Federal law no. (28) of 2005 on personal status relating to marriage

Article (18)

1. Any of the parties may renounce to his engagement and if a prejudice is sustained as a result of an unjustified renouncement, the injured party may claim damages for the prejudice sustained. The person causing renunciation shall be treated as the one who renounces.
2. The party who renounces to the engagement or dies may recoup the dowry paid in kind or, if it cannot be restituted as such, its equivalent at the date of payment.
3.  Where the engaged woman purchases a trousseau for the total or part of the dowry then the engaged man renounces to his engagement, she will have a choice either to restitute
   the dowry or hand over its equivalent of the trousseau at the time of purchase.
4. Shall be considered among the dowry, gifts that are considered customarily as part thereof.
5.  In case any of the parties unjustifiably renounces to the engagement, and in the absence of a condition or custom, he shall not be entitled to recover any of the gifts offered by him
   and the other party may recoup what he has offered.
6. Where the renunciation is justified, the renouncing party may recover what he has offered, if it still exists, or its amount at the date of payment, if it has perished or is consummated, but the other party may recoup nothing.
7. In case the engagement is terminated by mutual renunciation of the parties, each one of them is entitled to recover what he offered, if still existing.
8. Where the engagement is terminated because of death or for a reason not attributed to any of the parties, or because of an impediment to marriage, the gifts offered may not be restituted.

General provisions of Marriage

Article 19

Marriage is a contract that legitimates enjoyment between spouses; its aim is protection and forming a steady family under the husband’s care on basis ensuring to the spouses the assumption of its charges with affection and compassion.

Article 20

1. Spouses are bound by the conditions exchanged except those legitimizing the illicit or banning the legitimate.
2. Where the contract of marriage contains a condition that is inconsistent with the foundations of marriage, the contract is void.
3. Where the contract is subject to a condition that is not inconsistent with the foundations of marriage but is in contradiction with its requirements or is considered illicit by law, the condition is void but the contract valid.
4. If neither inconsistent with the foundations of marriage nor in contradiction with its requirements and if not legally banned, the condition is valid and should be fulfilled. In default thereof, the party benefiting of such condition may rescind the marriage, whether he be the husband or the wife, and the former shall be exempted from alimony, payable during the waiting period following the dissolution of marriage, if the defaulter is the wife.
5.  Should any of the spouse’s conditions in the other a specific attribute but the contrary was revealed, the party requiring such attribute may ask for rescission of the marriage.
6.  Disavowal negates the effect of any condition unless it is written in the registered contract of marriage.

Article 21

1. As a condition for the binding effect of a marriage, the man must be suitably qualified to deserve the woman, but only at the formation of the contract. The woman and her tutor are entitled to ask for the rescission of the contract on grounds of lack of such qualification. The contract shall not be affected by the disappearance of such qualification thereafter.
2. If the engaged persons are of inadequate age; i.e. the man’s age is double the age of the woman, or more than that, the marriage shall take place only with the consent and knowledge of the parties thereto after securing the authorization of the judge who will withhold it unless there is an interest in such marriage.

Article 22

Fitness in religion is the measure of aptitude for the husband but, aside religion, custom shall determine the other grounds of aptness.

Article 23

1. Aptness is a right to both the woman and her fully capacitated tutor.
2.  The remote, in rank, among tutors may not object for lack of aptitude except in case of inexistence of the nearest tutor or his incapacity.

Article 24

If the man alleges his aptness or uses deceitful devices to give this impression or if it was made a condition in the contract and it was thereafter revealed that he was not apt, both the wife and her tutor are entitled to ask for rescission.

Article 25

The right to ask for rescission is forfeited if the wife is pregnant, if a year has lapsed since knowledge of the marriage or by previous consent of the one who has the right to ask for rescission.

Article 26

The tutor may not ask for rescission on grounds that the dowry is below that paid in equal condition.

