---

Marriage, Divorce, Polygamy & Wife Obedience

Article 8.
It is permitted to contract marriage with more than one wife within the limits of the Shari’ah, if there is a just ground and the condition of equality can be fulfilled -- provided that the previous and future wives are duly informed. . . .

Article 11.
Marriage of a woman shall be contracted by her marriage-guardian, who may be her father or one of her near [male] relatives. The qadi is the marriage guardian of a person who has no father or near [male] relative.

Article 30.
. . . It is prohibited to have as co-wives two sisters by blood--full, half or uterine--or fosterage, or a woman and her paternal or maternal aunt.

Article 31.
A Muslim woman cannot marry a non-Muslim . . . .

Article 39.
The wife is required to obey her husband and recognize his position as the head of the family, nurse her progeny if she is capable and rear her progeny and respect her husband’s parents and his close relatives.

Article 48.
Divorce causes dissolution of marriage. It arises from the will of the husband, mutual consent of the spouses, or the demand of the wife as provided in articles 53 and 56.

Article 53.
The wife can seek a judicial divorce on the following grounds: (i) non- payment of maintenance . . . (ii) infirmities hindering realization of the objects of marriage; (iii) refusal of the husband to cohabit with his wife for more than four months; (iv) conviction of the husband, punishable with loss of civil rights for a period exceeding one year, which is of such a nature as to dishonour the family and render impossible leading of common life and conjugal relations; (v) absence of the husband without valid excuse for more than a year without payment or maintenance; (vi) any matrimonial wrong legally recognized, especially violation of provisions of articles 8 and 37; and (vii) an immoral act which is severely reprehensible.

Note: Article 29 of the Constitution of Algeria: "The citizens are equal before the law without any possible discrimination on the basis of birth, race, sex, opinion or all other conditions or personal or social circumstance."

Article 40.
Matrimony is null and void without effect in the following cases:

. . . .

2. When it is contracted between a male under the age of fourteen and a female under the age of twelve or when either of these two are that age respectively.

Note: Article 13 of the Constitution of Colombia: "All individuals are born free and equal before the law, will receive equal protection and treatment from the authorities and will enjoy the same rights, freedoms, and opportunities without any discrimination on account of gender, race, national or family origin, language, religion, political opinion, or philosophy. The state will promote the conditions so that equality may be real and effective and will adopt measures in favor of groups which are discriminated against or marginalized."

1. Matters of marriage and divorce of Jews in Israel, being nationals or residents of the State, shall be under the exclusive jurisdiction of rabbinical courts.

2. Marriages and divorces of Jews shall be performed in Israel in accordance with Jewish religious law.

". . . even if it is true that she despises him there is no basis on which to force him to divorce her as it is written in the Shulchran Aruch [Medieval Compilation of Jewish law] section 37 page 2 ‘if the husband wants to divorce her,’ but there is not anything to obligate him and the authorities specified and it appears in the decrees of the rabbis that even to obligate him to divorce, without force, it is not allowed and this is from the language of the Shulchran Aruch which says ‘if he wants,’ that the matter depends only on what he wants, and we should therefore grant his appeal."

". . . there is no basis for us to intervene, within the confines of this court’s supervisory role, into the decisions of the religious courts. That is to say, we do not sit as a level of appeal for those courts. . . One must add that, according to Section 2 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law 5713-1953, the law that the rabbinical courts should apply with regard to matters of marriage and divorce is the law of the torah [religious law]. The petitioner’s lawyer does not dispute that the rabbinical court did so [applied the religious law], and because the court did so, even if petitioner’s lawyer believes this law is not appropriate, there is no basis for us to intervene."

Note: The Declaration of the Establishment of the State of Israel (May 14, 1948): "The State of Israel . . . will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex . . ."

Article 731.
Males under eighteen years of age and females under sixteen years of age are not eligible for marriage.

Article 733.
(1) A woman may not remarry until after six months from the day the dissolution or annulment of her prior marriage have passed. (2) If she is pregnant from before the dissolution or annulment of her prior marriage, the provisions of the preceding subsection do not apply from the day she gives birth.

Note: Article 14 (1) of the Constitution of Japan: "All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status, or family origin."

Article 7.
Men have the right to create a monogamous arrangement or opt for polygamy (a maximum of four spouses), in which case each spouse constitutes a household under Article 35.

Article 32.
The husband must give protection to the wife and the wife obedience to her spouse.

Article 140.
Betrothal agreements can only be entered into by a man who has attained the age of sixteen years and a woman who has attained the age of fourteen years.

Article 158.
A woman cannot remarry until after three hundred days from the date of dissolution of the prior marriage, unless within that time she gives birth. In the case of annulment or divorce, the commencement of the above period shall begin from the time that the parties have discontinued cohabitation.

Note: Article 4 of the Constitution of Mexico: "Men and women are equal before the law . . . ."

Article 88.

Section 1. Any child presumed to be the child of the mother’s husband shall bear the surname of her husband. If the wife has retained her previous surname or added the husband’s surname to the previous one, the child shall bear the surname of the husband, unless the spouses declared at the time of their marriage, that children born during the marriage shall bear the surname of the wife.

