Country Table – Tunisia
In 2016, Musawah began compiling country tables containing an overview of legislative frameworks, available case law, policies, procedures and practices…
The promulgation of the Personal Status Code on 13 August 1956, was a breakthrough for the rights of women in family law, with positive repercussions for women in the social, economic, political and cultural domains“Report of the Working Group on the issue of discrimination against women in law and in practice” 2013 https://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.50.Add.2_ENG.pdf. The promulgation of the code abolished polygamy and repudiation and instituted civil marriage with the explicit consent of both spouses, and gave men and women equal access to divorce before a court.
Over the past decades, a number of legislative reforms have further strengthened the protection of women’s rights in the family. Among them, in 1993, the wife’s duty to obey her husband was replaced with the principle of reciprocal rights and duties of the two spouses.
In 2007, the Personal Status Code was amended to harmonize the minimum legal age for marriage, now 18 years for both men and women.
In 2010, the Tunisian nationality law was reformed, allowing women to transmit citizenship to their children in the same way as men. From 2011 until now many amendments and reforms have promoted equality between the spouses; in 2017 mixed marriage for Tunisian women marrying a non-Muslim foreign national was made legal in Tunisia by the Circular n° 164 of the Ministry of Justice dated September 8th, 2017 abolishing the Circular n° 216 dated on November 5th, 1973. The Personal Status Code does not classify religious differences as a legal prohibition.
Despite these successive reforms, a significant number of discriminatory provisions remain in force that deny women equal rights with men. During marriage, women continue to suffer discrimination in their personal relations with their husband, who, according to Article 23, remain the heads of the household. This unequal status is reinforced by the reference in the same article to customs and traditional practices with respect to the couple’s conjugal duties. Discriminatory provisions still persist in relation to divorce and custody, women lose custody of their children if they remarry after divorce, while men can retain custody. Inheritance law, which is based on patriarchal and patrilineal family, remains discriminatory against women. Although the absence of any restrictions bound to religion to prevent marriage or inheritance, which clearly demonstrates the will of the legislature to remove these barriers, as also demonstrated by some case law in that regard. (Civil Cassation Judgement n 31115m, 5 February, 2009; Tunis Appeal Court Judgement No 120, 6 January , 2004 and n 3351, 4 May 2004) it is difficult to measure the real impact of the Personal Status Code on women’s lives and to analyse the way judges have applied its provisions over the past 60 years, Information received about some progressive, but also many regressive, judgments whereby judges use the Sharia as a source of customary law in matters concerning family law and inheritance. The laws which have an impact on women’s rights are not limited to family code. The Criminal Code went through successive reforms, which notably criminalized sexual harassment in 2004. With a view to guaranteeing women’s right to physical integrity, section 207 of the Criminal Code was deleted because it recognized marriage ties as a mitigating circumstance when a husband murdered his wife or her partner upon catching them in an act of infidelity.
The Labor Code assures the women’s right to equal pay for the same work, but 40,000 domestic workers, the majority of them are girls, do not benefit from the protective provisions of this code. The Tunisian new codes, which are Eliminating Violence against Women Law, 2017 (No. 58) and The Prevention and Control of Trafficking in Persons Law, 2016 (No 610, guarantee more rights for women. But from 2011 until now Tunisia is living at a time of political transition and at a very challenging point in its history. Women’s rights are at the core of a collision of views. To achieve gender equality, Tunisian women still continue their struggle for equality in inheritance laws, for more recognition of unpaid female homeworkers, for more structural equality in economic and social life. As a policy framework, the Peer Council for Equal Opportunities for Men and Women, which is an advisory body, was established by Government Decree No. 626 in 2016. Its main mission is to mainstream the gender approach in development policies and plans in Tunisia. Since the Law on Eliminating Violence against Women (No. 58, 2017) entered into force in 2018, a common framework agreement between government institutions and NGOs has been developed to support women victims of violence.
The Personal Status Code was the country’s first legislative text appearing in August 1956, three months after Tunisia’s independenceAnderson, J.N.D : The Tunisian law of personal status, The International and Comparative Law Quarterly, Cambridge University Press, Vol. 7, No. 2 (Apr., 1958), pp. 262-279. https://www.jstor.org/stable/i230659 . It states that Women and men have equal rights in most aspects of marriage and divorce. The law requires consensual marriage. The Personal Status Code provides for judicial divorce and guarantees equal divorce rights for women and men.
