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Les métamorphoses du mariage au Moyen-Orient

Barbara Drieskens

From Behind the Door: A Damascus Court copes with an alleged out of Court marriage1

Jessica Carlisle

Entrées d'index

Mots clés :

mariage, droit islamique

Géographique :

Syrie, Damas

Texte intégral

  • 1 The research for this paper was undertaken as a PhD bursary student at the School of Oriental and A (...)
  • 2 Syrian Muslim family law is described in Syrian legal texts and by legal practitioners as qânûnahwâ (...)

1In September 2005, the judge in Damascus’s Muslim personal status (sharî‘a) Court One2 presided over an unusual proof of marriage (tathbît al-zawâj) case. The claimant, a young man who worked in a flower shop, maintained that he and the defendant had married during an out of court ceremony conducted in the defendant’s father’s house. He added that the marriage contract was presided over by a shaykh and witnessed by several members of the defendant’s family including her father. The defendant, a university graduate of about the same age, denied that this was true, arguing that she had no recollection of the shaykh and since she was in another room at the time of the alleged event, behind a closed door, she could not possibly have given her consent to the marriage.

2The fact that a judge heard this case indicates a qualified tolerance towards out of court marriages in the Damascus sharî‘a court, despite the fact that participants in these ceremonies have contravened state law. Syria, in common with other states that have passed Muslim personal status legislation, invests the authority to oversee marriage contracts in its court system and refuses to recognize the establishment of spousal rights by contracts not registered in court. Nonetheless, some Syrians participate in marriage ceremonies outside of the courtroom and subsequently petition the court for legal registration of these contracts. Damascus’s sharî‘a courts therefore regularly consider proof of marriage cases in order to decide whether to extend state recognition to out of court contracts and state protection to the contracting parties.

3Judges, in hearing these cases, accept that out of court contracts that fail to meet the substantive and procedural legal standards established by legislation may nevertheless be eligible for registration. Given that features of these contracts often differ from the definitive criteria upheld in court, judges consider the validity of these contracts in the light of a variety of legal, social and religious arguments. Disputants and their lawyers present a web of justificatory factual and normative claims during court hearings, which are designed to persuade the judge to grant their plea. The judge’s first task is to establish a credible narrative explaining the events relevant to the case. This work is complicated when the claimant’s allegations are being contested, since the events they described can be both denied or reinterpreted by the defendant. Furthermore, since courtship and out of court marriage practices are not uniform, judges face the challenge of assessing whether the events described by the claimant would constitute a valid contract.

4The judge therefore spends a significant amount of time investigating the alleged circumstances of an out of court marriage, the supposed intentions of the participants in it and the likelihood that events would result in a valid contract. Disputants exploit unarticulated social assumptions, play up factual ambiguities and point out normative lapses when presenting or criticizing narratives. However, in arguing their cases litigants and their supporting witnesses unavoidably present a distorted representation of their social reality. The court is inevitably an environment in which narratives are tidied up, events reorganised into coherent evidence and testimony orchestrated towards securing an unambiguous verdict. Issues are therefore pared down by the legal process, with marginal complaints and arguments being jettisoned during the conduct of the case. This process is abetted in the Damascus sharî‘a court by lawyers who compile arguments and coach their clients before they see the judge.

5Although the legal process may misrepresent the reality of some social practices such as out of court marriage, it does nevertheless indicate what actors feel might justify their involvement in them. Proof of marriage cases are interesting then since they provide a window on out of court marriage practices and how they are defined according to legal, religious and social norms. What, for instance, are the legally acceptable limits of an out of court marriage ceremony? How significant a role does religion play in such a marriage? What social expectations must a ceremony fulfil in order to be regarded as valid?

The Law, Out of Court Contracts and the Criminal Code

6As in all the majority Muslim states that have enacted codified personal status law, Syrian legislation sets out the requirements for the contracting of a legally valid marriage. Article 2 of Personal Status Law No. 59 (1953) states that the institution is not established through betrothal, the promise of marriage, the reading of the fâtiha, the receipt of mahr (dower) or the acceptance of gifts. The following section of the statute stipulates that four conditions must be met in order to guarantee that a contract is valid; the couple must have the legal capacity to enter into the union, the woman should give her consent and her marriage guardian must be present and there should be agreement on the amount of mahr. Article 6 leaves some range for interpretation in stating that the woman’s consent should be either spoken out loud or be understood customarily. In practice court officials require openly expressed consent from both spouses together with that of the woman’s marriage guardian.

