FAMILY LAW IN KUWAIT
The Kuwait Legal System is based on Civil Law Jurisdiction. This is because the Kuwaiti Laws are derived from the Egyptian Laws, which are in turn derived from the French Law. Since it follows the civil law system, there is lack of consistency in the decisions on a particular issue and the courts are not required to follow the precedents(earlier judgments on the similar issue). This is especially applicable in family law matters wherein the judge decides the matter taking into the specific issue involved.
Marriage, divorce, custody of child and inheritance in Kuwait are governed by the Islamic family law i.e, depending on whether the father or the husband is a Sunni or Shia, the two major sects of Islam. The Sunni, which constitute approximately 70 percent of the Muslim population in Kuwait, follows the Maliki interpretation of Islamic law, whereas the Shia sect which constitutes only 30 percent of the Muslim population uses their religious references in Islamic law. The main codified law dealing with family laws is the Code of Personal Status (Law no. 51/1984).
An Islamic marriage is based on contract. It is a civil contract between the groom and the senior ranking male member (wakeel ) of the bride's family. The marriage is solemnized in the presence of an authorized religious judge and two witnesses. Law No. 51 of 1984 lays down the principle that the consent of the guardian is required as a prior and strict condition for the marriage to be valid, in the case of woman upto the age of 25 years (Article 29). Both Sunni and Shia can have upto 4 wives at a time provided he can support them well and implement justice to all of them. The religion of the husband will determine the application of Islamic Law in any issues arising in future. If the husband is a non-Kuwaiti, the Islamic law interpretation will be as per the one applied in his country at the time of marriage in case of any legal problem arise. A muslim male can marry a non muslim female( Christian or Jew) but a muslim female cannot marry a non muslim male unless he converts to Islam.
Both Sunni and Shia law allows the husband to divorce his wife three times. The husband may take back his wife within 90 days of divorce, nullifying the divorce. If the wife disagrees to it, she has to go to court and receive a formal divorce. It is easier to get divorce, either initiated by husband or wife, under Sunni law compared to Shia law. A divorce initiated by the wife is final. A Sunni woman can take many grounds for divorce, viz, mental or physical impairment of the husband, abuse, lack of performance of marital obligations, non-payment of financial maintenance, desertion etc and although a Shia woman can raise the same grounds, the court procedures takes longer time in order to promote the chances of non-dissolution of the marital relationship.
In the matter concerning custody issues of young child/children generally resulting from divorce, both Sunni and Shia laws issues custody in favour of the mother.
Sunni law allows boy child who has reached puberty to choose which parent he wants to live with. Girl child stays with her mother until she gets married. Sunni law does not allow the divorced Kuwaiti or non-kuwaiti parents from traveling with their children out of the country without the consent of the other parent.
Under Shia law, mother can have the custody of the boy child until the age of 7 after which he stays with his father. In case of a girl child, she stays with her mother until attaining puberty when she can choose which parent she wants to live with. It is upto the judge to review the case and decide which parent ought to receive the custody of the boy or girl child once the matter becomes related to the security of the child.
The most important point to take note of in inheritance is that a non-muslim cannot inherit from a muslim and vice versa. Therefore a non-muslim wife has to get converted to Islam before or atleast soon after her marriage and get the conversion recorded with the Ministry of Awqaf and Islamic Affairs. The Ministry will issue a certificate to her which would act as a legal proof in case of any inheritance dispute.
There are some major differences under Sunni and Shia inheritance law.
Under Sunni law, a wife can inherit upto one-eighth of the estate either in property or cash. Under Shia law, a wife can inherit from the husband assets like cash money, shares, bonds and the value of the land without the buildings, if any. Under both Sunni and Shia laws, one-seventh of the estate must be apportioned to the children, other wives, if any, parents and siblings.