On September 19, 2017, the Lebanese parliament passed Law 58, which amends 16 articles of the Druze personal status law (originally issued on February 24, 1948). Notable amendments included changes to Article 24, concerning calculating the mahr [bridal dower], and Article 47, concerning divorce, which now includes the possibility of consulting a social worker or psychologist in cases of conflicts between spouses. In addition, a provision added to Article 43 permits the awarding of damages in cases in which a spouse is convicted of adultery.[1] The amended law also enables women to inherit an entire estate if the deceased has no male children. The most significant amendment, however, which has been the source of controversy among civil society groups and Druze judges, extends the age of child custody from 7 to 12 years for boys and from 9 to 14 years for girls.

Statement of Reasons for Amendments: Respecting the Constitution and Equality Between Women and Men

The statement of reasons given for amending the law carries a significance well beyond the implications and meanings of the law’s actual contents. First, it is based on a multidisciplinary analysis of constitutional principles, particularly the principle of equality. It is also distinct from the statement of reasons typically given to justify sectarian laws and amendments, which is usually based on religious and moral arguments and analysis. A number of scientific and social concepts seem to underlie the statement of reasons. This includes an evolutionary outlook on society that calls for the development of laws in accordance with how society evolves and in line with understandings of how family relationships develop. According to this theory, law is a product of society, and therefore “old” laws must be amended to suit “modern” developments. The statement of reasons also recognizes the principle of the evolution of “the human experience,” in that it moves beyond the narrow society that the law regulates (the sect) to consider changes that have transpired in human development more broadly. In this sense, the statement of reasons is distinguished by its distance from narrow religious interpretations of legal principles, and its focus instead on scientific principles and concepts (with some exceptions, as explained below).

For example, in order to justify raising the age of child custody, the statement of reasons references the stages of childhood development, the features of physiological and psychological development, and their implications for the child. Additionally, it recognizes developments in judicial practice corresponding with what some Druze judges consider to be an “internal movement” within their courts. These changes have led to judicial rulings that depart from old statutes and move instead in the direction of newer concepts. The most prominent of these concepts is that of the best interests of the child, as outlined in the international Convention on the Rights of the Child. This reference to judicial practice is an important recognition of the role that judges, especially religious and sectarian judges, play in the process of adapting legal texts as society evolves––and consequently paving the way for legal reform.

Another significant aspect of the law’s statement of reasons lies in its explicit commitment to bringing the proposed law into conformity with the Constitution, particularly in terms of equality between men and women. It states the following: “the personal status law for the Druze sect shall be distinguished by equality between women and men to a significant degree in numerous matters, including equality between them in inheritance, as stated in the proposed amendment to Article 169 (…) This proposal is in accordance with provisions of the Constitution that establish equality between women and men.”

In the context of a sectarian law, making reference to the Constitution is significant on two levels. The first pertains to the contents of the law and the means by which it is implemented and developed. Although the amended version of the current law remains far from ideal in terms of gender equality, the inclusion of the principle of gender equality in the law’s statement of reasons provides a form of legal cover; its inclusion requires courts to heed the spirit of the principle as they interpret the law’s statutes. It also positions gender equality as a goal that future demands for amendments to this and other sectarian laws might invoke.

The second level of significance concerns sects’ commitment to state sovereignty. Referencing a constitutional provision in a sectarian law indicates a clear and explicit recognition of a sect’s subordination to the Constitution’s provisions and sovereignty. This consequently enshrines the notion that the personal status laws of various sects ought to conform to state principles and acknowledge the state’s responsibilities to its citizens. This contradicts the official discourse of state institutions, which calls for non-intervention in family affairs that fall under the jurisdiction of the sects. This outlook stems from Article 9 of the Constitution, which requires the state to respect all religions and guarantee the freedom to conduct religious rites, so long as they do not constitute a disruption of public order. This constitutional article makes clear, however, that the state retains the right to interfere, should sects (or their courts) infringe upon public order. Perhaps the best example of its application is the judicial interpretations of juvenile court judges and the general assembly of the Court of Cassation in cases related to child protection.[2]

In principle, through Law 60 of 1936, the Lebanese state recognizes the historical sects and grants them the right to regulate their affairs so long as state authorities remain responsible for oversight. In reality, however, the practice has been to strengthen and reinforce Lebanon’s sectarian system. Sects have become practically immune as the state has done less to monitor sects than to serve them.[3] Lebanese personal status laws reflect this: whereas many Arab countries have witnessed significant efforts to develop and reform family law, Lebanon has largely been the exception. This is due to the strategic adoption of a position of non-interference with sectarian affairs, and of guaranteeing the sects’ independence.[4]

