The Afghan legal system applicable to family law consists of Islamic law (Sharia), regional customary laws, traditional ethnic rules and state law.
[7] The 1977 Afghan Civil Code states that statutory law prevails, but where statutory law is silent, religious law applies, and where religious law is silent, customs may be referred to with certain restrictions.
[8] In legal practice, however, this hierarchy is not strictly adhered to, and customary law is mainly applied when dealing with matters of family law
[9]. Following the fall of the Taliban regime, in 2004 a new Afghan Constitution was adopted, stipulating that the former statutory laws, including the 1977 Civil Code, are valid until the adoption of new legislations, provided they are not contrary to the new constitution.
[10]
The Civil Code sets the
minimum legal age of marriage at 16 for girls and 18 for boys, allowing for the marriage of a girl aged between 15 and 16 provided that there is consent from either the child’s father or the competent court.
[11]The Civil Code has prohibited the marriage of a child younger than 15 in all circumstances. Under Sharia law, there is no minimum age for marriage. However, it is generally held that a person may be ready to enter into marriage at the transition into puberty.
[12]Marriage without the consent of both parties (forced marriage) is not valid under Sharia law and the Afghan Penal Code. These hold that marriage should be entered into with total commitment and full knowledge of what it involves.
[13] Pertaining to widows and women younger than 18 years of age, the Penal Code imposes a prison sentence for leading a woman into marriage against her will or without her consent.
[14] Despite these provisions, coerced
early marriage persists. According to the Afghanistan Independent Human Rights Commission (AIHRC), between 60-80% of all marriages in Afghanistan are forced, most of these occurring in early years.
[15]2010 Data from the UN shows that 17.3% of women between the ages of 15-19 years of age were married
[16][17] Similarly, the 2010-11 Afghanistan Multiple Indicator Cluster Survey (MICS) found that 1 in 5 young women aged 15-19 years is currently married and about 15% of women aged 15-49 years were married before the age of 15. Around 1 in 4 women aged 20-24 years had already had a live birth before 18 years.
[18]The United Nations Assistance Mission in Afghanistan (UNAMA) conducted a number of focus groups with the general population which reveal that early marriage is generally viewed as a ‘harmful traditional practice’, although considered as somewhat inevitable and deeply ingrained as a tradition.
[19]While some members of the community justified the practice on the basis of tradition, others justified the practice pragmatically to protect daughters from possible kidnapping, rape and forced marriage to local commanders and members of illegal armed groups. Some held the view that men prefer to marry young girls because it is easier for a husband and in-laws to establish and maintain control over them. Forced marriage in Afghanistan encompasses
baad (exchange of girls for dispute resolution),
baadal (exchange marriages), early marriage and coercion on widows to marry a relative of a deceased husband. The Women and Children Legal Research Foundation (WCLRF) points out that
baadal marriages often involve minors. According to a study of marriages conducted by WCLRF, a total of 30% of the early marriages studied in Balkh, Nangarhar, Kabul and Parwan were
baadal marriages.
[20] Poverty and destitution are frequently the causes for
baadal agreements, because these agreements reduce or eliminate the costs associated with weddings. This tradition contradicts with Afghan legislation and the Sharia law with regards to consent of the partners.
[21]With respect to
parental authority, according to the Afghan Civil Code, custody, defined as care for an infant in his/her early years of life, is in the hands of the mother or, if the woman dies or becomes incapable of looking after the child, of her own relatives.
[22] Instead guardianship, defined as the obligation of the legal guardian to provide for education, upbringing, development, health and security of the child, is with the father, or in case of death of the father or
divorce, with the family of the father.
[23]Guardianship replaces custody once children have reached a certain age, usually nine for girls and seven for boys.
[24] In terms of guardianship of property, it is first of all the father as the legal guardian who is obliged to administer the property of the child.
[25]According to the Code of Personal Status of Shiite Afghans (applicable to Shiite Afghans only), entered into force in 2009, the husband is the head of the family and the wife can be appointed as head of the household only if it is established that the husband is intellectually unable to assume this position.
[26]Women’s right to
inheritance in Afghanistan may vary, depending on whether they are determined by religious, statutory or customary law. Based on Islamic jurisprudence and Sharia law, women have the right to inherit both as daughters, and widows. However, divorced women have no right to their husband’s property.
[27] According to Sharia Law, a daughter inherits half of a son’s share.
[28]The inheritance rights of the spouses are determined in detail in the Civil Code.
[29]Where the deceased wife has no descendants or male descendants of the son, the husband receives half of her estate. If the deceased wife has descendants or male descendants of her son, the husband receives one-fourth of the estate. On the contrary, the wife receives one-fourth of the estate if the husband leaves no descendants or male descendants of his son, otherwise she is entitled to one-eighth of it. If the wife is irrevocably repudiated and the husband dies during her waiting period, she has the same claim to inheritance as in a valid marriage.
[30]Under customary law, a wife generally does not inherit.
