Syria (Syrian Arab Republic)
*Please note this is just a draft and all contents are still under revision.*
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Legal System/History
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Syria
centre of Umayyad caliphate until Abbasid Revolution of 756. Succession
of Arab, Crusader, Kurdish, and Mamluke rulers, then under Ottoman control
from 1516. Following expulsion of Ottomans after WWI, League of Nations
declared French mandate over region in 1922, from which Syria gained independence
in 1946. Ottoman Law of Family Rights continued to govern matters of personal
status until 1953. Syrian Law of Personal Status 1953 covers matters of
personal status, family relations and intestate and testamentary succession.
Article 305 of SLPS directs that residuary source of law is most authoritative
doctrine of Hanafi school. Major amendments made to SLPS in 1975, particularly
relating to areas of polygamy, dower, maintenance, mut’a, cost of nursing, custody of children,
and guardianship. |
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School(s) of Fiqh |
Hanafi
majority; Ja’fari, Druze, Isma’ili and ‘Alawi minorities; also several
Christian denominations and very small Jewish communities in Damascus,
Al-Qamishli, and Aleppo. |
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Constitutional Status of Islam(ic Law) |
Constitution
adopted on 13th March 1973. Article 3(1) declares that religion
of the President of the Republic shall be Islam. Article 3(2) declares
Islamic jurisprudence a main source of legislation. |
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Court System
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Separate
legal systems for civil and criminal matters and for personal status matters.
The
lowest courts for civil and criminal matters are peace courts, followed
by courts of the first instance (1 in each of the 14 districts) with jurisdiction
over civil and minor crimes. There
are also courts of Assize for more serious crimes, a Court of Appeals
in every district, and a Court of Cassation. There is also a Supreme Constitutional Court
which determines the constitutionality of laws Courts
with jurisdiction over personal status matters are shari’a courts for Sunni and Shi’i Muslims, madhhabi courts for Druze, and ruhi courts for Christians and Jews. One single-qadi shari’a court of first instance per district (except Damascus and
Aleppo having three each). Each of three types of court has its own appellate
courts. Final appeal lies with Family Section of the Court of Cassation
in Damascus. Code of Personal Status applied to Muslims by shari’a courts, separate tribunals for Druze, Christians and Jews.
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Relevant Legislation |
Law
of Personal Status 1953 (no. 59/1953, as amended by Law no. 34/1975) Civil
Code 1949 Code
of Civil Procedure 1953 Code
of Civil Status 1957 Law
of Judicial Authority 1965 |
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Notable Features |
Marriage Age: minimum marriage age is
18 years for males and 17 for females; judicial discretion for males of
15 years and females of 13 years; judge may withhold permission for marriage
if court finds incompatibility in age between betrothed parties Marriage Guardianship: under age of full capacity,
both parties need permission of wali;
wali’s objection to marriage
of girl under 17 years may be overruled by judge Marriage Registration: obligatory; penal sanctions
for failure to register Polygamy: judge may refuse permission
for polygamous marriage unless husband establishes lawful cause and financial
capacity Obedience/Maintenance: wife’s financial rights
forfeited if she works outside the home without husband’s consent or she
is deemed disobedient due to leaving matrimonial home without lawful justification
or refusing to cohabit with husband; arrears of maintenance shall be awarded
wife from date that husband fails to maintain her, up to four months prior
to date of claim Talaq: talaq uttered while intoxicated,
disoriented/enraged, under coercion, during death sickness or grave illness,
or in order to coerce deemed ineffective; talaq to which number is attached shall be considered single irrevocable
(except third of three) Judicial Divorce: wife may seek judicial
divorce on following grounds: defect in the husband preventing consummation
(though such right is forfeit if wife accepted defect except in cases
of husband’s impotence); husband’s insanity; husband’s absence without
justification for one year; husband’s sentencing to three years’ imprisonment
after serving one year of sentence; and husband’s non-maintenance – if
non-maintenance is due to husband’s inability, judge shall grant grace
period of up to three months; either spouse may seek judicial divorce
on grounds of discord causing such harm as makes cohabitation impossible
(after reconciliation efforts) Post-Divorce Maintenance/Financial
Arrangements: husband obliged to pay maintenance for ‘idda after talaq, judicial divorce or annulment, up to maximum period of nine
months; divorced wife may be awarded compensation of up to three years’
