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Über dieses Buch

This book contains selected contributions presented during the workshop “Establishing filiation: Towards a social definition of the family in Islamic and Middle Eastern Law?”, which was convened in Beirut, Lebanon in November 2017.
Filiation is a multifaceted concept in Muslim jurisdictions. Beyond its legal aspect, it encompasses the notion of inclusion and belonging, thereby holding significant social implications. Being the child of someone, carrying one’s father’s name, and inheriting from both parents form important pillars of personal identity.
This volume explores filiation (nasab) and alternative forms of a full parent-child relationship in Muslim jurisdictions. Eleven country reports ranging from Morocco to Malaysia examine how maternal and paternal filiation is established – be it by operation of the law, by the parties' exercise of autonomy, such as acknowledgement, or by scientific means, DNA testing in particular – and how lawmakers, courts, and society at large view and treat children who fall outside those legal structures, especially children born out of wedlock or under dubious circumstances. In a second step, alternative care schemes in place for the protection of parentless children are examined and their potential to recreate a legal parent-child relationship is discussed.
In addition to the country-specific analyses included in this book, three further contributions explore the subject matter from perspectives of premodern Sunni legal doctrine, premodern Shiite legal doctrine and the private international law regimes of contemporary Arab countries. Finally, a comparative analysis of the themes explored is presented in the synopsis at the end of this volume.
The book is aimed at scholars in the fields of Muslim family law and comparative family law and is of high practical relevance to legal practitioners working in the area of international child law.
Nadjma Yassari is Leader of the Research Group “Changes in God’s Law: An Inner-Islamic Comparison of Family and Succession Law” at the Max Planck Institute for Comparative and International Private Law while Lena-Maria Möller is a Senior Research Fellow at the Max Planck Institute and a member of the same Research Group. Marie-Claude Najm is a Professor in the Faculty of Law and Political Science at Saint Joseph University of Beirut in Lebanon and Director of the Centre of Legal Studies and Research for the Arab World (CEDROMA).



Chapter 1. Care of Abandoned Children in Sunni Islamic Law: Early Modern Egypt in Theory and Practice

The concept of the best interests of the child comes into tension with premodern Islamic law with respect to the issue of adoption because Islamic law does not allow a child to take the name or inheritance of her or his non-biological parents. Many scholars and policymakers have considered premodern Islamic juristic discourse to violate the child’s best interests as it creates a number of disadvantaged legal categories of children in Islamic law, all while prohibiting adoption. In this chapter, I show the ways in which premodern Muslim jurists and judges (with focus on early modern Egypt) were able to circumvent the prohibition of adoption through discursive moves and practices, which helped create a family life for many parentless and non-biological children. I discuss the institutional care of children to show that most premodern children were indeed given a family life rather than left to the care of orphanages. The premodern jurists’ permissive attitude toward the acknowledgement of children without the presentation of evidence of paternity was one of the ways in which they were able to provide a family life for foundlings and abandoned children more broadly.
Ahmed Fekry Ibrahim

Chapter 2. Filiation/nasab and Family Values in Pre-modern Shiʿi Law

In this chapter, I explore the various rules concerning familial relationships, particularly the rules around filiation/nasab in the classical Imami Shiʿi school of Islamic law. The Imami school shares many legal doctrines with the other Muslim legal schools, but it also has a number of distinctive legal doctrines. Here I outline these distinctive doctrines and discern a common pattern – namely that close kin family relations are particularly prized to the exclusion of more distant family relations, making the family unit (as understood in legal terms) smaller; also, there is a general suspicion of legal stratagems which create fictional filiation relationships. What mattered for Imami jurists was, on the whole, that the law reflect commonly accepted notions of the roles of parents and children. In the conclusion, I offer an interpretation of these particular doctrines, and propose a linkage between them and the fundamental notion of the family of the Prophet Muhammad and its authority, a founding element of Shiʿi doctrine.
Robert Gleave

Chapter 3. Algeria

Filiation (nasab) in Algeria is established through valid, defective or erroneously assumed marriage as well as acknowledgement (iqrār) and proof (bayyina). The new Family Code of 2005 also puts scientific means (ṭuruq cilmiyya) at the judge’s disposal for establishing filiation. Thus, Algerian law provides a variety of methods to establish a child’s filiation. However, children born out of wedlock have no legal connection to their biological father, being affiliated instead to their mother only. Nevertheless, there is evidence that fathers of these children regularly use acknowledgement to establish filiation and hence bypass the law. A legal relationship to a child can also be constituted by kafāla, which has been introduced to care for children without filiation or with an unfit caretaker. Implemented in 1976, the kafāla has far reaching legal consequences. Even though no filiation arises from a kafāla arrangement, the person undertaking kafāla becomes the legal guardian of the child and since 1992 may also transfer his or her name to the child under kafāla.
Melanie Guénon

