Dissertations / Theses on the topic 'Marriage age (Islamic law) ; Marriage law'

The present thesis has been designed to discuss how the minimum age for marriage has been determined in Islamic Fiqh with a focus on the case study of the Family Law No 36 of 2010 in Jordan. It is the contention of the present researcher that the marriage of minors cannot comply with the guidance of both the Holy Quran and Hadith because neither specified a clear cut minimum age for marriage. A considerable confusion exists among Muslim scholars regarding the determination of the minimum age for marriage leading to the prevalence of child marriage in some Muslim societies. This confusion has arisen when Muslim scholars have sought to derive the minimum age for marriage from de – contextualised verses of the Holy Quran and texts of the Hadith that refer to the physical and natural symptoms of puberty and encourage both young men and women to marry at an early age. In order to fully examine such a problematic issue, identify the root causes lying behind it and, hopefully make a contribution towards solving it, the present study has sought to jurisprudentially contextualise such an issue within the Islamic Fiqh. The researcher has argued that determining the appropriate age for marriage based on the original context of pertinent verses of the Holy Quran and texts of the Hadith as well as the international criteria for human rights is the sole legal guarantee that safeguards the right of women to express their full and free consent to marriage.

This thesis examines the custom of child marriage in Islamic law and its practice in Muslim society. It also gives an overview of the history of child marriage from ancient to modern times. The focus of this research is the status of child marriage in the modern Muslim world as a continuation of ancient tradition and the role historical interpretations of Islamic law play in its perpetuation.
Child marriage was once a globally accepted and practiced phenomenon. Over the centuries its practice has diminished considerably. Today, although child marriage is viewed as an offensive act and discouraged by the majority of governments around the world, it continues to exist to a significant extent in most parts of the Muslim world. Those Muslim communities which persist in condoning and practicing child marriage are not only affected by cultural traditions but also by their form of understanding of Islamic law. This particular understanding is mostly informed by local religious leaders within their communities who base their justifications on medieval perspectives and interpretations of what constitutes divine law.
It is no coincidence, however, that child marriage is restricted to the impoverished, uneducated and rural sectors of society; people who have little choice in deciding their futures and due to harsh and straitened circumstances find it difficult to see any other alternatives.

Islamic Law in Canada: Marriage and Divorce provides an analysis of how Canadian society and the Canadian judicial system have responded to the use of the Shari'a to resolve issues relating to Islamic marriage and divorce in Canada. This dissertation explores two instances where Canadian society has been forced to address the role of the Shari'a in Canada and its interaction with Canadian laws and values. The first involves the debate that took place in Ontario over the last decade concerning the use of Islamic arbitration in family matters. This public debate ultimately led to the rejection of faith-based arbitration in that province, a decision apparently consistent with traditional Canadian attitudes towards multiculturalism. The second area of interaction between Canadian and Islamic law is within the Canadian court system itself. In particular, Canadian judges are occasionally required to grapple with Islamic family law issues when rendering judgments on certain cases that appear before them. This dissertation will examine a number of such cases in order to illustrate how the Shari'a has been addressed by Canadian judges. The overall aim of this work is to situate Islamic law within Canada's liberal framework. It is argued that although Canadians are amenable to certain levels of diversity, values that fall outside mainstream liberalism are not granted recognition. This dissertation will also demonstrate that the failure to legitimize Islamic arbitration represents a lost opportunity that would have broadened the scope of Canadian justice to include minority voices. The decision to reject faith-based arbitration will motivate some Muslims to seek justice from ad-hoc bodies of authority. Devoid of government oversight, these forms of underground Islamic justice may negatively affect certain members of Canada's Muslim community.

