THE LAW OF THE DRUZE
Searching for texts which could define the social laws of the Druze, I came across a fragment of Hamza’s letter found by Sylvestre de Sacy in the midst of Hamza’s letters to his emissaries, or rather missionaries. De Sacy looked through numerous documents on regulations in terms of the Druze conduct, however, he thought them to be unreliable, i.e. not originating from legitimate leaders.
“… what applies to religious dictates is that when a Unitarian man takes a Unitarian sister for his wife, he divides his possessions in half with her. If circumstances force them to divorce, then you must judge who bears the greater loss and how to compensate that party for it. If the woman wants to be liberated from the relationship with the man and he is leading a decent life, and the woman still insists on separation, he will acquire half of her assets. However, if religious people claim that this man is violent, the woman keeps all her possessions. If it is the man who asks for a divorce because he does not agree with the woman’s way of life, he keeps half of what she possesses, even clothes that she bought for her own money. If the man wants to divorce without giving any reason, the woman has the full right to half of his property, the home and furniture, clothes, money, gold, livestock.”
Other authors of works devoted to the Druze treat the subject of the community’s civil code very superficially. They present the general nature of Druze legislation in a descriptive way, referring largely to comparisons with Muslim law. Finally, during one of my visits to Suwayda, I met the director of the Cultural Centre in Suweyda, Mr Fandi Abu Fahr, who arranged my meeting with Sheikh Akl ad-Duruz Hussein Djarbu. During the meeting, I mentioned the topic of Druze legislation and the absence of any coherent text encompassing the entirety of the Druze rights, those which would be made available to someone who is not bound by the secrets of the Druze faith (not initiated into their religion). The Sheikh was surprised and said that the collection of the Druze rights was published in official state journals, not only in Syria but wherever the Druze brothers reside. In his generosity, he did not hesitate to give me a collection of the Druze rights, which he had published himself in four languages and which contained a foreword written personally by him.
I decided to translate this collection into Polish and include it in my MA thesis as an interesting genuine source and I have no doubt that not only I will use it in the future. The English version has been translated on the basis of the Polish text.
Translating a text from Arabic can be problematic not only at the level of vocabulary, but also syntax. The elaborate sentences with frequent repetition could bore the average reader so I decided to abandon the literal translation in parts and paraphrase some sections instead. Nonetheless, due to the legal nature of this text, I did this very infrequently.
CIVIL LAW OF THE UNITED DRUZE COMMUNITY
The civil code of the United Druze minority is one of the best legal systems when it comes to linking it with the different stages of life of every Druze.
This system applies to all family issues, by defining the rights of its members who remain in family relationships throughout life. It sets restrictions for women. It prohibits polygamy and contact between ex-spouses. It gives freedom to establish a will. In our law, the main heir has the right to inheritance, and other heirs after him – one-third of the value of the inheritance or more depending on the specific indications of the law. It also arranges a person’s matters from conception to infancy. It specifies the rights of a child, and then a youth until his or her marriage and the motherhood period. The law deals with the division of property and the issues of successors and beneficiaries after the death of a Druze
It would be desirable for anyone who is in need to use the Book of Rights, especially our brothers in exile. This is why we published it in four languages: Arabic, English, Spanish and French, which will definitely help it to be understood and will contribute to its wider dissemination.
This code will be useful for anyone who would like to deepen their knowledge of the spiritual-legal system of this religious group. I address my pride and respect to our sons in exile for their perseverance in the struggle against adversity. I especially want to mention the Druze living in America and Nigeria, who were the first to encourage me to publish this book. Feeling responsibility for the Druze union in exile, for our benefit, I would like our national consciousness and the good contacts of the Druze in exile with their families in our homeland to be our joy and an example for our Arab brothers and sons who emigrated. The feelings for our noble country and the duty to connect with the problems of our homeland, should be expressed in words and in deeds. I sent my prayers and wishes for permanent peace to God who listens and responds to requests.
