Abstract
Marriage in Lebanon is a matter of religious law, and all attempts at introducing a civil marriage law have failed so far. This Article discusses the absence of a civil marriage law: was the Lebanese system supposed to include a civil marriage law? Is there a real need for it? Why have all legislative interventions failed? What are the alternatives? To answer these questions, we will focus mainly on the 1998 project of a civil Personal status law presented by President Hrawi, being the most complete and advanced attempt so far. The reactions for or against it are most representative of the Lebanese situation. We reach the conclusion that past legislative attempts always failed ‘upstream’, never reaching the Parliament, while contractual alternatives are not a viable option. The introduction of a civil marriage law, despite its necessity, cannot be achieved by mere legal means, but needs a governance-level answer.
1 Introduction
Lebanon is the only Arabic country with no official religion. The Lebanese constitution does not consecrate a state religion but instead, its Article 9, unchanged since 1926 (date of promulgation of the Constitution), mentions that ‘There shall be absolute freedom of conscience. The State, in rendering homage to the God Almighty shall respect all religions and creeds, and guarantee, under its protection the free exercise of all religious rites provided that the public order is not disturbed. It shall also guarantee that the personal status and religious interests of the population, to whatever religious sect they belong, shall be respected’. Instead of one official religion, the Lebanese legal system recognizes a plethora of religious communities,1 granting them an exclusive normative and judiciary power over their own members in all matters related to personal status,2 namely marriage, filiation, and for Muslim communities, inheritance and wills as well.
The institution of marriage constitutes the core of personal status. Most of the legal and judicial activities of the confessional communities revolve around marriage law. Likewise, cases brought before community courts deal with one or another of the issues relating to marriage and its effects. Even though these communities exercise their prerogatives in the field of marriage only over their own members, the constant failure to introduce a civil marriage law led to a de facto monopoly over marriage law by the religious communities. Religious laws filled up the whole space of marriage, leaving no room for a civil marriage law. The last failed attempt of an Optional civil marriage law project was launched in 1998 by the then-President of the Lebanese Republic, Mr. Elias Hrawi after the Taef Accord and the amendment of the constitution. However, despite a favourable vote in the cabinet, this was ultimately withdrawn.3
While our paper will specifically examine this last project, civil marriage has always been a topic of debate. There have been previous attempts to introduce civil marriage in Lebanon, but none got further than the Hrawi project. Yet, in the past years several Lebanese couples managed to conclude civil marriages on purely contractual grounds — with mitigated results — which we will return later to on in our paper. It is evident that voices within the ‘civil society’ have been calling for a civil marriage,4 for example, ex-Interior Minister Raya Hassan caused a massive backlash in her Sunni community by stating her sympathy to a civil marriage law.5 It has to be noted that civil marriage laws are uncommon in the region: Turkey implemented a mandatory civil marriage law, since 1926 and kept by the Civil code of 2001 (Article 143), despite a resurgence in religiousness.6 Tunis promulgated a progressive personal status law under President Bourguiba in 1957,7 although it cannot be considered as a proper civil marriage law. Most recently, the Emirate of Abu Dhabi in the United Arab Emirates introduced a law for the civil marriage for foreigners (Law No. 14 of 2021 related to the personal status for non-Muslim foreigners in the Emirate of Abu Dhabi, Official Gazette, year 50, No. 11, 5–16).8
Why now after so many years of silence and composure, is the topic brought up again within Lebanese society? Is it a will of progress? Is it a will of adhering to the real democratic and liberal approach? As we will see below, the constitutional amendment of Taif in 1990, that ended a 16-year-old civil war, insisted on abolishing confessionalism. Moreover, we will see that a civil marriage law has become a real social necessity but why then is it still refused? Beyond the immediate reasons behind the rejection of the Hrawi project in 1998, lies a more pertinent question: what could be an acceptable alternative?
The recent literature related to civil marriage in Lebanon can be divided across time and genre. In time, we observe a flow of papers written as an immediate reaction to the project of 1998, in the late nineties and early 2000’s (see references infra); and then, another flow of papers in the 2010s, triggered by a series of contractual — and highly polemic — civil marriages held inside Lebanon which revived the discussion.9 Between these two periods, we can observe a few isolated publications as well, by interested scholars or thinkers, independently of any events or circumstances. In the future, it is expected that studies will also deal with the validity of proxy civil marriages held online and celebrated by an official residing in a foreign country where civil marriage is valid.10
The existing literature varies from scholarly papers and books to op-eds and newspapers pieces. The scholarly publications defend a wide array of opinions, such as optional civil marriage,11 mandatory civil marriage,12 no civil marriage, and some may shy away from any direct answer and suggest a broad conception of a regime change.13 The question of civil marriage was studied from a political, religious, social justice, and women rights perspectives.14 We can sense that a certain distance separates the tenants of the opposite views. The pro-civil marriage speech from one side, and the anti-civil marriage from another, who progress in two separate worlds, as if there was no grey zone or mediated opinions.
What this paper proposes is an academic study, devoid of prejudice or fixed ideas, aiming to assess the needs and the possibility of a civil marriage law in Lebanon, taking as a model the optional civil marriage law of 1998. In order to discuss our topic, we must begin with a brief historic introduction to the Lebanese legal system which is a necessary step to understand the originality of the Lebanese personal status system. Once we lay down this preliminary information, we will turn to the more recent account of the Hrawi proposition: what it was, how it was received, and how it ended. Then we will demonstrate that the actual system, devoid of any civil law for marriage or personal status, is incapable of satisfying the actual needs of the Lebanese population. Finally, we will try to suggest fresh approaches to this crucial question.
2 Historical Context
At the dawn of modern times in the Middle East, Lebanon became a host country for several religious communities and ethnic minorities whose secular and active coexistence favoured the formation of a single state. During the Ottoman Empire, the religious communities of Lebanon — or Mount Lebanon — were managed through the Ottoman system of ‘Millet’, while state and religious courts coexisted at the end of the 19th century. Every religious community is recognised as a Millet. For Muslim communities, personal status such as marriage, divorce, and inheritance were the matter of special religious courts. Christians and Jews were administered by their own leaders, while the Christian religious courts couldn’t reach the prerogatives of the Muslim courts before the promulgation of the Law of 2 April 1951.15 As early as the 16th century, these communities gave themselves a consensual and quasi-autonomous regime called the Emirate which led to a federation of aristocratic families under the banner of the Ottomans. The Emirate functioned according to the mode of the ‘iqtaʿ’ where the territorial and administrative jurisdictions of the notables were located. This situation changed in the tumult of great power rivalries and finally collapsed in 1840. Following inter-community clashes, the caimacamat which lasted from 1842 to 1860, divided Mount Lebanon into two regions administered respectively by the Maronites and the Druze by abolishing the ‘iqtaʿ’. In 1860, French troops arrived at Mount Lebanon during the sectarian violence to defend the local Christians, especially when new disorder began and resulted in a settlement of the Mutasarrifyat — suggested and supervised by the five European powers. This new regime reunified Mount Lebanon under the aegis of a foreign Christian governor and instituted the great administrative council — a kind of parliament conceived to be representative of all the communities — and a special relationship through commercial and diplomatic means developed between France and the Maronite community.16 After the disintegration of the Ottoman empire and the first world war, Lebanon was assigned to a French Mandate by the League of Nations, with the mission to grant Lebanon a constitution.
The Lebanese Constitution from its drafting in 1926 until its last amendment in 1990 has gathered this heritage and consolidated the rights of individuals and communities recognized as confessional groupings or religious sects. It also associates all the communities in power in a delicate, but marvellous balance and builds in this environment a precocious and liberal republic. The Lebanese communities wanted this constitution based on a social contract, which was later reinforced by the National Pact of 1943 (Al mithaq al-watani). Based on the rights of the people, and the communities, the Lebanese regime is democratic because it protects its citizens against any tendency towards hegemony or marginalization. Since then, scholars have confirmed the theory of Peter Gran which characterizes Lebanon as a ‘tribal-ethnic’ state. Despite the inclusion of the state into a modern system, connections and blood-based institutions thus have priority.17 Despite many tribulations, the principles of recognizing the autonomy of each community have survived and were included in the preamble to the Taif accords in 1989, which was the basis of the constitutional amendment of 1990. This autonomy of the communities appears most noticeably in their personal status.
3 Origin and Protection of Personal Status
The personal status constitutes a fundamental basis consecrated by the texts and the practices rooted in the ‘confessional’ system. Indeed, the optional civil marriage project, as well as the abolition of political confessionalism, are the basis of Taif’s decisions18 which raise questions and protests. A looming question pertains to how to abolish the confessional system. This requires a discussion on the nature of the substitute which must keep the principle of consensus and at the same time maintain the adhesion of the different communities which constitute the fabric of the Lebanese people. For all these reasons, we must first set out the personal status and the difficulties of modifying it as well.
3.1 The Personal Status System
Personal status is a system of law which governs communities by giving them legislative as well as judicial power. During the Ottoman era, the Family code promulgated on 25 October 1917 established personal marital status and continued to serve as a reference.19 The Lebanese constitution of 1926 combines different communities: Christians, Muslims, and Israelites as equal partners, each with a personal status and a quota of participation at the different levels of the public service (see Article 95 of the Constitution). This formula continues despite its original provisional character and despite all the pitfalls it creates.
The constitution guarantees in Article 9 ‘that the personal status and religious interests of the population, to whatever religious creed they belong, shall be respected’. Decree No. 60 LR of the French High Commissioner of 13 March 1936 concretizes the provisions of the constitution and recommends that the historic communities whose organisation, powers, and legislation are fixed by a legislative act are legally recognized as communities with personal status. The same decree gives personal status the force of law, and at the same time, grants subjects an absolute freedom of conscience — allowing them to change community.20 Decree No. 60 was modified and supplemented by Decree No. 146 of the French High Commissioner of 18 November 1938. On the other hand, the Decree No. 53 LR of the French High Commissioner of 30 March 1939, following the protests of the Muslims against the preceding decrees, declared that the two decrees of 1936 and 1938 are and remain without application to the Muslim communities.