Notwithstanding the enactment of the Constitution of the Republic of South Africa, 1996 the recognition of systems of religious, personal or family law for certain cultural and religious groups has either been limited or is virtually non-existent. To this extent, marriages concluded in terms of Islamic rites do not enjoy the same legal recognition that is accorded to civil and customary marriages. Non-recognition of Muslim marriages means there is no legal regulatory framework to enforce any of the consequences that arise as a result of the marriage, or any orders that are made by the Ulama, thereby creating a perilous situation that has dire consequences for spouses to a Muslim marriage. Despite South Africa’s commitment to the right of equality and freedom of religion, the courts have acknowledged that the failure to grant recognition to Muslim marriages on the ground of gender equality, has worsened the plight of women in these marriages, in that they were left without effective legal protection, should the union be dissolved either by death or divorce. Whilst the ad hoc recognition of certain consequences of Muslim marriages by the judiciary has gone a some way to redress the plight of Muslim women, and provided relief to the lived realities of Muslim women, these decisions are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims. These court decisions, that are in conflict with Muslim Personal Law (MPL), will ultimately lead to the emergence of a distorted set of laws relating to Muslim family law. This is a real cause for concern. This thesis is written from an Islamic legal theory perspective, which is contrary to western legal theory, as the latter adopts a human rights perspective. The basis of modern western democratic societies is a constitution that is premised on human rights and equality and which advocates the notion that the rights contained in the constitution reign supreme in all matters, religion included. Therefore, where a conflict arises in respect of the freedom of religion and the right to equality, western ideologies and philosophies dictate that the latter trump the former. This would inevitably mean that religious law would have to be adapted and ultimately amended so that it is in compliance with the constitution. From an Islamic religious perspective, this is not feasible and practicing Muslims will find this untenable. This may be legally uncomfortable in South Africa as a constitutional democracy but it is the reality for the adherents of the Muslim faith. A draft Muslim Marriages Bill (MMB) was released in 2003, and an amended MMB was tabled in Parliament in 2010. Both MMBs propose the legal recognition and regulation of Muslim marriages in South Africa. However, the two major issues delaying the enactment of the MMB into legislation are, firstly, whether or not the MMB would pass constitutional muster and secondly, the lack of agreement in the Muslim community on whether the MMB is Shari’ah compliant. Despite the largely consultative process that the MMBs underwent the legislative attempts to enact the MMB into legislation has not been successful. This thesis seeks to provide a possible solution whereby legislation regulating MPL law can be implemented in South Africa, notwithstanding the apparent conflict existing between MPL and the rights contained in the Bill of Rights. Notwithstanding the preference shown by the legislature to enact the MMB into legislation which will grant recognition to Muslim marriages, it is submitted there is a need for the legislature to rethink the approach that has to date been adopted. To this extent, it is submitted that the legislature should reconsider granting recognition to Muslim marriages by enacting legislation that takes the form of general legislation where state recognition is granted to all religious marriages, whether it be Muslim, Hindu or Jewish marriages. General legislation would mean that the state would require the marriage to be registered. However, the prescribed requirements, formalities and the consequences of the marriage would be determined by the chosen religious system of the spouses. On a national level a comparative analysis between Islamic law and the South African legal system, relating to the law of marriage is conducted. For the comparative analysis on an international level the law of marriage in England and Wales has been chosen. South Africa and England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Furthermore, an internal pluralism exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, and as well as South African and English law. The manner in which MPL is granted recognition needs to be given careful consideration as the implementation of this legislation will only be successful if it is compatible with the rulings and teachings of Islamic law. Caution should therefore be exercised to ensure that the fundamental aspects of MPL are not compromised as this will result in the legislation not being Shari’ah compliant and there will be no buyin from the Muslim community, with the consequence that this legislation will be mere paper law.

Doctor Legum - LLD
South African Muslims constitute a religious minority group that is subject to dual legal systems. In the public sphere they are bound by South African law whereas in the private sphere are duty bound in terms of their religion to follow Islamic law. Muslims are required, in terms of their religion, to ensure that their estates devolve in terms of the Islamic law of succession. A son inherits double the share of a daughter in terms of the Islamic law of intestate succession. This unequal distribution of shares has led to a premise that the Islamic law of intestate succession discriminates against females. The South African Constitution strongly promotes the right to equality and non-discrimination. There is therefore a serious need to investigate the fairness of the Islamic law of intestate succession within the context of South African law. This is in the interest of a religious minority group who have been in South Africa since 1654.

