Family Law: The Search for Gender Equality - Essay Example

Family law: The Search for Gender Equality al Affiliation The Muslim laws just like other religions laws recognize the purity and righteousness of marriage as the basic pillar of a great family. Marriage forms the foundation of the family and enactment of the right rules to govern marriage is the best step by any society regardless of their beliefs. The article discusses the Muslim law based on the values of family and marriage. The essay further analyses the different principles of divorce as stipulated in the Muslim law. The different rules are guiding implementation of Muta as stated in the Muslim laws are analyzed in details, in this research paper. Mut’a has a definition as enjoyment, delight or pleasure with reference to the Muslim dictionary. Mut’a is from the word ‘take away. This essay will discuss the marriage and divorce about mut’a law found in the Muslim doctrines. The effects of Muslim laws and marriage values on the lifestyles of Muslim women will be of discussion in this essay. Equality in the society is the ability of the society to maintain a steady balance of resources, rules and activities that derail discriminatory practices. Equality can be a resource, race, communal or gender based. This essay will discuss gender equality as stipulated by the Muslim laws. Gender equality will mainly be on the marriage and family law basis. Comparison of the classical and modern structures of marriage, divorce and custody, have clear provision in this essay. The article further discusses how the Muslim family law which affects the current trends as feminism and human rights. The essay will conclude by reviewing the general issues of the Muslim family in the society and the rate at which modernity is changing the dimensions of the law. A critical review of the results of recent marriage on Muslim family law based on the court ruling of marriage related issues in Middle East. Introduction Islam encompasses not only the religious beliefs but also social and political practices. This founder of Muslim prophet Mohammad introduced the political aspects of Muslim by making treaties with other empires of his time. He was able to trade efficiently guided by the laws set under the Muslim religion. Islam incorporates social activities and practices in its teaching by stipulating laws and rules with intentions to bring peace and order in the community. The set rules in the society provide the society with a general practice since the laws acts as a guidance tool to the society. On the other hand, religious groups in across the worlds adhere to similar laws from their doctrines (Brown). The Muslim society follows a set of rules derived from the Quran. These laws are in groups according to their impact on the values of the society. The Muslim society finds guidance on Family and marriage issues from the rules set to regulate family values and marriage. The Muslim society is quite conservative and adheres to their laws strictly regardless of the effects of modernity. The Muslim Family law is a draft from the teachings of the Quran with intention to maintain the integrity and sacredness of marriage. The laws provide a clear guide on divorce, inheritance and custody. For example, there are certain principals that should be of adherence during inheritance and divorce (Zulficar). The Muslim family law, however, tends to promotes gender inequality that has led to an increase in the number of feminist in the many Muslim countries. Most of the countries are reformulating these laws so that they can suit into the modern societies. There are countries that enforce the classical Family law. The Family law provides an equal platform for various parties to settle their marriage issues. The laws give married individuals procedures, which they should follow in case of a divorce: the law also provides couples with specified solutions to their marriage issues. The law guides married couples on the best solutions before resulting to divorce. In cases of divorce, the law provides the affected individuals with rules on property sharing and children custody. The law also provides a solution to inheritance issues in the case of conflicts between beneficiaries. The law, however, finds vast criticism from the majority of the human rights activists and feminist. This is because the law is gender biased since it favors the male gender more that the female. (Zulficar) The Muslim family law encompasses all the factors affecting the smooth operations of the family. The classical Muslim family law intended to safeguard marriage as the basic root of the family. The law, however, gives room for divorce in the case of an unsolvable disagreement between the couples. The classical laws also provide the society with contract based marriage known as mut’a. This law tends to embrace contractual that is rare among other religious groups. Mut’a as defined by the Muslim dictionary means pleasure. This implies that it is of main agenda to enable unmarried individuals to enjoy all the benefits of marriage but can eventually end the contract based on the initial agreement. The Muslim family law is currently facing critical scrutiny