Introduction to the tunisian law (tn)
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Tunisia
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History
Legal system based on French civil law system and Islamic law.
As an autonomous province of Ottoman Empire from 1574, Hanafi fiqh was influential, but never displaced position of Maliki school. Became French Protectorate in 1881. Full independence in March 1956. Law of Personal Status inspired by unofficial draft codes of Maliki and Hanafi family law passed soon after independence. Applicable to all Tunisians regardless of religion. Among provisions of TLPS unprecedented at the time were those banning polygamy and extra-judicial divorce.
Notable Features
Marriage Age minimum marriage age is 20 for males and 17 for females; scope for judicial discretion with wali?s consent and for compelling reasons and apparent benefit for both parties; if wali withholds consent and parties are adamant, matter must be taken to courts
Marriage Guardianship: marriage of males or females below legal age of discernment requires wali?s consent (or judicial decision overruling wali?s refusal)
Marriage Registration: obligatory under Civil Status Act 1957, only formal document shall prove existence of marriage; unregistered marriage deemed void with three effects: establishment of paternity; immediate onset of ?idda from date of voidance declaration; and creation of prohibited degree on basis of affinity
Polygamy: prohibited; penal sanctions for polygamous husband and wife who knowingly enters into polygamous marriage are one year?s prison sentence and/or fine
Obedience/Maintenance: the law provides for equal cooperation in managing family affairs
Talaq: extra-judicial divorce prohibited; irrevocable divorce becomes permanent impediment to remarriage between divorced spouses
Judicial Divorce: available (after reconciliation efforts) at request of either party; in issuing decree of divorce, Court shall also assess maintenance, custody, housing and visiting rights
Post-Divorce Maintenance/Financial Arrangements: husband obliged to provide maintenance during ?idda or, if there is an infant, until the child is weaned; if divorce was husband?s will, judge may determine what financial compensation is due to wife (or vice versa if divorce was at request of wife)
Child Custody and Guardianship: divorced wife has right of custody over boys until age of 7 and girls until age of 9, after which custody reverts to father if he requests it, unless judge considers child(ren)?s mother better suited to maintain custody
Succession: Book 9 of TLPS on succession introduced obligatory bequests in favour of orphaned grandchildren through sons or daughters, limited to first generation of grandchildren and to maximum of one-third of estate; introduced and extended doctrine of radd (return) to allow surviving spouse to share in residue of deceased partner?s estate; also provision that if deceased has only surviving daughters, estate shall go to children and not to paternal uncles
Courts & Judgments
The Tunisian court system consists of the regular civil and criminal courts, including the courts of first instance; the Courts of appeal and the Court of Cassation, the nation's highest appeals court; as well as the military tribunals within the Defense Ministry.
[military tribunal (tn)|Military tribunals]] try cases involving military personnel and civilians accused of national security crimes. A military tribunal consists of a civilian judge from the Supreme Court and four military judges. Defendants may appeal the tribunal's verdict to the final arbiter, the Court of Cassation, which considers arguments on points of law as opposed to the facts .
The Code of Procedure is patterned after the French legal system. By law the accused has the right to be present at trial, be represented by counsel, question witnesses, and appeal verdicts. The law permits trial in absentia of fugitives from the law. Both the accused and the prosecutor may appeal decisions of the lower courts. Defendants may request a different judge if they believe that a judge is not impartial.
Trials in the regular courts of first instance and in the Courts of appeals are open to the public. The presiding judge or panel of judges dominates a trial, and defense attorneys have little opportunity to participate substantively.
See also
- Find the notion introduction law in the tunisian legal internet
Authors and contributors
- Fathally Ben Has Jabeur, University of Ottawa Canada. jfath014@uottawa.ca
- ...
