Mon 24 Sep 2018

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Civil marriage looking for a way to the Syrian society

Wedding Dress (Expressive)

Wedding Dress (Expressive)

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Enab Baladi’s Investigation Team

In the most ethnically and religiously diverse area of Syria, civil marriage has emerged as a top priority for the Kurdish “self-management,” which has controlled al-Hasakah for six years. The first civil marriage contract in Syria was signed in 2013, with the blessing of the “secular authority,” and made a sudden violation of social customs.

Hamrin Mahmoud and Rasho Sulaiman, the first couple to have a civil marriage in Syria, formed the “first case” in the eyes of Syrians calling for freedom from “religious and social authority.” Meanwhile, others considered their marriage illegitimate; but the bride and groom, who signed the “joint life contract” instead of the “marriage contract” and bore the costs of “life” equally, were the “most civilized” image that the “self-management” used politically to win international attention and widespread Western acclaim.

In contrast to the blessing of the administration, the step of authorizing a civil marriage faced a popular rejection in al-Hasakah province, which quickly decreased as a result of the strict security authority. But in turn, it created defensive means adopted by the civilians, which made them keep their religious marriage in a civilian mould.

Five years after the decision was issued in a small part of Syria, activists and human rights activists are now seeking to pass a bill in the People’s Council that would allow civil marriage across the country through an intensive media campaign backed by supportive voices within the council.

The campaign relied on social media as an easy platform to reach all Syrians. A number of opinion polls were conducted by media outlets to monitor the reactions in the street on an issue that is supposed to be “sensitive” and partly in conflict with the “Islamic faith.”

 

Civil marriage … Love brings people together

Despite the fact that Rasho and Hamrin are two Muslims, and religion and race do not pose any obstacle to their marriage, the imposition of civil marriage by the “self-management” administration governs the nature of the contract which brought them together.

On the other hand, the calls that spread in Syria demanded civil marriage to be made optional; that is, the couple could make their marriage religious or civil. However, most of the voices calling for this tried to criticize the Islamic religion directly, though religious marriage in Syria applies to Christianity and Judaism as well.

Through Hashtag # Civil marriage # Syria, some Syrian Twitter users spent days discussing the issue of civil and legitimate marriage. They were divided between supporters and opponents regarding the two types of marriage.

Pictures of Syrian activists who hold banners supporting civil marriage spread widely. One of them read: “I support the civil marriage because love brings people together and religion drives people apart,” while a veiled girl held another banner reading: “I do not want to be forced to marry a man from my sect no from my religion. I want to marry a civilian.” Another activist criticized the issue of polygamy, which is permitted under Islamic law.

The first date of the appearance of some of these banners dates back to 2013, but they have been reused now with the re-introduction of civil marriage.

“Facebook” was a good platform to promote this issue, as some Syrian pages have recently mobilized supporters of civil marriage.

Syria’s pro-regime “Damascus Today” page recently published a poll on Facebook to vote on the question: “Are you for or against the adoption of the optional civil marriage law in Syria?”

More than 47,000 respondents participated in the poll and 63% of them answered “yes.”

The result was supported by social networking sites that have sought since 2012 and 2013 to promote the idea of ​​non-religious marriage contracts.

 

Religion and customs are the main determinants

Article 12 of the Women’s Act, issued by the self-management, regulates marriage contracts civilly with the aim of reaching a “marriage contract between two partners signed with the presence of two witnesses at an official headquarters. This contract is based on mutual love and the willingness to form a family,” according to the text of the law that Enab Baladi got a copy of.

The article stipulates that the parties to the contract must be 18 years of age, while it prohibits divorce or separation without “a reason approved by the court,” or unilaterally, or before the passage of three years of marriage, and it prohibits polygamy too.

Activists from al-Hasakah confirmed to Enab Baladi that most of the marriages that take place civilly in the province are preceded by a legitimate contract by one of the sheikhs in the region, and its laws shall apply to both parties to the contract.

Shafan Jolie, an official of the Public Information Office in the Municipality of Qamishlo of the self-management in the city of Qamishli, told Enab Baladi in an earlier interview that some residents who seek to marry their daughters, under the age of 18, off are making marriage contracts under a legitimate contract, without registering it in self-management records.