  • 3 Syrian personal status law allows spouses to insert additional conditions that do not contradict th (...)

7Both statutory and procedural aspects of the contract are overseen by court officials when families come in to conduct marriages in the sharî‘a court. Marriages are usually performed by the court clerk before or after the day’s sessions with the judge. Part 1 of Article 40 of Law 59 sets out the administrative procedures with which spouses must comply in preparation for their marriage, including a letter of authentication from their local mayor, medical certificates and proof of their marital status. Marriage contracts are recorded on a standard document issued by the court. The document requires the names and addresses of the spouses, the date on which the contract was finalised and designation of the place in which it was signed, the names and nationalities of the two witnesses, the amount of the designated prompt and deferred mahr that will be paid and authorisation by the judge. There are also two blank lines in which stipulations can be inserted.3

8The clerk requests the participants’ photo ID cards and if the bride’s face is veiled asks her to expose it for the purposes of identification. He then speaks to both the bride and her father to check that they are in agreement with the marriage and the mahr, before conducting the short ceremony and directing signatures. It is generally over in a few minutes. The clerk leads all the participants in ending the ceremony with a short prayer, before congratulating the newlyweds and returning to the rest of his work. Spouses leave with their respective families to register the contract with the court administration.

9It seems to be widely known that marriage in court is mandatory according to the law and that without this registration none of the rights flowing from the contract can be claimed in court. Syrian state regulation of marriage is further emphasized by provision in the criminal code’s Law No. 148 (1949) which provides for the prosecution of a “religious man” who has performed an out of court ceremony. Despite this it is not difficult to find someone willing to conduct an out of court marriage, and although these contracts are not recognised by the state, they are described by litigants in court as strongly resembling the state sanctioned model. In the cases that I saw brought before the judge the claimant always argued that the basic “legal” features designated by the statute were reflected in the conduct of their out of court contract, including agreement on the amount of mahr and often the presence of the marriage guardian.

10In theory a shaykh who oversaw such an out of court marriage contract would still face a nominal fine and a possible prison sentence. In reality, none of the legal officials that I met could remember a shaykh being prosecuted during their working lives, and they suggested that the criminal law would only be implemented in extreme circumstances. The state raised the fine from 25 lira to 250 lira in 1979, and the threat of imprisonment remains, but in practice the family courts turn a blind eye to any criminal implications when enlisting a shaykh’s testimony towards resolving a case.

Legal, Religious and Social Motivations for Out of Court Contracts

11Lawyers and judges working in the court cite a number of reasons for the prevalence of out of court marriage contracts. The first is overwhelmingly practical, since all Syrian men are obliged to do a year and a half of military service – and only a few are able to avoid it – the requirement to seek permission to marry from the military constitutes a compelling reason to marry out of court. Court officials say that conscripted soldiers constitute the largest group of men entering in these contracts. Once the husband’s military service is completed the wife’s family is likely to insist that the couple register the union. Often the wife may already be pregnant or have given birth to a child by the time the couple appear before the judge.

12A second reason mentioned by lawyers is the wish of some married men to conduct a ceremony in secrecy for fear that their brides may discover that they are currently married to existing wives. The court documentation that both a bride and bridegroom must sign requires information about their marital status. Court officials speculate that some men might prefer not to share this information for fear that it might be a disincentive to some women.

13Thirdly, there is the possibility that one of the spouses is a foreigner. Marriages involving a non-Syrian national require an enormous amount of paperwork including a report from the Syrian Ministry of the Interior, documentation from a foreign embassy, and proof that prospective foreign husbands are Muslim.

14Finally, a lot of credence is given to the fourth possibility that people have simply retained strong ties to social norms, despite the state’s efforts to alter marriage practice. Although the judge who presided over the following case described out of court contracts as indicative of “ignorance”, court officials identify a motivation for these marriages that has been little discussed in academic literature on the subject. This judicial acknowledgement of the resilience of social practice seems to inform court policy towards proof of marriage claims, enhancing the likelihood that an out of court contract will be registered.

15Syrian state claims of dominance over both the religious and legal aspects of marriage are therefore tenuous in that some Damascus families prefer to establish a union through a religious ceremony outside of the court room. For some couples this unofficial ceremony is sufficient, and only comes to the state’s attention in the event of a dispute between the spouses or the necessity to register the legitimacy of a child. Others contract an out of court ceremony before going to court to register the marriage. Most simply go to the court.

