Jordan

Engelcke, Dörthe

doi:10.1007/978-94-6265-311-5_6

Dörthe Engelcke⁴

327 Accesses

Abstract

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 is a Senior Research Fellow within 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, Hamburg.

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Notes

1.
Temporary Personal Status Law no. 36 of 2010, 17 October 2010, Al-Jarīda al-Rasmiyya [Official Gazette] no. 5061, pp 5809–5888 (hereinafter: 2010 law or the Jordanian Personal Status Law of 2010). In April 2019 a number of amendments to the 2010 law were adopted. At the time of writing these amendments had not been published in the Official Gazette.
2.
Temporary Personal Status Law no. 82 of 2001 amending the Personal Status Law no. 61 of 1976, 31 December 2001, Al-Jarīda al-Rasmiyya no. 4524, pp 5998–6001, and Temporary Personal Status Law no. 61 of 1976, 12 January 1976, Al-Jarīda al-Rasmiyya no. 2668, pp 2756–2758 (hereinafter: 1976 law or the Jordanian Personal Status Law of 1976). For a detailed analysis of the reform process see Dörthe Engelcke, Reforming Family Law: Social and Political Change in Jordan and Morocco (Cambridge: Cambridge University Press, 2019).
3.
Articles 147–149 of the 1976 law regulate nasab. By comparison, 14 Articles (Articles 156–169) of the 2010 law regulate nasab.
4.
Article 183 Jordanian Personal Status Law of 1976.
5.
Article 325 Jordanian Personal Status Law of 2010. The four main Sunni legal schools are meant.
6.
The Jordanian shariʿa courts have not yet adjudicated such a case. Interview with Ashraf Omari, chancellor of the dāʾirat qāḍī al-quḍāt, the Supreme Justice Department (SJD), 27 July 2017, Amman. To increase subject protection most interviewees are identified only in terms of their position.
7.
Childhood Protection Order no. 34 of 1972, 1 June 1972, Al-Jarīda al-Rasmiyya no. 2360, p 1004ff. (hereinafter: 1972 law). The 1972 law does not mention ‘iḥtiḍān’, but refers to the term riʿāya (care).
8.
The iḥtiḍān instructions were issued by the Minister of Social Development. They are available on the Ministry’s website: www.mosd.gov.jo/index.php?option=com_content&view=article&id=2088:2015-11-09-12-50-28&catid=15:15 (accessed 20 August 2017).
9.
Nimri 2016.
10.
Nimri 2016. This figure was cited in the media. However, during an interview, the director of the family section at the Ministry of Social Development said the total number was 1557. Interview with the director of the family section at the Ministry of Social Development, 25 July 2017, Amman.
11.
Article 4 iḥtiḍān instructions.
12.
Nimri 2016.
13.
For a brief overview of the Jordanian legal system, see Engelcke 2016, pp 180–186.
14.
Article 6 of the niẓām rusūm al-maḥākim al-sharʿiyya no. 61 of 2015, 7 June 2015, Al-Jarīda al-Rasmiyya no. 5349, pp 6782–6795 (hereinafter: 2015 law).
15.
Article 5 of the 2015 law.
16.
See Article 105 Jordanian Constitution. See also Article 18 of the ‘qānūn tashkīl al-maḥākim al-sharʿīyya’, law no. 19 of 1972, 1 January 1972, Al-Jarīda al-Rasmiyya no. 2357 (hereinafter: 1972 law).
17.
For an analysis of the case and the overall role of women in the Jordanian judiciary, see Engelcke 2018.
18.
The conditions and procedures of appeal are outlined in Articles 135–152 of the 1959 law (qānūn uṣūl al-muḥākamāt al-sharʿiyya) [Shariʿa Courts Procedure Law], law no. 31 of 1959.
19.
See Article 3 ‘qānūn muʿaddal li-qānūn tashkīl al-maḥākim al-sharʿiyya’, law no. 20 of 2015, 23 April 2015, Al-Jarīda al-Rasmiyya no. 5316, pp 5316–5323 (hereinafter: amendment to the Shariʿa Court Formation Law of 2015). The law stipulates that it enters into force 90 days after the publication date in the Official Gazette.
20.
See Article 21(3)(e) of the amendment to the Shariʿa Court Formation Law of 2015.
21.
Interview with an employee at the family section of the Ministry of Social Development, 25 July 2017, Amman.
22.
Interview with the chancellor of the dāʾirat qāḍī al-quḍāt, the Supreme Justice Department (SJD), 27 July 2017, Amman.
23.
I obtained a sample form from the SJD.
24.
