prerogative to give a woman in marriage even against her will. Moreover, the CPS indicated that marriage could be concluded only before two notaries or an officer of the civil registry. Marriage also had to be registered with civil authorities. A certificate delivered by the civil registry, or by two notaries after they performed the marriage, became the only valid proof of marriage. A medical certificate attesting to the good health of the spouses-to-be was made mandatory. The law no longer defined marriage as a private matter, since marriage now had to be performed and recorded by civil authorities. Marriages performed in any other way had no validity before the law.
Rights and Responsibilities of Each Spouse. In contrast to the Moroccan Code, which spelled out extensively the rights and responsibilities of each spouse, the CPS was concise on the issue. It maintained a conservative tone in stating that the wife owed obedience to her husband. As to the husband, he was expected to treat his wife with kindness and provide for her and their children. A new element introduced in the Majalla concerned the financial responsibility of the woman to her husband and children. Whereas in Islamic law a woman’s property remained her own without becoming part of the household assets, the Majalla required the wife to contribute to the expenses of the household, if she had the means to do so. By making the wife provide for the household when appropriate, the Majalla placed the division of responsibilities between the spouses on a new plane.
Minimum Age for Marriage. The age of legal majority was set at twenty for both men and women. The minimum age for marriage had been set at fifteen for a woman and eighteen for a man in the initial text of the Majalla. Statistics on marriage revealed, however, that in 1960 and 1961, 48.5 percent of the women who got married were between the ages of fifteen and nineteen, whereas only 3.8 percent of the men were between the ages of eighteen and nineteen. Believing that Tunisians, and particularly women, were still marrying too young, the lawmakers issued a new law in 1964, changing the minimum age for marriage to seventeen for a woman and twenty for a man. In introducing the new law during a press conference, the Minister of Justice urged all Tunisians to get married later than the minimum age allowed, explaining that it was only for respect of social habits that the minimum age had not been set higher. According to Maurice Borrmans, the concerns of the Tunisian lawmakers in raising the minimum age for marriage were to reduce parental intervention in decisions on marriages, indirectly to limit the birth rate, and to foster greater stability in marriages, on the assumption that marriages contracted in a more mature age would be more likely to last.
Divorce. The CPS changed regulations on divorce in fundamental ways. It abolished repudiation. The term “repudiation” appeared nowhere in the text of the code, which referred to the dissolution of marriage consistently as “divorce.” A divorce could now take place only in court. The wife and husband were equally entitled to file for divorce, and they could do so by mutual consent. One of them could also file alone, in which case the judge would determine whether compensation should be given by one spouse to the other and what the amount ought to be. Compensation was no longer defined as payment from the husband to the wife for the harm he had caused her in dissolving the marriage. Women were now equally liable to pay a compensation to their husband, if the judge estimated that it was the husband who had been wronged. An attempt at reconciliation, to be performed by the court, became mandatory. The Majalla stated in this respect: “The court cannot pronounce the divorce until it has carefully looked into the causes of the conflict opposing the spouses and failed in its attempt to reconcile them.”
In addition, a law promulgated in 1968 placed men and women on the same footing in regard to adultery.