Finally, the reference to the Constitution in the context of a sectarian personal status law carries its own symbolic significance. Typically, constitutional principles (especially equality) are wielded by those demanding that Law 60 be enforced through the establishment of a civil personal status law that would apply equally to all citizens and regulate the affairs of those who do not wish to be subject to the religious personal status systems. This is a necessary step for guaranteeing the basic rights that the Lebanese state is committed to protecting––first and foremost, the freedom of belief and the freedom to marry.[5]

In summary, the statement of reasons for the law’s amendments establishes a discourse based on the conformity of sectarian principles and laws with public order, with the Constitution, with social developments, and with changes in the human experience. It is hoped that this discourse will lead to a set of common principles for all sects to follow concerning their relationship with the state. It is likewise hoped that it will strengthen the principles of a system of public order that transcends sectarian law.

Changing the Age of Child Custody: Favoring an Age-Based Standard at the Expense of the Child

Without a doubt, the most significant achievements of the amendments to the Druze personal status law are raising the age of child custody by the mother from 7 to 12 for boys and 9 to 14 for girls, and the legal establishment of visitation rights. The latter measure includes basic key regulations regarding where visitation may occur.[6] There is also no doubt that raising this age stems from the principle of safeguarding the interests of the child, as it emerges (like the amendment of other laws) as the result of a women’s movement demanding that both male and female children remain with their mothers for a longer period of time. While affirming the importance of this law on numerous fronts, especially in terms of addressing injustices experienced by women who have lost custody of children who were too young, we offer a number of basic observations on the subject:

1. Adopting an age-based standard in the law

This amendment to the law was intended to emphasize an age-based standard, but without any kind of critical approach towards whether this standard is a sound or accurate measure. Yet the adoption of this standard––not only in the context of determining custody, but as a standard for other rights, like the right to work and vote, for example––has become subject to widespread criticism.

The link between age and rights stems from childhood development theory, according to which a child’s maturity increases with age.[7] The statement of reasons outlined in the law refers to this theory. Yet it has faced numerous scientific critiques, the most important of which is that the trajectory of mental, moral, and psychological growth varies from one individual to another.[8] Furthermore, age is not a precise criterion for accurately gauging this growth. Adopting a strict age standard in order to determine the custody period presumes that a given age group is homogeneous in terms of physical and emotional needs and characteristics. These factors, however, are not actually fixed. Furthermore, the practice of adopting this standard has faced criticism in light of other factors that are more influential upon the relationship of a child to their mother.

Moreover, age-based standards lead to automatic rulings. This introduces the risk that custody decisions will be handed down through automatic application of the age standard, without ascertaining whether the standard aligns with the best interests of the child. In Lebanon in particular, the standard is even more tenuous, given that the age standard varies from sect to sect. All sects justify their standard for the age of custody with a view to the needs and interests of the child; but different sects have different understandings of these needs. While one indicates that a son’s need for his mother ends at the age of two years, another specifies that sons should remain with their mothers until the age of 14.[9] According to the Druze personal status law, the period of time a child remains with their mother differs between boys and girls, with a son’s period of custody ending earlier than a daughter’s. There is no clear or convincing justification for this difference, particularly given that the law purports to be based upon developments in social and scientific concepts.[10]

2. The absence of the standard of best interests for the child

Given the rigid nature of the age standard, most states have moved away from it. Instead, they favor prioritizing the best interests of the child as the primary standard when it comes to administrative or judicial measures and decisions or the establishment of laws involving children. This standard is evident in various international agreements, most notably the Convention on the Rights of the Child (Article 3). And yet in Lebanon, the Catholic sect alone has officially recognized this standard.[11] All of the other sects have introduced the standard in their laws only as an exception to the age standard––with the exception of the Ja’fari and Druze.

The standard of the best interests of the child is completely absent from both original and amended versions of the Druze personal status law. At the same time, however, a judge from the Druze High Court of Appeal has discussed rulings in which judges have applied this principle––despite its absence from the text of the law––to extend the period of custody after observing that automatically applying an age-based criterion would result in harm towards the child. Yet this practice remains rare, especially given that the law’s text does not actually mention the standard of the best interests of the child. The continued absence of this principle from the text of the law highlights the interpretive leeway judges have in applying the new law to incorporate the best interests of the child.