3.1.1 Personal Status Legislation in Lebanon
The legal history of Lebanon shows that the personal status of Lebanese communities has never been the subject of a uniform codification process. While the State has the right and the power to control matters of legislative competence and to approve the rules presented, each community has legislative autonomy which distinguishes it from the others. These communities enjoy legislative autonomy at this level, which means that their authority is competent to legislate within the limits of personal status. It is the Law of 2 April 1951 promulgated by the President of the Republic which supplements the two decrees of 1936 and 1938 and defines the personal status of the Christian and Jewish communities. It has to be noted that the Lawyer’s Bar Association protested against the 1951 law by a three-month long strike and a counter-proposition to reduce even more the competencies of all religious communities.21 On the other hand, it is the state that legislates for Muslim communities through official legislative bodies, and new legislation or changes relating to personal status of the Muslim communities are published in the Official Gazette. As for the Christian and Jewish (Israelite) communities, the law of 1951 did not require the publication of their legal texts in the Official Gazette; the texts presented by the communities were published instead for informative purposes in a Journal edited by the Ministry of Justice (Al-Nashrah al-Qadaʾiyah Al-Lubnaniya [Lebanese Judiciary Review], issue of December 1963). Recently however, the tendency is to publish new modifications in the Official Gazette, such as the Greek Orthodox Personal status code in 2003 (published in OG No. 50 of 30/10/2003) or the Coptic orthodox Personal status code (published in OG No. 57 of 9/12/2010).
3.1.1.1 Christian Communities and the Israelite Community
Christian communities and the Israelite community have been invited by the state to present the laws of their personal status. The six Catholic communities, including the Latin Apostolic Vicariate, had formed an intercommunity commission to develop a common body of personal status. In accordance with the State law of 2 April 1951, the code comprises 14 chapters divided into 296 Articles, dealing with matters of personal status falling within the competence of the Catholic religious authorities. This approved code was presented to the Ministry of Justice on 2 April 1952.22
While the Latin Church of Lebanon has had its Code of Canon Law (Codex Iuris Canonici) since 1983 and complies with it, the personal status of the five Oriental Catholic communities must take into consideration any new canonical legislation of the Church, in particular that formulated in the Code of the Eastern Churches (Codex Canonum Ecclesiarum Orientalium), promulgated on 18 October 1990. The other Orthodox Christian communities each have their own personal status code with titles like those of Catholic communities. The Israelite community likewise has its own personal status.
3.1.1.2 Muslim Communities
First, since Sharia has been state law among Muslims since the Ottoman Empire, Muslim communities did not need to have their own personal status. They applied state law, according to the tradition of the Hanafi school, and for all these reasons, they protested against Decree 60 L.R. — as already mentioned above — by clinging to this privilege.23 The legal rules relating to personal status are therefore enacted by the State, which also organizes Islamic jurisdictions by appointing and remunerating magistrates as it does to public officers.
Second, several legislative decrees formed the Sunni code beginning with Decree Law 18 of 13 November 1955 (Organisation of Islamic Iftaʾ and Waqfs), amended by the law of 18 May 1956 as well as the Decree Law of 16 July 1962 (Organisation of the Sharʿi and Jaafari tribunals).24 Matrimonial questions are regulated according to the Hanafite rite interpreted by the Family Code of 25 October 1917 and the Qadri Pasha Code,25 as well as the recent Family Code of the Lebanese Sunnis (decision No. 46 of the Mufti of the Republic of 1 October 2011 modified in 12 December 2020).
Third, law number 72–67 of 19 December 1967, which constitutes the code of the Shiite community, grants it the same prerogatives as the Sunni community. This code follows the Jaafarite rite and promotes jurisprudence. The rules of procedure of the Supreme Shiite Islamic Council were published in the Official Gazette No. 71 of 7 September 1969.26
Finally, the code of the personal status of the Druze community was established by the Decree Law of 25 February 1948, which constitutes the Druze community, recently modified by Law 58 of 17 October 2017 published in the Official Gazette No. 49 of 19 October 2017 at 3681. The Druze judge rules according to the tradition of the Hanafi school as a subsidiary source in accordance with Article 17, to decide anything that is not provided for in the Code. In addition, Decree Law No. 3473 of 5 March 1960, organizes the courts of the Druze community. Law No. 208 of 26 May 2000 organizes the highest Druze spiritual authority called Mašyaḫat al-ʿAql.
Overall, these communities not only have normative prerogatives upon their members, but they benefit from a judicial autonomy.
3.1.2 Confessional Courts
Within the limits of the competence assigned to it by state legislation in the matter, each confessional community has the right to set up courts which hear disputes concerning its subjects within the framework of personal status. The confessional courts are: spiritual courts for each of the Christian communities; Sharia (šarʿi) courts for the Sunni community and Jaafari (ǧaʿfari) courts for the Shiite community. Finally, the Druze community has the Maḏhabiya courts. The competence of these courts is exceptional, in the sense that they have no jurisdiction to hear any dispute not specifically related to their area of competence, which is defined, for Christian and Israelite courts, by the Law of 2 April 1951 and for Muslim courts, by Article 17 of the Code of Sharʿi Tribunals, applicable not only to Sunna and Shiia communities, but also to the Druzes and the Alawites. Any other dispute falls within the general jurisdiction of the civil first instance chamber. Any dispute over jurisdiction between religious and civil courts, or between religious courts themselves, is settled by the Plenary Assembly of the Court of Cassation (Civil Procedure Code 1983, Article 95).
3.2 Legal Imbroglio
Each community then has legislative and judicial competence in matters of personal status. As a rule, matrimonial rights and duties are part of the personal status of each community and are guaranteed by the civil laws of the state. Dissolution of marriage has effects on spouses and children, such as filiation, adoption, custody of children, alimony, wills, and inheritance. These effects depend on community personal status, but their application is subject to state institutions. The existence of several judicial systems on the same territory intended for the same litigants can create conflicts between the different confessional jurisdictions and that of the State. It is marriages contracted abroad and mixed marriages that can then give rise to conflicts of jurisdiction.
Mixed marriages — understood as a marriage between two Lebanese from different religious communities — could create a conflict. Confessional laws either forbid mixed marriages of all kinds — such as the Druze or the Jewish community27 — or require conversion to the community — such as the case of some orthodox communities28 — while others pose restrictions on it. For example, Muslim communities don’t allow Muslim women to marry non-Muslim men but allow Muslim men to marry non-Muslim women, and the Greek orthodox community allows intra-Christian mixed marriages but not mixed marriages between Christians and non-Christians.29 Catholic law allows mixed marriages between a Catholic and a non-baptized only if both agree on certain conditions related to practice of faith and baptism of children.30 The law of 2 April 1951 provided for a solution by indicating the competent authority, but the application remains problematic.31 Conversion after the celebration of marriage poses a mobile conflict of law, resolved in principle according to Article 23 of Decree No. 60 LR. In other words, the marriage remains regulated by the law of the community according to which it was celebrated, even if one of the spouses convert to another religion, and only the conversion of both spouses to a new community makes the marriage governed by the law of this community.
Marriages celebrated outside of Lebanon pose another set of problems. Lebanese law recognizes marriages conducted abroad, whether they are civil or religious (Decree No. 60, art. 25). Religious courts have no jurisdiction over the former, and according to Article 79 of the Lebanese Civil procedure code, conflicts arising from a civil marriage celebrated outside between two Lebanese or a Lebanese and a foreigner in the forms stipulated in that country, fall within the competence of Lebanese civil courts. The same Article provides an exception, if both husband and wife are Muslims and at least one of them is Lebanese, competence returns to Muslim religious courts. Article 18 of the Code of Sharʿi Tribunals contains similar dispositions. In the same logic, Christian religious courts are not competent when the conflicts arise from a civil marriage, or the absence of a marriage. They retain jurisdiction only when there is a religious Christian marriage in the first place.32 When a civil Lebanese court is faced by an issue resulting from a civil marriage concluded abroad, it should, in principle, apply Lebanese civil law, however, in light of the absence of such a civil marriage law, courts resort to the locus regit actum rule and apply the law of the country of celebration of the marriage.33 Would this be a violation of the sovereignty of Lebanon?34 A more contentious point results from the combination, by the same couple, of both a civil and a religious marriage. The raised point here relates to jurisdiction: it is safe to say that there is no unified jurisprudence,35 and the factors affecting the outcome are too many.36
It is within such context that the propositions of civil marriage laws have so far failed to be implemented.
4 The Optional Civil Marriage Project of 1998
4.1 Optional Civil Marriage: Context
First, it should be mentioned that the attempt to introduce civil marriage in Lebanon is not new. Raymond Eddé, Parliament member and political leader, had requested it in the 1950s; the Democratic Party and Parliament member Auguste Bakhos presented a proposition in 1972; and the National Social Party (PSNS) presented a similar project to Parliament, which went unnoticed.
The topic was brought up again in the post-civil war era, a civil war that ended with the Taëf agreement signed in 1989. The Lebanese Constitution of 1990, based on the Taëf agreement, has amended many prerogatives that have been shifted from a political institution to another. It is the powers of the executive held before this agreement by the President of the Republic that were transferred to the Council of Ministers. The head of Parliament also gained power, and these changes and transfers of power affected the application of this agreement by paralyzing the functioning of the state since the political institutions were controlled by the three presidents — each claiming his own prerogatives without any referee. It is in this context of oligarchic government that President Hrawi suggested the optional civil marriage project, which raised an uproar within religious communities, calling it a ‘bomb’ or ‘discord’. The first announcement initiated by President Hrawi was on 22 November 1996, when he intended to legalize civil marriage in Lebanon. Hrawi said later that he had first supported a similar initiative in 1972, and he declared this again on television in 1988.37
Thus, the Council of Ministers approved the draft law on optional civil marriage on 18 March 1998, which initiated a political crisis in Lebanon and was followed by an indefinite shelving of the legislation. Presented to the cabinet on 2 February 1998, the bill was put to a vote on 18 March 1998. Despite a majority in its favour, the Prime Minister Rafiq Hariri refused to sign the measure which created a controversy. Hariri said that the cabinet had only approved the principle of the bill, and since it could not reach the parliament for review without Hariri’s signature, a crisis followed.38
The preamble of the bill project sets out the reasons and principles which justify the development of this project. Namely, the inalienable right of the State to legislate, the achievement of national cohesion, the protection of public freedoms, the opportunity to contract an optional civil marriage on site without being obliged to travel abroad and without being forced to change religion to avoid certain effects of religious marriage, and respect for equality between husband and wife, most noticeably in matters of divorce, inheritance, and custody of children.