Magister Legum - LLM
It has been more than 25 years since the Interim Constitution came into effect and a Bill of Rights was introduced. Yet Muslim Personal Law ( still has no lega l recognition in South Africa. This the sis investigates how this causes serious problems for Muslim women who suffer grave injustices upo n divorce due to the non recognition and non regulati on of Muslim marriages It highlights t he State refus al to enact legislation despite the dicta and obiter comments from the courts spanning more than two decad es enjoining the state to effect legislation to achieve this purpose. South African law is still fundamentally lacking in the recognition of the rights of parties to marriages contracted only in terms of M PL . For couples married in accordance with civil law, marriages and divorces are dealt with under the relevant statutes, namely the Marriage Act 25 of 1961, t he Civil Union Act 17 of 2006 and the Divorce Act 70 of 1979. No provision has been made in statu tor y law for MP L . Previously the courts have held that this was due to the potentially polygyn ous nature of Muslim marriages. Muslim m arriages are inadequately regulated resulting in serious hardships to Muslim women and children. This thesis furthermore inve stigate s the need to recognize MPL .

Forced marriage affects a number of communities within the UK, including British Muslims. In some cases, Islam is used to justify this practice and the media has highlighted cases where young Muslims have been coerced into marriage. This thesis attempts to address this issue from a normative perspective, using Islamic legal sources to assess whether Islamic law (sharīca) allows forced marriage and will determine what can be done about it from within this context. It provides a much needed comparative and contrastive account of key discussions and debates of Muslim jurists (fuqahā’) from the four Sunni schools of law regarding elements of the marriage contract which are pertinent to this discussion, specifically: wilāya (guardianship), ikrāh (coercion) and maqāṣid alsharīca (the aims and objectives of Islamic law). The Introduction sets out the main themes and structure of the thesis determining the motivation for the research, the research problems, its rationale, its significance and contribution to academic literature, the research questions, the methodology and the overall structure of the thesis. The issue will be approached from three perspectives: the nature of Marriage in Islamic jurisprudence, the role of guardianship in concluding marriage contract, and the ruling of marriages contracted under the effect of coercion. Chapter 2 defines forced marriage whilst looking at the distinction between it and arranged marriage, contextualising the issue in terms of UK and human rights law. It also introduces the problem of forced marriage within the Muslim community, and asks whether or not it is sanctioned by Islamic law. Chapter 3 looks in depth at the meaning and significance of marriage in Islam, and some elements of marriage; khiṭba (engagement/betrothal), the maqāṣid (legal objectives), the arkān (cornerstones), the ṣīgha (marriage formula), the shuhūd (witnesses), kafā’a (suitability or social equity of the spouses) and the mahr/ṣadaq (dowry). Wilāya (guardianship) ahliyya (legal capacity), and wilāyat al-ijbār (compelling guardianship) will be discussed in detail in Chapter 4. Chapter 5 focuses on the pivotal issues of ikrāh (coercion) and riḍā (consent). The Conclusion will gather together all the pertinent information and arrive at a definitive judgement with regard to forced marriage in Islamic law: forced marriage is not compatible with the objectives of the Sharīcah and has no reliable basis in its sources; the function of the walī (guardian) is to protect the interests of the ward and not to exercise his authority over her; the woman with legal capacity has the right to choose her spouse; the marriage contract conducted under coercion is invalid. This chapter will also include suggestions for further research and recommendations for addressing the issue of forced marriage.