Polygamy is prohibited, the legal age of marriage for each spouse is 18 years. There is no legal requirement for a male marriage guardian to consent to an adult woman’s marriage or to sign the marriage contract.
Numerous other laws were introduced in this context to acknowledge the rights of women and men based on equality, including in the areas of education, the right to work, and political rights including the right to vote and to run for public office.
The Personal Status Code (PSC) states that women and men have equal rights in most aspects of marriage, but not in all aspects, for the guardianship of children, the PSC states that the father is the guardian of his children. It was amended by Law No. 74 of 1993 to enable women to exercise some guardianship authority. For the custody of children, the divorced mother loses custody if she remarries unless it is judged by the court to be in the best interest of the child to award custody to a married woman or if the husband is within the prohibited degree of relationship to the child.
Marital rape is not specifically criminalized. The Personal Status Code requires both spouses to “fulfill their marital obligations according to custom.” However, Tunisia has indicated to the CEDAW Committee that marital rape can be prosecuted.
The legal age of marriage for each spouse is 18 years.
It is possible in exceptional cases to conclude a marriage contract below the prescribed age after obtaining special permission from the court, which is given only for serious reasons and for the obvious interest of the spouses (PSC Article 6).
The Personal Status Code provides for judicial divorce and guarantees equal divorce rights for women and men.
The prohibition of polygamy.
The judicial system is unified, it is a civil system.
The 2014 Tunisian Constitution states constitutional guarantees of gender equalityTunisia’s Constitution of 2014, https://www.constituteproject.org/constitution/Tunisia_2014. Article 21 states that ‘all citizens, male and female, have equal rights and duties, and are equal before the law without any discrimination. The State guarantees freedoms and individual and collective rights to all citizens, and provides all citizens the conditions for a dignified life’.
There are no references or exceptions for Islamic or family laws, the Article 46 states that ‘The state commits to protect women’s accrued rights and work to strengthen and develop those rights. The State guarantees the equality of opportunities between women and men to have access to all levels of responsibility in all domains. The State works to attain parity between women and men in elected Assemblies. The State shall take all necessary measures in order to eradicate violence against women.’.
The following is a list of key national laws related to gender justice:
2. Personal Status Code, from 1956 it went through successive reforms, many amendments, generally in favor of women, which notably the law No 74/ July 1993 have been introduced , among them the wife’s duty to obey her husband was replaced with the principle of reciprocal rights and duties of the two spouses . In 2007, the Personal Status Code was amended to harmonize the minimum legal age for marriage, now 18 years for both men and women.
3. Labour Code : https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/44414/61784/F839958379/TUN-44414%20(2).pdf (in French)
4. Code of Nationality, 1956 , https://observatoire-enfance.tn/documents/code%20de%20la%20nationalite%20tunisienne_fr.pdf (in French)
Tunisia has ratified CEDAW in 1985. Then it made general and specific reservations to the convention. The general declaration confirmed that Tunisia would not take any regulatory or legislative decision that would violate Article 1 of the constitution, which states that Tunisia is a free, independent, and sovereign state, its religion is Islam, its language is Arabic, and its system is republican. It ratified the Optional Protocol to CEDAW in 2008. It lifted all specific reservations to the convention in 2014. Although Tunisia was the first country in the region to lift all specific reservations to CEDAW, it maintained its general declaration.
The issues raised by the national committee in its report concern the constitutional and legislative framework, recourse to justice, special and temporary measures, stereotypes, violence against women, trafficking in persons and their exploitation of prostitution, as well as participation in political, public and social life, education, health, employment, economic empowerment of women and marginalized women, in addition to issues related to personal status.https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCEDAW%2fADR%2fTUN%2f43653&Lang=en
The Observatory provides data to researchers, national and international authorities, governmental and non-governmental actors, contributing to the dissemination of statistical culture through the publication of “OGEC Newsletter”. It uses quantitative and qualitative observation approaches, focusing on priority themes, in this case violence against women, which was the subject of the first set of specific indicators at the national level.
