Yemen: Woman's ability (in practice) to obtain a divorce because her husband has married a second wife without her consent or because of spousal abuse; whether she would retain custody of younger children; whether shelters for battered women exist; whether battered women have access to legal advice; woman's ability to take her children out of the country without her husband's consent; if she does so, penalty

The following information on spousal abuse and the situation of battered women in Yemen was provided by a German scholar affiliated with the Free University of Berlin, Department of Middle Eastern and Islamic Studies, who just published a book in Germany about the Yemeni legal system, the Personal Status Law, and its application by Yemeni courts.

As far as I know there are currently no shelters for women victims of violence in Yemen. However, Rashida al-Hamdani, President of National Committee for Women, announced in November 2000 a plan to open such a shelter, where women would also receive training on income generating activities.

The situation of women victims of violence in Yemen depends on the relationship between the victim and the perpetrator; it also depends on the financial means available to the victim. Those without financial means face a difficult situation. In cases of spousal abuse, proper legal advice is costly but available. Spousal abuse is not dealt with separately in the Criminal Code 12/1994 but comes under assault. The victim can sue for damages and the perpetrator can be sentenced to a prison term ranging from one to five years depending on the gravity of the assault. Cases brought against a husband are not easy to win, but not impossible to win either. The outcome of cases is largely contingent on financial resources, the legal advice the plaintiff can obtain and the discretion of individual judges. Violence against women by family members, even though not infrequent, is rarely processed through the legal system. If women have been subject to violence by fathers or brothers, they usually don't initiate legal proceedings and are discouraged to do so by cultural tradition. They might appeal to respected community leaders who might settle the case but might also fail to protect the woman from reprisal and further attacks.

The case is different if violence against women includes sexual abuse of women by family members – there have been cases reported in the Yemeni media where abusing fathers have been severely punished for raping a minor daughter.

Yemeni Personal Status Law 20/1992 and its subsequent amendments (Laws 27/ 1998 and 24/1999) do not require a first wife's consent to a second (third, fourth) union of her husband. Law 27/ 1998 does not require that the first wife be notified of her husband's wish to marry a second time. If the husband does not treat his wives equally in financial terms, each wife can sue for divorce; but only the wife whom the husband can not or is not willing to support, will be granted a divorce (Article 53, Law 27/ 1998). The burden of proof in these cases is on the wife. In practice, I have not come around any judgment granting a woman a divorce on these grounds. On the other hand, if a woman can prove that she has not been maintained by her husband or has not been given accommodation separate from her co-wife, and if the husband is not able or willing to fulfill these rights, wives can be granted a divorce, and are in fact in practice. Thus, if a wife in a polygamous union would file for divorce, her divorce might be granted under Article 51 (inability to support) or Article 52 (denial of maintenance). I have seen many judgments granting a wife in a polygamous union a divorce based on these articles. If however the husband fulfills all his marital obligations with respect to maintenance and accommodation and does not mistreat his wife in any other fashion (see below for spousal abuse) it is virtually impossible for a wife in a polygamous union to get a divorce. The only way would be a divorce suit under article 54 (see below) which would be very difficult to win, if taking of a second wife is the only reason for the marital breakdown.

Spousal abuse is not an explicit ground for divorce under Yemeni Law. It is however an implicit ground in Articles 54 and 41 (5). Article 41 (5) prohibits the husband to "damage his wife physically or psychologically"; definition of damage is however left to the discretion of individual judges. Article 54 grants a woman a divorce if she finds the husband or the marriage reprehensible, i.e. feels "hatred" (karahiya) for him. Having been subject to physical violence, especially if this is documented by a medical and/or police report identifying the perpetrator, is understood by most Yemeni judges to create "hatred" against the husband and thus a divorce can be granted. If the wife successfully engages in criminal proceedings against a violent husband for assault, she would almost certainly be granted a divorce under Article 54, and Article 41 (5) would be quoted in addition.

Very few women initiate criminal proceedings against violent husbands. Without successful criminal proceedings, spousal abuse needs to be considerable or repeated to be accepted as a ground of divorce. In general, courts tend to grant a divorce on grounds of spousal abuse more easily to middle- and upper class women than to lower class women, at least in the cities. To conclude, to carry through a divorce suit based on spousal abuse, a woman would need all the patience and support she can muster, and the likelihood of success is not very high. If granted a divorce, a mother is entitled by law to retain custody if the children are still in the age bracket of custody and the mother is not remarrying. However practice is different and many divorced mothers are deprived of custody for a variety of reasons – be it that the divorced husband abducts the children (which is very common), be it that she is unable to support the children (maintenance payments due from a child's father are low and usually not enforced), be it that her family pressures her to give up the children since the family cannot provide for additional members. Remarriage of the mother will always lead to loss of custody if the father files a respective suit; the mother can only regain custody if she divorces her second husband.

I have no information on this question. However, since most women cannot get a passport or leave the country without written permission of the husband or another male relative, I doubt that women would be able to travel with their children without permission. I don't know whether having the children in the mother's passport would make a difference in this question.

If a woman who has legal custody traveled with common children without permission, her husband could file for removal of the children from the mother's custody basing his claim on Articles 140 of the Personal Status Law. I have never witnessed the success of such a claim, but I would not rule it out that a father could be successful especially if the mother took the children to a western country. The more common consequences would however be the abduction of the child by the father without recourse to the law or the courts.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

Reference

German scholar, Free University of Berlin, Department of Middle Eastern and Islamic Studies. 20 February 2001. Correspondence.

Additional Sources Consulted

IRB databases

Three sources did not respond to requests for information

Internet sites including:

Country Reports for 2000

Women's Issues - 3rd World

Women watch

CEDAW Country Reports

Internet Law Library

Women in the Middle East

FIDH

Yemen Times

American Institute for Yemeni Studies

The Yemeni State