Sheikh Akl ad-Duruz Hussein Djarbu
The Supreme Spiritual Council of the United Druze
The Supreme Spiritual Council of the United Druze community consists of three people holding Sheikh al-Akl positions. The election for the post of Sheikh al-Akl is held according to tradition and special religious rites. The Supreme Spiritual Council informs the Bureau of the Council of Ministers about the election. The jurisdiction of the Spiritual Council includes the Druze in Syria and all the members of the minority abroad. The provisions made by the Druze minority are determined and independent. The three Sheikhs al-Akl are their representatives. The Sheikh al-Akl’s function involves spiritual and educational guidance, and ensuring that Arabic Islamic customs are strengthened.
The Spiritual Council is obliged to: issue laws and decisions in accordance with the law of this religious group; regulate charitable donations (“al-awqaf”) and appoint all kinds of committees and organizations necessary to manage the affairs of religion, legislation and supervision; commission Islamic law officials to administer marriages and funerals in the country and abroad. These officers will be required to record acts of marriage and wills. The Spiritual Council is also obliged to represent the community around the world; appoint Druze judges in a way which does not interfere with the law of the country in which they live but at the same time is based on the traditions of the United Druze community; appoint and dismiss the highest penalties (such as excommunication) and announce that someone belongs to the Druze religious group or withhold the religious initiation of individual members.
The Law of the Druze Minority
The law of the Druze School is regulated by Act no. 134 from 1945.
Here is the content:
1 Druze courts will function according to the following regulations:
The appointment of a Druze judge shall be made at the request of the Supreme Spiritual Council. The Ministry of Justice issues a decree on the choice of the right person for the post by spiritual leaders.
2 Druze courts are to look after the unique nature of the religious community, and especially its independence and complete freedom in maintaining religious and legal practices, in accordance with the spirit of the community and its principles of law.
3 The acts and provisions issued by the judges of the Druze School are approved by the Supreme Religious Assembly of the Druze in the Jabal ad-Duruz region. The Assembly is the highest judicial authority in the Druze community. All these activities are governed by ritual ceremonies to make the provisions binding.
In 1959 and in 1961 there was a break (chaos) in the functioning of the judiciary of the Druze School. Drawbacks resulting from this situation are being currently dealt with.
Nonetheless, the Civil Code is executed in content and spirit.
The Code of Rights of the Druze Religious Minority
The text of the Code was issued on February 24th 1948, in Lebanon. Amendments to it were announced on July 2nd 1959. In 1953, the Code was approved in Syria and assigned number 59. It was modified in 1975 by Act No. 34, specifically by article 307.
When does one become eligible to marry?
A young man becomes eligible to marry at the age of 18, while the age for a young woman is 17.
Sheikh al-Akl or a judge from the Druze School may authorize the marriage of a young man who is 16 years of age, provided that it is medically stated that he will cope with the obligations of marriage. This authorization must be approved by the legal guardian of the young man.
Sheikh al-Akl or a judge from the Druze School may authorize the marriage of a young woman who is 15, provided that it was medically stated that she will cope with the obligations of marriage. This authorization must be approved by the legal guardian of the young woman.
In the case when Sheikh al-Akl or a Druze judge allows marriage between two minors and it happens without parental consent, then each of the two spouses has the right to nullify the marriage within a period of six months from the date when they reach maturity, as set out in Article 1
Marriage is generally forbidden for young men before the age of 16, and young women before the age of 15. The prohibition of marriage also refers to the mentally ill, those suffering from venereal disease and advanced tuberculosis. The obligation to determine the state of health of the intending spouses lies with the Sheikh al-Akl, or one of the Druze judges, who ask for a relevant certificate to be issued by an appropriate medical examiner. It may happen that one of the Sheikhs al-Akl or judges undermines the certificate and then his decision is final and unquestionable.
If a young woman who is 17 years old asks to be married, Sheikh al-Akl, or a judge shall notify her guardian. If the guardian does not object within 15 days, or if the guardian’s objection is supported by a lie, a wedding takes effect due to the decision of the Sheikh al-Akl or a judge.
The marital guardian must be level-headed and responsible, and must be of age and in good mental health.