Government Decree No. 2020-126 of February 25, 2020, creating the national observatory for the fight against violence against women
This observatory is responsible for the following missions:
This gender profile presents an inventory of equality between women and men since the 2011 revolution and also takes into account the impacts of the COVID-19 crisis that appeared in 2020. The profile contains an in-depth gender analysis of three sectors (social inclusion, digitalisation and green economy) and presents a vision and targeted recommendations to the Delegation of the European Union (EUD) in Tunisia. The gender profile is based on a participatory and consultative approach engaged with more than 80 institutions and organizations.https://www.slideshare.net/jamaity_tn/profil-genre-tunisie2021
By local researchers, activists and civil society groups
By government agencies/committees
Key past and ongoing campaigns
✓ Amendment of the Tunisian Nationality Code: It aims at the Regularization of the status of children from a Tunisian mother who are born outside Tunisia and have not yet obtained the Tunisian nationality,
✓ Approval of the Decree on the creation of the National Observatory on Violence against Women,
✓Adoption of a maternity leave draft law: It provides for the extension of the paid maternity leave, and for the creation of a paternity leave and a prenatal leave with a view to avoid any potential effects of the mother’s health on the mother’s professional career and on the child’s health.
Key organisations working on Muslim Family Law issues
COLIBE’s work led to the drafting of a report analyzing all the liberticidal legislative provisions that furnish the Tunisian legal arsenal and offering alternative proposals in order to make it correspond to the requirements of the rule of law and the conventions duly ratified by Tunisia. Indeed, the flagship measures of this report are the perfect equality in inheritance between men and women and also between children born in a marriage and those born outside marriage, the equality in the attribution of nationality and choice of family name, the abolition of the death penalty and the repeal of article 230 of the Penal Code. Two draft laws are proposed in the context of this report: an organic law on the Code of Individual Rights and Freedoms, and an organic law on the fight against discrimination against women and between children. On October 22, 2018, fourteen deputies deposited the organic law proposal No. 2018-71 relating to the Code of Individual Rights and Freedoms, which was largely inspired by the issues raised in the COLIBE report. The draft Code contains general provisions, the rights to be guaranteed such as the right to life, dignity, physical integrity and thought, the right to belief and conscience and academic freedom; the mechanisms for the protection of individual rights and freedoms and especially judicial protection; and lastly, the provisions aimed at introducing amendments into the four legal Codes that are in force, namely the Code of Civil and Commercial Procedure, the Penal Code, the Code of Penal Procedure and the Code of Military Justice. Similarly, on 13 August 2018, the President of the Republic proposed a legislative initiative establishing equality in inheritance between men and women. This initiative was adopted by the Council of Ministers on November 22, 2018 and deposited before the ARP on November 28 of the same year. This proposal has not yet been approved by the parliament.https://docs.euromedwomen.foundation/files/ermwf-documents/8054_4.168.%D8%AA%D9%82%D8%B1%D9%8A%D8%B1%D9%84%D8%AC%D9%86%D8%A9%D8%A7%D9%84%D8%AD%D8%B1%D9%8A%D8%A7%D8%AA%D8%A7%D9%84%D9%81%D8%B1%D8%AF%D9%8A%D8%A9%D9%88%D8%A7%D9%84%D9%85%D8%B3%D8%A7%D9%88%D8%A7%D8%A9.pdf
2. Report of the Civil Collective Individual Libertieshttps://tn.boell.org/sites/default/files/uploads/2019/04/1._rapport_etat_des_li_2019_version_integrale.pdf
In this report, the “CCIL” enumerate the main violations of individual freedoms, of children’s rights, and it gives also an overview about the legislative, regulatory, jurisdictional and institutional progress in these fields. Concerning marriage, the report speaks in p12 about ”Violations of the fundamental right of Tunisian women to choose their spouse” this form of violation is no longer legislative, a circular was signed by the Minister of Justice in september,8 in 2017 cancelling the former circular No. 216 of November 5, 1973, which prohibited Tunisian women from marrying a non-Muslim, however, in reality, violations have occurred since the signing of the circular but mainly in 2018.
https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/TUN/INT_CRC_NGO_TUN_37172_E.pdf
In 2016, Musawah began compiling country tables containing an overview of legislative frameworks, available case law, policies, procedures and practices…
This country page was prepared by Professor Zahia Jouirou, Full Professor of Islamic and Gender Studies at the Tunisian University, Faculty of Letters, Arts and Humanities, Mannouba, Tunisia, as a collaboration under the Campaign for Justice in Muslim Family Laws.