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Law: Modern Family Law: Palestine

in Encyclopedia of Women & Islamic Cultures Online
Author:
Nahda Shehada
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Introduction

In this article, Palestinians are defined as residents of historic Palestine during the British Mandate (1920–48), before they were forced to flee their homes and land. Many of them still live where the state of Israel was created; others migrated to countries within and outside the region. However, the majority still live in the West Bank and the Gaza Strip. Although Palestinians also live in Israel, this article focuses on issues related to the family laws that regulate the domestic lives of Palestinians living in the Gaza Strip and the West Bank

Palestinian refugees in Lebanon, Syria, Jordan, and Iraq, as well as those who live in Egypt, Libya, and other MENA countries, are subject to the legal frameworks of those countries. Muslim Palestinians, for example, submit their personal status disputes to Muslim courts, while Christian Palestinians take their family disagreements to the legal institutions that have jurisdiction over them in their host countries. And Palestinians living in Europe, the United States, Canada, or other parts of the world are subject to the rulings of the legal institutions in those countries.  However, it is well known that many Muslims, including Palestinian ones, living in these countries carry out their marriage ceremonies (and divorce proceedings) according to Islamic norms, although such marriages and divorces are recognized by the host authorities only after they have been registered at the municipal level.

Current Islamic family law draws on a variety of sources of political legitimation, which arose from successive upheavals in the region following the creation of Israel. However, the Ottoman Law of Family Rights of 1917 (Ottoman LFR 1917), as implemented by the British Mandate Registration Ordinance of 1919, continues to underlie Islamic family law in these territories and is referred to in the last instance by all authorities, both political and religious.

Before 1948, the territory that comprised Mandatory Palestine had a single codified family law. However, the creation of Israel changed the situation. Now, Palestinian Muslims find themselves affected by four family law systems. In Israel, the resolution of their domestic disputes is governed by the Ottoman Law of Family Rights (1917) in so far as it does not conflict with Israeli law. In Gaza, the operative law was imposed by Egypt (Law of Family Rights 1954). And the West Bank and East Jerusalem rely on the Jordanian Law of Personal Status (1976). There is another complication, caused by Israel’s construction of walls and fences in the name of security, which continues to split land away from the West Bank. These barriers, combined with Israeli restrictions on freedom of movement, make it very difficult for Palestinian inhabitants in this newly seized land to be provided with personal status legal services through the Palestinian Authority while being denied such services by Israel.

In Israel, where Palestinian Muslims form the largest religious minority, the Ottoman LFR 1917 is still recognized in its original form and applied in shariʿa courts, the judges of which are appointed through a Knesset commission. The legitimacy of the sharʿī judiciary hence clearly emanates from the state. This situation generates a systemic tension, since qadis (judges) are expected to apply Islamic family law even as they are bound in their practice by a series of overriding civil laws that restrict the application of certain key precepts of shariʿa; for example, civil law abolishes polygyny.

In the Occupied Palestinian Territories (OPT) as defined in international law (that is, the West Bank and Gaza Strip, including East Jerusalem), the fragmented legitimacy of shariʿa courts results from the interplay of the geopolitical transformations that have affected the Levant since the early twentieth century. Initially, the Ottoman LFR 1917 was applied by a homogeneous network of shariʿa courts fully responsible for dealing with the personal status affairs of Palestinian Muslims. This exclusive jurisdiction persisted until the end of the British Mandate in 1947. After 1948, the West Bank was subjected to Jordanian rule, and the shariʿa courts eventually applied the Jordanian Law of Family Rights of 1951 (Jordanian LFR 1951; Law No. 92/1951, Official Gazette No. 1081, 16 August 1951). This law was later replaced by the Jordanian Law of Personal Status of 1976 (Jordanian LPS 1976; Temporary Law No. 61/1976, Official Gazette No. 2668, 1 December 1976), which continues to apply today. In the Gaza Strip, the Egyptian governor-general issued the Egyptian Law of Family Rights 1954 (Egyptian LFR 1954); Dahduh, Muhanna, and Sisalim 1996, 108–22), which is still the legislation in use today. 