from many governments and human rights organization. This is as per the law that favors the male gender and does not take many considerations of the female gender. For example, the inheritance clause does not give room for the female member of the family to inherit their father’s property. It stipulates that, the closest male child in the family should inherit the property in the case of male child absence in the family (Mallat). The law also discriminates women when it comes to divorce situations where children are involved; the husband is in a hundred per cent custody rights. Furthermore, women are not entitled to any benefits in case of divorce. This implies that the husband has all the rights of keeping the family property after the divorce. This further exposes women to gender discrimination. Mut’a is another platform through which the law discriminates women. The man is capable of marrying a maximum of four wives on a contractual basis. Once the contract ends, the man has the rights to end the marriage or continue with it permanently. This is a completely inconsiderate law given the fact that most women tend to lose the marriage sparkle with age, therefore, left to lead a single life after the contract ends (Brown). The law faces effects from globalization resulting in technological advancement. Most of the women affected by such laws get to share with their colleagues across the world. Globalization is the force behind the increase in the number of feminist in Arab countries. Family Laws Temporary marriage (mut’a) Mut’a according to the Muslim dictionary is defined as a marriage agreement between a woman and man mainly to satisfy individuals’ desires. Mut’a tends to imply pleasure; therefore, this marriage is pleasure or leisure oriented. Critiques argue that mut’a in a modern context can be compared to the western ‘come we stay’ marriage. The marriage can last for any duration depending on the agreement between the couples. Mut’a is the Muslim law, which gives women freedom of entering into a marriage agreement for a specified time. Mut’a is the only marriage law among other Muslim laws that give the women freedom to make their own decisions. Mut’a ensures that both parties agree on the conditions and terms of marriage. In the context of equality and human rights, mut’a tends to give women freedom to make their own decision through a deep analysis of the law, one will notice there is no freedom given to the women (Brown). The marriage contract can last for an agreed time and is mainly suitable for windows or divorcees. There are, however, few cases of mut’a among virgin women but is not encouraged by the laws. This part of the law gives a woman with the freedom to choose the duration of the marriage contract with no limitations. The rules and regulations of mut’a however specify that a woman entering into this marriage should be free from kingship impediments, religious obstacles and circumstances of the previous marriage. The woman is supposed to be single when entering into a mut’a agreement. This implies that she should settle all issues related to her past, marriage before committing to mut’a. In terms of kingship regulations, a woman should not be a descending from the sheik family and her parents should give her permission to enter into a marriage agreement. This clearly indicates that, family laws in the Islam context do not promote gender equality since it discriminates against women. The law seems to give women freedom, but it limits her rights when it comes to inheritance, custody and the ability to end the contract. For example, according to the laws governing contractual marriage in the Islam context, the man has the freedom and authority to end the agreement (Zulficar). In the case of children are born in this marriage, they are considered as the father’s legitimate children and have the full rights of inheritance. However in a purely equal society, the mother or father have the legitimate rights of their children’ custody in the case of a divorce or disagreement. This indicates that mut’a further limits equality in the Islam family laws. The father has the rights of the child custody regardless of his economics capabilities. Equality in any society implies that, the custody of the kids should have basis on the knowledge of the parent to satisfy their basic needs and give them a quality life. This poses great challenges to courts mainly in countries that are not purely guides by shari’a or the Islam law. The court’s decision is an expectation based on the contemporary law as well the shari’a law (Zulficar). According to mut’a, it is reprehensible for virgins to enter into such agreement. In the case it happens, she should get full consent from her parents making it almost impossible. This holds a perception of the shame for the family in case a virgin enters into a contractual marriage agreement. This is a clear indication that mut’a further infringes freedom regardless of the fact that it is seen as a way of giving women freedom to make their choice. Mut’a is of consideration as an equivalent of the western marriages that provides couples freedom to have sexual relationship that may eventually result to marriage (Moghadam). Contractual marriage in other social contexts accommodates all persons as long as they have attained the legal marriage age. This clearly shows how equality is an achievement by such marriages in other social sectors. This equality is, however, limited in the Islam context since the man can enter into such marriage agreement regardless of their social status. The law, however, limits women who have no prior marriage experience. These types of regulations are a clear indication of how the family law in the Islam context hinders to probability of attaining full gender equality in the Islam context. The law also provides the man freedom to marry a woman with either Christianity or Jewish background but limits the woman to members of the Islam religion. This is further limits equality in the Islam society since it gives a man more freedom in making a decision in the marriage. The issue of love is not of consideration under mut’a since the woman has no permission to marry members of other religions regardless of their feelings towards such individuals. In the case of such occurrences, the man is supposed to convert to Islam so that he can freely enter into a marriage contract. Comparing this marriage with others, it is evident that there is completely no gender equality resulting from mut’a. The law also stipulates that the mut’a end after the agreed time and consummation into a permanent marriage depending on the decision of a man. This poses additional limitations to gender equality in Islam since it provides the man with the overall authority in decision making regardless of their consequences on a woman. Furthermore, the law stipulates that in case a virgin woman was a virgin before she entered into a marriage contract, the couple should wait for a three month period to allow the marriage to be consummated (Mallat). Permanent Marriage Different Islam schools have various rules that provide Muslims with adequate guidance on marriage issues. The rules under most of the schools are similar with minimal or no differences. The Shi’a Islam rules are famous to differ slightly with other schools. The difference is minimal; therefore, the Islam rules on permanent marriage are not dependant on the Islam schools. According to the rules, marriage is a legal agreement between a man and woman under the guidance of statutes (ahkam) and the pillars (arkan) of Islam (Brown). The Muslim laws stipulate that the marriage is a contractual agreement, therefore, both parties should agree in constitution terms and conditions. The woman is supposed to define her purpose of entering into a marriage agreement and she is required to seek permission from her parents. After the woman declares her idea of marriage, the man is supposed to accept her as a wife. The order of the declaration and acceptance has no definition and can occur in either way. The woman should then seek permission from her parent to enter into a marriage agreement. There are however exception, which limits marriage between a man and woman: This is a clear indicated how the classical marriage law prevents conditions there is a marriage between related individuals. The permanent marriage law in the Islam context is another part of the family law that infringes gender equality. According to the law, the there is some allowance for a man to marry four wives while the woman is only limited to a particular person. The law also stipulates that a woman should seek the consent of her father before entering into a marriage agreement and the decision of the father will determine the fate of her marriage. This implies that, the woman has not freedom of choosing her marriage partner since father gives the final verdict on the marriage. This is another limitation to gender equality in Muslim countries (Zulficar). Moreover, the issue of gender inequality is in the Islam marriage law where the woman required relying on the man’s decisions in terms of marriage issues. The law does not give women the freedom to marry members of other religions, but provides the men freedom to marry from Jewish or Christianity. This is a clear presentation of the existence of a large to gender the equality achievement in Islam countries. There is no improvement in the law regardless of the impact of globalization that enables Muslim women to interact with men from different parts of the world. The women under such regulations find themselves in difficult circumstances since they are of consideration as outcasts if they opt out of the religion in on order to marry individuals from other religions (Zulficar). The law also promotes gender inequality by giving the woman the overall powers in deciding the amount of dowry. This is because; the marriage according to the Muslim laws is contractual and, therefore, provides the woman absolute powers of deciding the dowry. This implies that a woman leaves the man with the option of negotiating his terms that are dependent on the final decision. The dower (mahr) can be paid before the marriage agreement or can be differed until the husband dies or an occurrence of divorce. Once the contract agreement is complete, the woman moves into the man’s house and she automatically becomes the man’s