If any of the intending spouses can not find a guardian corresponding to the posed conditions, the Sheikh al-Akl, a judge or another designated person will undertake to perform this function.
What relationships are legally prohibited?
Marriage is prohibited and void if it is between those remaining in another relationship or those in the period of mourning after the death of their spouse.
Polygamy is prohibited, and if a man marries a second time, this relationship is illegal.
If a man divorces a woman, he is forbidden to take her for his wife a second time (148).
The womb of a women remains inaccessible for a man who is her relative.
Marriage with these four groups of women are forbidden to a man:
a. The man’s mother and his grandmothers.
b. His daughters and granddaughters.
c. His sisters and their daughters, the daughters and granddaughters of his brothers.
d. His aunts.
Marriage is forbidden for women if it may result in affinity.
4 groups of women are defined here:
a. The wives of sons and grandsons.
b. The mothers and grandmothers of wives.
c. The wives of fathers and grandfathers.
d. The daughters and granddaughters of wives.
About the act of marriage
A marriage certificate is written down at a special meeting, with the mutual consent of the spouses and confirmed by the presence of witnesses. The witnesses come from the fiance’s and the fiancee’s side, and their number can not be fewer than four. The marriage certificate is signed by the spouses and their witnesses. If one of the future spouses is absent, and the inability of arrival is justified, the Assembly accepts the signature of an authorized representative, and a power of attorney document which contains the amount of dowry (a sum of money paid by the man to the family of his future wife) will be attached to the marriage certificate.
Consent for marriage is given by uttering a special formula, and in the case of a mute person, by making appropriate gestures.
Marriage is legally binding only if it is granted by Seikh al-Akl, a judge or a person specially appointed for that function.
In each region and locality, Sheikh al-Akl or a Druze judge shall appoint one or more representatives to grant marriage, depending on the needs.
A proxy may grant marriage only with the written consent of Seikh al-Akl or a Druze judge.
The prepared marriage certificate is sent by a proxy to the Sheikh al-Akl or the judge who confirms its authenticity and registers it. The marriage certificate is valid from the date of its conclusion.
It is the duty of the Sheikh al-Akl or a Druze judge to make a record of the marriage in a special Book.
The marriage certificate is sent back to its owner within a period of one month from the date of registration.
The obligations of marriage
Obligations arising from “al-mahr” and “an-nafaka” (the meaning of these two words can be found in chapters five and six) will be fulfilled from the moment the marriage is approved. The same applies to the rights to inheritance.
The wife, except in two cases: divorce or the death of a spouse, is not entitled to claim the second part (“al-muajjal”) of “al-mahr”.
The wife is obliged to stay at her spouse’s home after the signing of the marriage certificate and after using the first part (“al-muajjal”) of “al-mahr”. The house must meet the conditions of both spouses residing in it in an equal way.
The wife is obliged to accompany her spouse if he moves to another city. This obligation may be invalidated by a serious reason.
The husband is obliged to create appropriate living conditions for his wife and to help her. The wife must obey her husband in fulfilling the rights and obligations of marriage.
What is “al-mahr”?
“Al-mahr” is a sum of money which the husband is due to pay his wife according to a legally binding act of marriage. The value of “al-mahr” is established in the marriage certificate. If “al-mahr” was not recorded in the certificate, a judge determines it according to set standards.
The value of “al-mahr” can be set in its entirety or only partly. It is also possible to determine the time of payment.
Fiances can break their engagement without any consequences.
As for engagement presents:
If the engagement was broken by the fiance, he should not demand that what he gave his fiancee was returned to him.
If the engagement is broken by the fiancee, she must give him back all the presents he has given her. In the case when the given things are destroyed, the fiancee repurchases them or refunds their value in cash.
Loss of the other half of “al-mahr” takes place in the following cases:
death of one of the spouses
death of a spouse before the marriage was consummated.
What is “an-nafaka”
“An-nafaka” is a sum of money spent by the man on his wife and children. It includes food, clothes, accommodation and medical bills. Even if the wife is wealthy and she is weakened or sick, the man also pays for household staff.