While many journalistic accounts portrayed the proposed law as focusing on intermarriage, or cross-confessional marriage, the bill also dealt with several areas of personal status. The creation of a civil law for all gives rise to concern for many religious authorities since they will not remain the standard reference in this matter. The draft could have been the basis for future reforms in the areas it did not address.
The first part of this two-part law project is divided into three titles, the first deals with marriage, its conditions, its form, its effects, its nullity, its dissolution, its separation, the custody of the children, and its pension. The second title deals with aspects of parentage and adoption. The third title deals with the framework of legal capacity and the ‘wisaya’. The second part of the law project deals with inheritance. This project, inspired by several codes, insists above all on its intrinsically optional nature, on respect for the beliefs and customs of communities, on the rights and obligations of the various partners within the institution of marriage and on the safeguarding of freedoms. It has been called ‘common law’ status for those who do not want to adhere to any other community status.39
Once it became clear that Hrawi was spearheading the proposal, the Sunni religious establishment vigorously opposed it. Then Saudi objections backed the protest, and many other religious leaders joined with them. In this way, Hariri responded to calls for protests encouraged by Sunni religious leaders, and these movements urged and pushed the government to postpone action on the bill.40
Syrian President Hafez Assad who dominated Lebanese politics at the time, called to defer the matter and sided with Prime Minister Hariri and seconded the religious opponents of the bill. The proposal was referred to the Ministry of the Interior for further investigation, where it was ‘put on ice’ indefinitely.41
So, it is especially among Muslims that the project aroused the most vocal reactions. Muslim religious leaders unanimously rejected it, Sunni sheikhs have expressed categorical opposition, and Mufti Kabbani denounced the approval of the bill as an ‘extremely bad act’, claiming that it harms Muslims in their beliefs and their sharia. A statement was issued by numerous Islamic associations in Beirut on 20 March, urging Muslims to hold sit-ins in mosques in the capital. The press release condemns any Muslim minister or deputy who proclaims his support for this project, and they argued that: ‘Each official who brings this text represents only his own person after having violated the political and religious Muslim consensus’.42 In addition, Dar al-Iftâʾ rejected the project and the protests reached major Sunni-majority cities such as Tripoli and Sayda. On the other hand, Mr. Sami Shaʾar (Šaʾār), president of the association of former students of Maqaṣed, spoke in favour of civil marriage, but he was accused of being part of a ‘dubious world organisation’.43
As for the Shiites, the attitude of senior officials was more or less similar to the Sunni attitude towards the project. However, the president of the Shiite Superior Council, Imam Shams al-Din, clarified that the House has the task of legislating in non-religious areas that do not affect faith and doctrine, for this he would not tolerate such a conjugal union which goes against Islam and the Sharʿi courts. In addition, he added that he is not against the abolition of confessionalism by pointing out the specific personality of its community and its national affiliation.44 A large movement among the Shiites represented by Sayyed Fadlallah likewise opposed the project. The latter thought that civil marriage harms Christians and Muslims and argued that the question of personal status has nothing to do with the abolition of political confessionalism — by including it in the cultural domain — and refused the project of civil marriage. In the end, the Shiite Superior Council rejected the project on Wednesday 25 March 1998, because it is contrary to Muslim doctrine and faith.45
Recalling that all the communities in Lebanon live in the shadow of a democratic system, Bahjat Ghaïth, Sheikh Akl of the Druze community felt that the project cannot solve any problem and that it is a project of discord. He adds that the Lebanese system already preserves the rights of all communities and prohibits any hegemony.46
4.2 A Project that Contained the Seeds of Its Own Demise
The socially progressive driving forces behind the bill were weaker than the opposing forces.
4.2.1 A Shy Feminine Implication
On the topic of women rights, the 1998 project could have been an opportunity for women to make a social transitional status in the country. The shelved draft bill would have levelled women’s and men’s rights.47 Activists and feminists have invested a lot to grasp and comprehend the paradox between the modernity that Lebanon used to embody and the present reality of Lebanese women rights and powers.48
It is evident that outside of the relatively small feminist community, women’s level of participation in the Lebanese political scene along with the knowledge of their political limitations were the reasons of the weak campaign for the civil marriage, despite their need for legal reform. Indeed, before the civil war, family-arranged marriages were common, and according to an estimation in 1987, unmarried young women were around 10% of the population, while the numbers of divorces decreased during the war due to the costs involved.49
While women did not obtain political gains, it is worth noting that the education and employment levels in Lebanon have increased. However, this increase did not translate into support of the reform and neither pushed the politicians to second them. Among the reasons, first, the reform was not submitted to a referendum, as President Hrawi wanted. Second, the enhanced female education and employment did not necessarily lead to general support to empower women or to increase their ability to compete with their male political representatives. Despite the growth of women’s average educational level as well as the numbers of working women, discrimination in the workplace remains.50
While marriage is the norm and the ideal, the numbers of women have increased as a proportion of employees and the share of married women in employment is low overall. According to the National Employment Office, women made up 34.8% of employees in 1999.51 In 2001, this figure increased to 37.5%, according to women’s organisations.52 In the late nineties, participation of women in the labour force was also estimated between 23% and 23.37%.53
Overall, working women and elites have attained higher levels of education than prior to the civil war. For example, a paper stated that by 1984, girls were entering high school at double the pre-war rate.54 Bahia Hariri, former Lebanese MP and member of the Lebanese Parliamentary Committee on education, pointed out that women tend to study humanities and liberal arts rather than scientific fields.55 According to some researchers, more educated women tend to also have fewer children. In 1996, Lebanon had, on average, more children born to illiterate women than to women of the same age who had access to university. At the same time, it can be seen that in Lebanon, higher education has become — as elsewhere in the region — an additional requirement for higher status marriages.56 Mona Khalaf believes that Lebanese society keep the men as ‘breadwinners’. This means that the situation did not increase the political power of women or spur any change in public perceptions.57
Along with the philanthropic activities of some women’s associations, NGOs illustrated efforts to reform the laws in Lebanon, such as the Nayla Mouawad Foundation and Arab Women’s Court. These efforts were joined by a transregional movement to expand local reform and establish relationships with people having the same opinion and direction.
4.2.2 Intermarriage Concerns
Taking into consideration the political consensus based on the co-existence of the different religious communities, and the religious authorities’ rejection of civil marriage, a legal reform that impacts the power of religious institutions could destabilize this situation further. In addition, the bill or proposed law did not specify either the denomination or the religion of the parties to be married. This means that there is no ban on Muslim women from marrying non-Muslim men,58 and that is another reason for religious groups to reject this reform because it would be a means of allowing intermarriage through confessional marriages.
Taking into consideration the application of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW59), personal status law will be a real issue to Muslim women in Lebanon, including the universal concepts of human rights. Whilst there is no suggestion of ending religious courts proposed by the bill, the latter mentions that ‘it is illegal to contract a marriage between two persons, if one of them is already bound by an existing marriage’ (Article 9 of the proposed bill). This means polygamy is prohibited, and this prohibition was important since there are sensitivities to western attacks on polygamy.60 In addition, there is an equal ability of both women and men to initiate a divorce. Despite its optional character, limiting polygamy would have been dramatic and controversial, even though the press has usually only mentioned the problem of intermarriage for Muslim women.
