14.09.2007 - Source: US Department of State

Marriage norms are based on the interpretations of Shari’a law ("International Religious Freedom Report 2007") [ID 21651]

"In family disputes, courts continue to rely on a civil code that is based on the Sunni Hanafi school, regardless of whether the parties involved are Shi'a or Sunni. The civil code also applies to non-Muslims. In response to questions about marriage, the chief judge of the family court issued guidelines in accordance with the court's interpretation of Shari'a law. Most restrictive is the rule on marriage between non-Muslims, which stipulates that whether born in the country or elsewhere non-Muslims do not have the right to marry. According to government officials, the court nevertheless considers all citizens to be Muslims by default and therefore non-Muslim Afghans can be married as long as they do not publicly acknowledge their non-Muslim beliefs. In addition, the judges stated that a Muslim man may marry a non-Muslim woman, but if she is not "of the book," including Christian or Jewish, she must first convert. A Muslim woman, however, is not allowed to marry a non-Muslim man."

Document(s): Open document

16.03.2007 - Source: Integrated Regional Information Network

Supreme Court approved new marriage contract which is expected to help stop child and forced marriages ("New contract to curb child marriages") [ID 19075]

Document(s): Open document

11.2004 - Source: Danish Immigration Service

Marriage formalities and marriage certificates ("The political conditions, the security and human rights situation in Afghanistan; Report on fact-finding mission to Kabul, Afghanistan 20 March – 2 April 2004") [#27424],  [ID 786]

Please go to Chapter 8.2 of Danish Immigration Service's fact-finding mission report

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14.03.2003 - Source: International Crisis Group

ICG: Family law (marriage, divorce, child custody, inheritance law) ("Afghanistan: Women and reconstruction") [#11474],  [ID 787]

"Family law is itself largely a codification of Shari’a and Hanafi jurisprudence (fiqh). Few Afghan women lawyers are interested in challenging the Islamic basis of the civil code, but many contend that custom and restrictive interpretations of Shari’a operate to the detriment of women. Inheritance is a case in point. Under the civil code a woman inherits oneeighth of her husband’s estate. “We must consider the real situation of women at present”, said a senior governmental official. “Shari’a has said one-eighth, but it hasn’t said ‘not more than that.’”
According to a senior government official, concepts of equity and social justice should also govern child custody. Under the civil code, a divorced woman is entitled to custody of her male children below the age of seven and female children below the age of nine; older children remain with their father in the event of a divorce. “If a woman had older children and was divorced, she was kicked out of the house, without rights to inheritance, possessions and property, without considering if she had a father or brother”, the official said. “The next constitution should have a clear article on this”.
Deficient record keeping also militates against justice for women in court. The great majority of marriages and divorces are not recorded, and in the absence of records, courts are likely to accept a man’s testimony. During a recent visit to the Kabul women’s prison, for example, members of the Afghan Independent Human Rights Commission interviewed a woman who had been detained for adultery because she had been unable to prove the dissolution of her first marriage. According to the Commission, her husband had divorced her orally (a form of divorce known as talaq and sanctioned under Shari’a) seven years earlier and then emigrated to Iran. She had remarried but upon return her first husband accused her of adultery while telling her privately he would withdraw the charge if she paid him."

Document(s): Open document

14.03.2003 - Source: International Crisis Group

ICG: Access to justice for women mainly through communal institutions, absence of family courts is area of primary concern ("Afghanistan: Women and reconstruction") [#11474],  [ID 788]

"For most Afghan women, as for men, the primary forums for dispute resolution remain communalinstitutions – a reflection both of the historically limited reach of the state and the increased importance of solidarity groups in areas where formal governance structures have broken down. Even where courts function and are theoretically accessible, financial constraints, lack of familiarity with legal process, mobility limitations, and social imperatives to settle disputes within the community encourage women to seek justice through traditional mechanisms. There are positive incentives as well:
“Women know how to lobby influential men, such as village heads or mullahs”, says a gender specialist who has done extensive fieldwork. “There are sociocultural means for doing this sort of thing —individual relations, rather than through ‘knowledge of system’”.
Afghan women who approach courts do so mainly for divorce, child custody, inheritance or other matters that are commonly categorised as family law.
Most Afghan women lawyers interviewed by ICG see this as the area of law most urgently in need of rehabilitation and reform. A primary concern is the absence of functioning family courts. Established under the Najibullah administration and retained by the Rabbani government, they were dismantled by the Taliban. Family courts were, however, the judicial institutions with which women were most familiar and where they were most likely to encounter other women as judges."