Article 27

1.  Marriage shall be officially recorded but, in consideration of a certain fact, it may be established by other means of proof admitted by the Sharia.
2.  Marriage is conditioned upon the submission of a medical report from a competent medical Committee formed by the Minister of Health, certifying that the spouses are free of any disease that the law considers a ground for separation.
3. The recording of the marriage shall be done by the authorized representatives of the religious authority. The Minister of Justice, of Islamic Affairs and Wakfs shall issue a regulation in their respect.

Article 28

1. The tutor may not conclude the marriage of the insane, the imbecile or persons in their status without the authorization of the judge and the fulfillment of the following conditions:

1. Acceptance of the other party to marry him after he has been informed of his condition.
2. His disease is not transmitted to his progeny.
3. His marriage is in his interest.
4. The fulfillment of the two conditions (b) and (c) shall be verified by a report drawn-up by a competent Committee to be formed by the Minister of Justice, Islamic Affairs and Wakfs in coordination with the Minister of Health.

Article 29

A male prodigal having attained the age of majority or one whose prodigality accrued later may engage in marriage but the tutor may object to the portion of the dowry in excess of the customary limit. Shall be excepted the foreclosure of financial rights resulting from marriage.

Article 30

The provisions of Article 30 have been replaced by virtue of Article 1 of Federal Decree-Law No. 8/2019, to read as follows:

1. Capacity to marriage is completed by reason and maturity. The age of maturity is 18 years, completed, unless the person concerned matures earlier in conformity with the law.
2. Whoever legally matures before reaching the age of eighteen shall not marry except in accordance with the regulations issued by a Cabinet decision upon the proposal of the Minister of Justice.
3. Should the person having completed the age of eighteen request marriage but failed to obtain the approval of his tutor, he may refer the matter to the judge.
4.  The judge shall fix a period for the tutor, after his notification to appear before him to hear his argument. Should he fail to appear, or his opposition to the marriage is not convincing, the judge shall celebrate the marriage.

Article 31

Whoever gets married, according to Article 30, shall acquire capacity in all what relates to the marriage and its effects, with the exception of forfeiture of his pecuniary rights resulting from marriage.

Article 32

The tutor, in marriage, is the father then the agnates by themselves according to the succession order: son, then brother, then uncle. Should two tutors be equal in degree of kinship, the marriage that was concluded according to the conditions set forth by any of them shall be valid. The one authorized by the engaged female shall appointed.

Article 33

The tutor must be a male of sound reasoning, fully capacitated, not prohibited on account of pilgrimage and Muslim if tutorship is to be given to a Muslim.

Article 34

Should the most closely related tutor be interruptedly absent, his place of living unknown or impossible to be contacted, tutorship shall pass to the one following him in rank with the judge’s permission and, in case of prevention of marriage, tutorship shall pass to the judge.

Article 35

The judge is the tutor of whoever has no tutor.

Article 36

The judge may not marry his ward for himself, his ascendant or descendant.

Article 37

1. Proxy in marriage is possible.
2. The proxy may not marry for himself his principal unless it is so provided in the procuration deed.
3. Should the proxy go beyond the limits of his authority, the contract is suspended.

Elements and conditions

Article 38

The elements of a marriage contract are:

1. The two contracting parties (the husband and the Tutor).
2. The Object.
3. Offer and Acceptance.

Chapter One – The Spouses

Article 39

The tutor of the capacitated woman shall proceed with her marriage, with her consent and the religious authorized official shall obtain her signature on the contract.

The contract is invalid in the absence of a tutor. If marriage has been consummated the spouses shall be separated and the affiliation of the born child is established.

Article 40

As a condition for the formation of marriage, the woman must not be permanently or provisionally prohibited to the man.