The realisation of “an-nafaka” happens by agreement between the spouses or on the basis of a judge’s statement.
The lowering or raising of “an-nafaka” can be caused by a rise in prices and by the improvement or deterioration of the spouse’s financial condition.
If the wife asks for “an-nafaka” and the husband stops paying it, a Druze judge shall appoint “an-nafaka” according to the wealth of the spouses at the time when the dispute arises and demand its payment including a determined pre-paid period.
If the husband cannot pay “an-nafaka” to his wife, the wife is entitled to take a loan in her husband’s name, starting from the day the matter is reported.
If the husband leaves his wife, dies or goes away without providing any “an-nafaka”, the judge will allow the wife to take a loan in her husband’s name, having examined the irrefutable evidence that this woman is married to that man.
If the judge allows the wife to take a loan for the aforementioned reasons, and she executes this decision by involving one of the relatives, the relative can demand reimbursement only from her husband. But if the wife takes a loan from strangers, they may demand reimbursement from her husband and from her.
If the absent husband had some money in the hands of third parties, or granted them a loan from which he drew financial benefits, and the wife could present evidence for this in a special court, taking an oath at the same time that she is not divorced, and the husband did not leave her any “an-nafaka”, then “an-nafaka” is established for her from the aforementioned money specified on the date of filing the complaint.
The amount of money collected from child support, set by the court or the terms of the agreement, is not subject to loss in the event of divorce or the death of a spouse.
If the wife left her husband’s house without a lawful reason or did not want to let her husband in without producing a request to move, the “an-nafaka” shall be suspended for the duration of the dispute.
A divorce is possible only on the basis of the decision made by a Druze judge.
A man cannot marry a woman if a Druze judge previously declared a divorce between them.
If before or after the wedding the woman finds out that the husband suffers from an illness, such as leprosy or a venereal disease, which makes regular cohabiting with him impossible, she has the right to ask a Druze judge for separation. If there is a chance of recovery, the judge appoints two years of separation. If the illness does not pass and the husband does not agree to divorce, the judge announces separation. Being mute or lame does not constitute a reason for separation.
The wife has a right to ask for separation if the husband suffers from an illness which makes regular marital contact impossible for him and the doctors confirm that his condition is incurable (151).
If the husband loses his sanity and does not recover within a year from the time designated by a judge, the wife has every right for separation.
The spouses have the right to annul their marriage amicably by announcing their decision in front of witnesses to a Druze judge who must confirm the annulment.
If the husband’s adultery is proven, the wife must file for separation. If the wife’s adultery is proven, the husband divorces her and he is relieved from the obligation of “al-mahr.”
If the husband is sentenced to 10 years or more in prison, and spends 5 consecutive years there, after this period the wife can file for separation.
If the husband remains in hiding or is missing for the period of 3 years and the “an-nafaka” is not paid, the judge announces separation at the wife’s request. If, however, “an-nafaka” was paid, the wife’s claim is found unjustified. If the husband is missing for 5 consecutive years, and the obligation of “an-nafaka” is on him and hasn’t been paid for 2 years, the wife has the right to file for separation.
If the marriage is annulled due to the husband’s absence and the wife remarries, the return of the first husband does not constitute grounds for the annulment of the latter marriage.
If there is a conflict between the married couple and one of the spouses turns to a judge, the judge appoints mediators: one from the family of the husband and one from the family of the wife. If an appropriate person cannot be found among the family, the judge appoints a person from outside the family.
The mediators must be familiar with the cause of the conflict and make every effort to resolve it. If a settlement cannot be reached by the spouses, the judge rules as follows:
If the dispute is raised by the man, a separation is announced and the whole or partial payment of “al-mahr” is made. If the dispute comes from the woman, she loses the rights to “al-mahr” in its entirety or in part. The judge also decides what the spouses owe one another in view of the damage caused.
If, when announcing divorce, the judge feels that it is not fair, a compensation may be appointed to the wife, as an additional sum to the “al-mahr” for the moral and material harm she suffered.