Some indications confirm the attachment to the status quo and distrust for social and political transformation, such as the formulation of the discourses of those who opposed the law. Here some examples include claims the proposed law ‘must wait for a suitable climate’, ‘will pave the way for another civil war’, ‘threaten the “fluid” relations between Lebanon and Syria’, ‘We must protect ethical standards and the family against this germ’, and ‘it is an attack on God and the sanctity of marriage’.61
Since Hrawi had expressed his view that the law was a blow to bigotry, part of society did not support the reform specifically. This means that both political supporters and those who denigrate the proposal have tended to downgrade the dimension of women’s and citizens’ rights over other concerns. Many religious leaders, especially Sunnis and Shiites, have opposed the reform because they fear the decrease in the power of clerics over personal status and it ‘would facilitate intermarriages between people of different religious sects’.62
4.2.3 The Final Part
Once the cabinet voted for the project in March 1998 (twenty-one for, six against, and one abstention), which was only ‘optional’, the debate began. Sheikh Muhammad Rashid Qabbani, the Sunni Grand Mufti of Lebanon, directed the offensive. He argued that the application of the new law to Muslim women is in contradiction with Sharia law. Even though this position damaged the approach, three legal bodies have supported it: the Council of Muftis in Lebanon, the Supreme Council of Islamic Sharia in the Kingdom of Saudi Arabia, and the Saudi Committee for Scientific Research and Ifta.63 The process of reasoning led to the statement that a new form of marriage could foster ‘secularism at the expense of religious authorities and religious courts’ and ‘endanger the well-being of the family’.64
On the other hand, the Shiite response to the proposal represented mixed feelings and ideas. Shiite cleric Sheikh Mehdi Shams al-Din (the head of the Shiite Superior Council) and Sayyid Muhammad Hussayn Fadlallah (a Hezbollah ideologue) have made various statements which maintain their opposition to the application of the terms of the proposal to all. It is interesting to note that Fadlallah observed that Muslim marriages are already ‘civil’, since the presence of a cleric is not obligatory.65 In other words, Muslim marriages are not a ‘sacrament’ as in the church, but contractual. However, other officials, such as Sheikh Naim Kassem, were critical when they said that civil marriage ‘would lead to a further degradation of moral ethics among young Lebanese’.66
Shams al-Din further rejected the law after the cabinet vote. The Shia political leader of AMAL, Nabih Berri, had supported the measure, while Hezbollah rejected it. Muhammad Hasan al Amin, a progressive of the Shia clerics and the advisor to the Jaafari court, acknowledging the doctrinal objection to inter-marriage, kept upholding his previous general approval of the optional law, and the principle of secularization.67
The Druze have their own personal status law that forbids intermarriage. This prohibition conflicts with the optional law, in the first instance because a non-Druze cannot convert to this community, and for the new proposal to work, the Druze spouse would have to convert.68 Secondly, the marriage of previously married spouses is forbidden in this religion while the new proposal does not include any restriction in this respect. However, Druze spiritual leader Shaykh Bahjat Ghayth supported the proposal and asked that civil and religious marriage should be done together.69
The Sunni Mufti had drawn a ‘red line’ so that Lebanon would be ‘the first and last battlefield in the confrontation between religion and secularism’ on the matter of civil marriage. El Cheikh quotes his statement in a khutba (Friday sermon) where he said that he will impede ‘secular-minded people [from] cultivating the germ of civil marriage and other secular ideas in Lebanon so it spreads to Arab and Islamic countries’.70
Despite hesitation by Christian religious leaders on the proposal, a group of bishops has spoken out against civil marriage claiming that marriage is a sacrament which means that, for those people who marry outside the church as the proposal suggested, they would be living in a state of sin. Cardinal Nasrallah Butros Sfeir, the Maronite Patriarch went even further and threatened to excommunicate offenders..71 Some reporters pointed out that George Khodr, the Orthodox Archbishop was not opposed to the ‘optional’ measure, as he explained his support for couples in intermarriages.72
4.2.4 The Common Feedback
El Cheikh states that ordinary people could not put into words their opinions but only with the religious leaders, the politicians, or through the NGOs and activist organisations. However, organizing something that would mirror a real civil society has failed73 and popular support came too late — a year after the drop of the proposal. However, those who opposed the measure were louder than the civil society since they were under the leadership of religious authorities. Reports from Cyprus pointed out that in 2000 and 2001, the number of Lebanese marriages has doubled, and this proves that mixed marriages did not decrease after the defeat of the bill.74
As regards to the political support, the former general Michel Aoun supported the measure, and Nabih Berri, the Shia House Speaker, also backed Hrawi, and the intent of the latter was to boost and establish a committee to abolish sectarianism.75 Druze leader Walid Jumblatt likewise supported the proposal saying it was a boost to democracy, civil society, and freedom. He also explained that civil marriage and political sectarianism are not correlated. The list of supporters also included parties which promote secularism: the National Bloc Party, Arab Democratic Party, the Communist Party, the Baath Party, the Progressive Socialist Party, the Waʿad Party, and the Syrian Social Nationalist Party.76
Proponents of the proposal explained and insisted that if the end of the old sectarian politics should be an imperative, so too should mixed marriages. The defeat of the proposal might have many reasons: Hrawi couldn’t gather a lobby to support it, especially from religious authorities and politicians; in addition, it might be a social failure, and women’s empowerment was only a minor scene inside the political scrimmage.77
The years that followed have seen a continuity in organizing events around the issue. International Women’s Day was used by associations to draw attention to this and other desired legal reforms. In March 2000, a march of 500 people was organized in Beirut to boost an Optional Personal Civil Status Code. MP Marwan Fares joined the supporters as a sign of solidarity.78 A special exhibition entitled ‘Rhythm of Contact and Separation’ was also organized in September 2000 in Beirut, where 50 artists discussed social issues. In November of 2000, the Lebanese Women’s Council organized many discussion events, and feedback from these events was summed up by the usefulness of pushing for reforms in specific religious legal codes — as they understood the value and purpose of dropping the issue of a unified civil law then.79 After all, it is normal that legal reform in a multi-faith society can be more complex than similar efforts in more homogeneous societies.
4.3 Other Attempts
In 2011, secular organisations and NGOs drafted a law on civil marriage, which was then presented to Parliament. However, due to an immediate rejection, the bill has not even been debated yet.80 The Beirut Lawyer’s Bar Association announced its project of civil marriage law the 2nd of November 2017, the fruit of 3 years of labour, that insists on its optionality.81 Former Minister of the Interior and Municipalities, Minister Raya El Hassan, recently revived the debate on civil marriage and declared her intention to tackle it.82 The country’s still functioning under the same political apparatus, despite these claimed intentions it is worth noting that Raya El Hassan is part of the same system. Other opposition to this system emerged on 17 October 2019, and some demonstrators have found an opportunity in this revolution to ask for transition from a sectarian state to a secular state.
As religious personal status and religious marriages are common, obtaining a civil marriage remains a request for some Lebanese citizens. This situation pushes Lebanese citizens to marry civilly outside Lebanon. For example, 560 Lebanese couples got married in Cyprus in 2014 according to the Lebanese Ministry of Foreign Affairs.83
Since these types of marriages are legally recognized in Lebanon, their registration is easy (according to Article 26 of the Law of 7 December 1951, related to the registration of personal status documents). Yet, these marriages should follow the personal status law of the country where the marriage was held. In the event of divorce, custody, or inheritance, the couple must settle their legal affairs in the country where they married; however Lebanese courts are competent to hear such cases according to Article 25 of Decree No. 60 LR/1936 and Article 79 of the Civil Procedure Code. Nevertheless, that does not settle the question of the applicable law: according to Article 25 of the Decree No. 60, it should be the ‘civil law’, but which? Given the absence of a civil marriage law in Lebanon, courts apply the civil law of the country where the marriage was celebrated.84
Exceptionally, since 2013, a few couples have managed to marry civilly on Lebanese soil. This achievement occurred because of a loophole in the law due to Decree No. 60 of 1936 during the French mandate, which allows Lebanese not belonging to any denomination or religious community to marry civilly without any religious interference. The said decree was intended to facilitate the marriage of non-Lebanese men, especially French men, with Lebanese women. Removing their religious community from their identity in the personal status register, these few couples pleaded their case. However, it remains complicated as there are no civil laws on personal status or basic family law in Lebanon, and this setback requires state investigation since women and men are equal under constitutional law.
5 A Real Need for Personal Status Reforms
Reforms are without doubt needed for the following reasons.
5.1 Marriage Reform
The legal age of marriage is the main consideration in a personal status code, so when considering civil reforms, the important point one should focus on is the legal age in religious weddings. According to the UNDP: ‘All religious groups allow girls under the age of 18 to marry. Among Sunni and Shiite Muslims, marriage of girls as young as nine years can occur if approval is granted, although it is no longer customary that such young girls marry. Among the Jewish denomination, girls as young as 12½ years may marry. Among Syrian Orthodox and Armenian Orthodox churches, a girl may be 14 years old when she marries. The marriage age for boys of most religious groups is 18, although marriage of younger boys can be approved’.85 However, the Sunni community modified its rules recently to raise the age of marriage for both males and females to 18 years, forbidding any marriage for males or females under 15 years old.86
Child marriage still takes place in Lebanon. This pushed many Lebanese feminist NGOs to opposition, such as RDFL (The Lebanese Woman Democratic Gathering) and ABAAD (Euro Med Feminist Initiative, 2017; ABAAD & Arab Institute for Human Right, 2015). Lebanon has signed and ratified the Convention on the Rights of the Child and keeping child marriage legal in Lebanon is a clear violation of children’s rights. This situation therefore puts Lebanon in violation of Articles87 9, 13, 19, 24, 28, 31 and 34, as assessed by UNICEF88 as child marriage means that underage girls get married, and this is mainly the case in Lebanon. For example, girls are married to older men to preserve the female honour of the family. Secondly, since some of the families have a low socio-economic status, the parents would ‘sell’ their daughters, which means that the girls are trafficked into marriage.89 According to the organisation Girls Not Brides, ‘6% of Lebanese girls are married before their 18th birthday and 1% are married before the age of 15’.90
Child marriages, of course, mean forced marriages. Forced marriages of legal age also still exist, when a portion of these marriages would serve to preserve the honour of the family in the event that a woman is seen with a man. In addition, arranged marriages are considered forced marriages because the incentive is usually the man’s wealth while the girl’s family needs the money. This situation means that the financial responsibility of the parents to their daughter is the reason for the marriage in the first place.
5.2 Mixed Marriages
The 15 personal status laws in Lebanon shape the mixed marriage contract. Salah Mattar Law Firm summed it up as follows: ‘A Sunni or Shia (Muslim) man can marry a Christian or Jewish woman without her having to convert herself, but a Muslim woman cannot marry a Christian or a Jew. Catholic men can marry a Muslim woman. In this case the couple receives the blessing at the sacristy, and the children must be baptized and raised as Catholics. Druze community only allows inter-Druze wedding … The same apply for the Israelite community. The Orthodox church allows weddings with Muslims under the conversion condition. Under Muslim law, polygamy is permitted’.91
The authorization to allow women to marry men of other religions is seen as a real step towards equality between women and men, thus tearing down the community system. It is also considered a privilege in most religions because this is a facilitation for the marriage process of women. Thus, reforming the personal status of marriage means establishing common ground for women and men and driving out the threat of polygamy, which would also decrease violence against women and reduce child trafficking marriages.
5.3 Divorce, Custody and Inheritance
According to Lebanese laws and courts, divorces are discriminatory against women. Divorce is prohibited in the Catholic communities, and the laws of the Catholic Church only allow the annulment of an invalid marriage but not divorce from a valid one. The new personal status code for the Greek Orthodox community (2003), in its Article 68, gives the right to ask for divorce for both men and women. However, it is very hard to get a divorce in the Christian communities.92
In the Muslim communities, Shia and Sunni, men have the right to get a divorce (repudiation) whenever they deem appropriate, even without the woman’s consent or knowledge. However, for Sunni women, they have the right to file for divorce or to dissolve a marriage without the spouse’s approval, but with some rules. As regards to Shia women, there are limits for women to file for divorce. She could only have access to divorce through a Ja’fari religious authority and asking for relief.