maintenance (in addition to maintenance during ‘idda) if judge finds husband’s exercise of talaq to have been arbitrary Child Custody and Guardianship:
divorced mother has right to custody over boys until age of 9 and girls
until age of 11; qadi may order
wards to stay with mother if guardian is not father, until marriage for
girl or until boy or girl reaches rushd;
qadi may also order children to remain
with mother if court finds that father is not to be trusted with them Succession: governed by Hanafi fiqh as embodied in SCPS; reforms extending
doctrine of radd (return) to
allow surviving spouse to share in residue of deceased partner’s estate
and introducing obligatory bequests in favour of orphaned grandchildren
through predeceased sons |
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Notable Cases |
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Law/Case Reporting System |
Law
reporting through the Official Gazette. Cases
are not reported. |
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International Conventions (with Relevant Reservations) |
ICCPR
& ICESCR – accession 1969 with reservations to Arts. 48(1) of ICCPR
and 26(1) of ICESCR CRC
– signature 1990, ratification 1993 with general reservation and reservations
to Arts. 14, 2 & 21 |
Legal History:
Syria served as the centre
of the Umayyad caliphate until the Abbasid Revolution of 756. After a succession
of Arab, Crusader, Kurdish, and Mamluke rulers, Syria came under Ottoman control
in 1516. Following the expulsion of the Ottomans after World War I, the League
of Nations declared a French mandate over the region in 1922, from which Syria
gained independence in 1946.
The Ottoman Law of Family Rights continued to govern
matters of personal status until 1953. The Qadi
of Damascus, Shaykh ‘Ali al-Tantawi, drafted a comprehensive treatise on personal
law, based on takhayyur according
to principles most suitable to changing social conditions. After the publication
of al-Tantawi’s treatise, the government established a Commission to prepare
a draft code of personal law. The Commission based its draft on principles from
al-Tantawi’s code, the OLFR, various Egyptian laws enacted from 1920 to 1946,
and the unofficial code prepared by Egyptian jurist Qudri Pasha. The Syrian
Law of Personal Status (Qanun al-Ahwal al-Shakhsiyya) 1953 produced by the Commission covers
matters of personal status, family relations and intestate and testamentary
succession and was the most comprehensive code issued in the Arab world to that
date. Article 305 of the SLPS directs that, for matters not specified in the
text, resort shall be had to the most authoritative doctrine of the Hanafi school.
Major amendments were made to the SLPS in 1975, particularly relating to the
areas of polygamy, dower, maintenance, mut’a, cost of nursing, custody of children,
and guardianship.
Schools of Fiqh: The Hanafi school is the predominant madhhab in Syria, and there are Ja’fari,
Druze, Isma’ili and ‘Alawi minorities. There are also several Christian denominations
and very small Jewish communities based in Damascus, Al-Qamishli, and Aleppo.
Constitutional Status of Islam(ic
Law): The Constitution was adopted on
13th March 1973. Article 3(1) declares that the religion of the President
of the Republic shall be Islam. Article 3(2) declares Islamic jurisprudence
a main source of legislation.
Court System: Courts having jurisdiction
over personal status matters are shari’a
courts for Sunni and Shi’i Muslims, madhhabi
courts for the Druze, and ruhi courts
for Christians and Jews. There is one single-qadi shari’a court of first
instance per district (except Damascus and Aleppo where there are three each).
Each of the three types of courts has its own appellate courts. Final appeal
for all the religious courts lies with the Family Section of the Court of Cassation
in Damascus, the highest court of the regular system.
Shari’a courts have both general jurisdiction
(relating to all Syrians without respect to religion and to non-Syrians originating
from countries where Islamic personal status laws are applied- i.e., over matters
of guardianship, succession, ascertaining capacity, missing persons, filiation,
matrimonial issues, and maintenance of relatives) and special jurisdiction (relating
to Muslim Syrians in matters of personal status including marriage, dissolution,
mahr, custody and maintenance, and
awqaf). The Code of Personal Status
applied to Muslims by the shari’a courts has specific exemptions for Druze, Christians and Jews.
Notable Features: The minimum marriage age is
18 years for males and 17 for females, with scope for judicial discretion for
males of 15 years and females of 13 years if either the father or grandfather
serving as wali consents and the parties
appear physically able. If the court finds incompatibility in age between betrothed
parties, the judge may withhold permission for marriage. Both parties require
their walis’ permission for marrying
under the age of full capacity, though a judge may overrule a wali’s
unreasonable objection to the marriage of his female ward (conditional upon
equality of status or kafa’a between
the betrothed parties).