About “al-idda”, the period of mourning, the quiet time
The period of “al-idda” lasts 4 months from the date of divorce, separation or the husband’s death. “Al-idda” for a pregnant woman ends with a birth or miscarriage.
“Al-idda” does not apply if the divorce or annulment of marriage was done before the marriage was actually legalised.
“Al-idda” begins at the moment of announcing the divorce, annulment of marriage or the death of the husband, even if the wife does not inform authorities about it.
The husband needs to maintain the divorced wife during “al-idda”. No money is paid to the wife after the death of the husband, even if she is pregnant.
The mother has priority in bringing up and educating the children in the duration of the marriage and after separation, if she fulfils the appropriate requirements.
The child’s legal guardian must be mature, trustworthy, rational and physically healthy so that she could protect and educate the child. The guardian cannot be married to someone who is unrelated to the child according to the requirements of the faith.
If the guardian marries, she loses the right to look after the child for the benefit of a person who is next in line in terms of fulfilling the guardian’s requirements. If an appropriate candidate for this duty is unavailable, the child’s relatives take over the custody.
The right to custody is due to the mother and her immediate family in the first place. After that, the right goes to the father and his family. Thus, if the child’s mother dies, or enters into a marriage as defined in Articles 12 and 13, or does not meet other requirements for raising a child, the custody goes to her mother. If she proves to be incapable of this function, the child’s father’s mother will take over the custody. Next in line are the sisters of the child, especially their own sisters. From the two parents’ families: the mother’s sister, the father’s sister, then the daughters of the child’s own sisters, the daughter of the mother’s sister, then the child’s aunts from both sides, the mother’s aunts by birth, the father’s aunts by birth, then the father’s sister’s daughter, the daughters of the child’s brother, then further aunts from both parents, the mother’s further aunts, the father’s further aunts and further in that order ..
If women in the family circle do not meet the conditions necessary for raising children, then the obligation is transferred to the male line of the family according to the law of succession:
Own brother’s sons.
Father’s brother’s sons.
The father’s father’s brother.
If two or more persons are worthy of raising the child, priority is given to those who are more qualified and older.
If an appropriate person, as referred to in Article 58, cannot be found, the custody goes to the person with whom the child’s relationship is not allowed and they are:
– Mother’s father.
– Mother’s brother.
– His son.
– Maternal uncle
– Uncle from both parents
– Paternal uncle
The following people cannot take custody of a girl:
– The father’s brother’s daughters
– The father’s sister’s daughters
– Uncle’s daughters
– Aunt’s daughters
– The father’s brother’s sons
– The father’s sister’s sons.
– Uncle’s sons.
– Aunt’s sons.
They, however, maintain the right to look after boys. The father’s brother’s son is the only one who may be allowed to look after a girl, having his morale thoroughly examined. Otherwise, the custody of the girl is given to a trusted woman.
The costs of upkeep are not a part of “an-nafaka”. If the child needs money, the father is obliged to provide it.
If the mother was the child’s guardian, was divorced or was in a relationship with a person with whom the child’s marriage was prohibited by law, or was in the course of “al-idda,” she has the right to enforce child support. The child’s father is required to build a home if the child has nowhere to live. A rich father must also provide household staff if the childcare requires it. The child’s mother and all the guardians have the right for alimony.
If the mother is raising a child without receiving payment, the child’s father is poor and the child received no money even from those with whom his relationship is denied, the judge can allow a loan in the child’s father’s name.
If a suitable guardian is found among those who cannot enter into a relationship with the child and the child’s father is rich and still no maintenance is paid, the mother has priority in receiving the money and raising the child. Also, if the father is poor or rich, and if the child has money or not and if the mother prefers to keep the child even without receiving child maintenance rather than to give the child to a guardian, and the father takes the child away and sends them to an unrelated guardian, he will not follow the law and will have to return the child to the mother and pay her a salary independent of the child maintenance.