After 1967, when Israel placed East Jerusalem under the authority of the shariʿa court in Jaffa, a conflict arose over the issue of which family law, Israeli or Jordanian, should have jurisdiction in Occupied Arab Jerusalem. There were significant differences between the two; for example, the Jordanian law accepted marriage before the age of 18 and polygyny, both of which were considered to be crimes under Israeli law (Welchman 2000). For political and social reasons, the local qadis continued to apply Jordanian law.

In 1994, after the creation of the Palestinian Authority, its head, Yasir Arafat (1929-2004) ordered shariʿa courts in the Gaza Strip, the West Bank, and Occupied East Jerusalem (which was intended to be the capital of the future Palestinian state) to accept the status quo until a unified Palestinian family law could be passed. However, in October that year, the Washington Declaration asserted that “Israel respects the special role of the Hashemite Kingdom of Jordan in Muslim Holy Shrines in Jerusalem,” thus implicitly restricting any future Palestinian sovereignty over East Jerusalem. This was followed by an assertion by King Husain (who reigned from 1952 until his death in 1999), with Israel’s complicity, that his claim as “protector of the Sanctuary” (that is, the Dome of the Rock) overrode any future jurisdiction of the Palestinian Authority over East Jerusalem. Jordanian control over a very important religious site for Muslims reduced the chances of Arafat’s vision of shariʿa courts in all three Palestinian areas operating under one family law being realized.

Thus, the existence of shariʿa courts in Israel depends on the acquiescence of a non-Muslim, non-secular state, in which civil marriage is not practiced. The state lacks a formal constitution and uses its recognition of Christian, Jewish, and Muslim religious courts to underpin its predominantly Jewish ethno-religious character. Hence, the shariʿa judiciary is religiously autonomous but statutorily subsidiary. Only one Islamic family law is applied, but two judiciaries are responsible for personal status issues. Matters of marriage and divorce are decided by the shariʿa court, but the qadi can only apply Islamic family law within the limits imposed by Israeli civil law. Since 2001, however, Muslims may, in other matters of personal status, have recourse either to a shariʿa court or to the family chamber of an Israeli civil court. In this overall context, the qadi’s jurisdiction is subject to a dual constraint. On the one hand, he (and recently she, since many women have started to be appointed as shariʿa court judges, both in Israel and the West Bank but not in Gaza) can only apply Islamic family law within the limits imposed by Israeli civil law; on the other hand, judges are confronted by parties who may prefer to settle personal status matters before a family chamber. In certain instances, petitioners may even solicit a shariʿa court located in the OPT and ask it to confirm the ruling.

In East Jerusalem, Palestinians who are recognized by Israel as permanent residents of the city and entitled to hold Jordanian passports can approach three different shariʿa courts: the Israeli shariʿa court in Jaffa, the Jordanian court in East Jerusalem, and the Palestinian court in al-ʿAyzariyya (now just east of the wall). Judges are hence appointed by three distinct political authorities, each of which imposes different demands on them. Each court considers the two others as “foreign.” This creates complex issues of jurisdiction, mutual recognition, and execution of legal decisions. Further, it allows parties to have recourse alternatively to different courts and, in many cases, to circumvent Israeli civil law.

Family law in both Gaza and the West Bank is based on the Hanafi school of fiqh. The “general” rules of Hanafi fiqh are thus applied in both areas. When there is no clear articulation of the “rules” in the rather brief articulation in the Jordanian LPS 1976 and the Egyptian LFR 1954, applied in the West Bank and Gaza respectively, the court uses the book of Muhammad Qadri Pasha al-Hanafi (1821-1888) Kitāb al-Aḥkām al-sharʿiyya fī l-aḥwāl al-shakhsiyya ʿalā madhhab al-Imām Abū Ḥanīfa (“The book of personal status rulings according to the school of Abu Hanifa,”), published in 1875 (Dahduh, Muhanna, and Sisalim 1996, 2–107), in which all the “general” rules of the Hanafi fiqh are extensively elaborated. 

The Shariʿa Courts and Women as Litigants

The shariʿa courts in historical Palestine underwent significant changes in the course of the twentieth century. In the late Ottoman empire, they constituted a broad-based and plural institution, representing the state in matters social, administrative, legal, educational, religious, and charitable. Their sphere of intervention was, however, progressively reduced and, ultimately, limited to managing personal status issues. Still, as the sharʿī (Islamically legitimate) judiciary’s institutional prerogatives shrunk, its effective sphere of jurisdiction, albeit territorially fragmented after 1948, widened in social terms. This was due to the requirement introduced under British colonial rule to register every population change, including birth, marriage, divorce, and so forth. The situation meant that in every city, town, or village, a shariʿa court presence was indispensable. After 1948, the shariʿa court expanded its reach to the refugee camps.