Chapter Two – Contract Text

Article 41

Offer and acceptance are subject to the following:

1. The word “marriage” must be expressly used therein.
2. They must be of immediate fulfillment and not indicating a future time. Consequently, marriage shall not be concluded if made subject to an unrealized condition, or if the contract is carried for a future date or the marriage is temporary.
3. The acceptance should meet, expressly or impliedly, the offer; the parties maintaining their capacity until the formation of the contract.
4. Unity of the meeting of the parties: in their presence, the acceptance should verbally occur immediately following the offer and, between absents, the acceptance should be during the meeting in which the letter is read before witnesses or they be informed of its contents or by informing the emissary. The acceptance shall not be late as to the offer if it they are not separated by what amounts to rejection.
5. Maintenance of the validity of the offer until the issuance of the acceptance. The offeror has the right to withdraw his offer until the issuance of the acceptance.
6. Each of the contracting parties has to hear the words uttered by the other, being aware that the objective is marriage although he did not understand the meaning of such words.

In case of incapacity to express oneself, writing shall be the substitute and, if impossible, then a significant sign would suffice.

Chapter Three – Prohibitions

1. Permanent Prohibitions

Article 42

Due to kinship, a person is prohibited to marry:

1.  his ascendant to the highest degree;
2.  his descendant to the remotest degree;
3. descendants of the two parents or one of them, to the remotest degree;
4. The first category of the descendants of one of the grandparents.

Article 43

Due to affinity, a person is prohibited to marry:

1. one who was the spouse of one of his ascendants, to the highest degree, or one of his descendants, to the lowest degree;
2. ascendants of the husband, to the highest degree;
3. Descendants of his wife in a consummated marriage, to the lowest degree.

Article 44

A person shall be prohibited from marriage to his adulterous descendant, to the lowest degree or his daughter proscribed for adultery.

Article 45

A man shall be prohibited to marry the one he cursed as adulterous, after completion of the curse.

Article 46

Shall be prohibited from fostering what is prohibited by kinship or affinity excluding what is accepted by law; under the two following conditions:

1. Fostering should occur in the first two years.
2.  Fostering should reach five different feedings.

2. Temporary Prohibitions

Article 47

Shall be temporarily prohibited:

1. Grouping, even during the waiting period, between two women, should one of them, supposed by a male, he would have been prohibited to marry the other.
2. Grouping more than four women.
3.  The wife of another person.
4.  A woman in her waiting period from another man.
5. A repudiated woman whose repudiation is not retractable, the repudiator may not remarry her repudiator unless after the expiry of her waiting period from another husband who consummated a valid marriage.
6.  A prohibited woman on account of pilgrimage.
7.  A non-Muslim woman unless she is a believer in one of the Revealed religions.
8. The marriage of a Muslim woman from a non-Muslim.

Chapter Four – Conditions of The Contract

Article 48

1. The validity of the marriage is subject to the presence of two witnesses, males, of full capacity, sound minded, hearing the words pronounced by the contracting parties and aware that the aim of such words is marriage.
2. The two witnesses must be Muslims but two witnesses from one of the Revealed religions may witness the marriage of a Muslim with a woman of such Revealed religion.

Chapter Five – The Dowry

Article 49

Dowry is what is offered by the husband, in money or property, for the purpose of marriage. There is no minimum limit to it but the maximum is subject to the Law on Dowries.

Article 50

Notwithstanding anything to the contrary, dowry is the property of the bride, she can freely dispose of it.

Article 51

1. If the amount of dowry is validly determined in the contract, the amount spelled out is due to the woman.

2.In case it is not determined in the contract, invalidly stated or originally denied, she is entitled to an equal dowry payable to a bride under the same circumstances.

Article 52

1. Dowry may, in whole or part, be advanced or deferred upon the formation of the contract.
2. Dowry is due by virtue of a valid contract. It becomes certain by consummation of the marriage, valid privacy or death. The deferred part of it shall become due by death or repudiation.
3. The repudiated woman, before consummation of the marriage, is entitled to half the stated dowry and, if not determined, the judge may adjudge to her a compensation not exceeding half the dowry payable under similar circumstances.

Article 53

1. The wife may refuse intercourse until the due part of the dowry is paid.
2.  Should the wife accept intercourse before receiving her dowry from her husband, it becomes a debt owed by him.