16However, although all these contracts award religious, and possibly legal, sanction to a marriage, finalizing a contract does not always normalize the marital relationship, and couples will often not begin to cohabit until the wedding is celebrated socially. This is true of both court and out of court marriages and it is not unusual to encounter couples instigating a divorce who have never lived together. Often the wife will return to her father’s house after the marriage where she will stay until the holding of a wedding party which will begin her married life. There might be a considerable period between the contract and the celebration during which the couple and their families will exchange visits and go on outings.

  • 4 El-Alami and Hinchliffe 1996, p. 225.

17Although the husband is expected to visit his wife’s house during the period between the marriage ceremony and the wedding party, the couple are unlikely to be left in private by the wife’s family. The dominant social norm is that a couple should not be afforded the opportunity to consummate the marriage until they begin to live together. Deviation from this norm is raised during divorce cases involving claims for full entitlement to mahr before co-habitation. Article 58 of Law No. 59 (1953) states that divorce prior to consummation (dakhûl) or valid retirement4 (khalwa) entitles the wife to only half of the specified mahr. Wives who come to court to claim that they had a sexual relationship with their husbands prior to the wedding party invariably bring relatives to testify on their behalf. Although these women publicly acknowledge that they have transgressed a powerful social norm, by bringing their families as witnesses they imply tolerance of their behaviour by their kin. Wives in similar circumstances without resort to relatives’ support are therefore unlikely to raise a plea for full mahr entitlement.

  • 5 Court cases resulting from divorce sometimes involve claims that the value of marriage gold was int (...)

18A second feature of Muslim marriage practice not indicated in the statute is that the specified prompt mahr is not always paid on the finalising of the marriage contract. Court recognition of non-payment is indicated by the clerk’s habitual enquiry as to whether prompt mahr has been paid (maqbûd) or unpaid (ghayr maqbûd) by the husband, and his subsequent record of the response on the marriage contract. The courts’ legal interpretation of an unpaid sum of prompt mahr is to record it as a debt owed by the husband to the wife. A wife is entitled to claim her unpaid mahr from her husband at any time during the marriage without having to present a justification for the demand. In reality, many wives appear to go throughout their married life without receiving this sum. Financial exchanges made as a result of marriage are then limited to the husband’s purchase of gold for his bride5 and mutual financial investment in furnishing the marital home.

19The Damascus sharî‘a court judge presiding over cases provoked by disputes about financial and marital promises is aware of this complexity of social and religious norms related to family life. Although he is charged with upholding legal standards he therefore considers arguments that have their roots in social and religious practices that contradict or circumvent state legal regulation. During proof of marriage cases this consideration includes exploration of the nuances of Damascus out of court marriage practices.

The State and Irregular Marriage Practices

20Although Damascus court officials refer to out of court marriage as ‘urfî (customary), this term does not elicit the same social response or raise the same legal connotations across the MENA region. Reports of court processing of proof of marriage claims and out of court marriage practices across legal jurisdictions demonstrate that there is considerable variation in both social norms and legal rules regarding non-state contracts, and that these differences produce disparities in judicial verdicts regarding unregistered contracts.

  • 6 Fishawy refused to take the test resulting in discussions in the Egyptian parliament regarding legi (...)
  • 7 Al-Ahram Weekly On-line, 1-7 October 1998, No. 397.

21The scandal caused in 2005 by the Egyptian television actor Ahmed el-Fishawy’s alleged ‘urfî marriage to the costume designer Hind el-Hinnawy and her subsequent legal claim to establish the legitimate paternity of her child was partly attributable to Hinnawy’s testimony that she had married without her father’s consent. The contract was said to have been finalised in the presence of two male witnesses with an agreed mahr, but Hinnawy claimed that the document attesting to the marriage agreement had been retained by Fishawy. The establishment of a procedural precedent by the court accepting DNA evidence lead to media speculation that Egyptian courts would be subject to a flood of claims from women claiming to be ‘urfî wives.6 There is speculation that there are as many as 30,000 couples married according to this kind of contract, and that 70-90% of Egyptian paternity cases awaiting a verdict are attributable to such liaisons.7

  • 8 Mir Hosseini 2000, p. 171-174.
  • 9 Mir Hosseini 2000, p. 220.
  • 10 The article only empowers judges to register out of court contracts for a period of five years afte (...)