This commitment to religious and social customs is not surprising in al-Hasakah province, which is ethnically and religiously diverse, despite the fact that the prevailing social environment is less religious than the social milieu in other Syrian provinces as Idlib, Aleppo, Hama or Damascus.

Acceptance of such a change in the Syrian provinces, however, seems very difficult at the present time, and is confined to a few categories of Syrians who have integrated into European host societies or other non-religious Syrians.

 

The documentary “Rabiaa,” a bride from the occupied Golan

The documentary “Rabiaa,” a bride from the occupied Golan

 

 Legitimate … civil … customary

What is the difference between types of marriage contracts?

 

Syrians practice specific customs in marriage. The engagement period is often associated with a legitimate contract organized by an Islamic cleric and called “Sheikh’s Contract.” This is what is called customary marriage in law; a contract between a man and a woman whom he can marry under Islamic faith. This marriage shall remain valid until it is documented in the Sharia Court, whether by organizing a contract by a legal authority appointed by the Sharia Court for this purpose, or by confirming it in court in case of the existence of children.

It is believed that customary marriage is a secret marriage, or is conducted without witnesses and a reliable sheikh. But, from the point of view of the law customary marriage is the right marriage legitimately, yet it is not valid in Sharia courts only.

Legitimate marriage is a marriage that is done in accordance with the provisions of the Sharia. It requires several things, including specifying the dowry, the consent of the parents and the compatibility of religion; that is, the husband must be of the same religion as the wife. A man is permitted to marry a Christian or Jewish woman; that is, from another religion, but a Muslim woman is not allowed to marry a non-Muslim man.

This type of marriage imposes duties on the parties to the marriage, which were mentioned in the Personal Status Law. In their financial part, these duties shall be the responsibility of the husband, including spending and securing the house.

The religious marriage of the Christian communities is a church marriage because it takes place inside the church and with the blessing of the cleric. Its forms differ from one sect to another, but there are conditions for its validity agreed upon by all the churches, namely the compatibility of religion. The marriage is annulled if it is proved that one of the spouses was not baptized within the church. It is also required that the husband and wife reach a certain age, which varies from one sect to another, in addition to the dowry, which is agreed upon by the bride and the groom. It is different from Islamic legitimate marriage in terms of invalidation if the husband is married to another woman, since the church marriage does not accept polygamy.

All matters related to the marriage and its effects are the jurisdiction of the spiritual courts in accordance with Article 33 of the Syrian Personal Status Law.

As for the civil marriage, it is a marriage that is not carried out in accordance with legitimate provisions and rules, but according to civil provisions related to the laws of the secular state.

Jurists define civil marriage as “a bilateral contract between a man and a woman who are registered in the State’s civil records or are its residents. It is signed with consent and acceptance like all other civil contracts. This contract is considered an agreement to establish a permanent shared life between the spouses. It is documented and registered before the court or a specialized official in accordance with the provisions of the regulating law that apply the Constitution and the law between the contract’s two signatory parties. It is based on the abolition of religious, sectarian and ethnic differences between the two parties to the marriage and becomes effective by the acceptance of the husband, wife, the witnesses’ testimony and the issuer of the contract. It also guarantees equal rights to the spouses in case of divorce.

 

Which marriage contract most guarantees women’s rights?

The Syrian Personal Status Law, promulgated under Legislative Decree No. 59 of 1953 with its amendments, regulates marriage matters. Its provisions are based on Islamic law. Issues related to Christian, Jewish and Druze sects are excluded from the application of the provisions of this law, according to articles 306, 307 and 308 of the provisions of this law.

There are different points of views regarding the type of marriage contract that most guarantees the rights of the wife, who is often the criterion of differentiation, because it is the weaker party according to society.

It is widely believed that civil marriage deprives women of their rights due to the non-specification of the dowry. However, in this type of marriage, they are actually independent with their own will and financial liability, and she may even add any condition to the civil contract.

