Divorce in Tunisia is governed by the Personal Status Code ( P. S. C) promulgated in 1956. It is defined by article 29 of the Code as the
dissolution of the contract of marriage.
Major new rules were established by the
Code in opposition with former legal system based on religion.
Article 30 of the Code rules that divorce must be pronounced by court. This means that it can only take place through court. thus, the Code abolished former “repudiation” based on Islamic
law. Repudiation was the ability for a man to decide unilaterally the end of
marriage without recourse to court and without reparation to the woman.
The competent court to deal with divorce cases is the “court of first instance” in whose jurisdiction the defendant party is resident. In every tribunal,
a family judge is designated to hear divorce disputes.
The judicial intervention in divorce is a must even when divorce is the
result of a mutual consent. Both spouses have to go before the judge to fulfill
their agreement and put an end to marriage. A notarial act or any other document
is not sufficient to divorce.
Besides, the Code established equality between spouses as to the cases
of divorce. It is ruled in Article 31 of the code that divorce can occur in
three cases:
First, by mutual consent of the spouses.
Second, when requested by one of the spouses because of the harm it has
suffered from the other.
Third, when requested by one of the spouses.
Whereas the first type of divorce does not have any financial consequences in the sens that neither the plaintiff nor the defendant has a right to receive damages, the second and the third type of divorce may engender reparation
to one of the spouses for material or moral prejudice when requested.
The party who requests divorce for harm had
to prove the existence of a harmful act. Adultery and domestic violence are two reasons
accepted by courts to pronounce divorce and reparation.
These major rules established by the Code
since 1956 make that divorce in Tunisia is a very different legal matter when compared to the old system based on religion.
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