Document(s): Open document

07.03.2003 - Source: Danish Immigration Service

Weddings, Marriages and Divorces ("The Political, Security and Human Rights Situation in Afghanistan: Report on fact-finding mission to Kabul and Mazar-i-Sharif, Afghanistan and Islamabad, Pakistan; 22 September - 5 October 2002") [#11326],  [ID 789]

"Weddings, marriages
The Deputy Minister of Justice advised that the age limit for marrying is 18 years for men and 16 for women. These age limits may be lower in the rural districts in accordance with local tradition. Please also see 4.8.3. An Afghan man may have 4 wives, but according to the Deputy Minister an Afghan man, under Islamic law, should only have one wife. The Director of the Secretariat of the Human Rights Commission and the Commissioner advised that temporary marriages28 are prohibited in Afghanistan.

Divorces
The Director of Secretariat of the Human Rights Commission and the Commissioner advised that a man can easily get divorced from his wife. This is done by a verbal declaration before the wife, in the presence of two witnesses. The declaration must be repeated three times. According to the Director of the Secretariat of the Human Rights Commission and the Commissioner, a woman cannot get divorced as a general rule according to the Sharia laws, if the husband does not agree.
However, she may contact the council of elders or the court if she finds that her husband is impossible to live with. According to the Deputy Minister for Women this applies in cities as well as in the rural districts. International Human Rights Law group said that divorces are rare. The importance of the family honour means that most women choose to tolerate domestic violence rather than seek a divorce. The source also added that most women are unaware of the opportunities available for obtaining a divorce. The prerequisite for a woman to seek a divorce is that she must prove one of the following conditions:

- that the husband is unable to provide for the family,
- that the husband is violent towards her,
- that the husband is mentally ill,
- that the husband is unable to give her children,
- or that the husband is abusing the consumption of alcohol or drugs.

The International Human Rights Law Group said that previously there were Family Courts, conciliating between spouses wanting a divorce. However, such courts were abolished during the Mujaheddin period.
The Deputy Minister for Women's Affairs and International Human Rights Group advised that if a husband wants to divorce his wife, he must pay money to his wife. On the other hand, he does not have to pay any money if the wife wants to divorce him. The Deputy Minister said that if the husband divorces his wife simply in the presence of two witnesses, no divorce certificate would be issued. However, the woman must have a divorce certificate issued by the court in order for the divorce to be valid by law. Such a document is also required for her to re-marry. However, she cannot re-marry until three months after the divorce.
International Human Rights Group was of the opinion that 95% of divorces are not being brought before the court. That means that for 95% of all divorces there is no divorce certificate to prove the divorce.
DACAAR advised that there is no place for women to turn to, if she wants a divorce. She can return to her father's house, but in 99% of all cases the father will take her back to her husband out of regard for the family honour. 6.2 Parental custody The Director of the Secretariat of the Human Rights Commission and the Commissioner, and International Human Rights Law Group advised that in case of divorce the children go to the father. The husband might allow the wife to keep the children. Such permission will appear from the divorce certificate, if one exists, from the court. At any stage, the husband may demand that the children be returned to him.
The Deputy Minister for Women's Affairs added that the custody of children under the age of 2 years may remain with the mother, but that custody will automatically go to the father, once they turn 2 years. If the father of the children has died, the mother will keep the children provided she has a home and is able to provide for them. If the woman wants to re-marry, custody will be transferred to the husband's family."

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07.03.2003 - Source: Danish Immigration Service

Adultery ("The Political, Security and Human Rights Situation in Afghanistan: Report on fact-finding mission to Kabul and Mazar-i-Sharif, Afghanistan and Islamabad, Pakistan; 22 September - 5 October 2002") [#11326],  [ID 793]

"The Deputy Minister for Women's Affairs said that in cases where a woman is caught in adultery, the spouse decides her punishment. The Minister elaborated that women - especially in rural areas - were not allowed to go out alone, and that consequently the issue of adultery would often be hypothetical."