22Mir Hosseini describes similar marriages entered into by Moroccan couples according to fâtiha contracts.8 However, she contends that the repercussions of these contracts differ for urban and rural wives in the event of a dispute. Arguing that urban women are inevitably legally disadvantaged by these contracts in the event of their husbands denying that a marriage took place, she notes that fâtiha contracts in rural areas “have totally different dynamics”9 in which wives’ social status is assured, presumably through the union being public knowledge in the community. Article 16 of the reformed Moroccan family law – the Mudawwana (2004) – recognises the problem posed by unregistered marriage by empowering family courts to register such contracts.10

  • 11 See Mervin’s chapter in this volume.
  • 12 Mir Hosseini 2000, p. 164-176.

23Mervin’s discussion of temporary marriage (mut‘a) amongst the Lebanese Shi‘i community11 outlines social and theological debates regarding the suita-bility of such unions for as yet unmarried women and the need for the bride’s father to consent to the contract. In practice mut‘a marriages are often contracted in secret, may not establish co-habitation and involve no celebration.12

  • 13 Arabi 2001, p. 147-168.
  • 14 Arabi 2001, p. 164.
  • 15 These issues were addressed recently in a Syrian soap opera, a national export that has become extr (...)

24Social objections have also been raised with regard to ambulant (misyar) marriages which can be contracted without publicity and in which wives agree to forgo their right to provision of financial support or accommodation by their husbands. Arabi has suggested that this form of a marriage contract was promoted by marriage brokers in the 1990s in response to social and economic change13 and notes that it is particularly favoured by married men who wish to marry polygamously. Misyar contracts were pronounced legally valid by the Saudi Arabian shaykh Abdel Aziz bin Baz on the proviso that the wife’s marriage guardian gives his consent. They also gained the approval of Egypt’s Grand Mufti Tantawi in 1999 and were declared licit by the Mecca-based Islamic Jurisprudence Assembly in April 2006. However some scholars disapprove of the arrangement.14 Whatever the moral debate surrounding unregistered or unorthodox marriages, the risk of legal disadvantage for wives under these contracts is inevitable. Abandonment of wives’ entitlement to housing and financial support is an intrinsic aspect to misyar contracts. While without state recognition that an ‘urfî or fâtiha marriage has taken place women are not able to register the paternity of their children, or press a claim for financial entitlements to unpaid mahr, nafaqa (financial maintenance) or nafaqat al-awlâd (child support). In certain cases there is also the threat that they may be vulnerable to accusations of sexual impropriety and violence from their families.15 Recent legal developments across the MENA region towards recognising out of court marriages have partially alleviated the problems faced by spouses, but state legal policy regarding registration of these contracts has established legal standards and procedures by which contracts will be judged.

Damascus Court Policy and Procedure Regarding Unregistered Marriage

25The prevalence of out of court marriages in Damascus is indicated by the two or three proof of marriage cases that appear weekly in Court One. Cases can broadly be split into two categories; those in which both spouses state that the marriage has taken place, and those in which the defendant denies being married to the claimant.

26Certification of marriages in the first case is straightforward and is established in Part 2 of Article 40 of Law No. 59. This legislation states that a marriage contracted outside of the court can be certified following the submission of documentation designated in Part 1 of Article 40, including a letter from the spouse’s local mayor, evidence of their marital status and medical certificates. Moreover if the couple have had a child or the wife is obviously pregnant and both spouses admit to the union, then a marriage can be certified without providing evidence that these procedures have been satisfied. Pregnant wives hoping for a swift registration of their marriage sometimes stand sideways in front of the judge in Court One in the hope of convincing him of the urgency of their case.

27The second type of case occurs when one of the alleged spouses, usually the husband, denies that a marriage has taken place. Damascus court practice is to register out of court contracts whenever they are considered to have met basic standards. However, in disputed proof of marriage cases the defendant always argues that these standards have not been met, either because the events described in the plea did not take place, or because the claimant has wrongly interpreted them. Sharî‘a court procedure in cases of disputed fact is to admit both documentation and testimony as evidence. However, since most unregistered contracts are not written down or the husband has retained the marriage document, the judge is reliant on witnesses to settle the majority of proof of marriage cases. Since the testimony presented by each party is often inconsistent, and mutually contradictory, the judge has to use his discretion in deciding what has actually happened, and whether the events resulted in a valid contract.

