A Comprehensive Insight into Syrian Family Law

Syria is famously known as a mosaic of religious faiths with its people practicing a diverse set of beliefs. As such, the Syrian state prefers not to directly regulate aspects of family law, or the personal status of individuals as it is commonly known in Syria, but rather delegates these subject areas to the jurisdiction of the various religious authorities. They include marriage, divorce, guardianship, inheritance and so forth. From the Ottoman period up until the era when Syria was ruled by Adib Shishakli, the Ottoman Law of Family Rights issued in 1917 governed the personal status of individuals.

During the French mandate period, the French High Commissioner complemented the pre-existing legal framework with the issuance of Legislative Decree 60/1936, which established the state of affairs that survives until this day whereby family law is directly related to the religious background of citizens. Furthermore, this piece of legislation acknowledges and recognizes a list of religious communities that are granted autonomous authority to regulate their own family affairs. However, an amendment to this Law in 1939 provided that it would not apply to Islamic denominations. All these historic statutes were eventually subsumed and overtaken by a new set of laws that comprise the topic of family law including but not limited to the Personal Status Code, the Civil Code, the Civil Procedure Code, the Civil Status Law and the Nationality Law.

The main elements of Syrian family law are codified in the Personal Status Code provided for in Legislative Decree 59/1953, which was signed into law by then-President Adib Shishakli on September 17, 1953. As mentioned, it repealed previous legislation including the Ottoman Law of Family Rights and continues in force until the present day. The Personal Status Code has been amended on three occasions in 1975, 2003 and most recently in 2019 with the latest changes introduced in response to challenges brought about by the war in Syria. In 2009, a new personal status bill drafted under the influence of conservative religious figures was taken under consideration but was subsequently shelved by the People’s Assembly, the Syrian Parliament. The decision to set it aside followed mounting criticism from a number of social groups including women and others who feared it would substantially curtail their rights.

The Personal Status Code mainly contains substantive points of law and reserves questions of procedures to be followed during court proceedings to the Civil Procedure Code formerly provided for in Legislative Decree 84/1953 and presently in Law 1/2016. The provisions of the Personal Status Code are derived from legal developments in the former Ottoman Empire, Egypt and Jordan in addition to principles from the Hanafi school of thought and in some cases non-Hanafi perspectives. In order to gain understanding of the areas governed by this Code, it is worth providing an overview of its structure.

The Code is divided into six books officially regulating marriages, divorces, childbirth and its effects, guardianship, wills and inheritance. As a comprehensive piece of legislation, this Code goes into much detail on the subjects of engagements, marriages, marital contracts, invalid marriages, dowries, spousal maintenance, divorces, witnesses, pregnancy, filiation, custody, guardianship over minors, age of majority, capacity, wills, inheritance and probate. The Code also states that for matters not regulated within it, reference should be made to the Hanafi school of thought. While this Code aims to apply to all Syrians, it makes exceptions for followers of the Druze, Christian and Jewish faiths with respect to marital affairs, which are regulated internally. However, where a subject area in the specific family laws of a religion or sect is silent, reference shall be had to the relevant provisions in the Personal Status Code.

Family law cases in Syria are overseen by a distinct court system. The Civil Procedure Code mandates the jurisdiction of the Sharia Court over the personal status interests of followers of the Muslim faith. Therefore, the Sharia Court has jurisdiction over Sunni and Shia Muslims. However, the Druze in addition to the Christians and the Jews have their own court structures. The courts that have jurisdiction over the range of Christian denominations are called the Spiritual Courts. Judgments passed by these courts may be reviewed by appellate courts for each religion and sect. Under certain circumstances, final appeals may be submitted to the Court of Cassation’s Family Division.

With respect to the Christian denominations, specific laws have been passed to govern certain aspects of their personal status affairs. A significant development occurred in 2006 when the Catholic community in Syria, including all of their denominations, was provided with its own consolidated Personal Status Code following the enactment of Law 31/2006, which was fully independent from the 1953 Personal Status Code. Additionally, the Catholic Code made reference to the Roman Rota in the Vatican, which could serve as the final appellate court in judicial cases. As a result of this Law, consultations were held to consider applying it to the Orthodox denominations as well but evidently without imposing the jurisdiction of the Roman Rota. However, this initiative was met with resistance from the Orthodox religious authorities and it never materialized.