However, it should be noted that domestic violence is sufficient grounds for filing for divorce, but this justification is not yet sufficiently considered. Therefore, laws should give weight to standards that should protect women from domestic violence, considering it as a legitimate ground for a woman to obtain a divorce. The relatively recent law related to protecting women and other family members from domestic violence (Law No. 293 of 7 May 2014) allows for protective measures, but has no power to interfere with marriage bonds (i.e., competency of the religious communities).
In matters of custody, Sunnis, Shiites, Druze, and Christians consider the age of children as the criteria for deciding whether to live with their father or mother. In fact, Human Rights Watch warns that the standards set by the Convention on the Rights of the Child are not being met, because this convention continuously emphasizes that ‘in all matters concerning children, the best interests of the child must be a primary consideration’.93 Alongside custody, the notion of guardianship is part of the concepts of religious courts, which take care of and raise the child up to the age of 18. However, in the event of death and not of divorce, there is a tendency to give the man or his family the right of guardianship or custody. Moreover, the circumstances of the wife and guardianship or custody are particularly examined in detail.
This framework is so widespread that it has caused individuals and multiple groups to try for years to pressure religious courts to change their policies. Take the example of Nadine Jouni, a feminist activist who spent the rest of her life fighting to win back her son and change child-age laws related to custody. The topic of custody resurfaced in the 17 October uprising. Moreover, around 200 women protested by taking to the streets outside the Higher Islamic Shiite Council, as a reaction to a video showing how a mother of a slain child, over whom she had lost custody, had to sneak to attend the funeral, after she was forbidden by her husband to attend it.94 The conclusion that can be drawn from such a reality is not the same for men who have the right to raise their children on the morals and rules of the religion they belong to.95
In terms of inheritance, for Sunnis, an heiress receives half of her brother’s share from their father’s wealth, while in the case of polygamy, the wives receive an equal inheritance. For Shiites, the Ja’fari court rules that inheritance is class-based, and 3 classes exist. The first class includes parents and children; the second includes grandparents and siblings; the third includes paternal aunts and uncles, followed by their children. Gender is not the criterion, and the upper class inherits everything.
While the Druze followed a Hanafi Islamic school of thought comparable to that of the Sunnis, an amendment to the Druze Personal Status Law was enacted in 2017 (law No. 58 of 17 October 2017, published in the Official Gazette No. 49 of 19 October 2017, p. 3681). This amendment greatly benefits the daughter of the deceased and Article 169 of the Druze Personal status code, as modified by Article 18 of the law of 2017 states that ‘If the deceased had only a female child, the girl will be considered in a league by herself, and she will inherit the entire estate. If there are multiple girls, the shares are distributed evenly’.96
On the other hand, the rules of inheritance applied on Christians and other non-Muslims divide property and wealth equally on the heirs regardless of their gender.97 This means that the possibility of equal inheritance rules can be drawn from Christian rules or any other civil rule of the advanced world. The latter would include a personal status code where there is extensive elaboration on how to distribute wealth in a fair and equitable manner.98
Private life also means the regulation of family life. Society in Lebanon considers family life as a public aspect of life, where family issues are shared with society. This extension of private life makes it political and has a negative impact on the lives of women. Having said that, the woman’s right to pass her name to her children is linked to the right to pass on her nationality along with her denomination or religion.
All what precedes shows the necessity of a civil legal system for marriage. Yet, as also explained, no civil marriage bill project or proposal was able to break through, which begs the question: is there any realistic alternatives?
6 What Are The Possible Alternatives?
Experience has shown that projects and propositions of law such as Hrawi’s have little chance to break through the resistance of the communities — and for any solution to be viable, it must respect the specificities of the Lebanese society and the delicate equilibrium it is built on.
6.1 Contractual Civil Marriage
If ‘top down’ solutions such as projects or propositions of law did not work, because of opposition at the top, it seemed for a while that ‘bottom-up’ alternatives might have had a better chance. Indeed, as said previously, many Lebanese benefitted from a loophole in the existing laws, which can be described as follows. The existing Lebanese laws (Decree No. 60 Article 10 a contrario; Law of 2 April 1951 Article 16) do not allow a member of a recognized religious community to marry civilly in Lebanon; however, no text forbids a civil marriage on Lebanese grounds in the absolute. Moreover, Decree No. 60 stipulates clearly that Lebanese who are not members of a recognized community must marry according to civil law. In the absence of a Lebanese civil law for marriage, a few Lebanese couples and their legal counsellors chose the contractual path. That is where the contract is the law of the parties, and thus, at least according to these people, the civil marriage contract is a substitute to the civil marriage law. Step one: they wrote off their religious affiliation in the official registers (which they can do lawfully and easily according to Article 41 of the Law of 7 December 1951 related to the inscription of personal status documents). Step two: they signed the marriage contract in front of a notary public since they have a general competence to certify contracts. 99 This contractual civil marriage is an interesting legal construction, yet it exposes itself to substantial criticism. Marriage is not just a contract. Marriage has statutory and institutional aspects100 and marriage also has effects that go beyond the couple, chiefly their relatives and most specially their children. When it comes to filiation, parental rights, and children rights, there is no civil personal status law to cover many of these questions, and such gaps cannot be filled by a contract, since they are not contractual matter to begin with, as they are non-disposable rights (‘droits indisponibles’).
In any case, these ‘bottom-up’ attempts at a contractual marriage did not have happy endings despite the early enthusiasm.101 Soon a resistance within the administration led to blocking the registration of these marriages in the personal status register (held by the Ministry of Interior). Subsequent Interior Ministers had a different view on the subject, and despite the approval of the Ministry of Justice, the recognition of civil contractual marriages has halted.102
6.2 A Proposed Legislative Alternative
What could be another alternative? Another way to look at this dilemma is by discussing what is meant by the optional character. What does it exactly mean? According to the Hrawi proposal, every Lebanese couple, whatever their affiliations, should be able to abide by the civil marriage law if they so choose (and this is also the choice made by the Beirut Lawyer’s Bar Association’s project). This would lead to situations where one person is legally a member of a community, yet his personal status is governed by the civil law. This situation raises many questions: if a catholic marries civilly, would the church recognize this marriage? What about any eventual divorce? It is partly this optionality that triggered the opposition of the religious leaders because it meant that the State is stepping over their constitution-given powers over their members in personal status matters.
What we can propose is another approach to the optionality issue, an approach drawn out directly from the provisions of Decree No. 60. This scheme should not pose any political issues, as it does allow the separation between freedom of conscience and the communitarian regime.103 A thorough reading of the dispositions of the Decree No. 60 L-R allows for a different paradigm — especially its Article 10, as modified by Decree No. 146 of 18 November 1938.104 The initial framework of this decree distinguished between members of recognized communities (the historical religious communities, as defined by Article 1 of the Decree 60), and the others, whether members of non-recognized religious communities (ordinary law communities) or not affiliated citizens. The civil personal status law was considered the ordinary law and applied on the latter, while community laws were exceptional laws only applied to their members. This put at play the legal model of ordinary law (Jus Commune) and exceptional law (droit commun/droit exceptionnel). Ordinary law is the law applied in general, in an ‘ordinary way’, to every person and to every case, unless there exist exceptional provisions. In other words, the ordinary law is applied each time there is no exceptional provisions.105 In concrete terms, the civil marriage law should be applied on every Lebanese unless he is a member of one of the 18 recognized historic communities in which case the personal status law of this community will be applied to him. The ordinary law/exceptional law game remains valid even if at the end, the Lebanese who are members of recognized communities are more numerous.
The missing piece of the puzzle, then, came to be the civil marriage law, and the second paragraph of Article 10 makes it clear that the decree needed, for its full implementation, a civil law for personal status. This absent law that should have been the ordinary law in matters of personal status, applied to any Lebanese not affiliated to a recognized community (knowing that freedom to change community is consecrated in Lebanese law — Article 11 of Decree 60 and Article 41 of the Law of 7 December 1951 related to the inscription of personal status documents).
In this perspective, little matters if a civil marriage law is optional or mandatory, because it is sufficient that the legislator votes for a civil marriage law, and the president promulgates it. Every Lebanese still adhering to his own religious community remains subject to its particular (exceptional) personal status.106 Shall he decide to exit his community, he ceases to be subject to its laws in personal status issues and becomes subject of the civil personal status law. The option then, in this scenario, is the option to choose one — and only one — legal system in personal status.
However, it can be argued that the Muslim communities are excluded from the application of Decree 60 (as explained above). In response, it can be said that the original decree contained, besides provisions related to religious communities, ‘general provisions’ applicable to all Lebanese citizens, aiming at resolving any conflict of competence between communities. A thorough review of jurisprudence shows that Lebanese courts do apply these provisions to Muslims.107
This modality of a civil marriage law has the following advantages:
-
Diminishing conflicts of law. The optional law project proposed by President Hraoui allowed a member of a religious community to opt for a civil marriage while remaining affiliated with his own community. Such a modality can lead to issues within communities that do not recognize the validity of a civil marriage. For instance, a catholic who contracts a civil marriage will be considered in an adulterous relation.
-
The system of the Decree 60 at the other hand, ensures a certain homogeneity in the legal situation of legal subjects: be religious all the way through, or be secular all the way through; the right to change religious community being guaranteed at any moment by Lebanese law.108
However, we do recognize the difficulty of this last option. According to this proposition, Lebanese who want to marry civilly must abandon their religious affiliation. According to various opinion polls, conducted in 2013 — and triggered by the public interest in the contractual civil marriage — the percentage of Lebanese favourable to a civil marriage is higher among the Christians than among Muslims.109 The same trend could be observed in polls conducted in 1998,110 the year of the Hrawi project, but with progress in numbers for both. This prospect of a greater number of Christians removing their affiliation from the official registers (regardless of their actual faith) might alarm the Christian authorities, especially in a country where the political system is built on a delicate balance between Christians and Muslims.