Section 2. Where the parties contracted marriage after the birth of the child, the above rule shall apply in like manner to the child’s surname. If at the time of the parents’ marriage the child was over 13 years of age, his consent to the change of his surname is required.

Article 89.

Section 1. Where paternity has been established by recognition of the child, the child shall bear the surname of the father, unless the latter declares, at the time of the recognition, that the child shall bear the mother’s surname and the persons whose consent is required for the recognition of the child agree to the declaration of the father . . . .

Section 3. If the paternity of the child has not been established, the child shall bear the mother’s surname. Where both parents are unknown, the guardianship court shall grant the child a surname.

Note: Article 33 of the Constitution of Poland: "(1) Men and women shall have equal rights in family, political, social and economic life in the Republic of Poland . . . ."

Section 25(c).
The validity of a marriage contract is conditioned on the existence of a guardian who would conclude the contract [for the woman].

Section 33.
A guardian of a Muslim woman shall be male, sane, mature and Muslim.

Section 34.

(1) The marriage of a pubescent woman shall be concluded by her guardian with her permission and consent to the husband and the dowry. Her word regarding her attainment of pubescence shall be conclusive unless it contradicts the obvious.

(2) A virgin pubescent woman’s express or implied affirmation is necessary if her guardian concluded her marriage contract and informed her later.

Section 40(3).
The guardian of a minor girl can conclude her marriage contract. The guardian has to prove that the marriage will benefit the minor girl, that the husband is suitable and the husband pays the dowry usually paid to women of her status.

Section 51.
The wife’s rights in relation to the husband shall be:

(a) to be provided with living expenses;
(b) to be allowed to visit her parents and those relatives whom she is prohibited by Shari’a law from marrying and to receive the aforesaid in her home;
(c) the husband must not (i) interfere with her private property, and (ii) harm her financially or emotionally; and
(d) to be treated equally and justly with her co-wife or co-wives.

Section 52.
The husband’s rights in relation to his wife shall be:

(a) to be taken care of and amicably obeyed; and
(b) to have the wife preserve herself and his property.

Section 91.
Except in situations involving a violation of Shari’a law, a wife shall always obey her husband if he:

(a) has paid her dowry in full,
(b) could be entrusted with her, and
(c) provides her with a home that complies with the Shari’a requirement among good neighbors.

Section 92.
If the wife refuses to obey her husband, her right to be provided with a living ceases to be valid during such refusal.

Note: Article 21 of the Constitution of Sudan: "All people are equal before the courts of law. Sudanese are equal in rights and duties as regards to functions of public life; and there shall be no discrimination only by reason of race, sex or religious creed."

Section 10. Kinds of Marriage.
. . . .
(2) A marriage contracted in Tanganyika, whether contracted before or after the commencement of this Act shall --

(a) if contracted in Islamic form or according to rites recognized by customary law in Tanganyika, be presumed, unless the contrary is proved, to be polygamous or potentially polygamous; and
(b) in any other case, be presumed to be monogamous, unless the contrary is proved.

Section 13. Minimum Age.

(1) No person shall marry who, being male has not attained the apparent age of eighteen years, or being female, has not attained the apparent age of fifteen years.

Section 15. Subsisting Marriage.

(1) No man, while married by a monogamous marriage, shall contract another marriage.
(2) No man, while married by a polygamous or potentially polygamous marriage, shall contract a marriage in any monogamous form with any person.
(3) No woman who is married shall, while that marriage subsists, contract another marriage.

Note: Article 13 (1) of the Constitution of Tanzania: "All persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law."

Article 88.
The minimum age for marriage is seventeen for men and fifteen for women. Nevertheless, in extraordinary cases, the judge may grant permission for the marriage of a woman who is a minimum of fourteen years old and a man who is a minimum of fifteen years old. Before the verdict, the parents or the guardians must be heard by the court.

Article 152.
The husband is the head of the union. It is the husband who decides where the family will live and who is responsible for adequately maintaining the wife and the children.

Article 154. The husband is the representative of the union. Whatever ways the couple have chosen for the management of their property, it is the husband who is responsible for the savings.

Note: Article 10 of the Constitution of Turkey: "All individuals are equal without any discrimination before the law, irrespective of language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such considerations."

Article 40.
A husband has a right to his wife’s obedience in matters affecting the family’s interests, particularly with regard to the following:

(i) She must move with him to the conjugal home, unless she stipulated in the contract that he must allow her to remain in her home or her family’s home, in which case she must permit him to live with her and enjoy access to her;

(ii) She must permit him to have licit intercourse with her, in private, when she is in a state of ritual purity;

(iii) She must obey his orders and perform her work in the conjugal home, like other women;

(iv) She must not leave the conjugal home without his permission, although the husband has no right to prevent his wife from going out for a legally valid or generally acceptable reason which is not prejudicial to honour or to her duties towards him. In particular, she may go out to attend to her property interests or discharge her employment-related duties. If the woman wishes to assist her aged parents when there is no one else to take care of either or both of them, this shall be deemed a legally valid reason.

Note: Article 27 of the Constitution of Yemen: "All citizens are equal before the law. They are equal in public rights and duties. There shall be no discrimination between them based on sex, color, ethnic origin, language, occupation, social status, or religion."