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To review family law in Kuwait as it affects American citizen spouses and children, consular officers consulted a number of attorneys, family law experts, and judges from the Court of First Instance. The following is a synopsis of their various opinions, giving a brief background on Kuwaiti law in general and the impact these laws have on Americans married to Kuwaitis and their children.
Family and personal status law in Kuwait is governed by religious courts. The Kuwaiti legal system is based on Islam and is codified into an “Islamicized” Napoleonic code. Unlike U.S. law, precedent established by previous cases is not considered when judging a case, only the code of law. Each case heard under this legal system is decided on its own particular merits, without necessarily consulting past decisions in similar cases. While judges prefer consistency in applying the law, they are not bound by precedent, as are judges in the American legal system.
The Kuwait family law code, which governs matters such as marriage, divorce, child custody, and inheritance, was enacted in 1984 and contains 347 articles. It has been amended only slightly since 1984 and is based on the Maliki school of Islamic jurisprudence.
Shi’a - Sunni in Islam
The two major sects of Islam, Sunni and Shi’a, recognize different interpretations of Shari’a law. There are differences in interpretation within the branches of each sect as well. In Kuwait the Sunni and Shi’a have their own courts to handle family law and personal status matters in accordance with their own jurisprudence. The Sunni employ the Maliki or the Hanbali interpretation of Islamic law, while the Shi’a use the Jafari interpretation. The particular Islamic sect of the husband or father, Sunni or Shi’a, governs which court will have jurisdiction over family law issues in Kuwait.
Approximately 70 percent of Kuwait’s Muslim population is Sunni, while the remaining 30 percent is Shi’a. A tiny minority of Kuwaitis are Christian, but this document only addresses family law under Islam.
An Islamic marriage is a contract between the groom and the ranking male member (Wakeel) of the bride’s family. It is formalized in the presence of an authorized religious figure or judge and two male witnesses. The bride’s representative is usually her father, but a brother, uncle, or even the officiator of the marriage can serve as her legal representative. The officiator or a court clerk prepares the contract, which is signed by the groom, the bride’s representative, the witnesses, and the officiator.
The Islamic contract includes the religion of the bride and groom, but the sect of Islam that they belong to may or may not be specified. The contract includes the number of wives the groom has. The Islamic religion allows a man to have up to four wives at the same time provided he is able to support them equally. The bride may not state in the contract that her husband is forbidden from taking another wife. She may, however, with the permission of the groom and the officiator, include a clause in the marriage contract that allows her to divorce her husband if he takes another wife. The contract includes the dowry amount, which may be split into two parts: an immediate dowry payable by the groom to the bride upon the date of the marriage (the judge will ask the bride if she has received it) and a deferred dowry payable to the bride if her husband divorces her or if he dies. Both dowries will be mentioned in the contract.
In Kuwait, the religion of the husband will determine the application of Islamic law in the future. If the husband is not Kuwaiti, the interpretation of Islamic law applied will be based on his nationality at the time of the marriage if, in the future, circumstances require the couple to seek legal recourse. A non-Muslim male may not marry a Muslim female unless he converts to Islam. A Muslim male may marry a non-Muslim female provided that she is of another “book” faith (Jewish or Christian).
In many Muslim countries, Islamic law allows husbands to divorce their wives without cause, simply by stating, “I divorce you.” This can be done three times before it is irrevocable. After the first two divorces, the husband may nullify the divorce within 90 days. The third time a husband divorces his wife it is final. He cannot remarry her unless she first marries and divorces (or is divorced by) another man. Under Shi’a law, a man must appear before a judge in order for the divorce to be official. Sunni law makes it easier for a husband to divorce, as he need only record the divorce with the registrar of the personal affairs court. If the wife disagrees with the nullification of the divorce she must go to court to receive a formal divorce.
Women in both Sunni and Shi’a marriages may divorce their husbands. A divorce initiated by the wife is final. Under Sunni law, a wife may cite a variety of causes in support of a divorce, including mental or physical impairment of the husband, abuse, lack of performance of marital obligations, non-payment of financial maintenance, or desertion. It should be noted that in Kuwait, neither Sunni nor Shi’a sects allow a woman to divorce her husband solely because he took another wife, unless noted in their marriage contract.
In Shi’a family law, the only grounds a woman can use to raise a divorce case are non-payment of financial maintenance, desertion, missing husband, mental illness, and denial of conjugal rights for 4 months.
In both systems judges usually grant a woman’s divorce petition only as a last measure. They prefer to give the couple opportunities to reconcile out of court and encourage them to seek counseling before deciding on divorce.
