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Marital property law reform is needed in MENA countries to end discrimination against wives

Lebanon, Beirut, November 29, 2023: Divorced women and widows are frequently denied a fair share of marital assets in the Middle East and North Africa (MENA) because of discriminatory family laws and practices. This often overlooked but important issue is examined by lawyer and human rights activist Nasser El-Rayes in an illuminating new book published by Equality Now and the Women’s Center for Legal Aid and Counseling.

The Distribution of Marital Property After the End of a Marriage Under International and Islamic Law,” compares laws in Tunisia, Morocco, Algeria, and Palestine, and examines the distribution of joint property between spouses after a marriage ends. El-Rayes analyzes Sharia law governing divorce and spousal inheritance and summarizes arguments in Islam around the distribution of marital property. 

In MENA countries, traditional gender roles typically result in women making significant non-financial contributions to the family through housework, caring for children and elderly relatives, and other domestic tasks. 

Legal systems and social norms widely undervalue or overlook these non-financial contributions, particularly when dividing marital assets in divorce and following death, with family laws commonly focusing solely on spouses’ financial contributions. This means that after divorce, husbands who have performed work of a financial nature retain exclusive ownership of marital earnings and assets, regardless of whether a wife’s domestic labor has enabled him to earn income outside the home.

El-Rayes argues this discrepancy is inconsistent with principles of Islamic jurisprudence (fiqh), in which the division of joint property in divorce and marital inheritance is governed by specific rules outlined in Sharia law. He cites Islamic scholar Maliki jurist Ahmed ibn Ardun’s decree that a wife has the right to receive half her husband’s wealth following divorce or his death, and El-Rayes provides the example, during the caliphate of Omar Ibn Al-Khatab  (643 AD),  of a wife awarded an equal share of her husband’s wealth because she contributed to its creation. 

El-Rayes also highlights the Islamic concept of al-kadd wa al-se’aya – ‘toil and effort’ – which involves wealth creation in the family. This establishes that upon the division of that wealth, all parties are entitled to receive a percentage equivalent to their contribution. Domestic work by wives is a significant component in the creation of marital wealth.  

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is an international treaty that aims to eliminate discrimination against women and promote gender equality in various spheres of life, including marriage and family relations. CEDAW emphasizes that in the distribution of marital assets during divorce, financial contributions like income and non-financial contributions such as childcare and homemaking performed by spouses should be considered equally. 

All MENA countries must guarantee the equal rights of spouses to property acquired during marriage, and El-Rayes gives recommendations for governments to implement to ensure wives receive their fair share of marital property after divorce, in line with international law.

Dima Dabbous at Equality Now says, “El-Rayes’s book is a valuable resource for those interested in the fair distribution of marital property under international and Islamic law, and is a must-read for policymakers and women’s rights campaigners.”

“Women’s rights organizations across the MENA are collaborating in concerted efforts to advocate for much-needed reform of family laws that discriminate against women and girls. This includes awareness-raising about the urgent need to strengthen and secure wives’ financial rights. 

“The huge contributions wives make to their family’s financial well-being must be viewed as intrinsic to the development of wealth accrued during marriage. It’s only through reform of discriminatory family laws, such as those governing divorce and inheritance, that true equality within the family is achievable.”   

Randa Siniora, Director General of the Women’s Center for Legal Aid and Counseling, reaffirmed the importance of this study, which provides a useful scientific and legal reference on joint property rights in the Arab region. 

Siniora calls on Arab countries and the State of Palestine to adopt specific legal regulations to be annexed to the marriage contract, clarifying the rights of both spouses and acting as a legal guarantee to enable women to claim their rights regarding joint property and assets acquired during marriage.