Judicial Practice at the Court of First Instance Tunis: The Case of Divorce for Harm on the Grounds of Domestic Violence

Abstract

AbstractTunisian personal status law is internationally known for its “progressive” character. Nevertheless, it is argued in Tunisian doctrine that judicial practice is characterised by “conservatism,” and that judges applyshariaand “custom” instead of or at least together with legislation. This article examines the practices at the Court of First Instance Tunis in divorce cases where the wife accuses her husband of domestic violence. It is demonstrated that strict evidence requirements applied by judges prevent most women from obtaining divorce for harm (darar), a type of divorce that has large financial advantages for the wife. However, the material does not indicate that judges simply applyshariaor “custom”: judges argue that strict evidence requirements are necessary in the light of their experience with numerous false accusations. Moreover, judges do take accusations of domestic violence into consideration in other types of divorce.