As for the Sharia marriage, women also have many privileges that guarantee their rights. However, social traditions in some areas sometimes prevent women from benefiting from those privileges, while advocates of relinquishing religious constraints consider that the men’s remarrying possibility, as offered by Sharia marriage, is a sort of “injustice to women.”

 

The wife’s rights are guaranteed in both Sharia and civil marriages

Both types of marriage guarantee women’s rights. However, most people’s unawareness of the law undermines the guaranteeing mechanisms of these rights.

A civil marriage is a contract following which the will of both parties meet to build a family and a shared life, under specific conditions that are agreed upon. In this type of marriage, appropriate conditions can be set.

Sharia marriage is a contract that allows a woman to set her marriage conditions and compels the husband to guarantee these rights.

The conditions of civil marriage differ from those of Sharia marriage in some details. On the one hand, in civil marriage a Muslim woman may marry a non-Muslim. There may be no dowry, but there are mechanisms that the wife can use to guarantee her rights, regardless of the non-specification of the dowry, such as stipulating getting half of the husband’s property in case of divorce.

On the other hand, religious marriage requires certain conditions that are not required in the civil marriage, such as the possibility of marrying a minor girl (under the age of 18).

Lawyer Ghazwan Qurunful believes that what is permitted and forbidden by Sharia marriage “is related to the jurisprudential system, from which the Syrian Personal Status Law derives its provisions. This system of jurisprudence is more than 1000 years old, and it is not possible for the law to remain dependent to this system. Till now, in order to be able to travel, women are required to bring with them a Mahram (unmarriageable kin with whom marriage/sexual intercourse would be considered illegal in Islam). This is not reasonable in my opinion, especially that we are in the third millennium.”

 

Women’s conditions protect them in the Sharia marriage contract

Sharia allows women to set the conditions that are appropriate for them in the marriage contract, provided that these conditions are not contrary to Sharia or contain “religious or moral corruption.”

Sharia judges often advise young girls who are about to get married to think carefully before concluding a marriage contract and to consult the specialized officials so that their decision would not be determined by excessive emotion or unjustified fear, and not to stipulate conditions that are not permissible in the religion and law.

Lawyer Ghazwan Qurunful explained in an interview with Enab Baladi how women can preserve their rights in a Sharia marriage. He said: “In a Sharia marriage, a woman has the right to stipulate special conditions, including her husband’s impossibility of marrying a second wife, having the right to divorce from her husband (on her own will) and asking for an independent house. All these conditions are possible, but either people are ignorant of them or feel embarrassed to ask them because in their opinion, they represent a social burden. Therefore, there are no social supports that understand these ideas.”

 

Dual system that satisfies all parties

Syrian Lawyer Ghazwan Qurunful believes that giving freedom of choice between Sharia and civil marriage is the best solution for society. He asserted: “I claim that at this stage we are unable to abolish the religious marriage system adopted by the Sharia court or the spiritual courts for non-Muslim communities, because the issuance of an absolute civil marriage law without a parallel Sharia marriage system will not succeed.”

He added: “I support the dual system; meaning whoever wants to marry in accordance with the civil law has the right to do so, and whoever wants to marry according to Sharia has also the right to do it.”

Qurunful attributes the need for a dual marriage system for “the absence of community, cultural or knowledge supports to adopt the idea of ​​civil marriage and the abolition of religious marriage. Society needs to reacquire knowledge in the human rights, legal and even cultural fields, so that they can accept such ideas. Therefore, the dual marriage system is the best solution.”

Registration of a family record in a government department - Damascus  

Registration of a family record in a government department – Damascus

 

According to the constitution…

Civil marriage approval needs a referendum

 

The Syrian constitution guarantees religious freedom regarding practicing rituals. In the matter of marriage, however, this is left to the law derived from the Sharia provisions in the Qur’an and Sunnah. Yet, if a draft law of an optional civil marriage is put forward in Syria, this does not contradict the provisions of the Constitution.

Lawyer Ghazwan Qurunful told Enab Baladi that “the issuance of a civil marriage law does not contradict the constitution because it does not contravene public order as our regime is secular and not religious. The legislation of a Muslim woman’s marriage with a non-Muslim man does not violate the constitution. It rather violates Islamic jurisprudence.”