Islamic family law regulates, in the last recourse, marriage and divorce, and determines the transmission of lineage and property from generation to generation. It regulates issues pertaining to the care (ḥaḍāna) and custody (wilāya) of children, as well as age of marriage, and rights and responsibilities of widows. In this framework, gender cuts across all levels and forums of negotiation and litigation linked to the management of personal status issues. Women appear in the courts more often as plaintiffs than as defendants (see e.g. Layish 1975, Doumani 2003, Welchman 2000, Shehada 2018). Their cases often have underlying motivations that differ from what appears on the surface. For example, a suit for the husband to provide a sharʿī house may veil a strategy to end misery under domineering in-laws; or it may be a way of obtaining nafaqa (maintenance). 

The following sections detail how Islamic family law deals with issues of marriage and divorce, wilāya and ḥaḍāna, inheritance rights, and age of marriage and divorce. Each of these aspects will be detailed with reference to the Jordanian law applied in the West Bank, and the Egyptian LFR 1954, applied in the Gaza Strip. The law of personal status applied in Israel will not be detailed here due to space restrictions. For the same reason, this article will also not detail the family laws that pertain to Christian Palestinians.

Legal Framework

The term “personal status” refers to the status of family members and the significance of that status (and relations) to the rights and moral or material obligations of the parties involved. Muslim jurists did not use the term in legal principles and rules regarding family relations before the nineteenth century. Instead, each topic was given its own book; for example, the Kitāb al-Zawāj (“The book of marriage”) or Kitāb al-Talāq (“The book of divorce”), and so on. It was only in 1875, when Qadri Pasha wrote his Kitāb al-Aḥkām, that the term became overwhelming popular.

As stated earlier, the Egyptian LFR 1954 is applied in the Gaza Strip; in the West Bank, however, the Jordanian LPS 1976 still obtains. (It is worth noting that the term “personal status” has for the first time replaced “family rights” in this law.) Judges in both the Gaza Strip and the West Bank continue to use Qadri Pasha’s Kitāb al-Aḥkām when they need comprehensive reference regarding specific cases where the family laws are too brief.

Both the Egyptian and Jordanian family laws derive from the Ottoman LFR 1917 and from shariʿa. The Code of Islamic Jurisdictions No. 12 (1965; Dahduh, Muhanna and Sisalim 1996, 123–65), regulated by the Palestinian Legislative Council at that time, complements the Jordanian personal status law. It comprises the rules and procedures governing the work of the shariʿa courts in applying the personal status laws, the arrangement of the shariʿa courts in the Gaza Strip and their jurisdiction, and the practical steps for applying the Egyptian LFR 1954. Many legal specialists consider this law to be no less important than personal status laws. It is also worth noting that Qadri Pasha’s Kitāb al-Aḥkām is considered an additional legitimate source. The author has often seen judges refer to it in various suits related to family law application and domestic disputes. 

The legal stratification in the former Mandatory Palestine is like “tossed salad with layers of different laws and systems all mixed up into a confused mess” (Muhaisen 2000, 1). This unique pluralism has produced a legal system in which new legislation can be imposed without replacing previous legislation (Muhaisen 2000). Sometimes, it restricts the area of application of the old law and adapts to or is in turn adapted by it. This is notably the case in the dialogue between family and customary law. The educational training, cultural background, and worldview of the judges adds even more “flavour” to the mixture and influences the nature of the legal device to be applied.

As regards the court system, unlike in Egypt and Iran, where personal status issues are dealt with by special courts, in Palestine (and Jordan, Syria, Iraq, Lebanon, and the UAE) personal status issues are dealt with by shariʿa courts. In other Arab countries (Algeria, Kuwait, Morocco, Saudi Arabia, and Tunisia), personal status issues are dealt with by courts with general jurisdiction. The family law applied in the Gaza Strip and the West Bank deals with the usual issues of marriage, divorce, and age of marriage. 

