The Code of Personal Status (CPS) () is a series of progressive Tunisian laws aiming at the institution of equality between women and men in a number of areas. It was promulgated by beylical decree on August 13, 1956 and came into effect on January 1, 1957. This Code is one of the most significant deeds of Habib Bourguiba, who was Prime Minister and later President.
The code outlawed polygamy, set minimum ages for marriage, required mutual consent for marriage, and allowed either spouse to file for divorce in secular court. Bourguiba's successor, Zine El Abidine Ben Ali, reaffirmed the government's commitment to the Code. He himself introduced modifications that reinforced it, in particular with the July 1993 amendment.
Historical context The feminist question is a recurring theme in Tunisia, more than in all the other countries of the Maghrib, and the country is from that point of view "atypical" of the region. It seems to affirm a distinctiveness which it has followed since the beylical period which, "on the eve of the institution of the French protectorate was going to engage in a process of reforms establishing its connection to society in a modern national perspective."
As early as 1868, Hayreddin Pasha wrote "The Surest Way to an Understanding of the State of Nations" in Arabic. This explained that the future of Islamic civilization depends on its modernization. In 1897 Shayk Muhammad Snoussi published "The Flower's Blooming or a Study of Woman in Islam" in which he advocated the education of girls. Fifteen years later, Abdelaziz Thaalbi, Cesar Ben Attar and Haydi Sabai published "The Koran's Liberal Spirit" which urges the education of girls and the removal of the veil. In 1930, Tahar Haddad, himself influenced by the reformist current begun in the Nineteenth Century by Kheirredine Pasha, Ibn Ahmad ibn Abi Diyaf, Muhammad Snoussi, Salem Bouhageb, Mohamed Bayram V and other thinkers who all defended the concept of modernism, published "Our Women in Sharia and Society." He demonstrated there the possibility of compatibility between Islam and modernity. The arguments he presented there were subsequently adopted by Bourguiba in his speeches. Radhia Haddad, wrote in her autobiography "Woman's Talk" :
"On the eve of independence, the most ancient and the most blatant injustice was the condition of women."
Although Haddad's proposals were condemned in his time by conservatives, nearly all of his proposals were included in the drawing up of the Code, including obligatory consent for marriage, the establishment of a procedure for divorce and the abolishment of polygamy. The failure of Haddad to bring into effect his wishes while alive is registered in Habib Bourguiba's later success:
"He (Haddad) occupies an important place in the history of social and political ideas in Tunisia."
In the same period Shayk Mohamed Fadhel Ben Achour, who was mufti of Tunisia and rector of the University of Ez-Zitouna, issued a fatwa, result of a personal ijtihad. At the same time the reformist newspaper Ennahda published the poems of Aboul-Qacem Echebbi, who participated to a lesser extent than Haddad in the defence of the rights of women. In 1947, Muhammad Abdu'l Aziz Jait, former justice minister who was later opposed to the Code and author of a majallah codifying personal status and estate law, undertook an initial and timid effort to harmonize the doctrines of the Maliki and the Hanafi, majority in Tunisia, that ultimately had no result.
In November 1940, Muhammad Zarrouk founded the first francophone feminist magazine, Layla, which however ceased publication in July 1941, but whose name was taken up symbolically by Bashir Ben Ahmed who, on May 23, 1955, started a magazine "Layla Speaks to You"—later "Feminine Action"—in the fifth issue of his weekly "Action" (later "Africa Action" and finally "Young Action"). Lacking women, absent from Tunisian press of the period, the magazine folded, but Ben Yahmed had made the acquaintance of Dorra Bouzid, then a student in Paris, and recruited her to relaunch the magazine. On June 13, 1955, Bouzid, then the magazine's only woman, edited in its eighth issue an article signed with the pseudonym of Layla and entitled "Call For Emancipation Law." On the occasion of the promulgation of the Code, she wrote, on September 3, 1956 in a special double page of the 56th issue an article titled "Tunisian Women are Adults" with an editorial recalling the collaboration in its production of the two shayks Muhammad Abdu'l Aziz Jait and Muhammad Fadl Ben Achour. In 1959, Safia Farhat and Bouzid co-founded the magazine Faiza, which, although it ceased publication in December 1969, remained famous in the Maghrib and more generally in Africa, as the first Arab-African feminine francophone magazine.
Text The Code instituted that wali's permission is not a requirement for the validity of all marriages. Furthermore, it instituted an obligatory minimum age for marriages, fixed first at eighteen years for men and fifteen years for women, the precise text that: "Below this age marriage cannot be contracted, except by the special authorization of a judge who may not grant it, except for serious reasons and in the well understood interests of both spouses. In this same case, consent for the marriage of a minor must be given by the closest parent who must fulfil three conditions, namely being of sound mind, adult and masculine."