Despite the progressive stance shown on this position with respect to Catholics, the government decided to limit the scope of Law 31/2006 more than four years later by virtue of Legislative Decree 76/2010. The latest Law revokes the autonomous right of the Catholic community to regulate adoption, guardianship and filiation as was originally granted to them under Law 31/2006. Nevertheless, Legislative Decree 76/2010 maintains that inheritance and wills are to be administered internally. Furthermore, it restores the relevant remaining provisions of the Personal Status Code provided for in Legislative Decree 59/1953. Consequently, Legislative Decree 76/2010 revives the role of the Court of Cassation’s Family Division as the final court of appeal.

Other pieces of legislation were issued for fellow Christian sects. For instance, Law 10/2004 permits the Syriac Orthodox denomination to oversee marriages and divorces on its own while Law 23/2004 does the same for the Greek Orthodox community. As for inheritance and wills, they were formally devolved to both these denominations by virtue of Legislative Decree 7/2011 in accordance with the amendment contained in Legislative Decree 76/2010. Furthermore, Law 2/2017 accords similar autonomy with respect to inheritance and wills for followers of the Evangelical denomination in Syria.

Marriages in Syria are legally conducted according to the religious faith of the individuals concerned. Accordingly, Muslims conclude what is known as the Sheikh’s Book Ceremony and then register the marital contract in the Sharia Court. Christians conduct a Church Ceremony and then register the marital contract in the Spiritual Court for the relevant denomination.

There are legal prerequisites for registering a valid marriage. It is worth noting that Article 40 of the Personal Status Code requires certain documents to be presented to the competent authorities before a marriage can be declared as valid. Among the documents currently requested are the couple’s health certificates and documentary evidence that the prospective husband is fully compliant with the Military Service Law provided for in Legislative Decree 30/2007. In other words, he must not be in breach of his compulsory military service obligations. A husband and wife must subsequently obtain what is known as a Family Book that contains an official record of their marriage and the identification details of any children they may have.

Children are only entitled to Syrian nationality if their father already possesses it. The children will consequently be recognized as Syrian nationals if the marriage between their parents itself is legally binding, registered accordingly and the child’s name and personal details are recorded in the Family Book. The right to Syrian nationality has obvious consequences when inheritance considerations arise as ownership over real estate property in Syria is the subject of a complex legal regime that favors Syrian nationals.

Customary marriages whereby a ceremony is held but the marital contract is not registered in the respective religious court are not deemed legally valid under Syrian law. As such, there are no legal obligations imposed on the husband, which can have broad consequences if a child is born or the marriage falls apart. As far as the state is concerned, the marriage had no merits in the eyes of the law.

Customary marriages now incur fines under Law 24/2018. Law 24/2018 was introduced as a result of numerous instances of people being abused through fraudulent marital procedures during the conflict, in particular women who were left in a vulnerable position with no legal remedies if their partners abandoned them. In other situations, legal complications arose in cases of pregnancy or childbirth occurring before the religious courts registered the marriage in question and issued the license. Moreover, there was a growth in the number of customary marriages in Syria since the war broke out, especially due to the absence of government control in certain parts of the country. The original bill even went as far as mandating prison sentences for violators to reflect the gravity of the situation but the People’s Assembly deemed it too arbitrary a provision so they instead voted to substitute that penalty with a fine.

Syrian citizens who decide to marry abroad should be made aware of the Civil Status Law provided for in Legislative Decree 26/2007, which was amended by Law 4/2017. Accordingly, the couple has to follow the correct legal procedures in the country where they intend to marry to conclude their marital contract as long as the foreign law does not conflict with Syrian law. They must then avail themselves of the Syrian consular services where applicable in order to register their marital contract in Syria, which is a mandatory requirement conferring legal recognition on their marriage. Furthermore, if Syrian couples marry overseas under different nationalities, they may be required to technically marry again in Syria in order to have their marriage recognized by the Syrian authorities. Failure to do so in either case could have consequences on the legal status of any children they may have and their right to inherit as mentioned above. As for Syrian children born overseas, the correct procedures have to be followed in the country of birth before the child’s civil status can be registered accordingly with the Syrian authorities through the consulates.

Syrian embassies, consulates or bodies representing Syrian interests in countries around the world are responsible for the personal status interests of Syrian expatriates including marriage, divorce and so forth. If a Syrian embassy is closed in a certain country, expatriates must seek the consular services of the nearest one available to them in another country. Many embassies lack specialists in the field of family law. Thus, Syrian expatriates have had to resort to marital contracts under the laws of foreign countries to avoid bureaucratic hurdles in certain circumstances.

