Global Repository of Muslim Family Laws

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.

Main Laws that Govern Muslim Marriages

The Personal Status Code was the country’s first legislative text appearing in August 1956, three months after Tunisia’s independence^{Anderson, 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. 

Rights of Men and Women in Marriage

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.

Minimum Age of Marriage

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).

Equal Divorce Provisions for Women and Men

The Personal Status Code provides for judicial divorce and guarantees equal divorce rights for women and men.

Positive Feature(s) Under Muslim Family Law

The prohibition of polygamy.

Administration Of And Access To Justice On Marriage And Family Matters

The judicial system is unified, it is a civil system.

Constitutional Provisions

The 2014 Tunisian Constitution states constitutional guarantees of gender equality^{Tunisia’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.’. 

Other National Laws

• Law on Eliminating Violence against Women, 2017 (No. 58)^{These laws could be found (in french) on the Ministry of Justice’s website: https://legislation-securite.tn/fr/law/56326, in English they are cited in some articles: https://www.unwomen.org/en/news/stories/2017/8/news-tunisia-law-on-ending-violence-against-women, Vanessa Szakal: Violence against Women: New Tunisian law in effect, will it be effective? https://nawaat.org/2018/02/12/violence-against-women-new-tunisian-law-in-effect-will-it-be-effective/} . The law applies to all forms of violence, including physical, moral, sexual, political, and economic, and to vulnerability. It adopts the internationally agreed definition of violence against women consistent with the Declaration on the Elimination of Violence Against Women adopted by the UN General Assembly in 1993. It guarantees protection from domestic violence; women and girls are protected by this law.  
• Enactment of Organic Law No. 61 of 2016 dated August 3, 2016 on preventing and fighting against human trafficking^{Organic Law on the prevention and fight against trafficking in persons, 2016 https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/implementingLaws.xsp?documentId=B46FE411C9563CC4C125836A003266DB&action=openDocument&xp_countrySelected=TN&xp_topicSelected=GVAL-992BUG&from=state} : This law aims at preventing and combating all forms of human exploitation, especially against women and children, through preventing human trafficking, restraining offenders, and protecting and assisting victims.
• Presidential Decree No. 111 of 2017 dated August 13, 2017 on the creation of The Individual Freedoms and Equality Committee: The committee is mandated to prepare a report on legislative reforms relative to individual freedoms and equality in compliance with: the 2014 Constitution, international human rights standards and contemporary trends in the field of freedoms and equality. Subsequently, the commission is entrusted with making proposals on how to promote the principle of equality, in general, and gender equality, in particular. The Commission submitted its final report, which is composed of 220 pages, and published it to the public on its official website on June 12, 2018. The report is composed of, first, a general Report of the Republic of Tunisia on Beijing Declaration and Platform for Action (BPfA) + 25 4 introduction on a social and religious approach. Then, a first section devoted to individual rights and freedoms, in which the Commission addressed the provisions violating individual rights and freedoms, reference texts, arguments and the proposal of the draft Code for Individual Rights and Freedoms. Finally, a second section devoted to equality, in which the commission addresses the provisions violating equality through reference texts, arguments and proposals.
• The Council of Ministers’ approval of the draft law on equal inheritance rights, in its meeting held on November 23, 2018
• Article 227 of the Penal Code criminalizes rape, which is defined as any act of intercourse with a man or woman without consent, regardless of the nature or the method used. This article doesn’t mention marital rape specifically. Although the main form of domestic violence is sexual, marital rape is not specifically criminalized neither in the penal code nor in the PSC. 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.
• 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. These articles of the penal code that provided mitigation of penalties for perpetrators of honour crimes against women and girls  were removed by Law No. 93-72 of 12 July 1993 . However, the working groups on law reforms are concerned at the fact that article 218 provides for the termination of proceedings or the vacation of a conviction with the withdrawal of the complaint by the victim of an assault.
• Exoneration by marriage: Article 227 bis of the Penal Code exonerated a rapist if he married his victim. Article 239 exonerated a man from punishment for kidnapping a woman if he married her. These articles were removed from the Penal Code in 2017 by the Law to Eliminate Violence against Women No 58.

The following is a list of key national laws related to gender justice:

1. Penal Code, 1913:  (https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/61250/60936/F1198127290/TUN-61250.pdf (in French) 

• Sexual harassment: Article 226 of the Penal Code prohibits sexual harassment.