An employee at the Ministry of Social Development said that she only knew of two cases in which the biological mother reclaimed her child. Interview with anonymous, 25 July 2017.
25.
Interview with the chancellor of the dāʾirat qāḍī al-quḍāt, the Supreme Justice Department (SJD), 23 September 2017, Amman.
26.
Interview with the chancellor of the dāʾirat qāḍī al-quḍāt, the Supreme Justice Department (SJD), 27 July 2017.
27.
Articles 147–149 Jordanian Personal Status Law of 1976.
28.
The CRC was published in the Official Gazette in 2006. See qānūn al-taṣdīq ʿalā ittifāqiyyat ḥuqūq al-ṭifl no. 50 of 2006, 16 October 2006, Al-Jarīda al-Rasmiyya no. 4787, pp 3991–4024.
29.
Article 3 CRC.
30.
Article 157(1) Jordanian Personal Status Law of 2010.
31.
Article 157 Jordanian Personal Status Law of 2010.
32.
Interview with the chancellor of the dāʾirat qāḍī al-quḍāt, the Supreme Justice Department (SJD), 27 September 2017, Amman.
33.
Interview with lawyer and executive director of the Mizan Law Group for Human Rights, 27 July 2017, Amman.
34.
In April 2019, an amendment of Article 157 was adopted. It stipulates that nasab can be proven by scientific means not only in the context of a valid marriage, but also in cases of shubha al-waṭʾ (erroneous sexual intercourse). The JNCW proposed to add scientific means as one of the four means of evidence without specifying in what context it can be applied – thereby opening up the possibility of conducting DNA tests in cases of zināʾ. The JNCW specified that even in the case of zināʾ a man should not be able to escape his responsibilities and that nasab is the right of the child, see JNCW (no date). A shariʿa judge at the SJD explained that when the SJD prepared the current amendment to Article 157, the question of whether the opinion of Ibn al-Qayyim should be adopted, according to whom nasab can be established even in cases of zināʾ, was discussed. However, this opinion was subsequently dismissed because of fear that it would weaken the importance of marriage. Interview with the chancellor of the dāʾirat qāḍī al-quḍāt, the Supreme Justice Department (SJD), 23 September 2017. The latter argument also features in other contexts. See Eich 2012, p 47.
35.
Article 157(3) Jordanian Personal Status Law of 2010.
36.
Article 156 Jordanian Personal Status Law of 2010.
37.
Article 157(4) Jordanian Personal Status Law of 2010.
38.
Article 157(3), Jordanian Personal Status Law of 2010.
39.
Interview with the chancellor of the dāʾirat qāḍī al-quḍāt, the Supreme Justice Department (SJD), 27 September 2017.
40.
See decision of the Shariʿa Supreme Court, no. 11/2018-60, 12 February 2018 (on file with author).
41.
All names mentioned in court rulings have been changed throughout the text.
42.
Decision of the shariʿa court of appeal in Amman, no. 309 of 2015, appeal number 96749-309/2015 (on file with author). It is interesting to note that the ruling does not contain any references to articles of the Jordanian Personal Status Law.
43.
Article 163(2) Jordanian Personal Status Law of 2010.
44.
Article 282 Jordanian Penal Code Law no. 16 of 1960, 1 May 1960, Al-Jarīda al-Rasmiyya no. 1487, pp 374 ff.
45.
Article 163 Jordanian Personal Status Law of 2010.
46.
Interview with the chancellor of the dāʾirat qāḍī al-quḍāt, the Supreme Justice Department (SJD), 23 September 2017.
47.
Article 165 Jordanian Personal Status Law of 2010.
48.
The court of first instance forwarded the case to the court of appeal in accordance with Article 138 of the 1959 Shariʿa Courts Procedure Law. The court of appeal then annulled the judgment on procedural grounds; judgments issued by the court of first instance can only be appealed; a retrial is not permissible. The Shariʿa Supreme Court then confirmed the decision of the court of appeal. See decision no. 19/2017-25, 14 June 2017 (on file with author).
49.
Frances Hasso describes reasons why couples conclude customary marriages. See Hasso 2011, p 83.
50.
Hasso 2011, p 82.
51.
Article 36(2) and (3) Jordanian Personal Status Law of 2010.
52.
Ibrahim 2016, p 128.
53.
Crime Prevention Law no. 7 of 1954, 1 March 1954, Al-Jarīda al-Rasmiyya no. 1173.
54.
Article 3 Crime Prevention Law, as cited in Human Rights Watch 2009, p 7.