Throughout Islamic history, Islamic schools of law (madhāhib) enjoyed tremendous authority. In addition, traditional religious institutions that have taught the doctrines of the various Islamic schools of law have also wielded similar authority within the Arab-Muslim states. However, Arab-Muslim intellectuals challenged the authority of these madhāhib both from within the madhāhib and from outside of them. As a result, consensus (ijmā`) reached by past jurists of the madhāhib, has also been challenged in favor of a new type of ijtihād known as collective ijtihād. This new method of ijtihād allows professional women to participate in the process of lawmaking alongside men as reforms are made to Islamic family law. As a consequence of this legal process, the authoritarian method of traditional consensus (ijmā`) has been weakened in favor of more inclusive methods which allow for the creation of laws that are more favorable to women. Over the course of the twentieth century there has been a dynamic and ongoing debate within both traditionalist and reformist circles of Arab-Muslim society regarding the topic of marriage. Muslim conversations regarding the marriage contract demonstrate that the debates over family law in general, and the marriage contract in particular, are complex and challenging. The fact that not all Arab-Muslim intellectuals and muftīs share the same opinion regarding the legal age of marriage for women, the role of the marriage guardian (walī) in marriage, or the right of women to conduct their own marriages, for example, illustrates this point. Even individuals from within the same Islamist party have vastly differing opinions. While some argue for the preservation of the Islamic tradition by the continued restriction of a wife's role in her marriage, others want to grant women broader agency in some aspects of the marriage contract. All intellectuals, traditionalists, Salafis, and reformists, however, draw on past Islamic authority--the Qur'anic text, the Sunna of the Prophet, and past jurists' opinions--in order to legitimize their argument in an effort to preserve the identity of Muslim society and its core foundation, the Muslim family. Chapter one of this dissertation introduces the origins of Muslim jurists' opinions and rulings in Islamic jurisprudence (fiqh). While the chapter outlines the opinions of the majority of jurists regarding the age of puberty (bulūgh) for men and women, the age of financial competency (rushd), and the legal age of marriage, it also illustrates the opinions of minority jurists who reject the marriage of minors outright. Chapter two demonstrates the opinions of numerous Arab-Muslim intellectuals, as well as the codification of some of the Arab-Muslim states' Personal Status Laws (PSLs), and the debates among intellectuals along with the evidence they cite to justify their opinions. Chapters three and four are concerned specifically with debates among Moroccan intellectuals. They also include a discussion of the history of debate over the Moroccan Mudawwana from its initial publication in 1957 through the present day. The chapters discuss the opinions of Moroccan intellectuals regarding some of the Articles of the Mudawwana and show the evidence presented by each side both for and against reforming the Mudawwana. Chapters three and four also present the opinions of intellectuals voiced during personal interviews I conducted in 2013. These interviews show how complex the task of compartmentalizing the various Arab-Muslim intellectuals' opinions may be when seeking to label them either traditionalist or reformist with respect to their views on the rights of women in marriage.

The Islamic legislative drafting methodology is meant to bring the family law of Islamic countries into line with current conceptions of gender equality found not only in the West but in Islamic law (the shari’a) as well. The methodology involves identifying the fundamental principles of shari’a and recognizing that they must be adapted to the socio-economic conditions in which they are to be applied.

In the late 1990's, various British news agencies reported cases of British-born South Asian Muslim women who forced into marriages. In 2000, the UK government produced a study that determined there were 400 British cases of "forced marriages" reported to UK police in a two year period. In response to these findings, the UK government launched an educational prevention campaign, in which they defined forced marriage as "a marriage conducted without the valid consent of both parties". I argue that, while the aim of the UK government's campaign is to promote the right of choice in marriage, they do not critically examine legal, religious, political and economic issues that may limit the ability of some British South Asian Muslim women to exercise that right. This study examines these issues to develop a better understanding of the link between culture, religion and forced marriage in certain British South Asian Muslim families.