The Code also forbade the marriage of a man: "With his ancestors and descendants, with his sisters and the descendants to infinity of his sisters and brothers, with his aunts, great aunts and great great aunts" and "with the woman whom he has divorced three times." Polygamy, although rather marginal in the period, is likewise forbidden, even if the second union is not "formal:" "Whosoever being engaged in the bonds of matrimony shall contract another before the dissolution of the preceding shall be liable to a year's imprisonment and to a fine." Bourguiba referred to a sura of the Koran to justify this measure:
"We have abided by the spirit of the Holy Book... which indicates monogamy. Our decision in the matter contradicts no religious text and is found to be in agreement with mercy and justice and the equality of the sexes."
This sura states that: "It is permitted to marry two, three or four among the women who please you, but if you fear not being just towards them, then only one, or some slaves that you possess. This to the end of not committing injustice." For Bourguiba, the condition of equality between spouses being impossible to assure, prohibition of polygamy became therefore legitimate. And, provoking conservatives, he added:
"The defenders of polygamy would have to admit in a spirit of equality that the wife be polyandrous in the event of the husband's sterility.
The Code also prescribes that: "Each of the two spouses must treat the partner with kindness, live in good rapport and avoid all prejudice," thus abolishing the wife's obligation of obedience to her husband. At the same time, the text obliged the wife who was in possession of goods to contribute to the family's expenses, so that the husband not have powers of administration over the wife's possessions.
Until 1956, divorce remained the prerogative of the man who could unilaterally repudiate his partner by a simple declaration before two witnesses. The Code, to the contrary, instituted a divorce procedure that "could not take place except before a court" which decided "the dissolution of the marriage." This same court did not rule except in a case brought through the mutual consent of both spouses and in the case of the request of one of the partners as the result of harm of which that spouse was the victim. It is also stated that: "material harm would be recompensed (to the woman) in the form of a monthly alimony payment... to the level of life to which she was accustomed during married life, here including residence". Once more, Bourguiba justified himself by the decree of the Koran:
The Code also instituted the principle of the equality of men and women in relation to citizenship. Moreover, if a child did not possess his own goods, the necessary costs of his upbringing were predicated on those of the father.
Previous political action
Taking the lead in Tunisia's modernization campaign, Habib Bourguiba in each of his speeches found occasion to criticize sexist attitudes, opposing the hijab and appealing to science on the issue of virginity at marriage. Tunisian women hearing his call unveiled and often asked him to settle disputes with their husbands. His ruling always inclined in favour of women and "made him all through the long decade of the sixties their tireless defender."
It is necessary to know that Bourguiba always worshipped his mother, who died prematurely, according to the chief of state, in 1913. In several of his speeches, memory of her returned and the exhaustion born of the double function of the spouse and the mother contributed to his denunciation of the feminine condition in traditional Tunisian society. Although his declaration can be considered sincere—other expositions indeed demonstrate a certain hostility to the period's domestic tradition—it is to be recalled that his mother's memory played no fundamental role in his political positions concerning the feminine condition during the French protectorate.
In this context, on the eve of independence there did not really exist a political movement strictly based on the demand for the rights of women. Existing institutions sustained political parties, and although these rights were the subject of speeches, they were not then among political priorities. The Union of women and the Union of girls belonging to the Communist party agitated especially in the social and labour domains. As for the Muslim union and the cells destourian women created in 1951-1952, they did not begin to call for the right to vote and eligibility for office until 1955. These two rights became official on March 14, 1957 and Tunisian women voted for the first time in municipal elections in May 1959 and later in the presidential and legislative elections of November 1959. But the right to education remained the only one unanimously sought by feminine organizations. From this point of view, the Code was not promulgated under any feminist pressure, that, when it existed, was usually directed to other ideals.
Pursuit of reforms
On August 10, 1956, Prime Minister Bourguiba devoted an entire speech to the Code which was to be promulgated three days later. He described to as a radical reform which would make marriage a "state matter, an act that must be supervised by public law and society in its entirety." Drafted by fifteen jurists, the majority Arabic speakers, under the supervision of the Justice Minister, Ahmad Mestiri, the Code was voted in the wake of independence and even before the drafting of the constitution. Assembled in twelve books, it gave to women a unique status in the Arab-Muslim world. Proclaimed on March 20, 1956, then promulgated on August 13 of the same year (Muharram 6, 1376) by Lamine Bey's beylical decree, the Code came into force on January 1, 1957. This act registered a series of reforms touching other aspects of the impact of religion on society. Thus, on May 31, public charitable foundations (waqfs) were suppressed, as private ones would be on July 1, 1957. On August 3, secular courts replaced religious courts as the high court for the application of Islamic law, while the law of September 27, 1957 closed the rabbinical court of Tunis. Their members were integrated into the body of common law magistrates.