Marriage

The Jordanian LPS 1976 (which applies in the West Bank) does not define marriage as a relationship or as an institution; rather, it regards it as a “legal contract between a man and a woman whom he lawfully takes as his, so that they may form a family and produce offspring together.” In contrast, the Egyptian LFR 1954 (which applies in the Gaza Strip) does not even define marriage. To emphasize the contractual nature of marriage, Article Two states that marriage (nikāh) does not take place by promise or engagement (khutba). The law requires girls to be 17 lunar years or older and the boys to be 18 lunar years or older to get married. However, it allows the shariʿa court judge to conduct the marriage of girls aged over 9 lunar years and boys over the age of 12 years if their bodies endure (in other words, if they look older). This exception, and the authority given to the judge to decide the endurability of both male and female bodies, has sparked opposition from the Palestinian women’s movement. In the West Bank, the Jordanian LPS 1976 sets the age of marriage at 16 years for males and 15 years for females. There are no exceptions to this. After the signing of the Oslo Accords in 1993 and the establishment of the Palestinian Authority in 1994, the appointed qāḍī l-quḍāh (chief judge), Shaykh Abu Sardana, issued an administrative decision to smooth out the legal differences between the Gaza Strip and the West Bank. One of his decisions was to set the minimum age of marriage at 16 years for males and 15 years for females in both the Gaza Strip and the West Bank. 

Before analyzing the interconnected relations that lead to early marriage, it is important to note that, as a phenomenon, early marriage is in decline. Between 1967 and 2004, the percentage of married women aged between 15 and 19 dropped from 17 percent to 14 percent. This rate is not consistent with the more marked decline in other countries in the region. In Kuwait, for example, the percentage of married women between the ages of 15 and 19 declined from 38 percent to 5 percent between 1970 and 1996. The same extraordinary trend has been seen in the UAE, where the rate declined from 57 percent to only 8 percent between 1975 and 1995 (Rashad, Osman, and Roudi-Fahimi 2005).

The reasons behind the high incidence of girls in the OPT marrying at an early age and how the situation can be changed have been subject to heated debate. As argued by Shehada (2008), early marriage should be studied with reference to the complex socioeconomic and political circumstances in the Gaza Strip. Early marriage is subject to a number of variables related to political circumstances, level of education, locality, refugee status, and participation in the labor market. A number of trends had in the past accompanied the rise and fall in the incidence of early marriage. When girls were excluded from secondary school, for example, they were likely to marry early (Sayigh 1984, Shehada 2008). Also, the rate of early marriage of daughters increases hand in hand with sons marrying early. Early marriage is not a timeless “cultural phenomenon”; it is historical and changes rapidly as the related circumstances change. In the 1960s, when Gazan women were highly educated, employable, and employed, they were not perceived as an economic burden to be married off quickly. On the contrary, they were seen as a source of income and opportunity. They were in high demand as teachers in the Gulf states, to which they traveled alone if possible (for example, to Kuwait) or with their brothers or fathers (as maḥrams). Once there, they made useful connections and opened up job opportunities for their male relatives. Therefore, in the 1960s, in comparison with later decades, only a small proportion of Gazan females married at an early age (see Goujon 1997, Khawaja 2000, Shehada 2008).

Furthermore, in Palestine, the practice of early marriage varies from community to community. For example, in Bayt Hanūn, a small village in the north of the Gaza Strip, the inhabitants are mainly landowners who are accustomed to marrying their children to close relatives to keep the land within the family. However, this practice is accompanied by marrying off the daughters at an early age. This requires the falsification of the girls’ age by parents or notaries. Girls in Bayt Hanūn were considered spinsters if they were not married by the age of 20 (Shehada 2008). Women’s fertility in Bayt Hanūn continues to be the highest in the region (Shehada 2008). The early marriage phenomenon may reflect a lack of alternative support systems for individuals and families. Until the sociopolitical and economic conditions change, women’s marriage age will likely continue to decrease. 

Child Custody 

In organizing custody rights, family law in the West Bank and the Gaza Strip reflects a particular worldview regarding the status of persons. Their gender, age, lineage, religion, and morality are all important, but gender is the fundamental axis along which custody rights and responsibilities are distributed. The law divides custody rights into wilāya (guardianship, authority, decision-making, and financial maintenance), which is exclusively the domain of the father or male agnates, and ḥaḍāna (care, feeding, clothing, and bodily hygiene), which is assigned to mothers or female relatives (Layish 1975, Welchman 1999, Shehada 2018). This hierarchical division of custody into different domains is consistent with the gendered philosophy of family law, which identifies fathers as the final decision-makers, while mothers may or may not be viewed as care providers.