Chapter Six – Mutual Rights

Article 54

Mutual rights and obligations between the spouses are:

1. Legitimate mutual enjoyment of each other within what is allowed by law.
2.  Lawful cohabitation.
3. Good treatment, mutual respect and compassion and preservation of the family welfare.
4.  Care of the children and their education thus assuring upbringing on sound basis.

Article 55

Rights of the wife towards her husband:

1. Alimony.
2. Non-obstruction to complete her education.
3. Non-opposition to visit her ascendants, descendants and brothers.
4. Non-interference with her personal properties.
5. Non-infliction of bodily or moral prejudice to her.
6. Equitable treatment between her and the other wives, in case the husband has taken more than one wife.

Article 56

The provisions of Article 56 have been changed by Article 1 of Federal Decree-Law No. 8 dated 2019/08/29, and later by Article 1 of Federal Decree-Law No. 5 dated 2020/08/25, to read as follows:

1. Rights of the husband towards his wife shall be as follows:
2.  Supervising the house and preserving its assets.
3. Suckling his children from her unless there is an impediment.

• KINDS OF MARRIAGES

Article 57

Marriage is either valid or invalid and the latter includes the defective and the void contracts.

Article 58

1. A valid marriage is one in which all basic elements are present, its conditions fulfilled and free of impediments.
2.  A valid marriage shall produce its effects upon its formation.

Article 59

1.  A defective marriage is one where some of its conditions are missing.
2.  A defective marriage does not produce any effect prior to coitus.

Article 60

A defective marriage shall, after coitus, produce the following effects:

1. The specified dowry or a reciprocal dowry under same circumstances, whichever is smaller.
2.  Establishment of kinship.
3. The prohibition because of affinity.
4.  Waiting period because of dissolution of marriage.
5.  Alimony as long as the wife ignores the defectiveness of the contract.

Article 61

1. A void marriage is the one where one of its basic elements is defective.
2.  Unless otherwise provided by this Law, a void marriage shall not produce any effect.

• Effects of marriage

General Provisions

Article 62

1. A woman having reached the age of full capacity is free to dispose of her property and the husband may not, without her consent, dispose thereof; each one of them has independent financial assets. If one of the two participates with the other in the development of a property, building a dwelling place or the like, he may claim from the latter his share therein upon divorce or death.
2. In donations, or similar dispositions, between the children or the wives equality must exist unless the judge deems that there is an interest thereto. Should there be no equality, the judge shall bring it into effect and shall exclude it from the succession.

Chapter One – Alimony

Article 63

1. Alimony includes food, clothing, dwelling, medical care, servicing charges for the wife, if she is performing such services within her family, and all what the conjugal relationship kindly requires.
2.  In assessing the amount of alimony, it shall be taken into consideration the possibilities of the debtor thereof, the circumstances of the beneficiary and the economic situation, in place and time, provided it does not fall below the sufficiency level.
3.  In adjudging alimonies of all kinds, fostering and dwelling charges and all conditions on which depends adjudging all these, eye-witnessing shall suffice.

Article 64

1.  Alimony may be increased or reduced according to the change of circumstances.
2.  Save in exceptional circumstances the action in increment or reduction of the alimony may not be heard prior to the lapse of one year as of the date of deciding it.
3.  The increase or decrease of alimony is computed from the date of claim in court.

Article 65

The continuous alimony has privilege over all debts.

Section One – Alimony of the Wife

Article 66

Alimony is due to the wife by virtue of a valid contract if she abandons herself to her husband even inevitably.

Article 67

Alimony to the wife is due as of the date of refrainment from payment when due as a debt on the husband, independently of a court judgment or agreement. It is not forfeited except by payment or discharge.

A claim in alimony, for a past period exceeding three years from the date of introducing action in court, shall not be heard unless it is imposed by agreement.

Article 68

The judge shall, upon request of the wife, order to pay her a temporary alimony and his decision shall be executory summarily and by force of law.

Article 69

Alimony and sheltering, during the waiting period (“idda”), are due to the divorcee in a reversible divorce, in a non-retractable divorce if the divorced woman is pregnant and, if she is not, only sheltering is due.