The period of care ends for a boy when he reaches seven years of age. For a girl this age is nine. After this period, the father is obliged to take the child. If the father and grandfather are dead, the children are sent to close relatives. As for the girls, the relatives only include those people with whom their relationship is allowed. In the absence of a suitable foster family, children remain with their former guardians unless the judge decides otherwise.
If it forbidden to take the child away from her country before the guardian period is over and without the mother’s consent. And if the divorced man takes the child from the mother due to her marriage with a foreigner, and she is the only guardian, the father is allowed to travel with the child until the child’s mother regains her guardian rights, or if the right passes to someone else who is in charge of the child’s care.
A divorced mother cannot travel with a child who remains in her care without the father’s consent. This also applies to other women who look after the child; they are not allowed to move the child from the designated place of care, unless the child’s father gives his consent or a judge in the absence of the father.
“An-nafaka” which is due to the sons by their fathers
The father is obliged to pay three types of “an-nafaka” to his children. “An-nafaka” refers to a younger, poor child, regardless of whether it is a boy or a girl, until the boy starts working and the girl marries.
The father is obliged to pay “an-nafaka” to his elder son if he suffers from a condition which prevents him from earning his keep. A poor married daughter will always receive money from her father.
Nobody will help the father in paying “an-nafaka” to his fully fit son.
And if the father is on his deathbed, the obligation of “an-nafaka” passes onto those who take over the custody of the son after the father’s death.
The mother is the first person before others to give money to her son if he is in need. If the parents are poor, and the children are eligible for “an-nafaka”, a rich relative may pay the money and the child’s father will repay that person the money when his financial situation improves.
If the father is poor and his relatives are rich, and some of them have the right of inheritance but they are all equal in terms of kinship, then the obligation of paying “an-nafaka” lies on the relatives who have inheritance rights. If such equality does not exist, it is the child’s closest relatives who pay “an-nafaka” according to their inheritance rights.
If a child is in need and the father falls into poverty, and the child has relatives among whom some have inheritance rights and others do not, then the obligation lies on those who are closer related and they must pay “an-nafaka”. If all relatives have inheritance rights, it is those who are more eligible to inheritance who must pay “an-nafaka” to the child.
If a father, who is absent, owed “an-nafaka” to his child and he had money or movables deposited at the child’s place or at third party’s or benefited from money he lent to someone, the judge will declare that “an-nafaka” is paid from this capital. If the father deposited the money in real estate, the real estate is not sold. However, the judge can allow a loan to be taken with the real estate as security for paying back the loan.
The father does not pay “an-nafaka” to the wife of his poor son, but guarantees her upkeep and if the need arises, pays the “an-nafaka”. The father will pay and his son will pay him back when his financial situation improves.
“An-nafaka” which is due to parents from their sons
Rich children both of age and under age, both male and female, are obliged to pay “an-nafaka” to their parents and grandparents who are in need.
A poor woman who married a man not being the father of her child will receive “an-nafaka” from her husband. If her husband is poor or absent, the rich child of this woman will pay “an-nafaka” and her husband will pay the money back when he returns or when his financial situation improves.
A son is obliged to pay “an-nafaka” only to his father when the son’s income is stable and his father is unable to work but has to maintain his wife. A poor son who has a family must take his parents to his home and provide for them according to his means.
If the son is absent but has money in the possession of a third party, the judge can assign some of this sum towards “an-nafaka” for the parents in need. If the depository or borrower pays the money to the father of the absent son without the consent of the son or the judge’s decision, he will have to vouch for what is not refundable.
Inheritance law is not linked with the obligation of “an-nafaka”, which lies on the sons towards their parents. “An-nafaka” is in this case an obligation of the closest family towards one another.
Those with whom marriage is forbidden will be maintained by their rich beneficiaries, even those under age, according to their eligibility for inheritance.
Authority in the family
The father has authority over the younger and older children, male and female, regardless of whether they remain in the care of their mother or relatives.
If the child reaches the age of maturity, but is mentally ill, paternal authority does not cease to apply over this child. And if the child reaches maturity while being in physical and mental health and then over time becomes insane, the paternal authority over this child returns on the basis of a judge’s verdict.