Marital contracts concluded by proxies through powers of attorney are permissible under the Personal Status Code. Any Syrian citizen inside or outside the country can authorize another individual through a power of attorney to sign a marital contract on their behalf. Syrians overseas can grant powers of attorney at their nearest Syrian consulate, which then has to be certified by the Ministry of Foreign Affairs and Expatriates in Damascus. After the power of attorney has been certified by the Ministry, the marital contract can then be registered with the relevant religious court.

The Civil Code provided for in Legislative Decree 84/1949 steps in to address marriages between spouses of different nationalities. According to the Civil Code, a marriage between nationals of different countries is governed by the national law of each spouse. With respect to the implications of the marital contract, including its financial effects, the law of the country of which the husband is a national shall apply. It is also the case for instances of divorce. Nevertheless, these positions are qualified by the fact that should one of the spouses hold Syrian nationality at the time the marriage is contracted into, only Syrian law will be applicable. In accordance with the Civil Procedure Code, the Syrian courts will have jurisdiction even if the defendant is not domiciled or resident in Syria but where a nexus between a concerned party and Syria can be established. Such cases include but are not limited to a marriage concluded in Syria or a concerned party having residence in Syria.

It should also be borne in mind that technically speaking, a Syrian national requires permission from the Ministry of Interior to marry a foreign national in Syria as it is deemed an interest of national security. While it may sound odd, the rationale is that it would not be clear to which country the married couple’s children would feel a sense of loyalty towards under such circumstances. In addition, if a marriage is concluded overseas and one of the spouses is a foreign national, the registration of the marriage in Syria requires the approval of the Ministry of Foreign and Expatriate Affairs.

A Syrian husband can pass on his Syrian nationality to his wife if they meet the conditions laid down in the Nationality Law provided for in Legislative Decree 276/1969 whereas foreign husbands of Syrian wives are denied Syrian nationality. A foreign wife of a Syrian national can become Syrian if their marriage lasts for a period of at least two years and the wife resides in Syria during the two-year period. The same rules apply to foreign wives of naturalized Syrians. The Law is more lenient in the cases of Arab wives who become naturalized Syrians.

Couples who marry in Syria but decide to part ways have to apply for a divorce in Syria in order to have it recognized. In such situations, at least one spouse will have to approach their respective religious court and petition the judge accordingly. Divorces will not be recognized by the Syrian authorities where a couple who weds in Syria applies for a divorce overseas from a foreign court as such divorces fall under the jurisdiction of the Syrian religious courts. As far as the law is concerned, the marriage is deemed valid until the divorce is pursued in Syria or through the Syrian consulates overseas. Failure to obtain a valid divorce from the Syrian courts may cause complications when matters of inheritance inevitably arise. As for naturalized foreign wives of Syrian husbands, the woman shall not be obliged to forfeit her Syrian nationality in the event of a divorce unless she marries a foreigner and acquires his nationality or if she recovers her original nationality.

The Personal Status Code takes into consideration the interests of women in instances of divorce. According to a prominent Sharia judge, 70% of women have the right to initiate a divorce under a special provision contained in Article 87 of the Personal Status Code. There are even occasions when a husband faces possible prison time if the marriage breaks down and he has not paid the dowry in full at the time of the divorce.

The recently detected high rates of divorces in Syria were due in part because many women lost their husbands during the war without knowing their fates so they filed for divorce on the grounds of the husband’s absence. Any person missing for a period of four years, which was the case for many families throughout the conflict, can be declared legally dead by the courts according to Article 205 of the Personal Status Code. In cases of missing husbands, the family of the male spouse is requested to appear before the Sharia Court. If they do not, the judge is obliged to rely on the testimony of witnesses to ascertain whether the condition stipulated for in Article 205 has been met.

The legal implications of guardianship have become prevalent during the conflict as well due to the fact that some women have been left overseas without their husbands. As a result, some Syrian ambassadors began appealing to the Sharia Court to grant guardianship rights to expatriate Syrian women over their children for several reasons. They include giving mothers the ability to obtain or renew passports for their children since this task usually falls under the legal purview of the father. A Sharia judge went on the record and confirmed that the wife of a missing husband can apply to the courts to manage his estate and become the legal guardian of their children. The Personal Status Courts are also hearing numerous lawsuits involving disputes between widowed mothers and their fathers-in-law over guardianship and in particular alimony disagreements. The women have on several occasions argued that their fathers-in-law are not acting in the best interests of their grandchildren as their legally recognized guardians.

