Abstract
This chapter provides an overview of provisions found in Qatar’s 2006 Family Law Code that pertain to child custody and its related issues. The analysis situates the Code provisions within the institutional context of Qatar’s judiciary and examines the limited number of recent Court of Cassation decisions on various provisions.
The author is Professor of Law and Canada Research Chair in Religion, Pluralism and the Rule of Law at the University of Toronto Faculty of Law.
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Notes
- 1.
In fact, Article 7 of Qatar’s Constitution provides ‘The foreign policy of the State is based on the principle of strengthening international peace and security by means of encouraging peaceful resolution of international disputes; and shall support the right of peoples to self-determination; and shall not interfere in the domestic affairs of states; and shall cooperate with peace-loving nations.’ For the Constitution, see http://portal.www.gov.qa/wps/wcm/connect/5a5512804665e3afa54fb5fd2b4ab27a/Constitution+of+Qatar+EN.pdf?MOD=AJPERES (accessed 1 August 2014).
- 2.
- 3.
Welchman 2010, pp. 163–78.
- 4.
- 5.
- 6.
Surk 2011, C3.
- 7.
Surprisingly, these reforms have gone unnoticed by various watch-dog agencies such as Human Rights Watch. Its 2012 country survey of Qatar made no mention of these reforms and instead held that all family law matters are decided in religious courts pursuant to Islamic legal interpretations, Human Rights Watch 2012, p. 615. This is, in fact, incorrect. Likewise, a UNICEF report states that despite the new reforms, a woman’s testimony is in some cases worth half of a man’s, as per pre-modern Islamic law, UNICEF 2011. This statement, though, is misleading. As a Freedom House report on Qatar shows, that is the case in only limited circumstances. Article 36 stipulates that two men must witness a marital contract and testify about its validity. Women are not permitted to do this as the provision specifically refers to two male witnesses (shāhidayn rajulayn). Furthermore, Article 93 requires either two men or one man and two women as witnesses (Freedom House 2009, p. 69). But that requirement pertains to determinations of kinship (nasab). It is followed by Article 94, which states that evidence about the birth itself can be established by a single witness, whether male or female. The report further states that no such gendered prejudice exists in the criminal or civil codes (Freedom House 2009, p. 69). These examples illustrate the need for careful research to guard against the intrusion of easy prejudice and stereotype when characterizing the laws of countries in the Middle East and North Africa.
- 8.
Article 11 Law No. 10 of 2003 Promulgating the Law on Judicial Authority (iṣdār qānūn al-sulṭa al-qaḍāʾiyya), www.almeezan.qa/LawArticles.aspx?LawTreeSectionID=13437&lawId=4052&language=ar (accessed 12 November 2014).
- 9.
Wathīqat musqat, http://sites.gcc-sg.org/DLibrary/index.php (accessed 25 July 2014). This document can be found on the GCC website, whose history extends back to 1996.
- 10.
The Supreme Council for Family Affairs was created in 1998 as a high-level and independent organization, one that would support the role of families in Qatari society and ‘formulate and follow up on the implementation of strategies, policies and plans.’ See Qatar, Consideration of Reports Submitted by States Parties Under Article 18 of the Convention on the Elimination of All Forms of Discrimination Against Women—Initial Report of States Parties, UNCEDAWOR, 2012, UN CEDAW Doc C/QAT/1.
- 11.
Qatar, Consideration of Reports Submitted by States Parties Under Article 18 of the Convention on the Elimination of All Forms of Discrimination Against Women—Initial Report of States Parties, UNCEDAWOR, 2012, UN CEDAW Doc C/QAT/1 at para 413–414.
- 12.
Welchman 2012, p. 373.
- 13.
Welchman 2012, p. 378.
- 14.
For an English translation of the Qatari Family Law Act, Law No. 22 of 2006 (hereinafter QFLA), see the online version: Al Meezan—Qatary Legal Portal (trans.), Law No. 22 of 2006 Promulgating ‘The Family Law’ 22/2006. www.rwi.uzh.ch/oe/cimels/law/countries/qatar/Law_22_2006_2558.pdf. Accessed 31 July 2014. All translations of the QFLA in this chapter are by the author working from the original Arabic version.
- 15.
Qatar Politics: Family courts set up 2006.
- 16.
Article 2 QFLA.
- 17.
Article 3 QFLA. Qatar is the first of the Middle Eastern countries to have based its personal status laws on the Hanbali school.
- 18.
Article 3 QFLA. The legislation does not specify the order in which the other Sunni schools of jurisprudence ought to be followed. If the four Sunni schools of jurisprudence are silent or inconclusive on the issue under consideration, the judge may employ the various interpretive principles (al-qawāʿid al-fiqhiyya) of the Islamic legal tradition.
- 19.
Article 4 QFLA.
- 20.
Article 4 QFLA. See also Qatar, Consideration of Reports Submitted by States Parties Under Article 18 of the Convention on the Elimination of All Forms of Discrimination Against Women—Initial Report of States Parties, UNCEDAWOR, 2012, UN CEDAW Doc C/QAT/1, para 416.
- 21.
Welchman 2012, p. 375. Welchman says that further research on this issue is required.
- 22.
Article 165 QFLA.
- 23.
Court of Cassation (Qatar), case no. 8, 2007, para 1.
- 24.
Court of Cassation (Qatar), case no. 8, 2007.
- 25.
Article 167 QFLA. See also Court of Cassation (Qatar), case no. 104 of 2013, for its reference to Article 167 and these various factors.
- 26.
Article 168 QFLA.
- 27.
Article 168 QFLA.
- 28.
Article 168 QFLA.
- 29.
Article 175 QFLA.
- 30.
Welchman 2010.
- 31.
Article 166 QFLA.
- 32.
Court of Cassation (Qatar), case no. 104 of 2013.
- 33.
Court of Cassation (Qatar), case no. 30 of 2006.
- 34.
Welchman 2010, translating Article 170 of Qatar’s Law No. 22 of 2006. See also Article 170 QFLA.
- 35.
Court of Cassation (Qatar), case no. 104 of 2013.
- 36.
There are a wide range of possible custodians for children, with the mother taking priority. The statutory language applies to any woman, but for ease of analysis, the discussion herein will focus on mothers.
- 37.
Article 180 QFLA.
- 38.
Article 183 QFLA.
- 39.
Aside from the passports, though, the woman exercising custody holds all other papers and documents that are specific to the child, such as the birth certificate and so on, Article 176 QFLA.
- 40.
Article 185 QFLA. Of particular concern with respect to the various legislative presumptions and guidelines is the discretion placed in the judge at the Court of First Instance—the court charged with making findings of fact in relation to the law. As various Court of Cassation decisions have indicated, there is great deference on appeal to factual determinations made at lower judicial levels. See, for example, Court of Cassation (Qatar), case no. 104 of 2013. If lower court decisions, which blend findings of fact with applications of law, reflect options articulated in the statute itself, appellate courts will not easily overturn those decisions.
- 41.
Article 185 QFLA.
- 42.
Article 185 QFLA.
- 43.
Article 185 QFLA.
- 44.
Article 185 QFLA.
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Emon, A.M. (2017). Qatar. In: Yassari, N., Möller, LM., Gallala-Arndt, I. (eds) Parental Care and the Best Interests of the Child in Muslim Countries. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-174-6_8
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