Chapter 4. Iran

Filiation arises under one of several schemes under Iranian law. Primarily, it results from a child being conceived in a marriage and born within a certain time frame, which is the only approved legal framework for establishing a parent-child relationship. At the same time, however, the law concedes the establishment of filiation as a legal fiction in situations where the marriage of the parents cannot be proven or where the circumstances under which it took place are uncertain. Furthermore, filiation can be established through the acknowledgment of a child’s parentage, which creates a full-fledged parent-child relationship. Where those mechanisms do not apply, parentless children are not left entirely without protection. In fact, Iranian law has conceived different schemes to provide for a minimum of legal security and financial support for children of defective, unknown or illegitimate parentage. In particular, the legislature passed the Act on the Protection of Children without a Guardian in 1975, with the aim of integrating parentless children into new families on a permanent basis. In 2013, this Act was repealed and replaced by the Act on the Protection of Children without a Guardian or with an Unfit Guardian in order to provide for both permanent and temporary placements of children in new homes.
Nadjma Yassari

Chapter 5. Iraq

The Iraqi legal corpus on filiation consists of a set of rules that are a mix of traditional law and modern law. Inspired by Islamic law in general, the Personal Status Code of 1959 expressly recognizes two grounds for establishing filiation, namely valid marriage (firash) and acknowledgment of filiation (iqrar). The Code of Evidence of 1979 is more modern, allowing the court to expand its investigations by resorting to DNA tests and testimony (bayyina). In this respect, the lenient conditions under which case law admits the existence of a valid marriage significantly facilitate the establishment of filiation. The child who does not enjoy legal filiation under the conditions mentioned previously, designated as majhul al-nasab, is nonetheless entitled to a certain degree of protection with regard to civil status and nationality. Furthermore, the Iraqi legislature has created an institution called affiliation (damm), which allows an orphan or a child of unknown filiation to be linked to a family in a definitive manner, even though adoption is formally prohibited. This institution can create a filiation link that is similar to that which results from an adoption, and can therefore be considered a true functional equivalent of adoption.
Harith Al-Dabbagh

Chapter 6. Jordan

According to the 2010 Jordanian Personal Status Law, filiation (nasab) to the mother is established by giving birth. By contrast, nasab to the father can be established in four cases: in the case of the existence of a valid marriage (firāsh zawjiyya), by acknowledgement (iqrār), by means of evidence (bayyina), and through conclusive scientific methods coupled with a valid marriage. The 2010 law for the first time allows the use of DNA tests as one way to establish nasab. The introduction of DNA tests has brought tensions between biological filiation and the concept of nasab, which primarily emphasizes the existence of firāsh zawjiyya, to the forefront. Since nasab remains linked to the existence of a valid marriage, single mothers continue to find it difficult to establish nasab for their children. Jordan has established a number of legal schemes, including iḥtiḍān to integrate children from defective families as well as orphans, children of unknown affiliation (majhūl al-nasab), and foundlings (sing. laqīṭ) into foster families. However, these schemes do not create a full child-parent relationship. They do not establish either the right to inheritance or the right to carry the name of the foster parents. Foster parents can only assume the role of custodian (ḥāḍin) and the role of waṣī. Foster families do not have the right to guardianship (wilāya).
Dörthe Engelcke

Chapter 7. Lebanon

Filiation (nasab) of Muslim and Druze children in Lebanon arises primarily from the blood relationship between a child and his or her validly wedded parents (firāsh). In parallel, legal rules and court practice offer other means to establish filiation, such as acknowledgment (iqrār). Children of illegitimate or unknown descent hold an unfavourable status, but are not left without any protection. The main characteristic of the Lebanese system is, however, the lack of a proper state law or policies regulating alternative care for parentless children. In the absence of family members or caretakers, and given the Islamic prohibition of adoption, none of the alternative care schemes entail the placement of the child into a foster family, save for very rare and limited circumstances such as for newborn children. Furthermore, the lack of a national inclusive law addressing children’s alternative care, and the lack of religious laws regulating kafāla arrangements, have allowed the implementation of informal practices that are decided within the family or the private sphere. These practices, which include placing the child directly within his or her extended family or in residential care institutions, occur out of court and lack governmental oversight. This is all the more regrettable given that the family’s poverty has been clearly identified as one of the main grounds for children’s admission to residential care institutions. Unjustified institutionalisation of children from poor families is an indicator of the failure of the alternative care system, which is merely financed instead of being properly regulated by the state.
Marie-Claude Najm, Myriam Mehanna, Lama Karamé