Jurists believe that in case of the adoption of civil marriage, the legislator must resort to a referendum of the Syrian people. They alone who can determine whether this marriage would be beneficial for them or not, so as this procedure would be within the way that the Constitution has set to amend the laws.

Accordingly, the People’s Council’s approval of the draft law to grant citizens the freedom to choose between civil and Sharia marriage is not sufficient to implement this. In case this law is rejected, its application will not be possible.

 

Syrians’ marriage in foreign countries…

“Approved by the Sheikh” and a civil contract

Syrian Muslims residing in European countries resort to the completion of the marriage contract in the Sharia way. Then, the civil marriage contract is registered in the official departments, forcing Syrians to abide by the rules stipulated in the civil marriage laws of each state, while at the same time they implicitly do not recognize them.

If a man marries a second wife, he may be unable to legally register his marriage, putting him in a dilemma of registering children and exposing him to legal accountability.

The issue of polygamy has emerged as one of the most controversial problems in the Syrian refugee countries, as many wives have been deprived of the right to reunite her family because of the presence of another wife in the custody of their husbands.

In Germany, for example, some states took into account the rights of the second wife in terms of obtaining residence, alimony and accommodation with the husband. Other states, however, prohibited the living of two wives with one man and banned second wives from political asylum with their husbands but they obtained temporary residence until security conditions stabilize in their country.

Lawyer Ehab Abd Rabbo, a resident of Sweden, spoke to Enab Baladi about one of the most serious problems that have faced those who were bound by Sharia marriage and living in Europe, including the issue of divorce.

“There is no way to break Sharia marriage in Europe in case the wife wanted divorce, except in Sharia courts. Thus, the wife will have to wait for years and pay large sums of money in order to get a divorce,” said Abd Rabbo.

Abd Rabbo supports the completion of civil marriage contracts in Europe, especially that “the civil marriage contract secures the wife’s rights, because it guarantees equality between her and her husband and prevents polygamy.”

The number of Syrian refugees who settled in the EU has exceeded 500,000 Syrians, many of whom have expressed their desire to go for civil marriage contracts, even if the couple shared the same religion, in order to achieve integration into these Western societies.

 

Considered as adultery…

Civil marriage in Islam

Religions of different orientations have set legal restraints governing the issue of marriage. They also identified its provisions and rules, which have been implemented to the Legal Status laws in Syria, whose legislation has been derived from Islam.

Sharia law considers marriage as any contract, to which the two parties are bound, having affirmation and acceptance as main conditions. However, the Secretary-General of the Judicial Training Institution and one of the members of the Syrian Islamic Council, Sheikh Ibrahim al-Hassoun, explained to Enab Baladi that contract in Islam also abides by certain restrictions and rights of both sexes. For instance, on the one hand, men are committed to being the protectors, maintainers and the family breadwinner. On the other hand, women have many rights, including dowry and all what they require in the contract.

As for the restrictions imposed on the contract, the sheikh mentioned that a Muslim man is not allowed to marry a faithless woman (Islam, Christianity, and Judaism). Therefore, he is not allowed to marry an atheist.

According to the sheikh, the marriage contract is considered as invalid, in case it did not meet a number of conditions, such as the consent of the guardian and witnesses. However, the civil marriage does not take into account all these restrictions and conditions, so it is considered as invalid.

The first Sharia judge in Damascus, Mahmoud al-Ma’arawi, has previously announced the same decision in 2016, considering Sharia marriage to be a civil one in its general form. However, the current tendency of civil marriage, which includes other provisions such as marriage between a Muslim woman and a Christian, is invalid.

The judge stressed the need to distinguish between both the invalid and the spoiled contract. The marriage contract becomes spoiled in case the man married a girl and discovered later that she is his milk sister. Then, they should be immediately separated and preserve their kinship in case they had any.

The same example applies to the invalid marriage. In case the groom discovered during the conclusion of the contract that his future wife is his milk sister before signing, then the marriage is invalid and no consequences shall be assumed.

He pointed out that civil marriage is considered as adultery, because it means the disregard for the restrictions of the legitimate marriage contract for any religion or sect.

