A detailed report on the risks facing Libyan women married to foreign nationals was issued by the Euro-Mediterranean Human Rights Monitor.
1. Is it legal for Libyan women to marry foreign nationals?
It may be surprising that women’s right to choose their partners is discussed in the Libyan laws and customs. However, this is the reality according to the Libyan laws dictated by considerations that Libyan official institutions consider necessary for the protection of women in Libya. This is explained below.
1.1 Legal framework of Libyan women marriage to foreign nationals
The marriage of Libyan women to foreigners was regulated by Law No. 15 of 1984 on the rules of marriage between Libyans and non-Libyans, where the law distinguished between two types of foreigners:
Non-Arab foreigners: According to Article 2 of this law, any Libyan who wishes to marry a person who does not have the Libyan nationality or the nationality of any Arab country (known as a non-Arab foreigner) must obtain a security approval from the External Security Service.
Before proceeding with any other action, the applicant must submit an application stating the reasons and circumstances for his/her application. It is also stipulated that the applicant must not be married or divorced.
Arab foreigners: As provided for in Article 3 of the law, any Libyan wishing to marry a person who does not have a Libyan nationality but has the nationality of an Arab State shall obtain permission from the Ministry of Social Affairs after submitting a request, usually accompanied by a residence certificate, a proof of religion, and the consent of the embassy of the person wishing to be married to the Libyan national.
In both cases, all documents are referred to a committee formed within the Ministry of Social Affairs, which is authorized to give or deny approvals.
According to Article 4 of the law, consent will not be granted unless social research is conducted and there is a strong justification for the application of marriage to non-Libyans.
As noted in the text of the law, marriage to foreigners does not exclude Libyans from the need to obtain the approval of the Ministry of Social Affairs Committee. However, the difference lies in the implications of the distinction between children born to male or female Libyans.
Children born to a male Libyan enjoy full nationality and citizenship rights as if they were born to a Libyan mother. They enjoy civil, political, economic and social rights equal to those born to Libyan parents. However, children born to a Libyan mother married to a foreigner do not enjoy these rights.
Commenting on the text of the article on marriage of a Libyan to a foreign national, Ayad al-Shuhaidi, Director of the Ministry of Social Affairs in Misrata, said: “The ministry faces several problems with Libyan citizens wishing to marry foreigners.
Islamic law, which is the basis of most of Libya’s legislation, requires that a husband should have manners and faith in order for him to marry a woman, regardless of their nationality.”
Practically speaking, it is possible for the committee to take arbitrary and unjustified actions, given the powers invested in it to grant marriage approvals with strict controls.
The reason for this possible arbitrariness stems from the lack of a regulatory body; not to mention that the decisions of the committee cannot be appealed to a higher administrative body.
Only before administrative courts that such decisions can be challenged. However, such process is not only costly, but it also takes much time and effort, and with little chance for success.
According to Article 5 of Law No. 15 of 1984, marriage contracts that are carried out without the approval of the Ministry of Social Affairs, including those outside Libya, may not be documented, substantiated or recorded until after authorization has been issued by the Ministry.
It is also neither permissible to make the marriage contracts public which violates the provisions of the said law, nor do these contracts have any legal effects before the state’s employees or other public bodies of the state.
Article (8) of the same law stipulates that: “It is not permissible to invoke marriage contracts before the public bodies that are in violation of the provisions of this law, and these contracts do not entail any legal effects…”
Thus, any marriage contract between a Libyan and a foreigner will not be documented as long as the authorization has not been granted by the Committee of the Ministry of Social Affairs.
This means that such a contract, as long as it is unregistered with a civil registry, will not be recognized by government agencies in Libya, either with regard to the effects of the marriage contract or even in case of annulment and divorce.
This means, inter alia, that the children born within such marriage will not be recognized and will be treated as foreigners and will not be granted a Libyan nationality or a Libyan travel document. Hence, if a Libyan mother decides, for instance, to travel to Tunisia with her children, she can go, but her children will not be able to do so without a visa.