responsibility. This aspect of marriage is a representation of another form of gender inequality (Mallat). The current economic situation does not give room for one person to provide for the family especially if they have a poor economic background. For equality to have full achievement, both woman and a man have a responsibility to take care of the family. The husband is responsible for his wife care by providing her with shelter, food and other necessities regardless of his financial situation. This encourages gender inequality since the woman does not have to work to provide for the family as she has full coverage from her husband (Brown). Divorce (Talaq) Divorce varies with different Islam schools. Divorce under the shi’a law is more difficult than the Sunni law. The shi’s expects the husband to come up with the divorce formula personally or via a representative. The husband is required to include two witnesses when drafting the divorce formula to ensure credibility. After drafting the divorce formula, the three divorce statements alteration by a man and should be done in a sober mood. This implies that the statements are of automatic rejection if uttered under intoxication. The man is supposed to be purely more sob during the whole process (Brown). The Shi’a law requires a waiting period of ninety days before finalizing the divorce process. In case the wife is pregnant, the divorce process has suspension until the child is delivered. The law also provides the wife the powers to ask for a divorce. This suggests that the divorce decision only rely on the wife’s decision. This promotes gender inequality such that the husband has no right to ask a divorce in case the wife commits adultery or other acts that may results to a divorce (Mallat). Once the divorce process is completed, the woman is required to undergo a three-month waiting period known as iddah. She is not required to remarry or commit to any relationship during this time. She has no purpose to wear adornments or brightly colored clothing. These regulations do not affect the husband. This is another form of gender inequality as presented in the Islam marriage law. According to Sunni law, there is no waiting time and the wife has permission to remarry at her wish. In case the wife is pregnant during the divorce process, the child is regarded as the husband’s current husband legitimate child. The Shi’a law yet seems to promote equality since the three month waiting serves in determining whether a woman is pregnant of her previous husband. This ensures that the husband takes full responsibility of the child once she/he is born. Limitation on the cloth is, however, a means of promoting inequality since the man has no limitations on the clothes he should wear during the divorce period (Brown). The Law of Inheritance The law of inheritance varies with accordance to the school. For example, the Shi’a school stipulates that both the son and daughter should acquire a share of the deceased wealth. On the other hand, the Sunni law stipulates that in case of the presence a male close kin of the deceased, the male divest the female’s share. It should be clear that, the Qur’an stipulates that both genders stands right equality to inheritance but limits the daughter’s share to be half of the son’s share (Brown). The law stipulates that the will of the deceased should have adherence to and in case it is absent, the heirs of the deceased wealth are supposed to be the spouse, the children and finally the parents. In the absence of the named line of heirs, the inheritance is then passed to the next of kin originating from the paternal side of the deceased. Regardless of the above rules, there are complicated rules stipulated by the Qur’an. These rules determine the mode of dividing the deceased estates among the heirs (Moghadam). The law also stipulates that the in case of the death of a wife, the children should be an issue of the wealth and the husband is only entitled to a quarter of the wife’s estates. This ensures that he children of the deceased access the all the need satisfactorily in case the husband also passes on. The wife is of expectation to inherit an eighth of her husband’s assets in case the husband passes on and the rest has distribution among the other heirs. The law ensures the wife has enough resources to take care of the children (Fatima Sadiqi.). Gender equality is highly promoted by such laws since the wife and children are entitled to inheritance regardless of the gender. The law, however, favors the male child since according to Sunni; the daughter’s inheritance is of diversion by the presence of a male heir. This shows as Sunni promotes gender inequality while other schools as Shi’a promotes gender equality in the Islam society. The Shi’a law further seeks to promote gender equality by ensuring that the wife has the right of inheriting her husband’s estates to cater for her child needs. The Sunni law is highly dependent on the classical law regarding inheritance since the husband’s next of kin male is entitled to manage the deceased estates until the sons are of age (Moghadam). 