28In conducting the following hearing the Damascus judge devoted a great deal of time to gathering witness testimony. The claimant, the defendant and their lawyers were present in the courtroom throughout – while their witnesses came in one at a time. Any witnesses who were hanging around the courtroom door were told to stand further back in the hallway where they would not be able to hear what was being said. The judge directed the testimony, summarising it out loud into formal Arabic to be recorded in the case file by the clerk. Not everything that was said during the hearing is therefore included in the file, since the judge omits what he considers to be irrelevant arguments. The disputants and their lawyers were given the opportunity to ask questions at the end of each of the witnesses’ testimony, but were prevented by the judge from asking questions that he considered superfluous.

The Claimant’s Story

29Before the claimant began his testimony his lawyer made a submission for the correction of the alleged contract, which had been submitted as the 25th January 2005, and the lawyer now said occurred on the 15th September 2004. The claimant said that he had first seen the defendant in a supermarket, discovered where she lived and asked his mother, maternal aunt and sisters to go to speak to her family about the possibility of marriage. He continued that her family had agreed, and claimed that after two or three weeks he brought a shaykh to her house to marry them on a Friday between the midday and the afternoon prayer.

30Together with the shaykh the claimant brought his two sisters, his brother-in-law and the shaykh’s “assistant”. When asked by the judge why his father and mother did not attend, the claimant explained that his father was sick and had apologised, while his mother was not in Damascus.  However, the defendant’s father, her mother, her brother and a female neighbour were all waiting for them; the men in the main sitting room, while the women were holding a separate party in another smaller room behind a closed door. The defendant was celebrating with the women, and did not come out of this room to contract the marriage. However, the claimant said that the prompt dower was agreed at SL100,000 ($2,000) and the deferred dower at SL100,000 ($2,000), and that at some point he gave the defendant SL30,000 ($600) to buy gold jewellery. All of this was discussed, and agreed on, with the defendant’s father.

31The shaykh then asked the claimant from behind the door of the women’s party if she consented to the marriage and the amount of dower. She replied that she did and that she agreed to her father contracting the marriage on her behalf. The shaykh then placed a white handkerchief over the hands of the claimant and the defendant’s father before asking the father if he consented to marry the couple for the prescribed dower. When the father agreed, the shaykh pronounced them married.

32At this point in his testimony the claimant produced three photos of the claimant and passed them up to the judge. In two photographs the defendant is not wearing her hijâb and is embracing him in a bedroom, and in the third she is standing in front of a large display of flowers. The claimant told the judge that the first two of these pictures were taken in the defendant’s flat on the day of the marriage. All three photos were kept for the case file. The claimant also showed the judge one of sixty invitation cards which he said he had printed for the wedding party which was planned for the 27th of March. This was also kept back for the file.

33The claimant said that he visited the defendant regularly after they concluded the marriage contract, and that throughout the month of Ramadan he saw her daily before or after the breaking of the fast. He described outingsaccompanied by members of her family to eat in restaurants or to shop in the markets, naming specific family members and places. Some of this time was spent buying things that they would need for the house. However, a week before the wedding party was due to take place her father informed his family that they were not going ahead with the celebration.

34The judge asked what had upset the defendant, but the claimant replied that he did not know. Apart from this lack of detail about the emotional ups and downs of the relationship, this account is that of a recognizable Damascus courtship. Although the claimant provides no information about personal developments between himself and the defendant, he describes a developing understanding between the two families which subscribes to a recognizable social norm. The claimant also makes it clear that he brought someone from his local mosque who was competent to conduct the ceremony, that the defendant’s father was present and gave his consent and that the mahr was openly agreed upon. In addition, the absence of his parents is accorded a reasonable explanation.

35The arrangement of the women’s party was not questioned by the judge neither did he ask why the defendant was not asked to come out to consent to the contract in person. The claimant’s narrative thus successfully implied that a separate space would have enabled the women to dress in a way that they would not have been appropriate had the men been able to see them. Through the defendant remaining behind the door religious ethics would have been respected, while religious sanction would be given through the contract for the defendant to latterly see the witness without her hijâb and pose together with her for the photographs that he gave to the judge. The claimant’s subsequent supervised visits to the defendant would have been equally in keeping with social norms regarding appropriate levels of intimacy between couples leading up to the wedding party.