This kind of marriage cannot be registered in Syrian courts, for it is regarded as illegal and illegitimate. The judge has reviewed some of the cases of civil marriage that the Sharia court refused to register, such as the case of the wife who discovered after her marriage that her husband married her sister and travelled to Turkey to solemnize their marriage there through a civil contract. In this case, the husband married two sisters, so the marriage is considered invalid according to Sharia law.

Al-Ma’arawi highlighted the need not to circumvent the legitimate provisions, which will eventually affect our society and render it uncontrolled like European communities, as this will lead to disastrous consequences for the entire society.

 

Alternatives to civil marriage in Syria

Although Sharia law dominates the personal status law and is governing it through marriage contracts, Syrians who resorted to an illegitimate marriage, such as a Muslim women’s marriage to non-Muslim or a Muslim’s man marriage to other than Christian or Jewish female, had to circumvent the law in many ways.

 

Lebanon Free

Religious as well as societal barriers prevent interfaith or intersect marriage in Syria, to the extent that those who wish to marry through civil contract because of religion resort to travelling to Lebanon, thinking that it is the only Arab country whose law allows civil marriage.

In reality, the draft law approving civil marriage in Lebanon has not been passed yet. The majority of ministers voted for it in 1999, but the deceased Prime Minister, Rafiq al-Hariri, refused to sign this bill and therefore it was not submitted to parliament for approval. He justified this saying that “the conditions in Lebanon do not allow such measure.”

Therefore, Lebanese themselves, who wish to be bound through civil marriage, resort to Cyprus due to proximity, low travel costs and easy access.

 

Formal religious conversion

Many Syrians resorted to formal conversion in order to conclude marriage contracts. Often, a non-Muslim changes his religion to marry a Muslim female, when society is dominated by Muslim majority.

Although both Sharia and law regard this marriage as valid, the children will have to assume its consequences for they will be torn between the religion written on their identity documents and one of their parents’ religions.

 

Al-Khatifa

In some Syrian cities and villages, al-Khatifa marriage (i.e., escape from the authority of society and the spouses’ fleeing to a place far from the presence of the party that impedes their marriage) is considered as one of the most prominent ways to circumvent religious authority and social customs.

This solution led to the killing of the groom or bride who decided to go for al-Khatifa marriage in many areas, and because they violated family or religious authority. It is also considered to be a loss of descent and a violation of religious customs, because the bride and groom often belong to two different religions or sects.

Legally, the spouses may solemnize their marriage in the Syrian Sharia courts in case they shared the same religion and were a Muslim man and non-Muslim woman. The wife can assume her own guardianship in the contract in the absence of a relative or select one of the husband’s relative to be her guardian.

 

 

A coupe fleeing to Europe (expressive)

A coupe fleeing to Europe (expressive)

 

Between rejection, acceptance and exclusion

Civil marriage from the perspective of Syrian community

 

Enab Baladi newspaper has conducted an opinion poll on its website and posted it via Facebook to solicit the views of its followers concerning the bill project of passing civil marriage law.

Enab Baladi asked the following question: “Do you support the application of civil marriage in Syria?” The question was accompanied by multiple choices, yes, no and I do not know.

The responses differed between the three options, as 57% of the total number of users, estimated to be around 1200, voted against the bill. However, 32% voted for it and 11% did not express their point of view regarding this matter due to their ignorance about civil marriage and inability to distinguish it from religious marriage.

Many users commented on the survey posted on Enab Baladi’s Facebook page. Mohammed al-Omr wrote: “In Damascus, the number of original families does not exceed 30, and not all of them are Arabs.” He considered that civil marriage as a reason behind the loss of genealogies and raising an unqualified generation, which won’t be able to carry the banner of the Islamic nation.”

User Musab Ahmed considered that civil marriage is “customary.” Abdul Qadir Qabbani defined civil marriage as a marriage that “does not comply with Sharia rules; that is, a Muslim female marrying a Christian male and this is illegitimate.”

Abu Mohammed bani Jamil expressed his ignorance about the civil marriage and asked for an explanation. He said: “Explain what civil marriage is; 99% do not know about civil marriage.”

 

النسخة العربية من المقال

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