Several American women married to Kuwaitis have gone through divorce proceedings, which they initiated, only to learn at a later point that the judge granted the divorce to their husband. To avoid these complications, a non-Arabic speaking woman divorcing in Kuwait should have an interpreter with her at all times when in court.
In most divorce cases, husbands are required by law to pay monthly alimony payments for each child born of their marriage. These payments are based on the husband’s salary and take into consideration his financial abilities and other obligations. The payments continue for girls until they marry and for boys until they reach age 18. The husband can also be required to provide funds to cover housing, transportation, servants and other household maintenance expenses.
A Shari’a practice known as “khali’a” is a divorce option available to women in Kuwait. According to this practice, a woman can divorce her husband relatively quickly without having to establish grounds, if she agrees to relinquish her rights to her husband’s property and assets (but not custody of her children).
In custody issues resulting from divorce, Kuwaiti law typically favors the mother for small children. Girls will usually live with their mother until they marry. However, once boys reach puberty they can choose whether to reside with their mother or father. The Sunni and Shi’a sects do have some differences when it pertains to child custody:
In Sunni law, custody is based on what is considered best for the child at various ages. Custody is also influenced by the religion of the mother. If the mother is Muslim, the mother will typically be granted custody of her children. If the mother cannot take custody of the children, or is found to be unfit to raise her children, custody passes to her nearest female relative. If none are willing or able to take custody of the children then the father or one of his family members is usually given custody.
A complication for the families of Americans married to Kuwaitis is that the custodianship of a child over the age of five must be Muslim. If a divorced woman remarries, her ex-husband may contest her custody of the children within one year of learning of her marriage. If the ex-husband fails to contest the custody within one year, he forfeits right of custody.
In Shi’a law, custody decisions are based on the rights of the parents. In order for a woman to receive custody of her children in case of divorce, she must be Muslim, rational and must not have remarried. If the mother cannot care for the child, or if she dies, the father receives custody. If the father dies, the custody reverts to the mother. If both die, custody will be awarded to the paternal grandfather. In general, it is up to the judge to decide which parent receives custody after the child reaches two years of age.
Although American women have received custody of their children, under Kuwaiti law they are prohibited from traveling with them out of Kuwait without her ex-husband’s or the court’s permission. If an American woman, divorced from a Kuwaiti, remarries, the father of her children can have her declared unfit to raise their children. Since an American woman here is unlikely to have her mother or other female relative in Kuwait, custody of the children will then go to the Kuwaiti father’s family.
Shari’a law dictates that a non-Muslim may not inherit from a Muslim and that a Muslim may not inherit from a non-Muslim. American women who do not convert to Islam before or after their marriage cannot legally inherit from their Muslim husbands. If a non-Muslim woman converts to Islam after her marriage, she may wish to record her conversion with the Ministry of Awqaf and Islamic Affairs to ensure her right to inherit. A certificate of her conversion will be issued and should be adequate legal proof that she is Muslim.
There are significant differences between Sunni and Shi’a inheritance law. Under Shi’a law, and in the absence of a direct male heir, the wife may inherit all of her husband’s property upon his death. Sunni law limits the wife to one-eighth of the estate, whether it is in property or cash. Both Sunni and Shi’a limit the amount of an estate that can be willed to non-natural heirs (friends, charitable organizations, etc.) to one-third. The remainder of the estate must be apportioned to the husband’s children, other wives, siblings and parents.
Limitations to inheritance can be circumvented somewhat through the “sale” of the husband’s assets to the wife, a means of bestowing wealth on his wife (particularly a non-Muslim wife) before his death. The sale must be concluded while the husband is in good health, and must be registered. The same means may be used to provide for adopted children, who also may not inherit under Islamic law. Another option that might protect family assets for a non-Muslim spouse is to have a “living will” drawn up that specifically grants property and assets to the surviving spouse. Regardless of religion and legal precautions it is necessary to keep in mind that only Kuwaitis and GCC citizens can own land in Kuwait. Given the complexity of inheritance law in Kuwait, the assistance of an attorney in these cases is advisable.
On of the greatest protections a person can have when living abroad is to know their rights under the laws of the country they are living in. Unfortunately, the family law code for Kuwait is currently only available in Arabic. Therefore, it is especially important to know your rights before going to court and to always have a fluent Arabic speaker with you for all legal dealings. The Embassy has a list of Kuwaiti and American lawyers who practice in Kuwait available on-line at http://kuwait.usembassy.gov.