7 Conclusion
For all these reasons discussed, a civil marriage code is still far from being established because it would threaten the demographic balance which would then threaten the religious communities. In fact, the current political system as well as its denominations in Lebanese society maintained a stable environment since the population is not yet ready for such a change.
Whilst there is no civil code in Lebanon regulating personal status cases, religious communities have their own personal status laws: twelve Christian, three Muslim (Sunnis, Shiites, and Druze), and one Jewish. Each is administered by separate religious courts. While the religious authorities defend this judicial pluralism by arguing that it is fundamental to protect religious diversity in Lebanon, they fail to realize that key aspects of Lebanese life such as marriage, divorce, and custody cannot be treated any differently for fear that discrimination will take place.
Thus, activists in Lebanon have come to advocate for a law on civil personal status because of this variation, where their goal is to pressure the government to find a tool or code to ensure freedom of belief while at the same time treating citizens equally.
Yet, every attempt to achieve this has failed or was obstructed, because the confessional system has become too entrenched in the Lebanese political, social, and cultural life, and impacts the operational functioning of governance. For a civil marriage project to succeed, it must simultaneously appease the concerns of the religious authorities and provide the Lebanese people with a satisfying solution to all the familial and social problems exacerbated by the actual legal system. No doubt, the process is not easy. At the very least, it requires direct, open, and comprehensive communication between agents of reform and religious authorities.
Acknowledgement
The authors would like to acknowledge Dr Ryan McLean (USEK) who proofread the article following the peer-reviewers’ feedback.
Appendix
List of Relevant Laws
Texts applicable to Muslim communities
Citation: Arab Law Quarterly 2025; 10.1163/15730255_bja10161
Annex of Decree No. 60 LR of the French High Commissioner of 13 March 1936 (Statute of the religious communities) as last modified in 1996. These communities are: Maronite Catholics, Greek Catholics (Melkites), Armenian Catholics, Chaldean Catholics, Syriac Catholics, Latin Catholics, Greek Orthodox, Armenian Orthodox (Gregorians), Oriental Assyrian Orthodox, Syriac Orthodox, Coptic Orthodox, Evangelists (Protestants), Sunni Muslims, Shi’ia Muslims, Druze Muslims, Alawi Muslims and Ismaili Muslims, and the Jewish community (Israelites).
See Decree No. 60 LR of 13 March 1936 (Statute of the religious communities) especially Articles 2 to 5; Law of 2 April 1951 (Competences of the religious authorities of the Christian and Israelite communities); Law of 16 July 1962 (Organisation of the Sharʿi and Jaafari tribunals). On the Lebanese legal system relating to personal status, See, generally, C. Mallat, ‘Comparative Law and the Islamic (Middle Eastern) Legal Culture’, in M. Reimann & R. Zimmermann (ed.), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2019), chapter 22, 610.
In the Lebanese system, bills of law can be presented in two ways. Either as Propositions from Parliament members, or as Projects from the executive power. In the case of the Hrawi bill, it is a Project that had to be adopted by the Government before being submitted to the Parliament for the final vote. Even though at first the bill got a majority within the Cabinet, it was finally withdrawn as we will explain later.
See R. Otayek, ‘Sécularisation et contre-sécularisation au Liban. Le système confessionnel à l’épreuve de l’improbable’, Confluences Méditerranée 102(3) (2017): 147–168, 161.
V. Yan, ‘Civil marriage resurfaces as hot topic in Lebanon’s politics’, Al-Monitor (27 February 2019), available online at https://www.al-monitor.com/originals/2019/02/lebanon-civil-marriage-religious-authorities-new-government.html#ixzz7FhxM7yig (accessed 10 October 2022).
M. Feroze, ‘Family Laws Of The Turkish Republic’, Islamic Studies 1(2) (1962): 131–147. Recently, a 2015 decision by the Turkish Constitutional Council decriminalized the conclusion of a religious marriage before the civil one, and a 2017 law allowed muftis to celebrate civil marriages.
G. Sfeir, ‘The Tunisian Code of Personal Status (Majallat Al-Ahwal Al-Shakhsiyah)’, Middle East Journal 11 (1957): 309–318; R. Khedher, ‘Tracing the Development of the Tunisian 1956 Code of Personal Status’, Journal of International Women’s Studies 18(4) (2017): 30–37, available online at http://vc.bridgew.edu/jiws/vol18/iss4/3.
Article 3 of the Law states that courts will apply it to foreigners unless they ask for the application of the law of their own country. The law allows no fault divorce by the unilateral will of either husband or wife, by a declaration to the court. Article 16 secures equality between the rights of men and women in witnessing, succession, demanding divorce, and custody on children. Article 17 creates a special court to look into these marriages.
Y. Malek, ‘Le juge à la rescousse du mariage civil’, Al-ʿAdl (4) (2017): 1752–1759 (Al-ʿAdl is the peer-reviewed journal of the Beirut Lawyer’s association); S. Mansour, ʿAl-ḥaq al-qanouni fil zawaj al-madani’ [The legal right to a civil marriage in Lebanon], Al-ʿAdl (3) (2015): 1325–1361; N. Chaoul, ‘Du mariage civil célébré au Liban’, Travaux et Jours 95 (2019): 65–91.
In late 2021, a Lebanese couple contracted an online civil marriage celebrated by an officiant present in Utah, USA, while they were residing in Lebanon. Utah was chosen because its law allows proxy weddings even though the couple is physically abroad. The Lebanese administration is currently refusing to register such marriages and is deregistering previously registered marriages. E. Sherry, ‘Lebanon: Civil Marriages Struck Down for the Sake of Equality’, The Legal Agenda, available online at https://english.legal-agenda.com/lebanon-civil-marriages-struck-down-for-the-sake-of-equality/ (accessed 15 February 2023). To our knowledge, no academic articles tackle this particular legal dilemma in the Lebanese context.
A. Daher, ʿAl-qanun al-madani al-ikhtiyari lil aḥwal al-shakhsiya min ajel taḥqiq al-mousawat wa sawn al-ʿa’ila wa ta’ziz al-dimocratiya’ [The optional civil personal status law to achieve equality and protect the family and promote democracy] Al-ʿAdl (2–3) (2003): 1–6.
A. Ibrahim, ʿAl-zawaj al-madani al-ilzami’ [The Mandatory civil marriage], Al-ʿAdl (3) (2008): 953–966.
W. Tabbara, ‘Tafsir al-madda 9 min al-dustur al-lubnani fi daw’ qanun al-zawaj al-madani al-ikhtiyari al-muqtaraḥ min majles al-nouwwab’ [Interpretation of Article 9 of the Lebanese Constitution in light of the Optional civil marriage law proposed by the Parliament], Al-ʿAdl (3) (2019): 1231–1243.
For the social justice and women’s rights approach, see S. Zuhur, ‘Empowering Women or Dislodging Sectarianism: Civil Marriage in Lebanon’, Yale Journal of Law & Feminism 14 (2002): 177–208; C. Khoury, ‘Beyond Religious Marriages: Civil Marriage, Civil Family Laws, and the Enhancement of Women’s Rights in Lebanon’ Kohl 6(1) (2020): 76–89, available online at https://kohljournal.press/beyond-religious-marriages (accessed 10 October 2022). For the religious approach, infra (the reactions of the religious authorities).
N. El Cheikh, ‘The 1998 Proposed Civil Marriage Law in Lebanon: The Reaction of the Muslim Communities’, Yearbook Of Islamic And Middle Eastern Law 5 (1998–1999): 147–161, 148; on the Millet system, see: K. Barkey & G. Gavrilis, ‘The Ottoman Millet System: Non-Territorial Autonomy and its Contemporary Legacy’, Ethnopolitics 15(1) (2016): 24–42, doi: 10.1080/17449057.2015.1101845; and for a historical study of the judicial organisation of Mount Lebanon, see: É. Tyan, Histoire de l’organisation judiciaire en pays d’Islam (Leiden: Brill, 1960), 126 et seq.
K. Salibi, A House of Many Mansions: The History of Lebanon Reconsidered (Los Angeles, CA: University of California Press, 1990), 130–140.
P. Gran, ‘Organisation of Culture and the Construction of the Family in the Modern Middle East’, in A. Sonbol (ed.), Women, The Family, And Divorce Laws in Islamic History (Syracuse, NY: Syracuse University Press, 1996): 64–78, 70; as mentioned in Zuhur, supra note 14 at 180.
National Accord Document, First — II — G, https://www.presidency.gov.lb/Arabic/LebaneseSystem/Documents/TaefAgreementEn.pdf (accessed 10 October 2022).
M. Mahmassani & I. Masarrah, Statut personnel: Textes en vigueur au Liban, (Beirut: Documents HUVELIN, 1970), 58–83, Articles 1–145.
Decree No. 60 LR of 13 March 1936, Article 11; see also La question du statut personnel au Levant (Damascus: Imprimerie la Chronique, 1939), 5–6; and Y. Makhlouf, ‘Fi shatb al qayd al ta’ifi wa ta‘dilihi’ [Writing off the religious affiliation or modifying it] Al-ʿAdl (4) (2009): 1436–1445.
M. Chehade, Nida’ Al Watan (26 March 1998).
Mahmassani & Masarrah, supra note 19 at 350.
For an overview of the reasons behind the Muslim protests: N. Méouchy, ‘La réforme des juridictions religieuses en Syrie et au Liban (1921–1939): raisons de la puissance mandataire et raisons des communautés’, in P.-J. Luizard (ed.), Le choc colonial et l’islam. Les politiques religieuses des puissances coloniales en terres d’islam (Paris : La Découverte, 2006), 359–382.