20th Century Trends Gender equality is a major debate topic in different countries across the world. The authorities are encouraged to adopt laws that promote gender equality in the society. The Islam family law has perception as a major threat for attaining gender equality in the society. In the Middle East, many countries enact new laws on a daily basis to promote gender equality. This makes the religious leaders review the classical family laws so that can fit the needs of the modern society. This is not applicable in countries like Lebanon where the Sunni laws apply efficiently. In fact, women have no permission to speak before any gathering, therefore, making it hard for them to find for their rights (Zulficar). Many trends aim at promoting gender equality in Middle East and the Islamic society in general. The increase of female activists in Egypt, Morocco, Syria, Iran, Jordan and South Arabia, was primarily the first initiative undertaken to fight for gender equality in the Islam society. Some of these human rights groups have contributed greatly in promoting gender equality in the society (Zulficar). There is an increase in school attendance, in women and working in large companies from the Islamic community. This is a clear indication of the fruits of the fight for gender equality in the society. Saudi Arab was the first country in the Middle East to allow women to participate in athletics indicating the acceptance of the authorities of the changes brought about by globalization. Globalization is a key factor that contributes effectively in promoting gender equality. The Muslim women can chat effectively with women from different religious beliefs on the social media. This allows them to identify their rights and responsibilities in the society (Fatima Sadiqi.). Twentieth century has a rise in the number of Muslim women scholars and activists. This is a clear indicator for developments in the fight for gender equality. The increase of women investors, workers and managers in the Muslim community is another indication of how women are ready to be independent. This clearly eliminates situations where the husband is the sole provider of the family, therefore, promoting equality in the society (Mallat). There is also a rise in the population of Muslims migrating from the Middle East to countries in Europe and America. This trend enhances cultural interactions implying that the individuals have a duty to a more modern culture. This gives their knowledge on their rights and responsibilities in the society. The integration of the Islam family laws in the current legislation enhances modernity and gender equality in the respective society. Initially, women were given permission to participate in trade activities but twentieth century has seen an increase in female entrepreneurs and sales agents. Introduction of formal girl education in the majority of the Muslim countries is another trend that aims at promoting gender equality in the society (Brown). Feminist’s impact. There is also a rise in feminists, in Arab countries forming human rights organizations with the intention of human rights and gender equality promotion. In Middle East, an increase in a number of the female activist contributes a lot in the court decisions especially o n divorce cases and other social issues. For example, the female activists terming the judgment as conservative criticized the case where a women arrest in Iraq for wearing trousers is high. The courts are forced to make keen judgments to avoid criticism from the female activists. The courts decisions are currently on the countries’ legislation basis but take high considerations of the effects of globalization and modernity in the society (Fatima Sadiqi.). Conclusion Majority views the family law in the Muslim context as the main obstacle to achieving gender equality in the Arab countries across the world. The law promotes gender inequality whose effects are apparent in both genders. This implies that the activist and authorities should amend this law to promote gender equality in the society. It is, however, evident that globalization is contributing a lot in promoting gender equality through education and social media. Availability of information on the internet enlightens women on their rights hence the increase in the number of feminists in most countries, in Middle East. The courts verdicts in Middle East also take considerations of the effects of modernization on the Muslim society, which serves in promoting human rights. The law, however, promotes equality especially when it comes to inheritance. The woman has the permission by authority to determine her bride price and ask for a divorce in case the husband is not committed to the marriage. Works Cited Brown, Nathan J. The rule of law in the Arab World. New York: Cambrigde University Press, 1997. Fatima Sadiqi., Moha Ennaji. "Feminist Activism and the Family Law: The Gradual Feminization of the Public Sphere in Morocco." Journal of Middle East Women Studies (2006): 2. Mallat, Chibli. The Rule of Law in the Arab World. New York: Oxford University Press, 2009. Moghadam, Valentine M. Modernizing Women: Gender and. New York: Lynne publishers, 2003. Zulficar, Mona. New Signs of Progress for Women in Eqypt. 12 February 2004. 6 April 2014 . Read More