Article 70

No alimony is due to the widow during her waiting period because of death of her husband but she is entitled to live in the conjugal domicile during the said period.

Article 71

The provisions of Article 71 have been replaced by virtue of Article 1 of Federal Decree-Law No. 8, and later have been replaced by virtue of Article 1 of Federal Decree-Law No. 5, to read as follows:

Alimony to the wife shall be forfeited in the following instances:

1.  Should she refuse to give herself to her husband without an excuse accepted by the Sharia.
2.  Should she abandon the conjugal domicile without an excuse accepted by the Sharia
3.  If she forbids her husband to enter the conjugal domicile without an excuse accepted by the Sharia
4. If a judgment or decision is issued by the court to restrict her freedom in a manner causing her husband to miss his right to have her giving him herself and such judgment or decision is being applied.
5.  If she had breached her marital obligations that are prescribed by law.

Article 72

The provisions of Article 72 have been replaced by virtue of Article 1 of Federal Decree-Law No. 8, and later replaced one again by virtue of Article 1 of Federal Decree-Law No. 5, to read as follows:

Going out or to work as per law, Sharia or custom provisions or as necessary, shall not be deemed a breach of marital obligations by the spouses, and the judge shall take into account the family’s interest when deciding upon such matter.

Article 73

The obligation of alimony to the wife is terminated upon the occurrence of any of the following events:

1. Payment.
2.  Discharge.
3.  The death of one of the spouses unless it has been ordered by court decision.

Article 74

The husband is under obligation to prepare to his wife, at his domicile, a convenient dwelling commensurate with their standing.

Article 75

The provisions of Article 75 have been replaced by virtue of Article 1 of Federal Decree-Law No. 8 dated 2019/08/29, to read as follows:

The spouses shall live in the conjugal home, unless otherwise stipulated in the contract, and the judge shall take into account the interest of the family in the event of a dispute between the spouses.

Article 76

1. The husband may accommodate, with his wife, in the conjugal domicile, his parents and children from another woman as long as he is financially in charge of them but provided no prejudice is caused to the wife from such accommodation.
2. The wife may not accommodate with her in the conjugal domicile her children from another man unless they have no other caretaker, they may be harmed from separation or by express or implied agreement of the husband, provided he has the right to go back on his acceptance should he sustain a prejudice therefrom.

Article 77

The husband may not accommodate with his wife another wife of his unless she accepts provided she can go back on this acceptance whenever it becomes detrimental to her.

Section Two – Kinship Alimony

Article 78

1. Alimony of the small child who has no financial resources is on his father until the marriage of the girl or until the boy reaches the age at which his fellow-mates earn their living, unless he is a student continuing his studies with normal success.
2.  Alimony of the elder child unable to earn his living, because of a disability or other cause, is on his father should the child have no other funds from which his expenses could be drawn from.
3.  Alimony of the female is on her father if she divorced or has become a widow, unless she has funds of her own or has a person in charge of her other than the father.
4. Should the child have no sufficient funds to meet his maintenance expenses, the father is under obligation to complete the required amount within the aforementioned conditions.

Article 79

The suckling expenses of the child are on his father, should the mother be unable to nurture him, and this is considered as alimony.

Article 80

The child’s alimony is on his well-to-do mother if he lost his father, without funds, or if he was unable to support him. The mother may revert on the father for the amount spent in case he improves his financial capacity and the expenditure were authorized by him or by the judge.

Article 81

1.  A well-to-do child, male or female, grown-up or small, must provide alimony to his parents if they have no funds from which they can spend.
2. Should the parents’ funds be insufficient for their maintenance, the children are under obligation to cover the shortage.

Article 82

1. The parents’ alimony shall be repartitioned between their children, each in proportion of his ability.
2. Should a child voluntarily spend money on his parents, he may not revert on his brothers.
3. Should the spending take place subsequent to a judgment ordering them to pay alimony, he may revert on each one of his brothers according to what was adjudged, provided he made these expenses with intention to claim back the excess paid by him.