Thus, the concepts of wilāya and ḥaḍāna cannot be conveyed accurately using the blanket term “custody.” The most salient feature of ḥaḍāna is that it does not entail major decision-making regarding the child. Its Arabic root, ḥ–ḍ–n, means “to hold in one’s arms, to embrace, or to place on the lap.” The one who has the right to do this is the ḥāḍin (the carer). In contrast, wilāya refers to notions of authority and decision-making. The guardian (walī) has the right to exercise authority over the ward’s person and property.

In the Gaza Strip, the Egyptian LFR 1954 specifies one important matter: it permits the qadi to allow mothers to extend the period of their ḥaḍāna over boys until they reach the age of 9 years and over girls until they reach the age of 11 years, if the judge believes that the child’s interests would be served by such an extension. In the West Bank, the Jordanian LPS 1976 places a further restriction on a mother’s ḥaḍāna: if the mother works outside the home, she has to ensure that the child’s well-being is not affected by her being away from him or her. However, Welchman (2000) argues that this does not mean that women are deprived of their ḥaḍāna simply because they work; they can maintain it as long as the child is looked after by a suitable person. 

Due to numerous campaigns by members of civil society and women’s groups active in the West Bank and Gaza Strip, a new law was issued in 2009 by the president of the Palestinian Authority, Law No. 1/2009, to allow widowed mothers to prolong the period of ḥaḍāna. Divorced mothers are not covered by this law, which has prompted the women’s movement to campaign for the law to be extended to cover divorcées. 

As in all family disputes, custody cases do not end up in the court unless all other avenues for resolving the conflict have failed, indicating the degree of disagreement and bitterness between the spouses and/or their respective networks. A number of factors discourage individuals from going to court, among which are financial cost, lack of information or time, and the shame attached to revealing one’s private life to public institutions (Shehada 2018). In matters related to custody, socioeconomic circumstances are a crucial element in deciding the fate of the children since custody involves not only physical care (on the mother’s side) but also financial responsibility (on the father’s side). Some fathers (or agnates) default on the children’s nafaqa because of alleged or actual financial difficulties. Instead, they offer to take the children to be raised in their homes. The picture is further complicated when a ḥaḍāna case concerns a widow pressured by her natal family to break free from the burden of looking after the offspring of an “other.” Given that widows often depend economically on their natal families, they can put up little resistance to giving up their children to the parents and/or siblings of their deceased husbands. Therefore, campaigns to provide more ḥaḍāna rights to widowed mothers might prove more useful to well-off widows capable of financially maintaining their children. 

Only one article in the Egyptian LFR 1954 is dedicated to the issue of custody, while the Jordanian LPS 1976 dedicates 13 articles to it. In addition, judges in both areas find further and more elaborate discussions on custody in Qadri Pasha’s Kitāb al-Aḥkām. The custody worthiness of mothers changes depending on their marital status, which is not the case for fathers. While she is married, a mother’s dedication to her children is not questioned, irrespective of her status (freewoman or slave), and her adulthood and sanity are also taken for granted. However, once a mother is divorced or widowed, her ḥaḍāna rests on her eligibility to fulfil requirements that were not an issue while she was married—she has to prove that she is free, sane, and adult and that she will “imprison herself” (tahbis nafsaha) to care for her children. 

When a divorced or widowed mother’s freedom, adulthood, sanity, or devotion to her children are in doubt, ḥaḍāna is transferred to other females. In this situation, there is an interesting order of precedence, with females’ proximity to the mother ranking higher than females’ proximity to the father. It is as if there is an “essential” property in the mothers’ line of proximity. The order is as follows: the maternal grandmother stands second to the mother, followed by the paternal grandmother, then sisters of the mother, then sisters of the father, and so on. One positive aspect in the law is that it does not discriminate between mothers on the basis of their religion; whatever her creed, her ḥaḍāna rights are protected. 

