Code of Personal Status (Tunisia) - Text

Text

The Code instituted for the first time in an Arab Muslim country the principle of the consent of the two spouses as a requirement for the validity of all marriages. Furthermore, it instituted an obligatory minimum age for marriages, fixed first at eighteen years for men and fifteen years for women, the precise text that: "Below this age marriage cannot be contracted, except by the special authorization of a judge who may not grant it, except for serious reasons and in the well understood interests of both spouses. In this same case, consent for the marriage of a minor must be given by the closest parent who must fulfil three conditions, namely being of sound mind, adult and masculine."

The Code also forbade the marriage of a man: "With his ancestors and descendants, with his sisters and the descendants to infinity of his sisters and brothers, with his aunts, great aunts and great great aunts" and "with the woman whom he has divorced three times." Polygamy, although rather marginal in the period, is likewise forbidden, even if the second union is not "formal:" "Whosoever being engaged in the bonds of matrimony shall contract another before the dissolution of the preceding shall be liable to a year's imprisonment and to a fine." Bourguiba referred to a sura of the Koran to justify this measure:

"We have abided by the spirit of the Holy Book... which indicates monogamy. Our decision in the matter contradicts no religious text and is found to be in agreement with mercy and justice and the equality of the sexes."

This sura states that: "It is permitted to marry two, three or four among the women who please you, but if you fear not being just towards them, then only one, or some slaves that you possess. This to the end of not committing injustice." For Bourguiba, the condition of equality between spouses being impossible to assure, prohibition of polygamy became therefore legitimate. And, provoking conservatives, he added:

"The defenders of polygamy would have to admit in a spirit of equality that the wife be polyandrous in the event of the husband's sterility.

The Code also prescribes that: "Each of the two spouses must treat the partner with kindness, live in good rapport and avoid all prejudice," thus abolishing the wife's obligation of obedience to her husband. At the same time, the text obliged the wife who was in possession of goods to contribute to the family's expenses, so that the husband not have powers of administration over the wife's possessions.

Until 1956, divorce remained the prerogative of the man who could unilaterally repudiate his partner by a simple declaration before two witnesses. The Code, to the contrary, instituted a divorce procedure that "could not take place except before a court" which decided "the dissolution of the marriage." This same court did not rule except in a case brought through the mutual consent of both spouses and in the case of the request of one of the partners as the result of harm of which that spouse was the victim. It is also stated that: "material harm would be recompensed (to the woman) in the form of a monthly alimony payment... to the level of life to which she was accustomed during married life, here including residence". Once more, Bourguiba justified himself by the decree of the Koran:

The Code also instituted the principle of the equality of men and women in relation to citizenship. Moreover, if a child did not possess his own goods, the necessary costs of his upbringing were predicated on those of the father.