Marriage registration is obligatory and applications
for marriage must be submitted to the judge, requiring documentation attesting
to identity, age, residence, guardian’s identity, medical certificate, civil
status, etc. of the betrothed parties. Marriages contracted out of court are
not to be certified without such procedures with the exception of cases where
the wife is pregnant or a child has been born, though extenuating circumstances
do not prevent the application of legal sanctions for non-compliance with registration
requirements.
The judge may refuse permission for a polygamous marriage
unless the husband is able to establish lawful cause and financial capacity.
The wife’s financial rights are forfeit if she works outside the home without
her husband’s consent or if she is deemed disobedient due to leaving the matrimonial
home without lawful justification or refusing to cohabit with her husband. Arrears
of maintenance shall be awarded the wife from the date her husband fails to
maintain her, up to four months prior to the date of the claim.
Talaq uttered while intoxicated,
disoriented/enraged, under coercion, during death sickness or grave illness,
or in order to coerce is ineffective. Talaq
to which a number is attached shall be considered a single irrevocable repudiation
(except the third of three).
The wife may seek a judicial divorce on the following
grounds: a defect in the husband preventing consummation (though such right
is forfeit if the wife accepted the defect except in the case of husband’s impotence);
husband’s insanity; husband’s absence without justification for one year; husband’s
sentencing to three years’ imprisonment, after he has served one year of the
sentence; and the husband’s failure to maintain – if non-maintenance is due
to the husband’s inability to provide maintenance, the judge shall grant a grace
period of up to three months. Either spouse may apply for a judicial divorce
on grounds of discord causing such harm as makes cohabitation impossible (after
reconciliation efforts). The divorced wife may be awarded compensation of up
to three years’ maintenance (in addition to the maintenance owed her during
her ‘idda) if the judge finds the husband’s
exercise of talaq to have been arbitrary.
The divorced mother has right to custody over boys until the age of 9 and girls
until the age of 11. The qadi may
extend the mother’s custody over girls until marriage, or over boys or girls
until they attain rushd, if the guardian
is not the father, or if the court finds that the father is not to be trusted
with the children.
The law relating to succession is based mainly on Hanafi
fiqh, as embodied in the Code of Personal
Status, although it is influenced by Egyptian reform legislation from the 1940s.
The doctrine of radd (return) was
extended to permit surviving spouses to share in the division of the residue
of their deceased partners’ estates. Obligatory bequests have also been introduced
to benefit orphaned grandchildren through predeceased sons.
Law/Case Reporting System: Law reporting is through the
Official Gazette.
International Conventions (with
Relevant Reservations): Syria acceded to the ICCPR and ICESCR in 1969, submitting
the following reservations: the first reservation relates to non-recognition
of the state of Israel; the second reservation (relating to Articles 48(1) and
26(1) of the ICCPR and ICESCR, respectively) states that these provisions are
incompatible with the aims of the Covenants, as they do not allow all States
"without distinction or discrimination" to become parties to the Covenants.
Syria signed the CRC in 1990 and ratifying it in 1993,
with a general reservation to any provisions that are not in conformity with
Syrian legislation or the principles of the Islamic shari’a, with particular reference to Article 14 on children’s freedom
of religion, and Articles 2 and 21 concerning to adoption.
Background and Sources: Amin, Middle East Legal
Systems, Glasgow, 1985; Anderson, "Syrian Law of Personal Status,"
Bulletin of the School of Oriental and African Studies, 17(1955): 25-59; Berger, "The Legal
System of Family Law in Syria," Bulletin d’Études Orientales, 1997
(XLIX): 115-127; El Alami & Hinchcliffe, Islamic Marriage and Divorce Laws
of the Arab World, London, 1996; el-Hakim, "Syria," Yearbook
of Islamic and Middle Eastern Law, vol. 1 (1994): 142-155; Mahmood, "Syria"
in Statutes of Personal Law in Islamic Countries, 2nd ed.,
New Delhi, 1995; Nasir, The Islamic Law of Personal Status, 2nd
ed., London, 1990; Pearl, A Textbook on Muslim Law, 2nd ed.,
London, 1987; Redden, "Syria" in Modern Legal Systems Cyclopedia,
vol. 5, Buffalo, NY, 1990.