Chapter 8. Malaysia

Filiation (nasab) under Islamic law generally refers to lineage or descent from a marriage relationship, be it maternal or paternal. Nevertheless, a mere maternal lineage without marriage may not confer nasab to a child. Therefore, paternal lineage is very significant in a child’s life as it safeguards the status conferred upon the child through its father within a family. Adoption, on the other hand, can be understood as taking the child of another into a person’s custody and care as one’s own child. Adoption thus changes the status of the child from the child of one person to the child of another person and confers nasab to the child through the child’s adoptive father, or parent. In Islam, this kind of adoption is known as ‘tabanni’ and is prohibited. On the other hand, Islamic law recognizes and encourages foster parenting so as to provide help and assistance to children in need of protection, without affecting the status of the child. In this spirit, adoption law in Malaysia was enacted with the aim of catering to a multiracial society and taking into account both religious and cultural limitations. Thus, in Malaysia the law on adoption is regulated in two Acts: (i) the Registration of Adoptions Act 1952, governing both Muslims and non-Muslims and (ii) the Adoption Act 1952, governing only non-Muslims. This paper explores the practice and law of filiation and adoption as governing Muslims in Malaysia. It examines the legal provisions and seeks to assess whether the law provides for a balanced approach in line with Islamic law while at the same time providing means and alternatives for child protection especially for parentless children.
Azizah Mohd

Chapter 9. Morocco

This chapter considers laws and social realities determining the status of the Moroccan child born inside or outside of marriage. It considers first, the legal grounds for filiation and second, the legal framework for guardianship of parentless (abandoned or orphaned) children. In both the legal and social approaches to these two issues, there are several constants over time, especially the strong – but not absolute – influence of Maliki jurisprudence. Proposed reforms in the deeply conservative fields of family and guardianship laws indicate that judges are not only considering the 2011 Moroccan Constitution, the 2004 Family Code (Moudawana) and the 2002 kafala (guardianship) law, but also the United Nations Convention on the Rights of the Child and its concept of the best interests of the child. I argue that in regards to kafala guardianships, which are handled under contract law rather than family law in Morocco, the state occupies an ambivalent position, mandating replacement care at the level expected of biological parents while denying the child the rights and responsibilities of biological children. Recent cases in the Moroccan courts question longstanding conservative approaches to gender as well as family, raising the possibility of female-headed families (not only households) by issuing family booklets to women, and increasing calls to recognize biological paternity as entailing responsibilities otherwise only expected of fathers with paternal filiation through marriage.
Katherine E. Hoffman

Chapter 10. Pakistan

In Pakistan, the Qanun-e-Shahadat Order 1984 deals with the issue of establishing filiation (nasab). It lays down a minimum and maximum period of gestation. However, there is no specific legislation regarding acknowledgement (iqrar), proof (bayyina), or the use of scientific methods such as DNA testing for determining the filiation of a child. The law also does not make a clear distinction between a valid and an irregular marriage. In this chapter it is argued that the courts in Pakistan have played an important role in establishing the filiation of a child and have adopted a more progressive approach to save the mother and the child from the stigma of illegitimacy. In the absence of specific legislation, the courts in Pakistan have recognized that an irregular marriage featuring sexual intercourse has the semblance of marriage such as to constitute legal proof establishing filiation. In 2010, consequent to the 18th Constitutional Amendment, legislative and administrative competence as well as financial authority on child rights issues has been devolved to the provincial legislative assemblies. As a result, in the province of Punjab laws such as the Child Protection and Welfare Act 2010 (CPWA 2010); the Punjab Destitute and Neglected Children Act 2004 (PDNCA 2004); and the Employment of Children Act 1991 (ECA 1991) have been enacted to provide protection to orphaned children, abandoned children or foundlings (laqit), and street children. Besides these pieces of legislation, issues relating to the custody and guardianship (vilayat) of children are covered by the Guardians and Wards Act 1890 (GWA 1890), federal-level legislation enacted and implemented throughout Pakistan. Although adoption in its strict Western sense is not allowed in Pakistan, the GWA 1890 makes provision for an individual to obtain legal guardianship of a child.
Ayesha Shahid, Isfandyar Ali Khan

Chapter 11. Saudi Arabia

Saudi Arabia’s religious foundations shape the legal discourse on filiation (nasab) and the care of children in need. Saudi judges have to be trained in Islamic jurisprudence (fiqh) and, due to the absence of a codified law, they refer directly to the primary sources of Islamic law and fiqh books in their judgements. On some legal questions, as I show in this chapter, Saudi jurists depart from mainstream Islamic law in order to protect nasab or grant nasab to children who otherwise would be without a legal father. Leading Saudi scholars have extended the Islamic ruling on orphans to foundlings and children without filiation and thereby allowed foster care for various children in need. Foster care, however, does not lead to a full child-parent relationship. In order to be eligible for foster care, a member of the potential foster family is advised to breastfeed the child to create milk kinship. However, milk kinship does not entitle foster children to inheritance and maintenance rights even though they legally become members of the foster family. The generous help of the Saudi government compensates for the foster children’s lack of financial rights.
Dominik Krell