“Where’s the paper?”

36However, social practices in Damascus are not uniform and the defendant’s testimony disputed both the claimant’s presentation of the facts, and his suggestion of the normality of the events he described. Together with denying much of the claimant’s evidence, the defendant disputed that she would have been able to give her consent from behind the door and highlighted her alleged husband’s failure to produce a written document in support of his claim.

37Not all of these objections are recorded in the court record of her testimony. Although she repeatedly stressed the unlikelihood that she would have agreed to a purely verbal contract, asking for written proof that the contract had taken place and insisting that such agreements are written down, the judge covertly discounted this argument by not setting it down in the file. He also excluded her insistence that she was old enough not to require her father to act on her behalf, and some of the insinuations that she made about the claimant’s doubtful character, including her accusation that he would monitor her movements when she went out of her flat.

38In fact the judge was largely interested in her account of the circumstances leading up to the alleged out of court contract, and what she had to say about the events of that particular day. The defendant replied that although she did not remember where she first saw the claimant, she remembered that someone phoned her neighbours to ask if they thought she would be interested in an engagement. She said that his mother, his maternal aunt and his sister subsequently came to visit her family at their flat, but that no engagement was agreed upon. About two months later – she did not remember the exact date – the claimant’s mother, brother and sister visited again, but she didn’t remember anyone else being present and for a second time no agreement was reached.

39However, the defendant said that her father agreed that the claimant could visit and speak to her on the phone. She added that he resisted discussing the topics of dower and possible dates for the contract since that would have implied a commitment to the prospect of a marriage. She claimed that there were no subsequent visits to her family home by the defendant’s family, but said that she continued to meet them and the claimant with her father’s permission. During these meetings, she claimed that she became increasingly doubtful about the defendant’s health, his financial situation and his motives for wanting to marry her. His mother, his sister and his aunt all told her that he was ill, and she said that she noticed that he took medication for a nervous complaint. She also accused the claimant of having mostly been interested in her family’s money; a statement that was not recorded by the judge.

40When questioned about events on the day of the claimant’s family’s second visit to her flat, and the claimant’s allegations that they entered into an out of court contract, the defendant denied all knowledge of a marriage. She explicitly denied that she had given her permission to anyone to act on her behalf, said that she had no memory of a shaykh and stated that she didn’t hear a voice or any questions about her opinion of marriage. She explained that the women’s party was similar to parties that her family had held before, and that they were simply entertaining their guests. However, she said that she was unable to recall posing for the photographs, suggesting that the claimant’s sister may have taken them and admitting that she appeared in one of them.

41The file records the main aspects of this exchange, but since it leaves out the legally redundant assertions that there could not have been a contract without a paper and that she would not need her father’s permission, the defendant is left describing a different kind of courtship, equally recognisable to the claimant’s, in which she was taking her time to get to know him. In her version of events her family supported her resistance of any pressure to rush into marriage, which enabled her to gradually discover both that the defendant was not her social equal and that he suffered from some kind of nervous illness. Her unrecorded testimony regarding the claimant’s tendency to follow her in the street seemed designed to illustrate his psychological flaws.

42Her inability to explain the provenance of the photos was regarded as relevant by the judge and is recorded in the notes. It is possible that she chose to remove her hijâb in front of the claimant at a time when he was her boyfriend, or fiancé, but it would perhaps be difficult to admit this in court. The photos evidently conveyed an implication that her relationship with the claimant has been more intimate than she was prepared to admit. And the presence of someone else to take the photo suggests that the relationship was, at least to a certain extent, public.

The Shaykh

43Five supporting witnesses were subsequently called to appear before the judge – three for the claimant and two for the defendant. The claimant’s witnesses included his brother-in-law and a friend of the shaykh who he said conducted the ceremony. Both of the witnesses confirmed the claimant’s basic description of the wedding contract, with the shaykh’s friend frankly admitting that he could not remember all of the details. The defendant’s father and younger brother appeared as her supporting witnesses. They both stated that the claimant had visited the house twice and expressed an interest in marrying the defendant, but that no agreement had been reached. They added that he had been accompanied by female relatives and that other “people” had also come to their house, but did not specifically note that one of them was a shaykh.

