Paper short abstract:

Syrian and Moroccan Muslim family court judges are able to award judicial divorce on the grounds of marital discord. I consider the influence of each legal systems institutional structures on actors' enactment of agency during the legal process and the resulting impact on court rulings.

Paper long abstract:

The codification of Muslim family law, with provisions drawn from the classical Islamic legal corpus (fiqh), has been identified as having constituted a fundamental shift in the sourcing and application of legal norms, and imposing restrictions on the discretion exercised by the judiciary. In codifying Muslim family law, post-colonial states privileged a selection of norms to the exclusion of the general body of opinions contained in the fiqh, and increasingly introduced procedural regulation of matters such as marriage and divorce.

Both Syria's Personal Status Law No. 59 (1953) and Morocco's recently reformed Mudawwanat al-Usra (2004) contain legal articles enabling the family court judiciary to award a judicial divorce to a claimant on the grounds that their marriage is in discord, meaning that it has undergone irretrievable breakdown. Although the wording of these provisions is similar, fieldwork undertaken for this paper illustrates significant disparities in the processing of judicial divorce claims, with repercussions for litigants' dispute strategies and post-divorce financial settlements imposed by the court.

Evaluating empirical data gathered during observation of Damascus and Marrakesh judicial divorce process, this paper illustrates discretionary behaviour by the family court judiciary when interpreting the meaning of the legal rules, enforcing procedural regulation of claims and incorporating social attitudes towards litigants' claims. Although judicial divorce is always granted to persistent claimants, variations in the application of legal provisions in Damascus and Marrakesh demonstrates that there is a creative tension between the 'situated practice of judging' and post-colonial codified family law.

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