If the father is an honest and trustworthy person, he is allowed to administrate the child’s money and use it in business.
If the father, who possesses the qualities mentioned in Art. 83, sells some movables or immovable property which belong to the child, buys something in the child’s name or lends the child’s money to third parties, and if he does it in an improper way and dishonestly, the judge can appoint a probation officer who will nullify the father’s undertakings. If the matter concerns a rental agreement, the child has no right to demand so that the contract becomes void, even when the child comes of age. However, if it is a contract of purchase, it becomes the father’s responsibility and does not burden the child.
If the father is mentally ill, has no organisational skills or was sentenced to prison and is thus incapable of looking after the child long term, then he cannot sell his child’s property without a judge’s decision, even if the sale is profitable.
If the father is a spendthrift and his behaviour does not guarantee that he will keep his child’s money, a judge appoints a probation officer who takes over the child’s property.
The father is forbidden to use his child’s money for his own benefits. He is forbidden to buy, sell, or constitute lien on the child’s property. Profiting from lending the child’s money to others without a special permit from the judge is forbidden. The father cannot make a donation using the child’s property.
The power of attorney
A proxy is a person who manages the legacy of the father’s death. A proxy may be designated in a will or appointed by a judge.
If someone is appointed in a will to be the proxy, they can not withdraw from this duty after the father’s death, unless the judge decides otherwise.
If one is selected to be a proxy without one’s knowledge, one has the right to reject or accept the function. The judge must be notified about the decision.
The wife, mother or another woman who has inheritance rights or not, may be a proxy. The mother or another woman can be appointed to be a person cooperating with the proxy.
The proxy indicated in the will must be at least 18 years old. The proxy appointed by a judge must be at least 21.
The proxy is required to be reasonable, trustworthy, and conscientious and must meet all the mandatory obligations of the civil law.
If the proxy appointed does not fulfil the conditions as set in Art. 92, the judge can relieve this person from the obligation and take over the function of a proxy.
The judge has no right to dismiss the indicated proxy if the person is just, and worthy of holding this function. And if the indicated person is not healthy enough to fulfil their duties, the judge will appoint a helper or will substitute the proxy until the person recovers.
If disloyalty of the proxy is proven, the judge immediately dismisses them from their position.
A proxy is appointed for a minor (al-Kāsir) if the child has no guardian or there is no proxy indicated in the will.
When the child reaches adulthood, they become entitled to dispose of the assets they inherited according to the will.
If the child comes of age, but it is mentally ill, irresponsible, or there are charges against them, then they lose their right to the assets left in the will. The property is passed to a proxy who is appointed by a judge
The obligations of the guardian (“al-wali”)
The guardian is obliged to protect and multiply the property of a minor.
The guardian can freely dispose of the movable property of a minor, even if the latter does not need to profit, however, a judge must issue a permit for such activity.
The guardian is not allowed to sell the real estate from the minor’s property unless the following conditions are present:
The result of selling the real estate is extraordinary profit.
The sale of the real estate covers the debts of the deceased.
If money is needed for the fulfilment of the will, it is obtained from the sale of the real estate for an appropriate price.
If a minor is in need but does not possess money or goods which could be sold, and if the expenditure exceeds the minor’s income.
If the real estate has fallen into disrepair and the minor heir has no money for its renovation.
The judge is required to carefully study the aforementioned regulations before signing the contract of sale, so that his permission is based on at least one of them.
The guardian, indicated in the will or appointed, before they undertake their duties, must obtain information from the person who the judge appointed to writing the will, about which movables and immovable property are passed onto the minor, and submit appropriate permits to this person.
The guardian is obliged to submit yearly reports on the revenues and expenditures of the minor. If they procrastinate in spite of the judge’s warning, they may be dismissed from their position.
The guardian and their relatives are forbidden to use the minor’s money for personal benefits.
The guardian can not settle their own financial liabilities using the minor’s money or borrow money for personal use.
The guardian may not delegate their duties to third parties, unless they do so with the consent of a judge for participation in conflicts and court cases. The proxy can personally repeal the authorisation to be represented by a third party.