Le droit français est confronté à des normes d'inspiration musulmane depuis l'arrivée en France de nombreuses personnes ressortissantes des pays musulmans anciennement colonisés par la France. Cette rencontre du droit français avec le droit musulman est réelle car le droit international privé soumet les questions relatives à l'état des personnes à la loi nationale. Malgré la tendance actuelle du droit international privé français qui favorise la compétence de la loi française par rapport au droit étranger, les règles de conflit françaises relatives à la filiation ne sont pas hostiles au droit étranger. Le juge français est donc confronté au modèle musulman de filiation fondée cumulativement sur le mariage et sur le lien du sang. Les conséquences de ce modèle posent certaines difficultés notamment l'exclusion de la filiation naturelle et l'interdiction de l'adoption. Ces prohibitions musulmanes sont comprises comme étant en décalage avec l'évolution du droit français de la filiation qui a abandonné la distinction filiation naturelle et filiation légitime. Cette thèse propose une vision à la fois originale et authentique du droit musulman de la filiation pouvant ouvrir la voie à une réception positive de ce droit souvent présenté comme irrémédiablement opposé au droit français
The French law is confronted with standards of Muslim inspiration since the arrival in France of numerous people nationals of the Muslim countries formerly colonized by France. This meeting of the French law with the right(straight) Muslim is real because the private international law submits the questions relative to the state of the people in the national law. In spite of the current trend(tendency) of the French deprived international law which favors the skill(competence) of the French law with regard to(compared with) the right(straight) foreigner(foreign countries), the French rules(rulers) of conflict relative to the filiation are not hostile to the right(straight) foreigner(foreign countries).he French judge is thus confronted with the Muslim model of filiation based(established) concurrently on the marriage and on the blood relationship. The consequences of this model put certain difficulties in particular the exclusion from the natural filiation and the ban on the adoption. These Muslim prohibitions are understood(included) as being out of step with the evolution of the French law of the filiation which abandoned(gave up) the distinction natural filiation and justifiable filiation. This thesis(theory) proposes a vision at the same time original and authentic of the right(straight) Muslim of the filiation which can open the way to a positive reception of this right(law) often presented as irreparably opposite(opposed) to the French law

The Swedish rules for marrying in Sweden are different for swedish citizens and foreigners. A swedish citizen has to have permission from"Länsstyrelsen"to marry before the age of 18 but a foreigner may marry without permission at an age of 15, unless a higher age is required by the foreign law. The main question in this essay is if the swedish international law concerning the age of marriage is compatible with the Convention on the Rights of the Child and/or the Swedish Constitution. The comparison is based on mainly two questions: Primarily the Swedish international law is discussed concerning which marrying age is good for the child. Thereafter it is discussed whether it is discriminating to have different marrying ages for swedish and foreign citizens. The result is that 18 years is a suitable age for marrying after a comparison with other Swedish laws and the Convention on the Rights of the Child. Different age limits for swedish and foreign citizens could not be considered to be discriminating according to the Swedish Constitution, but on the other hand it is discriminating according to the Convention on the Rights of the Child.

L’objet de cette thèse est d’étudier « La confrontation de la dissolution du lien conjugal et ses effets entre les États maghrébins et les États européens francophones (France et Belgique) ». Les difficultés de coordination des systèmes islamiques et européens de droit international privé proviennent de l’écart entre leurs législations relatives au statut personnel et au droit de la famille. En droit musulman, les matières du statut personnel sont solidaires des donnés religieuses. Les ressortissants maghrébins établis dans des pays européens se retrouvent souvent confrontés au croisement du système juridique maghrébin et celui de leur pays d’accueil.

S’il est un domaine où se heurtent des visions difficilement conciliables entre l’Europe et certains pays musulmans, c’est bien celui du mariage mixte et particulièrement celui de la répudiation. Il faut souligner que le problème perdure depuis plus de vingt ans.

Toutefois un grand nombre de ressortissants Marocains réside en Belgique ce qui conduit inévitablement à ce que des problèmes liés à la dissolution de leur mariage se posent. A ces difficultés viennent s’ajouter les problèmes de conflits de lois. Cette étude a donc tenté de dégager les caractéristiques des différents systèmes étudiés et de montrer les divergences qu’ils comportent en terme de méthodes utilisées dans le règlement des conséquences du divorce ou de répudiation.

