arab societies face several challenges related to personal status laws. tunisian law is often considered the most flexible and just, while many arab and non-arab islamic countries struggle with these problems to varying degrees.
kuwait officially follows the maliki school of thought, and recognizes the shiite minority with its own personal status laws based on the ja’afari school.
in a valuable lecture, lawyer ibrahim al-kindi criticized personal status law no. 41/1984, which was enacted 40 years ago, calling it the worst.
he explained that the law, drafted by three arab advisors, fails to plant seeds of love and harmony in families. the law has many flaws and violations of justice, logic, and the principles of the official jurisprudential school followed by kuwait.
the law grants mothers custody of their children until the daughter gets married or the son reaches the age of majority. at that point, alimony payments cease.
however, the law does not clarify where the son should go if, for instance, the father fails to care for him after alimony is stopped. many cases in the courts are delayed due to the lack of specific legislation addressing this issue.
also, the law has certain shortcomings regarding women’s marriage. while the maliki school grants the father the right to approve his daughter’s marriage, kuwaiti law allows adult women, whether divorced or widowed, to decide for themselves whether to accept or refuse a marriage proposal. however, if the father or guardian opposes the marriage, the daughter or wife can fi le a “case of abuse,” which can take several years before a ruling is issued. why has the law not been amended to grant women the right to decide their own lives and destinies?
the maliki school requires that the dowry be explicitly stated in the marriage contract, and without it, the contract is considered invalid. however, the law does not clarify the consequences if the dowry is not mentioned. in contrast, the hanafi school does not insist on specifying the dowry in the marriage contract.
according to the maliki school, the dowry becomes the wife’s right after intercourse or legal seclusion with actual consummation. on the other hand, the hanafi school considers the dowry due upon actual consummation or legal seclusion, which could occur even if the couple simply went for a drive, to a restaurant, or shopping together. in such cases, the wife is entitled to the full dowry if divorced before actual consummation. this provision has been exploited in some court cases.
furthermore, under the maliki school, alimony is due to the wife starting from the date of the fi rst consummation of marriage. however, the hanafi school states that alimony is due from the date of the marriage contract, even if the wife stays at her parents’ home for two years, separated from her husband.
the wife is entitled to alimony, but if she goes to work against her husband’s wishes, she may lose her entitlement to alimony. in contrast, the hanafi school holds that alimony continues regardless of the husband’s approval for her to work, and this approach is currently implemented in kuwait.
according to the maliki school, if a divorce occurs, alimony is due from the date the woman fi les for divorce. on the other hand, the hanafi school dictates that alimony is due up to two years prior to fi ling the lawsuit, a practice that is unique to kuwait and not followed in other islamic countries.
regarding pregnancy, the maliki school requires a pregnancy period of six lunar months, or a maximum of 365 days, for the child to be attributed to the husband.
if the husband dies, and the woman comes forward after, for example, nine months claiming to be pregnant, the child will still be attributed to the deceased husband. the same applies if the woman is divorced.
the aim of this discussion is not to criticize the law or those who drafted it, but to highlight the importance of being extremely cautious when enacting any law. it is important to consider various possibilities in order to reduce the suffering of litigants and, at the same time, alleviate the immense pressure on the courts.
a recent statistic revealed that the number of new cases fi led in the family court during the first half of 2024 reached 6,541 cases, which is a concerning and unacceptable indicator.