Al-qadaʾ al-šarʿi — al-sunni wal ǧaʿfari [The law of Shari jurisdictions — sunni and jaafari], Al-Maǧallat al-Qadaʾiyyat, No. 124.
Mahmassani & Masarrah, supra note 19 at 137–289, Articles 332–647.
Tanẓim awdaʿ al-ṭaʿifa al-islamiya al-šiʿiya [Laws of the Islamic Shiia community], Al-Maǧallat al-Qadaʾiyyat, No. 52.
For the Druze, see M. Nasr, Personal Status of the druze community [in arabic], (Beirut: Druze heritage foundation, 2009), 40; for the Jewish community, Personal status Code of the Israelite community, Article 37.
Personal status Code of the Armenian Orthodox community, Articles 24 and 25; Personal status Code of the Assyrian Orthodox community (1997), Article 25, requires that both spouses are or convert to the community.
The Personal status Code of the Greek Orthodox community (2003) allows marriage between Christians of different communities but disallows marriage between Christians and non-Christians (Article 13-d, Article 17-k).
Codex Canonum Ecclesiarum Orientalium (1990), c. 814; Codex Iuris Canonici (1983), c. 1086 and c. 1125; cf. also Personal status Code of the Greek Orthodox community, Article 11.
The law declares: ‘l’autorité confessionnelle compétente, pour statuer sur le contrat du mariage et ses effets, est celle devant laquelle le mariage a été célébré … Dans le mariage mixte, le mariage doit régulièrement être célébré devant l’autorité religieuse dont relève le futur époux, à moins que les deux parties se soient d’accord pour choisir l’autorité de qui dépend la future épouse’ [The confessional authority that is competent to judge the marriage contract and its effects is the authority that celebrated the marriage … In mixed marriages, the marriage must be celebrated by the religious authority to whom belongs the future husband, unless both parties agree to choose the authority to whom belongs the future wife].
For instance, the Plenary Assembly of the Court of cassation has been consistent in denying Christian religious courts competence over illegitimate filiation issues (when the parents were not married) — Plenary Assembly of the Court of cassation, decision No. 1, 8 January 1965 and decision No. 1/1991, 3 January 1991. In another case of adoption by a civilly married couple, Christian courts declined ex officio their competence because of a lack of religious marriage and the civil court had to retain its competence (Court of first instance of Mount Lebanon, 3rd chamber, decision No. 34/2007, 8 February 2007, Al-ʿAdl (3) (2007): 1358–1361).
Court of first instance of Mount-Lebanon, decision No. 311/2018, 15 November 2018; Court of cassation, 4th chamber, No. 6/2022, 9 March 2022.
Cf. J. El Azzi, Al zawaǧ al madani : al qadi al lubnani fi muwaǧahat qawanin al ʿalam [Civil marriage, the Lebanese judge in face of the laws of the world] (s. l.: s. n., 2007), 8, especially the introduction; P. Gannagé, ‘Les mariages des Libanais célébrés à l’étranger dans les formes civile et religieuse’, in Le pluralisme des statuts personnels dans les Etats communautaires (Beirut: PUSJ — Hachette Antoine, 2019), 137–142.
The jurisprudence is not unified. Classically, Lebanese civil courts would only acknowledge the religious marriage, therefore transferring the jurisdiction to religious courts (cf. I. Najjar, Droit matrimonial — Successions (s.l.: s.n., 2020), 20–21) considering that the religious marriage fills the “legal void” (cf. Court of cassation, 5th chamber, No. 1/2006, 24 January 2006, Cassandre (1) (2006), which ended up, however, by retaining competence over the case, for other reasons, and Court of first instance of Mount-Lebanon, 5th chamber, decision No. 285/2018, 16 October 2018). Other Lebanese civil courts, however, retain their competence in such cases (for e.g., Court of cassation, 5th chamber, decision No. 7, 23 January 2009 Al-ʿAdl (2) (2009): 622–625. Some decisions tend to dissociate between both marital bonds, resulting in two distinct competences: religious courts over the religious bond and the civil courts over the civil bond, cf. the following decisions: Court of first instance of Mount-Lebanon, 3rd chamber, 15 November 2007 or its 5th chamber, decision No. 369, 26 November 2009; J. El Azzi, Al-ʾahwal al-šahsiyya bayna nnas wal-ʾiǧtihad [Personal status, between texts and jurisprudence] (Beirut: s.n., 2013), 13–18.
The solution to the dilemma (identifying the competent jurisdiction) is affected by many factors: the order in which the marriages were held, the place where the religious marriage was held, whether both marriages are registered (cf. Court of cassation, 5th chamber, No. 94/41, 31 March 1994: unregistered marriages produce no effect), whether a member of the couple is a foreigner, and the religious affiliation of the couple. If one of the couple members is a non-Muslim foreigner, and the couple celebrated both a civil and religious marriage, the Plenary assembly of the Court of cassation has considered lately that the competence is exclusive to civil courts (Plenary Assembly of the Court of cassation, decision No. 46/2019, 13 May 2019). While if both members are from the same Muslim community, the fact that one partner is a foreigner does not block the jurisdiction of that community’s religious courts (Article 79 Code of civil procedure).
‘Hrawi Wants Referendum on Civil Marriage’, ShufiMafi News, as cited in Zuhur, supra note 14 at 184.
El Cheikh, supra note 15 at 153–1540; Al-Safir, issue 7950 (19 March 1998); Al-Sharq al-Awsat (19 March 1998).
I. Ṭraboulsi, Al-zawaj wa mafaʿilihi: lada al tawaʾif al-mašmula fi qanun 2 nisan 1951 [Marriage and its effects on communities following the law of 2 April 1951] (Beirut: Middle East Council of Churches, 2000), 325–334.
S. Daher, ‘Civil Marriage Debate Inflames Lebanese Groups’, Middle East Times (4 May 1998), available online at http://metimes.com (accessed 19 May 2022).
J. Chahine, ‘The Lebanese Law on Civil Marriage: Balance of Fear’, Middle East Council Of Churches New Report 10 (Summer/Autumn, 1998): 33–34.
L’Orient-le-jour (20 March 1998), issue entirely devoted to the various positions. See also An-Nahâr and As-Safir (21 March 1998), as well as Ad-Diyar, available online at https://addiyar.com/Article/695226-%D8%A7%D9%84%D8%B5%D9%81%D8%AD%D8%A9-62131998 (accessed 10 October 2022).
Revue du Liban, No. 1982, 31 January–7 February 1998, at 8.
Revue du Liban, No. 1983, 4 February 1998, at 18–19, 71.
L’Orient-Le jour, Thursday 26 March 1998.
L’Orient-Le Jour, Monday 23 March 1998.
See L. Mughayzil, Al-Marʾa Fi Al-Tašriʿ Al-Lubnani [Women in Lebanese laws] (Beirut: Institute for Women’s Studies in the Arab World, 1985). Mughayzil was a feminist activist who worked hard to disseminate the necessity for a legal reform.
J. Said Makdisi, ‘The Mythology of Modernity: Women and Democracy in Lebanon’, in Feminism And Islam, Legal and Literary Perspectives (London: Ithaka Press, 1996), 231.
Federal Research Division, Impact of War on the Family, in T. Collelo (ed.), Lebanon: Country Study (Washington, DC: Library of Congress, 1987).
M. Chemali Khalaf, Employment, Breadwinning and Women’s Status: The Case of Lebanon, paper presented to at the Women and Gender in the Middle East Conference, Bellagio, Italy, (27–31 August 2001), available online at https://escholarship.org/uc/item/0611197h #main.
Ibid., at 11.
N. Assef, ‘Progress Still Needed for Women’s Rights’, Daily Star (3 August 2001), available online at http://www.dailystar.com.lb.
According to the World Bank, Labor force, female (% of total labor force) — Lebanon (Bretton Woods, NH: World Bank, 2020), available online at https://data.worldbank.org/indicator/SL.TLF.TOTL.FE.ZS?end=2020&locations=LB&start=1990. Latest estimation for 2020 is around 24.5%.
M. Faour, ‘Conditions of Lebanese Women after 10 Years of War’, Paper presented to conference on the Role of Women in National Development, International Labor Organisation, Institute of the Study of Women in the Arab World and the Cyprus Statistics and Research Department, Nicosia (6–22 April 1985), cited in Nadia Hijab, Womanpower: The Arab Debate on Women at Work (Cambridge: Cambridge University Press, 1988), 75–76.
Zuhur, supra note 14 at 192, note 44.
W. Jansen, ‘Research on Gender and Education in the Middle East: An Overview’, paper presented at Women and Gender in the Middle East: A Multidisciplinary Assessment of the State of Theory and Research, Bellagio, Italy (27–31 August 2001), as mentioned by Zuhur, supra note 14 at 192, note 45.
Khalaf, supra note 50 at 16.
Articles 3–10 (conditions of marriage) do not include any restriction related to the religious affiliation of the parties. Articles 21–41 (dissolution of marriage) do not mention religious affiliation as a cause of annulment, divorce or separation.
Committee on the Elimination of Discrimination against Women, Concluding Observation (2015), available online at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/LBN/CO/4-5&Lang=En; Human Rights Committee, Concluding observations on the third periodic report of Lebanon (2018), available online at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR/C/LBN/CO/3&Lang=En.
A. Al-Krenawi, ‘The Psychosocial Impact of Polygynous Marriages on Bedouin Women of the Negev’, paper presented to the Middle East Studies Association meetings, Orlando, FL (17 November 2000), as mentioned in Zuhur, supra note 14, at 196.
R. Nouredinne, ‘Civil Marriage: Between Fiction and Reality’, Al-Raida (Winter/Spring 1998): 50–52.
Zuhur, supra note 14, at 197–198.
Civil Marriage Bill faces Strong Opposition by Religious Leaders (19 March 1998), available online at http://www.lebanon.com/news/local/1998/3/19.htm (accessed 10 October 2022); Civil Marriage in Lebanon opposed by Saudi Religious Panel, Lebanon-Saudi Arabia, Politics (17 July 1998); Ifta Ruling on Civil Marriage, Saudi Embassy Press Release SPA (17 July 1998).