La présence d’une communauté immigrée de statut personnel musulman et la rencontre de l’ordre juridique européen avec ce phénomène, posent l’épineux problème de l’harmonisation de deux systèmes juridiques fondamentalement différents et a ainsi pu être qualifié de « conflit de civilisations ». Ce qui permet une vue globale du sujet.

Summary: The purpose of this thesis is to study the dissolution of a marriage tie between North African states and European French speaking states, and what this dissolution means in term of confrontation on both sides concerning the juridic systems european and islamic. The difficulties of coordination between the islamic way of life and the international law are the result of divergence relating with personal status and family right. In the islamic law, personal status and religious faith are closely interlinked. Moroccan nationals who step up house in an european country are confronted with the law of the Maghreb and the law of the country witch welcomes them.

Mixed marriages and in particularly in a case of repudiations are a sphere where european nations and some muslim nations don’t see things in the same way. One has to emphasize that these problems have been enduring for over tweenty years. A great numbers of Morocans lives in Belgium which leads to difficulties if their marriages have to be dissolved. Over these difficulties problems of laws conflicts are added. This study have tried to show the characteristics of these systems and the different way to solve the consequences of the divorce or of the repudiation. The presence of an immigrated community of personal muslim status and the encounter of the juridic european system with this phenomenon set the acute issue of the harmonization of two juridics systems deeply different. This can be described as a “conflict of civilisations”. This allows a broad view of the subject

Doctorat en droit
info:eu-repo/semantics/nonPublished

M.A.
Mankind today lives in a predominantly heterogeneous and metropolitan society. At all stages of life, social, political, spiritual, there is constantly a diffusion of cultures, ideas and beliefs. South Africa until 1994 was the only example of a country where the broader ethnic groups were separated from each other. Besides this country, all other countries are exposed to this amalgamation and inter-action with each other on a daily basis. Although a mixed society augers well for the propagation and easy penetration of Islam within the populace, it also has its drawbacks. Allah says: 0 mankind! We created you from a single (pair)of a male and a female, and made you into nations and tribes, that you may know each other (not that you may despise each other). Verily, the most honoured of you in the sight of Allah is (he who is) the most righteous of you. 1 1 Qur'an 49:13. Upon pondering the deeper meaning of the above verse, Allah has prescribed Taqw& (piety and righteousness) as a means of solving any problem resulting from the interaction of different tribes, races, and nations which could be at times a terribly irreconcilable one. The significant number of Muslims in any given society and especially Malawian Muslim society are ignorant of the Muslim Principles of marrying Al-Kitabiyyah (Woman of the Book). That is why we notice an irretrievable breakdown of many families whose husband happen to be a Muslim and the wife is a Kitabiyyah. This type of marriage has caused, and is still causing many problems to the social life of the Malawian Muslims. Children of these families do not enjoy that status of being under the loving care of both their mothers and fathers because their marriages does not last long. It is from this perspective that "Muslim Principles of marrying Al-Kitabiyyah" was chosen to give right direction for those who wants to marry women of the People of the Book. It deals with one small but significant aspect of interaction-the aspect of inter-marriage of Muslim men with Al-Kitabiyyah.

Generally, traditional "marriages" according to Islamic custom are void in South African law because they are potentially polygynous and do not comply with the formalities prescribed by the Marriage Act 25 of 1961 . A valid concern for those who oppose polygyny is that it may enforce and promote gender inequality in that it is practised in patriarchal Muslim societies. The Constitution of the Republic of South Africa Act 108 of 1996 contains numerous provisions aimed at combating gender inequalities, and these could be used to justify the policy of non-recognition. On the other hand, the Constitution has ushered in an era of tolerance and empathy; and the equality and religion clauses could be used to ensure that polygynous marriages are no longer ignored. This study will examine the tensions between Muslim personal law and clauses in the Constitution which have led to calls for the reformation and codification of Muslim personal law.
Private Law
LL. M.