When there is no female from either the father’s or mother’s side, ḥaḍāna passes to the agnatic side. The agnates (ʿaṣaba) in this case are stratified according to the prescribed inheritance order. ḥaḍāna is transferred to the father, then to the grandfather, then to the full brother (shaqīq), then to the uncle on the father’s side, then to the sons of the brother. However, what happens when there is more than one eligible agnate? Here, ḥaḍāna is transferred to the most righteous (aṣlaḥahum), then to the most religious, then to the eldest. Unlike in the case of the female carer, agnates have to be Muslim. Also, unlike the order of precedence for female ḥaḍāna, in which the order alternates between females from the mother’s side and the father’s side, the men from the mother’s side (silat al-raḥim) are totally excluded unless there are no agnates to fulfil the ḥaḍāna duty. 

Inheritance

The analysis of inheritance laws has been referred to as the science of inheritance and science of the shares (ʿilm al-farāʾiḍ). For Muslims, the roots of the inheritance system are outlined in the Qurʾan and are based on what Powers (1993) describes as “fair” distribution of shares between the heirs. Inheritance refers to property and money left by a deceased person to his or her heirs. Islamic law is often presented as promoting gender inequality in inheritance since brothers and sisters receive unequal shares. However, numerous situations have been identified in which females receive equal or higher shares of the property than males do (see Powers 1993, Chaudhry 1997, Khan 2007).

In the 1990s, the OPT witnessed a heated debate about women’s rights in family law in general and about inheritance rights in particular. Many women’s organizations were active in events such as televised discussions, popular debates, art exhibitions, and films and documentaries to highlight the importance of eliminating legal discrimination against women. These campaigns did not challenge the Qurʾanic verse, “The male receives a share equal to that of two females” (Q IV: 11); instead, they focused on removing the expansive legal and “cultural” barriers against women receiving their share. The women’s organizations argued that barriers are not of religious origin; rather, they are related to brothers’ and other male relatives’ greed, cultural practices, and a lack of legal measures to ensure that women receive their share. At that time, the prevalent framework within which women’s organizations worked was women’s empowerment and equal rights for all citizens in the post-Oslo Palestinian Territories. These activities culminated in the Model Parliament, which has become known as the first serious social debate in Palestine. The campaign failed to achieve significant legal change, but the subsequent activities of the women’s movement succeeded in getting the deputy qādī l-quḍāh in Ramallah to issue Decree No. 57/2011, which stated that: 

(1) the “relinquishing” of any legatee’s share could not be registered until four months after the death of the legator;

(2) a detailed list of all movable and immovable properties of the deceased should be signed by all inheriting heirs and the municipality in which the deceased was living;

(3) when an heiress decided to “give up” or relinquish her share, three experts and the municipality should sign a report declaring the true value of the “relinquished” share; and

(4) a declaration of the renounced shares should be placed in the local newspapers for one week and should also be reported to the court and sent to the High Court for final checking.

The importance of this decree is that it helps to circumvent any attempt by male family members to take advantage of grieving female members by pressuring them into signing documents relinquishing their shares in return for insignificant amounts of money. The decree puts in place a number of obstacles to this practice and requires that the process by which a female legatee relinquishes her share can only be started after the ʿidda period and has to be checked by assessors. This implicitly means that the women in the family will have reliable knowledge of the value of their shares if they find themselves pressured into signing a relinquishment document.

Scholarly research into inheritance in Palestine was advanced by Granqvist (1935) and Moors (1995). Both scholars emphasize the importance of investigating the context in which inheritance shares are claimed (by women), distributed (by men), relinquished (by women), or withheld (by men). They argue that any social action is subject to the power structure in a particular place at a specific time. The parameters of women’s social actions include, but are not necessarily limited to, kinship proximity and the kind of inherited property (i.e. whether it is land, gold, or cash).

It is also important to take into account the level of education of female legatees, especially sisters, for they need to be able to read and write if they are to understand the substance and meaning, both social and financial, of their shares. Many scholars also highlight that educated, and perhaps employed, women living in urban areas are more likely than those living in rural areas to demand their share of inheritance.