44The shaykh himself appeared as the first witness. His swearing of the oath is noted in the record of the session, but there is no record of which mosque he was attached to. Neither is there any indication that the judge was occasionally quite terse with him. But the notes of his testimony are briefer than those of his friend – who clearly impressed the judge – and do not include any of his justifications for involvement in the ceremony. Although the judge did not press him for an explanation the shaykh volunteered the reasoning that although he recognized the authority of the law, an out of court marriage contract was valid within the sharî‘a and made the couple permissible to one another.

45The shaykh confirmed that he conducted the contract as described by the claimant, on a Friday about two weeks before the beginning of Ramadan, although he was unsure about the exact date and location in which the events took place. He stated that he did not know the defendant or her family previously, but said that the defendant’s father gave his consent and that he had heard defendant agreeing to the contract, and empowering her father to act on her behalf from behind the door.

46The defendant’s legal team raised several doubts at the end of this testimony, but at no point did they challenge the shaykh’s authority to have overseen this kind of ceremony. Although his status seems to have been diminished through him having been called to court – which is further suggested by the judge not extending any particular respect to him – he was nevertheless able to describe an out of court contract as religiously valid, while acknowledging it was flawed according to state legal rules. In addition the claimant and all of his witnesses described the contract as manifesting most of the features which would result in a valid contract if conducted in court.

47It was the defendant’s legal team, and not the judge, who challenged the representation of the defendant’s consent as undeniable. One of her lawyers asked the shaykh how he could be sure that it was her voice that he had heard. The shaykh replied that this was a very good question. The judge immediately intervened, stating that the other witnesses would establish this, although since the claimant’s other two witnesses were also on the wrong side of the door they were unable to categorically state that it was the defendant who spoke.

Legal Objections

48The defendant’s team subsequently submitted two letters after the court hearing challenging the claimant’s case on grounds that made no reference to the religious and social norms alluded to during the testimonies.

49The first letter, dated in October 2005, concentrated on the legal rules related to marriage established by the statute. The letter begins by reiterating the defendant’s claim that she had no memory of the contract and states that there is no logic in the testimony of the witnesses since they didn’t hear any agreement from the defendant, couldn’t see her from behind the door and would not be able to recognise her now. They therefore argue that the contract could not be legal since it would have failed to meet legal standards regarding offer and acceptance on the clear understanding that a marriage was intended. The lawyers quote the relevant articles to substantiate this contention, and refer to a popular collection of classical legal opinions.

50The second letter, which was submitted to the court in February 2006, repeats these arguments, but adds doubts about the witness testimony regarding the facts. The defendant’s lawyers note that the claimant’s legal team have altered both the date of the contract and the amount of designated dower – initially said to be SL100,000 in total – since the start of the case. They also note that the 22nd September 2004 was – according to their calendar – not a Friday but a Tuesday and add that the shaykh’s friend had put the time of their arrival at the house after the time given by the shaykh and the claimant. Unlike the defendant, her lawyers do not emphasis the implausibility of the out of court marriage described, but rather raise the standards set by the legal rules and cast doubt on the claimant’s witnesses production of the “normality” of events given that they are unable to recall them accurately.

The Verdict: Registered or Denied?

51The verdict in this case was still pending when I last left Damascus although I was able to briefly discuss it with the judge who heard the witness testimony. He felt that the claimant’s plea should be granted and the marriage registered. However, in an interesting twist to the case, he had since been promoted to another post leaving his successor to write a verdict based solely on the information contained in the file. The new judge may have been more sympathetic to the defendant’s lawyers’ references to the statute, or have been swayed by their second letter pointing out factual inaccuracies in the claim. In either case his grasp of the witness testimony would have been limited to the information selected and recorded during the hearing, which did not include the defendant’s protests about the unwritten nature of the contract or some of her insinuations about the claimant’s character.

52Such attempts by litigants, their witnesses and lawyers to assert versions of events during proof of marriage cases are encouraged by the court’s reliance on social explanations of the dispute. Statute overtly marginalizes the importance of strictly legislated aspects of a contract in Part 2 of Article 40 of Law 59 which allows judges to swiftly register out of court marriages. It is only during a disputed proof of marriage case that the claimant has to establish that the contract fulfils basic legal criteria. Since the court has not regulated the circumstances of an out of court contract, and social practices vary from contract to contract, the claimant attempts to prove that aspects of their alleged contract closely enough matches court requirements regarding agreement on mahr, consent and publicity.

