and south without the right to follow their own
legal school. The present Family Code (Law no. 20
of 1992 concerning Personal Status as amended in
1998 and 1999) draws from all schools of Islamic
jurisprudence. When the country was divided, each
state applied very different legislation. The Family
Law of the Yemen Arab Republic (Law no. 3 of
1978) provided a conservative reading of Islamic
law schools and custom (≠urf). The Family Code
of the People’s Democratic Republic of Yemen
(PDRY) (Law no. 1 of 1974 in Connection with the
Family), a radical interpretation of the Sharì≠a, was
considered one of the most progressive codes in the
Islamic world.
The present code provides some improvement
for women in the north; for example, in signing the
marriage contract the woman’s guardian has to be
present, while earlier no representative of the bride
was needed; the conditions under which polygamy
was allowed are tightened, as are provisions re-
garding the husband’s obligation not to cause any
material or psychological harm (∂arar) to his wife.
In addition, in the event of divorce, the age of chil-
dren remaining in the custody of the mother was
raised. For southern women, all these provisions
were clear deteriorations. In the PDRY family code,
polygamy was allowed only under special condi-
tions, subject to court decision, and all divorces
required litigation.
According to classical jurisprudence, marriage
(nikà™) is a contract between two parties based on
an offer and acceptance in the presence of two male
witnesses. A woman is represented by her guardian
(walì) in signing the contract. However, in £anafì
and Ja≠farìlaw any sane adult can contract mar-
riage on his or her own. The Sunnìschools of fiqh
agree that a person who is in sound mind is capable
of marrying at the onset of puberty. Sunnìs do not
specify the age but for Ja≠farìs this means nine for
girls and twelve for boys. The Ja≠farìs also acknowl-
edge an unlimited number of temporary marriages
(mut≠a) where the spouses sustain neither mutual
obligations nor inherit from each other. Children
born in such a union have the same rights as in
nikà™. All classical schools approve polygyny up to
four nikà™unions.
Marriage according to all law schools entails
mutual obligations on spouses. The husband is
obliged to pay a bridal gift (mahr) and provide
maintenance and appropriate accommodation. In
exchange, the wife is obliged to obey him. What
this obedience means in practice is contested
among classical jurists. For some it means, besides
residing in his house and allowing sexual relations,
taking care of the household chores. The majority466 law: modern family law, 1800–present
of Shì≠ìand Sunnìjurists agree that a woman who
works outside the home without her husband’s per-
mission loses her maintenance.
All classical schools grant the husband unilateral
right to repudiation (†alàq). The £anafìschool
accepts †alàqpronounced under duress or when
drunk. Consequent to †alàqthe wife is obliged to
start her ≠idda, a waiting period of three menstrual
cycles, or delivery if pregnant, before remarriage.
During the ≠idda the husband is obliged to maintain
her. Ja≠farìlaw requires two male witnesses and a
prescribed formula in Arabic for †alàq. Classical
schools distinguish †alàq al-sunna(repudiation in
accordance with Prophetic sunna) and †alàq al-
bid≠a(innovation, irregular †alàq). In the Kuwaiti
code †alàqshould follow oral expressions accord-
ing to custom or in a case where a person is unable
to speak, either in writing or by means of gestures
(Article 104). Yemeni law allows both sunnaand
bid≠a †alàq(Article 62). In a 1998 amendment,
women lost the right to compensation in unjustified
†alàq.
Classical schools agree on dissolving marriage by
mutual consent (mubàra±a) and on the instigation
of the wife (khul≠). Both require the wife to pay
compensation to the husband, often the mahr, in
exchange for divorce. The classical schools see it as
reprehensible to ask for more than the mahr, but
Yemeni law stipulates that the compensation can
be either money or service even if it is more
than obliged in the contract (Article 72), while in
Kuwaiti law the compensation depends on the mar-
riage contract (Article 114). Under £anbalìlaw, a
woman can stipulate in her marriage contract that
she has her ≠ißma(bond) in her hand, that is, the
freedom to dissolve the marriage. It is reported,
however, that Saudi men are reluctant to grant such
a clause.
A marriage can also be terminated by annulment
(faskh) or judicial separation (tafrìq). Yemeni law
recognizes only faskhand grants women a divorce
on grounds of the husband’s inability to provide
maintenance, alcoholism, or prolonged absence
(articles 51–3, 55). The classical schools acknowl-
edge also the concept of harm (∂arar) but defini-
tions of injury, physical or mental, vary among
jurists. £anafìlaw is the strictest and allows judi-
cial divorce only on the ground of the husband’s
impotence. While the Màlikìschool is most favor-
able to woman, Ja≠farìlaw is only mildly better than
the £anafìand adds insanity, leprosy, and venereal
disease to the grounds for divorce. The Kuwaiti law
acknowledges ∂araras harm that either spouse has
caused the other that makes it impossible for them
to live together (Article 126).