El Cheikh characterizes the Shiʾa clerics as holding a slightly different position and issuing more tempered statements than their Sunni counterparts. See El Cheikh, supra note 15, at 155–156. She quotes from an interview of Fadlallah with the publication Muharrir that appeared in Nahar Alshabab newspaper on 17 March 1998.
See El Cheikh, supra note 15 at 155.
‘President Hrawi Determined to Bring Civil Marriage’, Arabic News (19 January 1998), available online at http://www.arabicnews.com/ansub/daily/day/980119/199801/901.html.
See Interview with Cleric Muhammad al-Amin, Al-Nahar (11 March 1998).
El Cheikh, supra note 15 at 158. For general information about Druze beliefs, laws, and history, see generally S. Makarem, The Druze Faith (Lahore: Caravan, 1974); S. Swayd, The Druzes: An Annotated Bibliography (Kirkland, WA: ISES publications, 1998), and more recently, Y. Hazran, The Druze Community and the Lebanese State: between confrontation and reconciliation (Abingdon: Routledge, 2014).
El Cheikh, supra note 15 at 158.
El Cheikh, supra note 15 at 152 (citing Daily Star (2 February 1998), available online at http://www.dailystar.com.lb); Zuhur, supra note 14 at 204.
Chahine, supra note 41 at 2, 3.
R. Yehia, ‘Orthodox Bishop Puts Couples Before the Code’, Daily Star (11 October 2000).
El Cheikh, supra note 15 at 160–161.
A. Sengds & J. Deeter, ‘Marriage Lebanese Style’, Lebanon Today, available online at http://journalism.berkeley.edu/projects/ebanon/marriage.html.
Daher, supra note 40.
El Cheikh, supra note 15 at 159.
G. Assali, ‘The New Lebanon, Where To?: A Critical Point of View on the Eve of the Twenty-third Anniversary of the Lebanese Civil War’, The Free Arab Voice (30 April 1998), available online at www.freearabvoice.org/newlebanon.htm.
R. Yehia, ‘Civil Law Supporters March to Parliament’, Daily Star (23 March 2000), available online at http://www.dailystar.com.lb.
Z. Moubaisseh, ‘Taboo Art Provokes Outrage on Comiche: Exhibition on Problems in Society Is Making People Lose Their Tempers’, Daily Star (9 August 2000), available online at www.dailystar.com.lb.
R. Abou Jaoude, ‘Civil marriage is legal in Lebanon: experts’, The Daily Star (10 January 2014), available online at https://www.dailystar.com.lb/News/Lebanon-News.
Al-ʿAdl (4) (2017): 36–38. Al-ʿAdl is the peer-reviewed publication of the Beirut Lawyer Bar Association.
‘Controversy as al-Hassan Revives Debate over Civil Marriage’, Naharnet Newsdesk (18 February 2019), available online at http://www.naharnet.com/stories/en/.
G. Hamadi, ‘Between Religion and State: Civil marriage remains an elusive goal’, Beirut Today (9 March 2018), available online at https://beirut-today.com/2018/03/09/religion-state-civil-marriage-remains-elusive-goal/.
El Azzi, supra note 36.
UNDP, Lebanon: Gender, justice and the Law (New York, NY: UNDP, 2018), at 16.
Decision of the Mufti of the Republic No. 62 of 12/12/2020 published in the Official Gazette in 2021, modifying the Code of the Family of 2011.
The Articles mentioned above state the following: The right to not be separated from their parents against their will (Article 9); the right for a child to freedom of expression (Article 13); the right to protection from all forms of physical or mental violence, injury or abuse; the right to the enjoyment of the highest attainable standard of health (Article 24); The right to education (Article 28); the right to rest and leisure (Article 31) and the right to protection from all forms of sexual exploitation and sexual abuse (Article 34).
S. de Alwis, Child marriage and the law (New York, NY: UNICEF, 2007), available online at https://www.un.org/ruleoflaw/files/Child_Marriage_and_the_Law[1].pdf (accessed 10 October 2022).
ABAAD & Arab Institute for Human Rights, Regional seminar on Child Marriage during democratic transition and armed conflict (2015), at 70. See on this issue (child marriage), Khoury, supra note 14.
Salah Mattar Law Firm, http://mattarlaw.com/marriage-in-lebanon/. For more details: a marriage between a non-Muslim man and a Muslim woman is null (Article 58 of the Ottoman Family code); the Greek Orthodox Personal status code allows inter-Christian marriages but forbid inter-religious marriages unless the non-orthodox party converts (Article 17-k of the Code of 2003); Catholics are exceptionally allowed to marry Muslims (or non-baptized): Canon 803 CCEO — in general it is invalid unless there is a dispense, according to Canon 814. As for the Druses rejection of mixed marriages, see M. Nasr, Personal Status of the druze community (Beirut: Druze heritage foundation, 2009), 40. (in Arabic).
About annulment and divorce for Christian communities, see: B. Basile, Statut personnel et compétence judiciaire des communautés confessionnelles au Liban (Kaslik: USEK, 1993), at 282–292.
de Alwis, supra note 88.
Info relayed by Megaphone, 2020 ; See also US Department of State, 2020 Country Reports on Human Rights Practices: Lebanon, available online at https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/lebanon/, at 38 (accessed 10 October 2022).
de Alwis, supra note 88.
See Khoury, supra note 14.
While succession law is not part of the personal status codes of the Christian communities, all non-Muslims in Lebanon apply the Code of succession (inheritance) of the non-Mahometans of 23 June 1959. It ensures equality between male and female heirs.
Khoury, supra note 14.
See T. Husseini, The right to civil marriage, and the civil marriage contract on Lebanese ground (Beirut: Dar al Saqi, 2013) with the text of the first civil marriage contract concluded in Lebanon; S. Mansour, supra note 9, who argues for the legality of this method based on the existence of a legal right to marry.
F. Terré & D. Fenouillet, Droit civil: La famille (Paris: Dalloz, 2011), 69; P. Courbe, Droit de la famille (Paris : Sirey, 2008), 20.
The first contractual civil marriage was registered after a positive recommendation from the High Advisory Board of the Ministry of Justice (Al Hayʾa al Istišariya Al ‘ulya) published in Al ʿAdl (2) (2013): 710–712.
About the change of attitude of different Interior ministers: V. Yan, supra note 5; about the difficulties faced by couples who married by contract, see N. Braidy, ‘This couple is determined to force the Interior Ministry’s hand on civil marriage’, L’Orient Le Jour (29 June 2021), available online at https://today.lorientlejour.com/Article/1266766/this-couple-is-determined-to-force-the-interior-ministrys-hand-on-civil-marriage.html (accessed 10 October 2022).
See P. Gannagé, ‘Le mariage civil au Liban : les enjeux et les difficultés’, in Le pluralisme des statuts personnels dans les États communautaires, supra note 36 at 127–135.
Article 10 of the Decree No. 60 of the French High Commissioner as modified by Decree No. 146 of 18 November 1938: ‘Lebanese and Syrian members of recognized personal status communities are subject, in matters of personal status, to the legal statutes of their community, and in other matters not covered by these statutes, to the provisions of civil law. Lebanese and Syrian members of ordinary law communities and those who are not members of any community, are subject in matters of personal status, to the civil law. Foreigners, albeit members of a recognized personal status community, are subject to their national laws in matters of personal status’.
The French expression is ‘droit commun’, translated as ‘ordinary law’ (Dictionary of the Civil Code (LexisNexis, 2014,), 115, V° commun).
Contra: Tabbarah, supra note 13 at 1231–1243, who considers, based on Article 9 of the Constitution, that the Parliament has no right to legislate in personal status domains. The author is a civil and religious judge.
For ex., the application of Article 10 of Decree 60 (Leb.) on a case of a Muslim foreigner, Plenary Assembly of the Court of Cassation, No. 11, 19 February 2007, Idrel.com (Leb.); application of Article 25 to a case of Muslim marriage, Chamber of first Instance, South Lebanon, No. 56, 23/4/2021, Idrel.com.
Unless it is a situation of fraud, in order to escape the application of the laws related to one community.
According to a poll conducted by ‘Information International’ (research and consultancy firm) on 29 and 30 January 2013, Lebanese were given the option between religious, civil and optional (civil or religious) marriage: 42% of the polled Christians were favorable to optional civil marriage, compared to 27% of the polled Muslims. However, this telephone survey is based on a population of 500, which may relativize its findings. The results are published in ‘The Monthly’, the quarterly publication of ‘Information International’: https://monthlymagazine.com/Article-desc_750_. Another survey from the same year, published by the newspaper Al-Safir, issue No. 12455 (15 April 2013) gives higher numbers: 67% of the polled Christians were favorable to the optional civil marriage, followed by the Druzes (55%), the Shiites (37%) and the Sunnis (28%). This survey was conducted by Arāʾ Company for research and consultations’ between 21 February and 1 March 2013, by phone with a population of 500. Both polls show that about 50% percent of the Lebanese population do agree on an optional civil marriage law: according to the first, 33% are with an optional system while 18% are for an exclusive civil marriage system, while in the second poll, 45% are with an optional civil marriage.
In a detailed poll published by the newspaper Al-Safir (9 March 1993) conducted on a sample of 2517, polled Lebanese had to answer a simple question: ‘Are you with the optional civil marriage idea?’. Christian communities had a higher approval percentage of an optional civil marriage law (55.5% of Maronites, 61.1% of Greek Orthodox, compared to 16.6% of Shiites and 10.2% of Sunnis. Druzes stand alone with a 41.1%). Al-Nahar newspaper (25 March 1998) published a poll by Information International showing different numbers but a similar trend: a higher percentage of Christians approving the optional civil marriage (36.8%) as compared to Muslims (31.5%). It has to be noted that the latter number includes a percentage of 72.7% for the Druzes. These percentages represent the acceptance of civil marriage within each community, regardless of how much each community represents in the polled sample.