3. The absence of the voice of the child

The amended law also omits entirely the child’s right to choose or express an opinion regarding their own custody arrangements. Article 12 of the Convention on the Rights of the Child states that children must be given an opportunity to be heard in any judicial or administrative proceedings that pertain to them––whether directly or through a representative or other appropriate entity. Although children are granted this right (to a certain extent) in Ja’fari courts, it remains absent from all personal status laws in Lebanon. Although Druze courts have, in the past, consulted children in custody cases, this remains up to the judge’s discretion––and to their level of awareness and knowledge of children’s rights.

This issue also brings up questions about the possibility of appointing social workers or psychologists to convey the voice of the child through an understanding of their apprehensions and needs (according to Article 47 of the law, social workers and psychologists may be appointed in a similar manner to resolve disputes between spouses). This is important for the child on a psychological level: recent studies show that giving children the opportunity to express their viewpoint (in accordance with clearly defined protective measures) is important and necessary for enabling them to deal properly with the separation of their family, and enabling them to speak about their worries and fears.[12]

Lastly, although the law has taken great strides when it comes to equality and matters of custody, it still deprives a mother of custody of her child if she decides to remarry. In other words, the law imposes celibacy on a mother in exchange for custody of her children––celibacy which may extend for 14 years, in some cases. The fear is that this article will force mothers to accept the social and legal obligation of celibacy in order to care for their children, while exempting fathers from their responsibility to raise children. This apprehension resonates with women’s fears that “women’s custody rights” will be used to reproduce a male discourse that places the duty to raise and care for children on the shoulders of women alone.

How the law will impact the courts, and how the courts will deal with the amendments––which not all judges from the sect have greeted with equal enthusiasm––remains to be seen. But we hope that the law provides an incentive for other sects to implement the notions of equality and the interests of the child, and for the state to assume its responsibility to protect and safeguard the principles of the constitution.

This article is an edited translation from Arabic.

[1] This point raises the question of whether this provision will lead to duplicate awards, with one ordered by criminal courts and another by religious courts.

[2] In accordance with Article 25 of Law 422, “Protecting Juvenile Offenders and Juveniles at Risk,” issued in 2002, juvenile court judges are required to issue protection orders for juveniles at risk of physical or mental harm. Since 2006, juvenile court judges have used this article to issue protection orders for juveniles in cases wherein they judged that implementing a ruling issued by a sectarian authority would result in harm to the child (especially in custody cases). This interpretation has been affirmed by rulings 22/2007 and 17/2009, issued respectively on April 23, 2007 and July 7, 2009, by the general assembly of the Court of Cassation. The court deemed such measures taken by juvenile court judges as temporary protective measures that did not violate the authority of religious courts. Rather, these protective measures delayed the implementation of “religious” decisions until the reason for danger no longer existed. See: Fawzy Khamis and Fady al-Aridi, Protecting Juveniles at Risk in Law and Legal Interpretation in Lebanon, 2011.

[3] Gannagé, P. (2001). Le Pluralisme des statuts personnels dans les Etats multicommunautaires. Bruxelles: Bruylant. p.44.

[4] Ibid.

[5] Youmna Makhlouf, “The Right to Marry and Form a Family in Lebanon: Another Weapon in the Ongoing Battle,” The Legal Agenda, No. 37, 2016.

[6] The amended version of Article 64 stipulates that it is not permissible to exercise visitation rights in police or gendarmes stations, or in places where moral values are not respected.

[7] Kelly, P (2012). “The brain in the jar: a critique of discourses of adolescent brain development,” Journal of Youth Studies 15 (7): 944-959.

[8] Cowden, M (2012). “Capacity, claims and children’s rights.” Contemporary Political Theory 11 (4): 362-380 (p.364).

[9] Archard, D (2004). Children: Rights and Childhood. 2nd ed. New York: Routledge, p.85.

[10] Lama Karame, “Children: The Missing Element in Custody Cases,” The Legal Agenda, No. 45, 2016.

[11] The personal status law and code of procedure for courts of the Catholic sect (February 22, 1949) mandates a breastfeeding period until a child reaches two years of age, after which the custody of the child is determined based on the best interests of the child.

[12] Atwood, B (2003). “The Child’s Voice in Custody Litigation: An Empirical Survey and Suggestions for Reform.” Arizona Law Review 45: 660-661.