53In deciding on his verdict, the judge inevitably privileges either the claimant’s or the defendant’s abridged narratives and produces a ruling that possibly does not reflect the totality of the case. Since proof of marriage cases draw on social definitions of a valid contract, judges are open to litigants’ attempts to both establish their representations and their interpretations of the facts of the case. The judge’s consideration of a proof of marriage case therefore blurs the boundaries between state legal expectations and social religious and legal norms in pursuit of a coherent foundation for a verdict.

54Whether the claimant’s plea was granted or not, his case demonstrates something of both the competing normative definitions of marriage in Damascus, and the local judiciary’s accommodation of religious and social marriage practices that defy the state. Although Damascus sharî‘a court judges exercise the state’s authority, they acknowledge that the shaykh’s influence in a religious milieu occasionally supersedes state legal rules. Given the courts’ reluctance to prosecute a shaykh, he is unlikely to be punished by a judge. At most, he will be undermined by the invalidation of an out of court contract that he has overseen. Furthermore the statute’s reference to the legality of “customary” consent awards the judge considerable discretion in deciding whether to register an out of court contract.

55However, in issuing a verdict courts reassert the state’s claim to judge which religious and legal criteria render a marriage contract valid. In making this assessment the judge does not rely so much on the testimony of the shaykh – since cases are heard in which the shaykh can not be found, or when both spouses simply admit to the union – but the social practices claimed by the litigants and the evidence that they bring to support these self representations. A disputed out of court marriage demonstrating the legal features of a valid contract, and apparently supported by the social attitudes of the spouses, simply lacks the formality of registration before entitling the spouses to all of the rights and protection afforded by state regulation.


El-Alami D. and D. Hinchliffe, 1996 :  Marriage and Divorce Laws of the Arab World,London : Kluwer Law International.

Arabi O., 2001 :  “The Itinerary of a Fatwa: Ambulant Marriage (al-Zawaj al-Misyar), or Grass Roots Law-Making in Saudi Arabia of the 1990s”, in O. Arabi (ed.), Studies in Modern Islamic Law and Jurisprudence,The Hague, London : Kluwer Law International, p. 147-168.

Mir Hosseini Z., 2000 :  Marriage on Trial: Islamic Family Law in Iran and Morocco, London : I.B. Tauris & Co.


1 The research for this paper was undertaken as a PhD bursary student at the School of Oriental and African Studies, London. I would also like to acknowledge the vital support and advice provided by Dr. Lynn Welchman, the generosity of the staff in Damascus Shari‘a Court One and the helpful comments offered by Baudouin Dupret.

2 Syrian Muslim family law is described in Syrian legal texts and by legal practitioners as qânûnahwâl shakhsiyya, which is usually translated into English as personal status law. However, the courts in which this law is practised are described both by the Ministry of Justice and by Syrian court officials as sharî‘a courts.

3 Syrian personal status law allows spouses to insert additional conditions that do not contradict the rights and responsibilities inherent in the standard marriage contract. This option is infrequently exercised in the Damascus court.

4 El-Alami and Hinchliffe 1996, p. 225.

5 Court cases resulting from divorce sometimes involve claims that the value of marriage gold was intended to account for a portion of the mahr. But more commonly marital gold is brought in addition to the promise of mahr and remains the legal property of a wife in the event of divorce.

6 Fishawy refused to take the test resulting in discussions in the Egyptian parliament regarding legislation that would force men to submit themselves to DNA testing.

7 Al-Ahram Weekly On-line, 1-7 October 1998, No. 397.

8 Mir Hosseini 2000, p. 171-174.

9 Mir Hosseini 2000, p. 220.

10 The article only empowers judges to register out of court contracts for a period of five years after the reforms and instructs them to consider whether children have been born from the union. Mudawwanat al-usra (2004).

11 See Mervin’s chapter in this volume.

12 Mir Hosseini 2000, p. 164-176.

13 Arabi 2001, p. 147-168.

14 Arabi 2001, p. 164.

15 These issues were addressed recently in a Syrian soap opera, a national export that has become extremely popular throughout the Middle East due to their transmission on various Arabic satellite stations. The storyline involved a fatherless young woman who contracted an ‘urfî marriage without the knowledge of her three elder brothers. She subsequently became pregnant by her feckless husband and was attacked by her brothers when they found out about her marriage.


Chercheur au Centre for Migration Law, University of Nijmegen, Pays-Bas

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