Article 83

If the child’s earnings are not in excess of his needs and the needs of his wife and children, he shall be under obligation to add his parents, deserving alimony, to his family.

Article 84

Alimony to each deserving payee shall be the obligation of his heirs from among his well-to-do relatives according to their rank and their shares in the estate and if the heir is insolvent the obligation shall pass to the succeeding heir with due compliance to Articles 80 and 81 of this Law.

Article 85

Should the persons deserving alimony be several and the payee is unable to satisfy them all, the wife’s alimony shall have precedence, then the children’s alimony, followed by that of the parents, then the alimony of the relatives.

Article 86

1.  The alimony of relatives, other than the children shall be due as of the date of the claim in court.
2.  The lawsuit claiming a past due alimony for the children from their father shall not be heard if it goes back to a period in excess of one year from the date of submitting the claim to court.

Section Three – Alimony to Those Who Have No One to Support Them

Article 87

The State shall be in charge of the alimony to those having no one to support them.

Article 88

Alimony of the foundling of unknown parents shall be paid out of his funds, if any, and in case he has no funds and no one benevolently proposed to spend on him, his alimony shall be on the State.

Chapter Two – Affiliation

Article 89

Affiliation shall be established by wedlock, by avowal, presumptions or through scientific methods if bed-sharing is established.

Article 90

1. The child is born in wedlock if the shortest period of pregnancy has lapsed since the valid marriage and it is not established that carnal knowledge was impossible between the spouses.
2. The affiliation of the child shall be established from suspected copulation if he is born for less than the shortest period of pregnancy after the said carnal knowledge.
3.  Affiliation of the born child shall be established to his mother upon evidence of his birth.
4. Once the affiliation is legally established, the action in disavowal shall not be heard.

Article 91

The shortest period of pregnancy is one hundred and eighty days and the longest period is three hundred and sixty five days, unless a committee of medical physicians formed for the purpose decides otherwise.

Article 92

1. Acknowledgment of affiliation, even in death-bed, is evidence of consanguinity, unless the acknowledged person is out of wedlock, under the following conditions:

1. The acknowledged person is of unknown descent.
2. The acknowledging party is of full capacity, of sound judgment and of free choice.
3. The difference of age between the acknowledging party and the acknowledged may sustain the veracity of the acknowledgment.
4. The acknowledged person, of full capacity and sound judgment, approves the acknowledging party.
5. Affiliation is an acknowledgment of consanguinity in lineal descent made by the father of an acknowledged non-adulterous person. Acknowledgment of affiliation by the grandparent is not valid.

Article 93

Should the acknowledging party be a married woman or a woman in her waiting period, the affiliation of the child to her husband is not established unless he consents or there is corroborating evidence to this effect.

Article 94

The acknowledgment by the person of unknown descent of his father or mother shall establish consanguinity if approved by the acknowledged or there is evidence to this effect whenever the age difference allows such possibility.

Article 95

Acknowledgment of kinship, other than consanguinity in lineal descent, paternity or maternity does not bind other than the acknowledging party unless approved or established by evidence.

Article 96

1. Curse may only be uttered before the court in accordance with the rules as set forth by law.
2. Divorce by curse is permanent

Article 97

1. The man may disavow affiliation of the child by throwing a curse within seven days from his knowledge of birth provided he did not acknowledge expressly or impliedly his paternity. Action for malediction shall be submitted to the court within thirty days as of knowledge of birth.
2. Where curse is for disavowal of affiliation, the latter shall be negated.
3.  Should the husband take the oath of malediction and the wife refused to take it, refused to appear before the court or has been absent and it was impossible to give her notice, the judge shall adjudge the negation of affiliation.
4.  The affiliation of the disavowed child because of malediction shall, after issuance of the decision negating his affiliation, shall be reinstated if the man retracted his curse.
5. The court may resort to scientific methods to negate affiliation provided it has not been previously established.