55.
Human Rights Watch 2009, pp 10–12.
56.
Husseini 2018.
57.
The shelter is regulated by Order no. 171 of 2016 about the role of shelters for women in danger issued in accordance with Article 4 of the law about the Ministry of Social Development and Work no. 14/1956 [niẓām dawr īwāʾ al-muʿarraḍāt li-l-khaṭar ṣādir bi-muqtaḍā al-mādda 4 min qānūn wizārat al-shuʾūn al-ijtimāʿiyya wa-l-ʿamal raqm 14 li-sanat 1956], 20 November 2016, Al-Jarīda al-Rasmiyya no. 5432, pp 6709–6715.
58.
Interview with anonymous, 25 July 2017.
59.
Tamkeen Fields for Aid 2015, p 109.
60.
Interview with the director of Tamkeen Fields for Aid, 26 July 2017, Amman.
61.
For the conditions under which a marriage contract is considered void (bāṭil) see Article 30 Jordanian Personal Status Law of 2010.
62.
Article 33 Jordanian Personal Status Law of 2010.
63.
For the conditions under which a marriage contract is considered defective (fāsid) see Article 31 Jordanian Personal Status Law of 2010.
64.
Article 6 Jordanian Personal Status Law of 2010.
65.
Article 8(1) Jordanian Personal Status Law of 2010.
66.
Article 40 Jordanian Personal Status Law of 2010.
67.
Decision of the shariʿa court of first instance of Sweileh, no. 230 of 2010, case number 160/137/68 (on file with author).
68.
Article 6 Jordanian Personal Status Law of 2010.
69.
Article 36(7) Jordanian Personal Status Law of 2010.
70.
Decision of the shariʿa court of appeal in Amman, no. 2431 of 2011, appeal number 80960-2431/2011 (on file with author).
71.
Article 34 Jordanian Personal Status Law of 2010.
72.
Article 158 Jordanian Personal Status Law of 2010.
73.
Article 159 Jordanian Personal Status Law of 2010.
74.
Interview with the chancellor of the dāʾirat qāḍī al-quḍāt, the Supreme Justice Department (SJD), 23 September 2017.
75.
Interview with the chancellor of the dāʾirat qāḍī al-quḍāt, the Supreme Justice Department (SJD), 23 September 2017.
76.
Article 160 Jordanian Personal Status Law of 2010.
77.
Article 161 Jordanian Personal Status Law of 2010.
78.
Article 161 Jordanian Personal Status Law of 2010.
79.
The court stated that the ruling of the court of appeal had been issued before the issuing of the 2016 law that allowed the appeal of decisions issued by the court of appeal in front of the Shariʿa Supreme Court. See decision of the Shariʿa Supreme Court, no. 1/2017-7, 3 January 2017 (on file with author).
80.
Decision of the shariʿa court of appeal in Amman, no. 1861 of 2013, appeal number 88731-1861/2013 (on file with author).
81.
The Shariʿa Supreme Court annulled the decision of the court of appeal. According to the court, the case was mysterious (ghāmiḍa) because no inheritance inventory had been registered with a shariʿa court, but the court did not directly question the nasab of the children. See decision of the Shariʿa Supreme Court, no. 5/2017-11, 22 February 2017 (on file with author).
82.
Decision of the shariʿa court of appeal in Amman, no. 679 of 2017, appeal number 107409-679/2017 (on file with author).
83.
Article 38 Jordanian Civil Code, law no. 43 of 1976.
84.
Article 20 Civil Status Law no. 9 of 2001.
85.
Article 14(1) Civil Status Law no. 9 of 2001.
86.
Article 20(2) Civil Status Law no. 9 of 2001.
87.
Article 22 Civil Status Law no. 9 of 2001.
88.
Article 21 Civil Status Law no. 9 of 2001.
89.
Article 308 Jordanian Penal Code.
90.
Interview with the chancellor of the dāʾirat qāḍī al-quḍāt, the Supreme Justice Department (SJD), 23 September 2017.
91.
Fatwa Department, decision no. 255/8/2018, 19 April 2018 (on file with author).
92.
Interview with lawyer and executive director of the Mizan Law Group for Human Rights, 27 July 2017.
93.
It seems that women in the Ottoman Empire abandoned their children for similar reasons. Maksudyan in her study on orphans and destitute children states that births out of wedlock, poverty, migration, and hardship during wartime were the most common reasons for abandonment. See Maksudyan 2014, p 18.
94.
UN Committee on the Rights of the Child (CRC) Fourth and Fifth Periodic Report of States Parties, Jordan (1 March 2013), CRC/C/JOR/4-5, p 9.