Moors (1995) makes an interesting observation regarding the behavior of legatee sisters, especially those living in rural areas, in cases where they are unmarried or married, and have or do not have brothers. When unmarried, they often surrender their share to their brothers with the hope of strengthening their ties with them. When they are married, they do the same but with the calculation that their action will strengthen the position of their brothers and that of themselves vis-à-vis their husbands. The emerging picture results from a combination of low economic status, a small amount of land, and low level of education. From the point of view of the prospective female legatee, giving up her share to her brothers would enable her to make two statements, one to do with the present and the other regarding the future. With regard to the present, the statement is one of solidarity with her brother; in relation to the future, it is a way of claiming security, of declaring that no matter what happens, she expects protection and “welcome” in case she needs to balance her relations with her husband.

In the post-Oslo OPT, the inheritance of land is increasingly viewed as a source of income through investment (such as building projects) rather than as agricultural or farming land. Moreover, the meaning of “land” is less and less associated with that of homeland, sacrifice, and resistance, especially for those working in the higher ranks of the Palestinian Authority and the emerging and growing middle class. The twenty-first-century Palestinian middle class has grown rapidly under the auspices of the Palestinian Authority, which was established in 1994. 

Jamil Hilal (2007) makes a noteworthy point concerning the effect that the fragmentation caused by occupation has had on the geography and development of the OPT. Cities and towns have grown and developed in isolation from each other, and there has been no foundation for the growth of an indigenous middle class. Most of the Palestinian middle class developed in the diaspora, from where, with the help of the newly established Palestinian Authority, it was transferred to the parts of the West Bank that were allowed to Palestinians under the Oslo Accords, and to establish itself there. Israel created an apartheid system of enclaved cities and towns, which was accompanied by advanced strategies of securitization using military measures such as electronic surveillance, imprisonment, interrogations, and torture against Palestinians (Eid and Clarno 2017, 2).

These changes have affected inheritance decisions in Palestine. The transformation of the Palestinian class structure, the fragmentation of Palestinian land, and the ever-tightening Israeli choke hold on the Palestinian economy have changed the meaning and significance attached to land. It may be that these changes are influencing many female legatees to hold on to their inheritance instead of surrendering it to their brothers.

Divorce

Divorce—that is, the dissolution of a marriage contract—can be carried out by the husband uttering the Arabic word for “divorce” three times. The man is allowed to divorce his wife unilaterally, but he may change his mind and return the wife to his bond (ʿiṣma) during the three months following the divorce (months of ʿidda). The law permits such a practice (of returning the wife to his bond) on the first and second instances of divorce. After the third instance, returning the wife to the bond of marriage is not possible. In such a situation, if the wife marries another man and gets divorced from him, and then observes the ʿidda period (three months), her first husband may marry her again with a new contract and new mahr (dowry). If a divorce is arbitrary (i.e. if it is without sharʿī or legal reason), the wife has the right to compensation from the husband, which amounts to no more than one year’s nafaqa. The proof of arbitrariness has to be provided by the wife, while the husband has to prove that the divorce took place for reasonable reasons.  

The wife, for her part, is allowed to get divorced in exchange for ibrāʾ (renunciation or waiving of her financial rights). Unlike the husband, who is able to divorce her by uttering the word “divorce,” she needs to go through a lengthy process of application to the court, convincing the judge that she has sufficient reason to request a divorce, and providing sufficient evidence that her husband’s behavior falls under one of the acceptable reasons for her application. These reasons are: the husband does not provide the household expenses (given that he is explicitly or implicitly considered the breadwinner); he is insane (majnūn), which is a reason  for dissolution of marriage in most Islamic fiqh schools); he is sexually defective (on the assumption that such a defect prevents him from satisfying his wife’s sexual needs); he has been missing for a number of years during war (this period varies in different family laws). The wife is also allowed to request a divorce if the husband becomes a follower of another religion than Islam. She may also apply for divorce for reasons related to discord and strife. Divorce on the basis of one or more of the above reasons is conditional on the evidence provided by the wife and the court’s acceptance of that evidence. The most-used reason for divorce applications by women is “discord and strife,” for it is related to household conflict and can be proved with witnesses. 

Khul is defined as an agreement by the husband and wife to divorce in exchange for cash paid by the wife to the husband. The cash could be similar or higher in value to the mahr paid to the wife when the marriage took place. In general, khul is meant to salvage the wife from unbearable marriage and companionship. It is the yardstick to uncouple the married partners without going through the process of filing claims and providing evidence and counterevidence, with all the accompanying delays. 