Our team tried to obtain statistics on the number of Libyan women married to foreigners from the Ministry of Social Affairs in Libya, however the request was denied by the Ministry, stating that “this is an internal affair and … cannot be revealed so that it does not become a threat to the Libyan state.
1.2 Is it protection of women or arbitrary restriction of their right to choose their husbands?
The director of the Ministry of Social Affairs in Misrata, Ayad al-Shuhaidi, justified the restrictions imposed on women’s freedom to choose their marital partners by the need to protect Libyan women and preserve the Libyan social fabric.
Al-Shuhaidi said that some of the men who came to marry Libyan women were illiterate and entered Libya illegally, and other are wanted in their own countries.
Al-Shuhaidi pointed out that the restrictions stipulated in Law No. 15 of 1984 are intended to learn about the person who wishes to marry the Libyan national because there are cases where a marriage was concluded within a week of the partner’s entry into Libya.
There are many Libyan women who married foreigners without the approval of the Ministry of Social Affairs, and despite their parents’ consent, it turned out that their husbands were criminals prosecuted in their own country, impersonated non-existing people and used fake documents, al-Shuhaidi added.
The director of the Misrata branch for the Ministry of Social Affairs cited an incident in which an Egyptian man who proposed to a girl from Misrata using papers and documents that appeared official. When the Ministry addressed his country’s embassy in Libya, it turned out that the name he used belonged to a deceased person.
However, Wissam Sulaiman al-Saghir, a Libyan lawyer who works on matters of marriage and divorce, considered that the procedures provided for in the law are unacceptable, since there is no clear legal basis for restricting women’s freedom to marry foreigners, especially since many Libyan women married foreigners without the approval of the Ministry of Social Affairs, and their marriages, according to al-Saghir, have been successful.
A lawyer met by the Euro-Med said that he was a lawyer of a girl who was physically assaulted during the events in Libya on February 17, 2011, during the overthrow Gaddafi.
This physical assault limited her chances of a reunion, given that social traditions look down to women subjected to physical assault. A Syrian young man proposed for her
but did not receive the approval of the Libyan Ministry of Social Affairs. The marriage was performed without the permission of the authorities in Libya, and enduring the legal restrictions imposed on them while living in Libya.
Given the community’s ill-treatment of the two, they had to leave Libya to the Netherlands, where they are now leading a successful life with two children of their own.
“The idea of protecting Libyan women by restricting marriages to foreigners is inaccurate,” al-Saghir said, adding that “many Libyans had married Libyans, were assaulted and beaten, or had been abandoned by their husbands while fleeing the country, and the State did nothing to prevent that.”
It is noteworthy that the ratio of males to females in Libya is about 1 to 3, according to the latest statistics issued by the Libyan Interior Ministry. Given this ratio, , lawyers and civil society activists interviewed by Euro-Med’s team say that the Libyan authorities and the Supreme Judicial Council should instead ease restrictions on marriage while protecting the rights of women.
They also cited these restrictions as some of the reasons driving Libyan women to stay single, where about 35% of Libyan women are unmarried.
11However, the Fatwa House in Libya, emphasized the need to put harsh restrictions on the marriage of Libyans to foreigners, according to a statement made by the Grand Mufti of Libya Sadiq Ghariani.
The Fatwa House also made recommendations to the official authorities in the State to prevent marriage to Shiites and to preserve the rights of the Libyans as well as the “Sunni Islamic identity”.
Some clerics close to the Fatwa House said they had received complaints from women who had married Arab and non-Arab foreigners and stayed with them for a short time before their husbands fled and returned to their countries or migrated to other countries, leaving behind their wives and children suffering the scourge of injustice and homelessness.
continues in part 3
The Euro-Mediterranean Human Rights Monitor is a youth-led independent, nonprofit organization that advocates for the human rights of all persons across Europe and the MENA region, particularly those who live under occupation, in the throes of war or political unrest and/ or have been displaced due to persecution or armed conflict.