[31] The United Nations Mission in Afghanistan reports that widows are particularly poorly treated with respect to inheritance rights, and commonly forced to marry another male in the family to keep their inheritance in the family. Often, if a widow does not remarry into the same family she risks losing her children.
[32]More
In matters related to
divorce, a man can easily divorce his wife without due process of law. But women face very difficult circumstances to get a divorce. The Civil Code
[33] only gives husbands the right to dissolve a marriage without giving any reason. A couple is considered to be divorced if the husband declares that he wants a divorce (
talaq). At the outset, women also have a partial right to dissolve the marriage (
khul’) according to Sections 156 to 175 of the Civil Code, although
khul’ requires the husband’s consent and imposes the condition that she returns the bride price to the husband. According to the Civil Code
[34], women can demand separation under four circumstances: (1) separation due to defect, (2) separation due to harm, (3) separation due to lack of alimony/maintenance, and (4) separation due to unjustifiable absence. The Shia Personal Status Law contains similar provisions in this respect.
[35] Hence, women who are forced to demand separation as a result of continued family violence and other problems face serious obstacles to prove the above conditions. The World Bank reports that divorce is not common in Afghanistan, as it associated with loss of esteem. In general, the stigma is greater for the woman, but even men lose status as a consequence of divorce.
[36]Article 7 of the 1926 Marriage Law provides for the
widow’s right to remarriage.
[37] Accordingly, it is not permitted to force a widow or divorced woman to refrain from a second marriage. The most common form of widow abuse is to have a widow marry her brother-in-law, even if he is already married. The widow, who is usually considered as the property of her husband’s family, is forced to accept this customary option.
[38] If a male relative is not available, the widow is nevertheless barred from marrying outside the husband’s tribe. Besides being forced to levirate, widows often turn to begging or even prostitution to provide for themselves and their children. In addition to economic difficulties, widows are victims of social exclusion.
[39]Being an Islamic Republic under Sharia Law, Afghanistan allows for
polygamy. The Civil Code mentions polygamy, though it is silent about the number of wives a man may marry.
[40] However, according to all schools of Islamic law, permanent marriage to more than four wives is prohibited.
[41] Certain conditions apply to polygamous marriages, such as the equal treatment of all wives or financial sufficiency, but these are not always observed. Moreover, a polygamous marriage concluded against these conditions is not considered invalid. Ignoring these conditions only provides the first wife with a ground for divorce.
[42] A report by the Max Planck Institute reveals that the social prestige of divorced women is so low in Afghanistan that many divorcees will agree to be a second or third wife rather than remain single, even if they are treated unfairly by the husband.
[43] A survey of 1400 people conducted by the Women and Children Legal Research Foundation found that the large majority of respondents (87%) disagreed that having more than one wife was a ”must” for Afghan society. Only 13% agreed on polygamy as a “must”.
[44]
[7] Max Planck Manual on Family Law in Afghanistan (2012), p. 3 [8] Civil Code 1977, Articles 1, 2 [9] Max Planck Manual on Family Law in Afghanistan (2012), p. 6 [10] Max Planck Manual on Family Law in Afghanistan (2012), p. 13 [11] Civil Code 1977, Section 70 – UNSTAT (2013) [12] UNAMA (2010), p. 2 [13] UNFPA (2012) [14] Penal Code 1976, Section 517 [15] Max Planck Manual on Family Law in Afghanistan (2012), p. 32 [16] United Nations 2012 World Marriage Data [17] UNFPA (2013) [18] CSO – Afghanistan Multiple Indicator Cluster Survey (2010-2011) [19] UNAMA (2010), p. 20-25 [20] WCLRF (2008) [21] Section 26 of the Law on Elimination of Violence Against Women in Afghanistan [22] Civil Code 1977, Article 236 [23] UNAMA (2010), p. 27 [24] UNAMA (2010), p. 27[25] Max Planck Manual on Family Law in Afghanistan (2012), p. 103[26] Code of Personal Status of Shiite Afghans, Article 123 [27] WCLRF, UN Women (2011), p. 7 [28] World Bank (2005), p. 89 [29] Civil Code 1977, Article 2007 [30] Max Planck Manual on Family Law in Afghanistan (2012), p. 70[31] RDI (2009), p. 16 [32] UNAMA (2010), p. 27 [33] Civil Code 1977, Section 135[34] Civil Code 1977, Articles 176, 183, 191, and 194 [35] AIHRC, Fifth Report Situation of Economic and Social Rights in Afghanistan (2011), p. 49 [36] LandInfo (2011), p. 20 [37] Max Planck Manual on Family Law in Afghanistan (2012), p. 9 [38] Max Planck Manual on Family Law in Afghanistan (2012), p. 32 [39] Pashtun Women (n.d.) [40] Civil Code 1977, Article 86 [41] Max Planck Manual on Family Law in Afghanistan (2012), p. 46 [42] Max Planck Manual on Family Law in Afghanistan (2012), p. 46 [43] Max Planck Institute for Foreign Private Law and Private International Law (2005) [44] WCLRF (2006)