The legal position of women was recently improved in the latest round of amendments to the Personal Status Code contained in Law 4/2019. It grants women a priority status when dealing with matters concerning the family and children. It also mandates the minimum age of marriage for both men and women at 18 years. Another amendment to the Personal Status Code permits a prospective wife to stipulate her right to work in the marital contract.

Before these changes occurred, there was an ongoing debate in the past whether the Constitutions of 1973 and 2012 granted women more rights than the Personal Status Code. Some jurists have even gone so far as to argue that the Personal Status Code in its current form contradicts the secular nature of the country and the state in general. In any event, the Code is a far cry from the provisions of the controversial bill in 2009 proposed to replace it that was met with protests from assorted segments of society.

Upon an individual’s death, matters of inheritance rise to the surface and have to be considered. It is therefore worth mentioning firstly that the right of inheritance is guaranteed by the current Constitution of 2012. Under the Civil Code, inheritance is based on the Hanafi school of thought. Inheritance is also addressed in the Civil Procedure Code. Syrian courts will have jurisdiction in inheritance cases when a nexus can be ascertained between the deceased individual and Syria including but not limited to the domiciles of the parties involved being in Syria, whether they hold Syrian citizenship or whether any of their property is located in Syria.

Despite the limited circumstances where a foreign national can own real estate in Syria according to the Foreign Ownership Law 11/2011, generally only Syrian nationals can inherit immovable properties from deceased family members. However, this restriction can be overcome if the real estate assets were originally brought under the ownership of a company in a suitable structure as foreign nationals are entitled to own 100% of the share capital of a company incorporated in Syria. In any case, a foreign national can purchase a family residence measuring a minimum size of 140 square meters in Syria after obtaining authorization from the Minister of Interior.

In the event the foreign owner dies and the property is transferred through inheritance or according to a will, the successors will lose the right to the property if they are nationals of a country that does not grant reciprocal rights to Syrian citizens. If this situation arises, the successors would have to transfer the property to a Syrian national within two years from acquiring it, or else the property will be automatically transferred to the State Property Administration in return for compensation. The Prime Minister does have discretion in such circumstances to alleviate any burdens on the successors that this process may entail.

The war in Syria witnessed a surge of activity in the area of family law not least because of the increase in cases of fraudulent death claims since the conflict made it more difficult to prove otherwise. There were circumstances where people attempted to profit from fraudulent death claims in order to benefit from the inheritance process. There were also instances when such claims led widows to remarry only to discover later on that their husbands were still alive.

While wills are briefly mentioned in the Civil Code, it is worth noting some important details contained in the Personal Status Code regarding wills made in Syria, whose provisions are enforced after the death of the testator. The main condition for executing a valid will is to ensure that the testator has the legal capacity to donate his or her possessions. A will may be made in writing but if the testator is incapacitated, the will may be deduced from what can be understood from the testator. All provisions in the will must comply with the Sharia. Conditions regarding inheritance may be imposed as long as they do not contravene the law. Beneficiaries of a will may have different religious backgrounds including to that of the testator but if they are foreign nationals, the principle of reciprocity is relevant to determine whether the beneficiaries may inherit. In other words, the successors will lose the right to the assets if they are nationals of a country that does not grant reciprocal rights to Syrian citizens. An executor may be designated to execute the provisions of the will but if this is not the case, a judicial appointment may be effected. The Personal Status Code delves further and touches on entitlements and other factors that should be borne in mind by both testators and beneficiaries.

Even though it was enacted back in 1953 and sustained noteworthy amendments on only three occasions, the Personal Status Code has by and large survived until the present day. Despite the decades that passed after it came into effect, its text appeared to come under pressure most noticeably during the war in Syria at a time when family units were threatened from countless positions. Nevertheless, the Personal Status Code and other family laws have managed to adapt to the changing times not least by amendments passed by the legislature and President Bashar Al-Assad. In spite of efforts to replace the Personal Status Code in 2009, enough social pressure was brought to bear to scrap the initiative and maintain the current one. There is no doubt that changes in society will be reflected in family legislation as can be observed with respect to the Christian denominations and the autonomy devolved to them to regulate their own affairs. Family laws after all either reflect or test the pulse of society and culture. After the war in Syria is declared over once and for all, it will be worth keeping an eye on the domain of family law to monitor the direction the country gravitates towards in the years to come.