Marriage in International Conventions & according to Yemeni Law & Customs [Archives:1998/31/Focus]

August 3 1998

This is an OPINION page.
Every week, a different intellectual writes a FOCUS on a pertinent issue!
By: Dr. Salah Haddash
Managing Editor,
Yemen Times
Yemen recently endorsed the ‘Convention on the Elimination of Discrimination Against Women.’ This convention has now become part of the Yemeni national law. However, the stipulations of this convention are not fully adhered to, both in the law and in social customs. Lack of adherence to Article 16 of this convention is discussed below as an example.
The Yemeni Personal Status Law No. 20 of 1992 is taken as an example of Yemeni laws, and is compared with Article 16 which deals with similar issues.
Article 16:
State parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on the basis of equality of men and women (the following):
“a- The same right to enter into marriage”
In spite of fact that the Yemeni Constitution of 1994 stipulates equal rights for Yemeni citizens – in rights and responsibilities, attitude towards women is quite different.
The Personal Status Law differentiates between men and women. It provides that ‘women are the men’s sisters, having the same rights and responsibilities according to the Sharia and laws’ (Article 31). This means that any question related to women is resolved according to Sharia law. There are several laws which regulate in detail this constitutional principle. For example, the groom signs the marriage contract himself; while, the bride has to have a guardian (father, brother or any other man from her family) who signs the contract on her behalf.
“b- The same right to freely choose a spouse and to enter into marriage only with their free and full consent.”
Yemeni customs dictate that the mother of the would-be groom is the one to choose the bride, because he is not allowed to see his would-be bride. In other words, the man can only see his bride after the conclusion of the marriage contract, and possibly only after the wedding ceremony.
This custom, however, is now gradually disappearing since more and more women are discarding their veil. Male and females have now more opportunity to mix at work or in social context.
Because of the Yemeni tradition of imposing sharshaf on women, the bride expresses her will to enter into marriage to the Qadhi (traditional judge) while sitting in a separate room. The law stipulates that a woman has to agree to get married. A virgin bride’s silence when asked by the Qadhi is considered by the law a sign of her consent; while, a divorced or widowed woman’s vocal reply is taken into account (Article 23, Personal Status Law No. 20 of 1992).
“c- The same rights and responsibilities during marriage and at its dissolution.”
Here also, Yemeni law differentiates between the rights and responsibilities of men and women in marriage.
Article 40 of the Personal Status Laws stipulates the following wife responsibilities:
1- A wife should move to her husband’s house.
2- A wife allows her husband to have sexual intercourse.
3- A wife must do her household duties and obey her husband.
4- A wife cannot leave the house (of her husband) without his permission. The husband cannot ban his wife from going out if she is going to attend to her financial affairs, do her job or look after her disabled parents.
Following are the husband’s responsibilities:
1- A husband must provide an appropriate abode.
2- A husband must provide a adequate financial allowance and clothing.
3- A husband must be fair in treating all his wives, if he is married to more than one wife.
4- A husband must not infringe on his wife’s private property.
5- A husband must not harm his wife, morally or financially.
As far as divorce is concerned, both men and women have the right to ask for divorce, although it is much harder to achieve for a woman than a man.
The man must pay the wife, if she has no children, alimony for four months and the financial divorce settlement (agreed upon before marriage). If the woman has children, the man has in addition to pay expenses for the children’s upkeep until they grow up, the house rent, and expenses for his divorced wife.
“d- The same rights and responsibilities as parents, irrespective of the marital status, in matters relating to their children; in all cases the interests of the children shall be paramount.”
Yemeni law recognizes only formal marriage. Any other relationship such as cohabitation or common law marriage are considered a crime – adultery, punishable by the Yemeni penal law. Any child borne out of wedlock is considered illegitimate and is given a name different to his biological father’s. In reality, society usually imposes marriage on the couple.
“e- The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education, and means to enable them to exercise these rights.”
Public awareness and general policy regarding family planning are lacking in Yemen. There is no law to regulate this matter. It is usually the man’s choice to decide the number of children. Often, however, it is left to nature to decide. Therefore, the annual population growth rate is quite high in Yemen – 3.7%. This causes a population explosion and diminishing of natural resources.
“f- The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount.”
Adoption is allowed under Yemeni law, but an adopting father or mother cannot give his/her name to the adopted child. An adopted child cannot automatically inherit like the biological children. Nevertheless, the adopting parent can bestow an inheritance by writing a will. A will, according to Islamic Sharia, must not bestow more than a 1/6 of the total value of the person’s possessions.
In case of divorce, the custody period is nine years for the male child and 12 years for the female unless the judge decides otherwise according to the interests of the child under custody. Beyond the above ages, a child’s custody in transferred to the father (Article 139).
“g- The same personal rights as husband and wife, including the rights to choose a family name, a profession and an occupation.”
In Yemeni law, both spouses have the right to keep their original family names. As far as professions are concerned, men usually prefer their wives to be, if they have a job at all, teachers in girls’ schools. The law allows women to have their own occupations and manage their own financial affairs. If the man does not want his future wife to work outside the home, he stipulates this before concluding the marriage contract.
However, men can force their wives to stay home (not to continue their education or work) even if thay had agreed to before concluding the marriage contract.
“h- The betrothal and marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.”
Yemeni law allows both males and females to get married at the age of 15 years (Article 15). Registering the marriage contract should be notarized in court of law within one week of signing the contract. Unfortunately, there is no punishment specified by this law for not complying with its stipulations.
No contradiction exists between the Yemeni law and the convention. It actually exists between the convention and Islamic Sharia, which is the main source of all legislation in this country.
There ae also contradictions with social traditions and customs. Change is slow to come, and even then, it can only be instituted within the restrictions of Sharia. There are certain taboos that cannot be broken. This means that no total implementation of this convention can be applied. This fact is acceptable under one justification – cultural relativism. This means that every culture can conserve its values.