95.
Ibrahim 2016, p 129.
96.
Ibrahim 2016, p 127.
97.
Interview with the director of the Al Aman Fund For the Future of Orphans, 25 July 2017, Amman.
98.
Jordan Times 2016.
99.
Ibrahim 2016, p 128.
100.
Maksudyan remarks that the terms ‘foundling’ and ‘bastard’ were used interchangeably in the Ottoman Empire. See Maksudyan 2014, p 22.
101.
Nimri 2016.
102.
Article 3 of the 1972 law.
103.
Article 162 Personal Status Law of 2010.
104.
UN Committee on the Rights of the Child (CRC) Initial Report of State Parties, Jordan (26 November 1993), CRC/C/8/Add. 4, p 23.
105.
The director of the Al Aman Fund for the Future of Orphans also complained that it was difficult to obtain any detailed information from the Ministry of Social Development. Interview with the director of the Al Aman Fund for the Future of Orphans, 25 July 2017.
106.
Nimri 2014.
107.
Nimri 2016.
108.
Nimri 2014.
109.
Interview with anonymous, 25 July 2017.
110.
Interview with the director of the family section at the Ministry of Social Development, 25 July 2017, Amman.
111.
Article 2 iḥtiḍān instructions.
112.
Article 6(1) iḥtiḍān instructions.
113.
Interview with anonymous, 25 July 2017.
114.
Article 6(2) iḥtiḍān instructions.
115.
Article 7 iḥtiḍān instructions.
116.
Article 8 iḥtiḍān instructions.
117.
Article 2 iḥtiḍān instructions.
118.
Article 10 iḥtiḍān instructions.
119.
Article 4(1) iḥtiḍān instructions.
120.
Article 4(5) iḥtiḍān instructions.
121.
Article 6 iḥtiḍān instructions.
122.
Article 4(11) iḥtiḍān instructions.
123.
Article 4(7) iḥtiḍān instructions. The minimum wage in Jordan is set at 190 JD (around 267 US dollars).
124.
Article 4(3) iḥtiḍān instructions.
125.
Article 4(4) iḥtiḍān instructions.
126.
Article 4(8) iḥtiḍān instructions.
127.
Article 5 iḥtiḍān instructions.
128.
Article 10 iḥtiḍān instructions.
129.
Article 5 of the 1972 law.
130.
Article 4(2) iḥtiḍān instructions.
131.
The 1972 law stipulates that the foster family can obtain a monthly fee between 2 and 5 JD from the Ministry (Article 7). It is unclear how such a small amount of money should help to sustain the upbringing of a child. It follows that foster families were expected to pay for the maintenance of the child. The 2013 provisions do not stipulate that the family is entitled to any payments.
132.
Article 9 iḥtiḍān instructions.
133.
Article 9 iḥtiḍān instructions.
134.
Interview with shariʿa judge and chancellor of the dāʾirat qāḍī al-quḍāt, the Supreme Justice Department (SJD), 27 July 2017.
135.
The director of the family section at the Ministry of Social Development was offended by the question. Interview with the director of the family section at the Ministry of Social Development, 25 July 2017.
136.
Interview with an employee at the Ministry of Social Development, 25 July 2017.
137.
UN Committee on the Rights of the Child (CRC) Fourth and Fifth Periodic Report of States Parties, Jordan (1 March 2013), CRC/C/JOR/4-5, p 8.
138.
Interview with the director of the Al Aman Fund for the Future of Orphans, 25 July 2017.
139.
Article 19(2) Civil Status Law no. 9 of 2001.
140.
Interview with the chancellor of the dāʾirat qāḍī al-quḍāt, the Supreme Justice Department (SJD), 23 September 2017.

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Max Planck Institute for Comparative and International Private Law, Mittelweg 187, 20148, Hamburg, Germany
Dörthe Engelcke

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Max Planck Research Group, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany
Nadjma Yassari
Max Planck Research Group, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany
Lena-Maria Möller
Faculty of Law and Political Science, Saint Joseph University of Beirut, Ashrafieh, Lebanon
Marie-Claude Najm

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Engelcke, D. (2019). Jordan. In: Yassari, N., Möller, LM., Najm, MC. (eds) Filiation and the Protection of Parentless Children. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-311-5_6

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DOI: https://doi.org/10.1007/978-94-6265-311-5_6
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