Short note of former Somali Legal System

Somali Republic formed 1^st July 1960, upon union of British Somaliland (independent from 26^th June) and Italian Somaliland (independent from Italian-administered UN trusteeship 1^st July). Importation of British-Indian legislation in north in late 19^th and early 20^th century. British promulgated Natives Betrothal and Marriage Ordinance 1928 and Qadis� Courts Ordinance 1937 specific to Somaliland. Subordinate Courts Ordinance 1944 repealed 1937 Ordinance, limiting jurisdiction of Qadis� Courts to matters of personal status. Under Italian rule in south, well developed system of Qadis� Courts; retained jurisdiction over civil and minor criminal matters.

Upon independence, Republic faced with task of unifying legislation and judicial structures drawn from Italian, British, customary and Islamic legal traditions. After 1969 military coup, new regime embarked on programme of legal reform based on scientific socialism. Early to mid-1970s, debate regarding family law reform led to appointment of a commission to prepare draft code. Draft enacted in 1975. Aimed to abolish customary laws and abrogated previous British and Italian era legislation on family law. Article 1 of Family Code 1975 provides that leading doctrines of Shafi�i school, and general principles of Islamic law and social justice are to serve as residuary sources of law.

Notable Features

Marriage Age: minimum marriage age is 18 years for both parties; female party may marry at 16 with guardian�s consent; Court may grant exemption from minimum age requirements in case of necessity Marriage Guardianship: girl who has reached 16 years, but is under 18 years may be represented in contract of marriage by father (in absence of father, guardians in order are: mother, grandfather, elder brother, uncle, Court-appointed guardian or judge); Court also empowered to overrule objection of guardian to marriage of female ward between 16 and 18 years Marriage Registration: marriage to be registered at neared District Court or authorised office within 15 days (40 days for residents of rural areas); failure to register punishable by fine; essential elements of marriage outlined in Article 6 are: proposal and acceptance by contracting parties before two witnesses; marriage contracted under compulsion is invalid Polygamy: man may not contract second marriage without written permission of District Court; Court�s authorisation requires ascertainment of one of following conditions: sterility of wife of which husband was not aware at time of marriage, attested by panel of doctors; incurable chronic or contagious illness of wife, certified by a doctor; wife�s sentencing to more than two years in prison; wife�s unjustified absence from matrimonial home for more than one year; or existence of social necessity (not defined) Obedience/Maintenance: legislation states that marriage is based on equal rights and duties; husband is declared head of the family, parties are obliged to cohabit, and wife is obliged to follow her husband; both parties obliged to share expenses of matrimonial home in proportion to their incomes if they are able to do so; if either party fails in duty to maintain and is not destitute, other party may obtain Court order for maintenance (sums and time period for arrears of maintenance not specified; Court empowered to award interim maintenance and authorise claimant to contract debts against defaulting partner if s/he finds it impossible to obtain maintenance from defaulter Talaq: Family Code provides that right of talaq belongs to husband "subject to the authorisation by the competent court"; court may authorise divorce only after reconciliation efforts (of 60 days) have failed, and court may not authorise more than one talaq at a time; divorce by a minor, insane person, or pronounced under compulsion is invalid Judicial Divorce: either party may seek judicial dissolution on following grounds: incurable disease of other spouse making cohabitation dangerous or impossible; disappearance of other party for period of over four years; habitual failure to maintain by other party; serious disagreement between spouses making conjugal life impossible (after reconciliation efforts of 60 days); perpetual impotence or sterility of other party; and other spouse�s sentencing to over four years imprisonment Wife is entitled to seek dissolution if husband has been granted permission to marry polygamously by District Court, on condition that there are no children Post-Divorce Maintenance/Financial Arrangements: where reason for talaq or faskh is deemed to be husband�s fault, Court shall order him to maintain former wife for three months to one year; if wife is deemed to be at fault, Court shall order her to pay husband sum not less than her dower in compensation Child Custody and Guardianship: mother entitled to custody of male children until age of 10 and female children until age of 15, with court empowered to extend custody until age 18 for male or female ward if s/he is not able to look after him/herself; if mother remarries and husband is within prohibited degrees to ward(s), or in case she is widowed and remarries, she may retain custody; maintenance of children is duty of both parents until age of majority for sons and marriage or financial independence/gainful employment for daughter Succession: testate succession limited to one-third of estate, unless consent of heirs is obtained; bequest in favour of an heir also invalid unless consent of other heirs is obtained; Article 158 states that "In conformity with the principles of the 1st and 2nd Charter of the Revolution females and males shall have equal rights of inheritance"; heirs are identified as: spouses, children, grandchildren, parents, grandparents, full siblings, paternal and maternal aunts and uncles; widow or widower entitled to half of estate if there are no children or grandchildren, or one fourth if there are; sons and daughters to receive equal shares, and same applies to grandchildren; shares of other heirs also specified in Code, as are grounds for inclusion or exclusion of heirs and reduction of shares