Chapter 12. Tunisia

This study seeks to analyze the Tunisian legal rules that govern filiation and the child’s relationship with his or her family, as well as the status and protection of parentless children. In line with Islamic doctrine, the Tunisian Personal Status Code of 1956 only recognized the general notion of nasab or legitimate filiation, and made no room for natural filiation. The recognition of out-of-wedlock filiation depended on the courts’ interpretation of the provisions of the Personal Status Code. It was only with the adoption of the law of October 28, 1998, that natural filiation was clearly introduced into Tunisian law. This law allowed for the establishment of natural filiation by various means, including DNA testing. Thus, Tunisian family law recognizes two distinct types of biological filiation today: legitimate filiation or filiation resulting from marriage, which is subject to the provisions of the Personal Status Code, and natural filiation or filiation outside marriage, which is governed by the law of October 28, 1998. Tunisian law also guarantees a substitute family to the child through two main institutions – kafala and adoption – which were introduced by the law of March 4, 1958. Kafala is an institution drawn from Islamic law. It does not break the child’s relationship with his or her family of origin and does not create a relationship of filiation between the child and the kafil, which is in line with the meaning of this concept in Islam. However, the admission of adoption makes Tunisia unique in the Arab Muslim world. The adopted child is fully equated with the legitimate child. In addition to kafala and adoption, Tunisian law ensures the child temporary protection through family placement, which was instituted by the law of November 21, 1967. Family placement occurs most often as a temporary solution pending the implementation of kafala or adoption.
Souhayma Ben Achour

Chapter 13. United Arab Emirates

The Emirati Code of Personal Status of 2005 recognizes four grounds for establishing filiation (nasab): a valid marriage (usually circumscribed as ‘firāsh’), acknowledgment (iqrār), proof (bayyina), and scientific methods (ṭuruq ʿilmiyya). At the same time, these options are all limited by additional requirements that need to be fulfilled for a full parent-child relationship to emerge. Should both paternal and maternal filiation not be established, the child will be treated as ‘majhūl al-nasab’, i.e. of unknown filiation, with such a child sometimes also being referred to as a foundling (laqīṭ). Foundlings or abandoned children are a growing societal problem in the United Arab Emirates. They are protected by the state insofar as they are automatically awarded citizenship, thereby having access to the far-reaching governmental benefits available only to nationals. Nonetheless, these benefits have not solved the issue entirely, as foundlings and children of unknown filiation are still in need of a permanent caretaker. It is for this reason that the Emirati legislature passed the federal Foster Care Act of 2012, which comprehensively regulates questions regarding the protection of children without filiation. This specialized legislation has unified (i) the procedure for awarding and revoking foster care, (ii) the requirements for potential caretakers, and (iii) the rights and duties of caretakers; further, it allows for both married couples and single females over the age of thirty to foster children. Yet an analysis of the existing legal framework reveals that caretakers will primarily assume the role of custodian (ḥāḍin) rather than being granted full parental authority, including unlimited rights of guardianship (wilāya).
Lena-Maria Möller

Chapter 14. The Recognition and Enforcement of Foreign Filiation Judgments in Arab Countries

The purpose of this chapter is to provide a general overview of the recognition and enforcement of foreign judgments in matters relating to filiation. ‘Filiation’ is understood here in a broad sense. It covers in-wedlock, out-of-wedlock and adoptive filiations. The chapter reviews a number of cases relating to the recognition and enforcement of foreign filiation judgments reported in certain Arab countries, namely, Morocco, Tunisia and Lebanon. It discusses the likelihood of the reception of foreign filiation judgments in other Arab countries based on the general treatment of the matter in legal literature. The issue is also analysed in its general context of cross-border family dispute resolution in order to gain insight on the fate of foreign filiation judgments in Arab countries. The analysis reveals the existence of two opposing approaches to this issue. The first approach can be characterized as conservative as it remains faithful to the traditional domestic rules and religious values. It tends to be followed when foreign judgments are rendered in countries where the legal system is assumed to be fundamentally different from the national legal system. To this effect, it relies significantly on the public policy mechanism of PIL. The second approach relies more on a case-by-case approach that aims to accommodate family law regulation to modern needs.
Béligh Elbalti

Chapter 15. Synopsis

Without Abstract
Nadjma Yassari, Lena-Maria Möller 
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