• Female Genital Mutilation /Cutting (FGM/C) Article 221 of the Penal Code, as amended in 2017,  prohibits the mutilation or partial or full removal of a woman’s sexual organ.

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)

•  Article 64 of the Labour Code states that women are entitled to 30 days of maternity leave. Article 20 of the Labour Code prohibits employers from dismissing a worker because of her pregnancy ; Article 5/ a  of the Labour Code prohibits discrimination between men and women in the application of the Code.

4. Code of Nationality, 1956 , https://observatoire-enfance.tn/documents/code%20de%20la%20nationalite%20tunisienne_fr.pdf (in French)

• In 2010, the Tunisian nationality law was reformed, allowing women to transmit citizenship to their children in the same way as men.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

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.

• Links to CEDAW reports that refer to Muslim family laws and practices 

1. The last report: November 16/ 2020

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}

• Links to Concluding Observations That Refer to Reform of Muslim Family Laws and Practices 

1. Gender Justice and the Law, Tunisia

• Link to Musawah’s CEDAW reports on Tunisia

1. Thematic Report on Muslim Family Law and Muslim Women’s Rights in Tunisia (84th CEDAW Session, February 2023)
2. Musawah Oral Statement on Tunisia (84th CEDAW Session, February 2023)

Any other relevant regional or international treaty or convention signed by Tunisi

• Tunisia has ratified the protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol)  in 6 June 2018^{https://legislation-securite.tn/ar/law/104296}Presidential Decree No. 61 of 2018 dated June 6, 2018 on the ratification of the accession of the Republic of Tunisia to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which consists of 32 articles on the protection of women’s rights in various fields. Paragraph 3 of Article 21 thereof stipulates that “women and men shall have the right to inherit the property of their parents in equitable shares”, which means that Tunisia shall adopt the content of this Protocol, which guarantees the civil, political and economic rights of women.^{https://www.unwomen.org/sites/default/files/Headquarters/Attachments/Sections/CSW/64/National-reviews/Tunisia_En.pdf}
• Organic Law No. 2 of 2018 dated January 15, 2018 on the approval of the accession of the Republic of Tunisia to the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote).
• Presidential Decree No. 62 of 2018 dated June 6, 2018 on the ratification of the accession of the Republic of Tunisia to the Third Optional Protocol to the Convention on the Rights of the Child.^{https://www.omct.org/site-resources/legacy/tunisia_gb_web_2020-12-11-144706.pdf}
• Enactment of Governmental Decree No. 626 of 2016 dated May 25, 2016 on the creation of a National Peer Council for Equality and Equal Opportunities between Women and Men: The Government of Tunisia has created a National Peer Council with a view to integrate the gender equality perspective in public institutions, which is considered one of the best international good practices for the promotion of the status of women, the achievement of comprehensive equality and the elimination of all forms of discrimination between women and men. The Peer Council for Equal Opportunities for Men and Women is an advisory body. Its main mission is to mainstream the gender approach in development policies and plans in Tunisia (planning, programming, evaluation, and budgeting) with the aim of eradicating all forms of gender-based discrimination and to achieve equality in rights and duties. It is also empowered to give its opinion on bills relating to the rights of women. This is the Report of the Republic of Tunisia on Beijing Declaration and Platform for Action (BPFA) + 25^{https://www.unwomen.org/sites/default/files/Headquarters/Attachments/Sections/CSW/64/National-reviews/Tunisia_En.pdf}

Sustainable Development Goals

• The National Strategy for the Economic and Social Empowerment of Women and Girls in Rural Areas 2017-2020: Under the framework of addressing gender disparities in rural areas on the one hand, and between women in urban and rural areas on the other hand, and as part of the efforts made to promote equality and equal opportunities.^{https://www.unwomen.org/sites/default/files/Headquarters/Attachments/Sections/CSW/64/National-reviews/Tunisia_En.pdf}
• Gender and Equal Opportunities Observatory (Women’s Center of Research, Studies, Documentation and Information (CREDIF)

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:

1. to collect data on cases of violence against women through the receipt of complaints and reports via the green line mechanism provided for in article 8 of this government decree.
2. detect cases of violence against women, in the light of the reports and data collected, while archiving these cases as well as their repercussions in a database created for this purpose,
3. monitor the implementation of legislation and policies, assess their effectiveness and efficiency in eliminating violence against women, and publish reports to this effect proposing the necessary reforms,
4. carry out the necessary scientific and field research and carry out evaluation and prospecting studies concerning violence against women in order to assess the interventions required and to treat the forms of violence,
5. contribute to the development of national strategies, common and sectoral practical measures, and define the guiding principles for the elimination of violence against women.
6. ensure cooperation and coordination with civil society organizations, constitutional bodies and other public bodies involved in the monitoring and control of respect for human rights, with a view to developing and consolidating the system of rights and freedoms ,
7. issue opinions on training, apprenticeship and empowerment programs for stakeholders in the field of violence against women, and propose appropriate
8. mechanisms to develop them and ensure their follow-up.
9. organize meetings, study days and events in the field of combating violence against women.^{https://legislation-securite.tn/fr/law/104732}

• Tunisia Gender Profile 2021: (with European Union Delegation to Tunisia) 

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

1. Sana BEN ACHOUR, Aux sources du droit moderne tunisien : la législation tunisienne en période coloniale, Thèse de doctorat d’Etat en droit public, Faculté des sciences juridiques, politiques et sociales de Tunis, 1996
2. Yadh BEN ACHOUR, « Une révolution par le droit ? Bourguiba et le Code du statut personnel », in Politique, religion et droit dans le monde arabe, Cérès Production/CERP, collection « Enjeux », Tunis 1992
3. Ben Salem, Lilia (2010) ‘Tunisia’ in Sanja Kelly and Julia Breslin, eds., (2010) Women’s Rights in the Middle East and North Africa, New York, NY: Freedom House; Lanham, MD: Rowman & Littlefield^{http://www.freedomhouse.org/sites/default/files/inline_images/Tunisia.pdf}
4. Labidi, L. 2007. “The Nature of Transnational Alliances in Women’s Associations in the Maghreb: The Case of AFTURD and ATFD in Tunisia.” Journal of Middle East Women’s Studies 3, no. 1: 6–34

By government agencies/committees

1. Annual Report of the Peer Council and Equal Opportunities between Women and Men, Ministry of Women and Family, Tunisia, 2019^{http://www.femmes.gov.tn/wp-content/uploads/2019/09/Rapport-du-Conseil-des-Pairs-2019.pdf} (in Arabic)
2. Tunisia – Freedom in the World. Country Report – Tunisia^{http://www.freedomhouse.org/report/freedom-world/2013/tunisia#.Uvp360JdVyE}

By international bodies

1. UNFPA Tunisia – Gender Justice and the Law
2. Social Institutions and Gender Index (SIGI 2023) OECD
3. The Women’s Rights Champion. Tunisia’s Potential for Furthering Women’s Rights (Chr. Michelsen Institute, 2016)

Key past and ongoing campaigns

• On the occasion of the International Women’s Day, and at the convening of a Council of Ministers for Women on March 08, 2019, the Head of Government decided the following: 

✓ 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.

• The civil collective individual liberties^{https://www.fidh.org/IMG/pdf/etude_resume_fr_ang_ar_web.pdf}
• Association of  Tunisian Democratic Women (ATFD)^{https://atfd-tunisie.org/}
• Association of Tunisian Women for Research and Development AFTURD, Jamaity^{https://jamaity.org/association/association-des-femmes-tunisiennes-pour-la-recherche-et-le-developpement/} 
• Center of Researches, Studies, Information and Documentation on Women CREDIF’s campaign for a secured digital space for women^{http://www.credif.org.tn/PORT/doc/AGENDA/62/la-campagne-de-sensibilisation-et-de-plaidoyer-pour-un-espace-numerique-securise-pour-les-femmes-et-?_lg=fr-FR}
• Center of Researches, Studies, Information and Documentation on Women CREDIF’s campaign against gender-based violence^{http://www.credif.org.tn/violences-fondees-sur-le-genre.aspx?_lg=fr-FR}

Key organisations working on Muslim Family Law issues

1. Report of The Individual Freedoms and Equality Committee (COLIBE)^{https://colibe.org/report/?lang=en}

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 Liberties^{https://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.