Under pressure from various civil society organizations, and in order to curb uncontrolled unilateral divorces, the deputy qādī l-qudāh in the West Bank issued Decree No. 78/2011, which imposes a huge fine on husbands who do not register their divorce within a specific period after the divorce. Since, under classical shariʿa, the man is not required to register his divorce at any court, this decree is viewed as a step forward in protecting wives’ rights. Another decree by the qādī l-qudāh, Decree No. 48/2011, requires men to inform their new fiancée if they have been previously married. Married men are also required to inform their wives of any intention to marry another woman. These decrees are meant to be “informative,” in other words there are no legal consequences since a man is allowed to marry up to four women. A wife can only use his subsequent marriage as a ground for requesting divorce, or in another legal action, if her marriage contract specifies that her husband should not marry another woman while she is in his bond.

Conclusion

Before 1948, the territory that comprised Mandatory Palestine had a single codified family law. However, as a result of the creation of Israel and subsequent political upheavals, Palestinian Muslims now find themselves governed by different family law systems: in Israel, where Palestinian Muslims form the largest religious minority, the Ottoman Law of Family Rights (1917) in so far as it does not conflict with Israeli law; in Gaza, the Egyptian Law of Family Rights (1954); and in the West Bank and East Jerusalem, the Jordanian Law of Personal Status (1976). There is another complication, caused by Israel’s construction of walls and fences, which continues to split land away from the West Bank. This, combined with Israeli restrictions on freedom of movement, makes it very difficult for Palestinian Muslims in this newly appropriated land to be provided with personal status legal services through the Palestinian Authority while being denied such services by Israel. This article has focused on issues related to the family laws that regulate the domestic lives of Palestinian Muslims living in the Gaza Strip and the West Bank, including East Jerusalem.  

The Jordanian LPS (1976) defines marriage as a “legal contract between a man and a woman whom he lawfully takes as his, so that they may form a family and produce offspring together.” It sets the age of marriage at 16 years for males and 15 years for females. In contrast, the Egyptian LFR (1954) does not define marriage. To emphasize the contractual nature of marriage, Article Two states that marriage (nikāh) does not take place by promise or engagement (khutba). It requires girls to be 17 lunar years or older and the boys to be 18 lunar years or older to get married. However, it allows a shariʿa court judge to conduct the marriage of girls aged over 9 lunar years and boys under 12 years if their bodies endure. In 1993, the then qāḍī l-quḍāh (chief judge), Shaykh Abu Sardana, issued an administrative decision to set the minimum age of marriage at 16 years for males and 15 years for females in both the Gaza Strip and the West Bank.

On child custody (ḥaḍāna) both Islamic laws divide custodial rights by gender, with fathers or male agnates having authority and decision-making and financial maintenance roles. Care, feeding, clothing, and bodily hygiene of children are the responsibility of women. The Egyptian LFR (1954) allows a qāḍī to extend the mother’s ḥaḍāna if he believes it to be in the children’s interest. The Jordanian LPS (1976) makes a mother’s work outside the home conditional on her ensuring that that the child’s well-being will not be affected by her absence. Such dedication to the children is not made a factor in judging a father’s ability to carry out his role. Widows were given the right to prolong ḥaḍāna by Law No. 1/2009, issued by the president of the Palestinian Authority.

On inheritance, the focus has not been on unequal shares received by male and female legatees, but rather on protecting female legatees from pressure to surrender their shares or attempts to cheat them by undervaluing the property. In 2011, the deputy qādī l-quḍāh in Ramallah issued Decree No. 57/2011, which helped to circumvent such attempts by male family members.

On divorce, Islamic law allows a husband to dissolve the marriage unilaterally by uttering the Arabic word for “divorce” three times. If a divorce is arbitrary (i.e. if it is without sharʿī or legal reason), the wife has the right to compensation from the husband. The wife is allowed to get divorced in exchange for ibrāʾ (renunciation or waiving of her financial rights), but it entails going through a lengthy process of application to the court, convincing the judge that she has sufficient reason to request a divorce, and providing sufficient evidence that her husband’s behavior falls under one of the acceptable reasons for her application. In order to curb uncontrolled unilateral divorces, in 2011 the deputy qādī l-qudāh in the West Bank issued Decree No. 78/2011, which imposes a substantial fine on husbands who do not register their divorce within a specific period after the divorce.

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