Document(s): Open document

07.02.2003 - Source: International Commission of Jurists

Two conditions for the complete marriage treaty in civil law and Islamic ("Afghanistan`s Legal System and its Compatibility with International Human Rights Standards (by Dr. Martin Lau)") [#16224],  [ID 790]

"The word used for “marriage” in Afghanistan is derived from the Arabic. It means that when a man accepts a woman as his wife or a woman wants a man to become her husband, they become man and wife following a legal, traditional, and religious ceremony in the presence of witnesses. Marriage is mutual acceptance. In Islam, before the marriage treaty (Nikah), both the man and the woman express their willingness to be married, following which two more things are necessary (Aejab and Qabol).
These two words are the principles of a marriage. Both parties must ask and accept the will of the other before the treaty can become acceptable. In Afghan civil law marriage is a treaty and the main aim is to legally enjoy sexual relations, procreate and give birth to a new generation, and live together as a family in society. There are two conditions for the complete marriage treaty in civil law and Islamic law:

1. Special conditions.
•Both sides must express their will personally or through their lawyers or in Islam (wali).
•Two male witnesses or one male and two female witnesses, who are sound of body and mind
and Muslims, must be present.
•The couple must not be close relatives.

2. General conditions.
•The couple must be young and understand the meaning of marriage.
•They must express their will in the Aejab and Qabol.
•There must be no pressure or restrictions on the couple in the treaty.
•They must not be close relatives.
•The lawyers or wali must be present at the ceremony.
•There must be two witnesses.
•The couple must be young and sound of body and mind.
•The witnesses must be legally qualified.
•The Nikah procedure must be correctly completed.

Marriage is a natural need for every person. It is a method of ensuring a new generation to replace the old.
In Islamic law, extramarital sex is forbidden; marriage is therefore a natural solution to sexual needs. The couple’s rights in marriage are as follows:
•Marriage creates common rights for a couple.
•A husband has special rights that the wife must observe.
•A wife has special rights that the husband must observe. For instance, the husband must financially support his wife, respect equality, give her the money (Maher) which was specified during the marriage treaty, provide food, clothes and a house for her, and provide for her every need."

Document(s): Open document

07.02.2003 - Source: International Commission of Jurists

Divorce after civil and Islamic law ("Afghanistan`s Legal System and its Compatibility with International Human Rights Standards (by Dr. Martin Lau)") [#16224],  [ID 794]

"The meaning of divorce in civil and Islamic law is that if the husband repeats the word “divorce” three times to his wife without any pressure, unless he has lost his self-control or is drunk, or has mental problems or an illness, then after using these words, his wife is divorced and their relationship is over.
According to the article 136 of civil law: “A women can be divorced if she is legally the wife of someone or in the ‘return’ period. A ‘return’ divorce is when a husband uses the divorce word only once to his wife and has three months to return to her, otherwise she will be automatically divorced. According to the article 138 of civil law: “ A husband can divorce his wife orally, in writing, or, if he can’t write, point to a part of his body to indicate divorce.” Article 141 of civil law: “According to the civil law any word in Afghan culture and tradition meaning divorce can be used to divorce a women. A father-in-law cannot divorce his son’s wife.”
According to article 141, divorce is not legal if the man is:
1. Mad or insane.
2. Under pressure.
3. A teenager.
4. Mentally ill.
5. Without self-control and incapable of understanding his own words.

The motives for divorce can be:
•Emotional marriages: especially teenagers and young lovers.
•Marriages for personal aims like money, fame, etc.
•Imposed marriages.
•Mental and physical incompatibility.
•A marriage that is not consummated.
•Marriage below the legal age.
•Sexual incompatibility.
•Incompatibility between the couple.
•Jealousy.
•Impossible demands.
•Not giving birth to a son.

According to Islam, a man who divorces his wife without legal, logical or Islamic reason will be punished by God. When a man divorces his wife, she is not allowed to re-marry for three months as during these three months the husband may change his mind and return to his wife. If she is pregnant, she cannot marry until the birth and the husband is responsible for her until then. Generally, it is the husband who has the right to divorce and not the wife in Islamic law. But in some circumstances, the woman has the right to go to court and ask for a divorce:
•If the husband has been sick for a long time.
•If he cannot have sexual relations with his wife.
•If he has been away from home for a long time.
•If he does not feed her."

Document(s): Open document