If the will or a judge indicates two guardians, then neither of them can work independently, with the exception of the following:
Preparation of the deceased.
Defence of the minor in conflicts.
Request for repayment of a loan.
Payment of the minor’s debts on the basis of a court decision or a certificate of debt or other evidence of debt.
The implementation of a particular will for the benefit of a particular poor person.
Buying things which are necessary for the child.
Repayment of a loan or returning a deposit.
Reimbursement of what the deceased kept and thus court orders not carried out.
Sales of perishables after harvest.
If the guardian’s duties are taken on by two people and one of them resigns, the judge appoints a helper to assist the remaining guardian.
If the mother is the guardian, she can not manage the child’s inheritance beyond the sum of her own inheritance.
The guardian can not relieve the debtors to the deceased from their financial obligations without the judge’s permission.
The guardian’s duty is to reach an agreement with the debtors of the deceased and the child if they object to payments. A judge’s permission is necessary for these undertakings.
The guardian must settle matters with those who make claims towards the deceased or the minor on the basis of approved documents or a court’s decision.
The guardian is not authorised in terms of settling debts and other claims as well as the will of the deceased.
If the guardian pays the deceased person’s debts not on the basis of an official document, a court decision or permission of the biggest beneficiaries of the will, the guardian must then give a guarantee.
When the child becomes of age, they have an obligation to pay their guardian. The guardian is required to report on their fulfilment of duties in detail. And if “an-nafaqa” is not paid, the judge orders the payment or the guardian takes the money themselves.
If the guardian dies, the represented person must issue a guarantee for their own part of the inheritance before the will is executed. Valuable possessions can constitute security but if they are worn out, the beneficiary gives a financial guarantee.
The guardian passes the inheritance to the young heir under the supervision of a judge or a specially appointed person.
The limitation of rights
The judge limits the rights of the mentally ill, the intellectually weak and the irresponsible and at the same time appoints proxies for them. Weak mental health is confirmed by a doctor who issues a suitable document.
The judge must give the reasons of incapacitation.
Decisions made by a sick person before and after the announcement of incapacitation are invalid. Only decisions made prior to the announcement of incapacitation while the person was healthy are held as valid.
The person who is to be incapacitated can appear before a judge who should hear them.
Decisions of the intellectually weak and the irresponsible made before the announcement of incapacitation are not valid unless they bring benefits to those persons.
Decisions of one who is intellectually weak who squanders wealth and is irresponsible, which were made prior to the announcement of incapacitation, are legal and can be executed. Those made after the announcement of incapacitation are not respected by the law unless they refer to marriage, divorce, paying “an-nafaḳa”, which is the person’s obligation, or a decision referring to the person’s will if they had no testamentary heirs.
The assets of the incapacitated person shall be submitted after the withdrawal of rights, but only on the basis of a judge’s decision.
About a missing person and their administrator
The term “al-mafkud” refers to a person who is missing, whose whereabouts are not known and there is no information as to whether the person is alive or dead.
If, before going missing, “al-mafkud” leaves a proxy to look after the property, this person is not dismissed from the function unless they prove to be dishonest or incapable. The proxy cannot take the residence which belongs to the absent person unless the judge agrees.
If “al-mafkud” does not leave any proxy, the judge will appoint one to protect the property of the absent person, sell their crops and receive repayments of loans which “al-mafkud” has granted.
When selecting the administrator, the same criteria apply as when choosing an heir (al-wasi).
The duties of the proxy include, with the judge’s permission, selling that moveable or immoveable property which is dispensable or could fall into ruin thus the absent would have no money to restore it. The proxy must notify the judge about the income from the sale, who then passes the money to the absent person at the time of their return or adds it to the inheritance if the missing person is dead.
The proxy is obliged to pay all the due “an-nafaka” from the money of the absent person as well as all the costs of taking care of the property left behind.
The judge grants the proxy the right to represent the absent person in disputes.
At the end of each year, the proxy is required to submit a balance sheet of expenditures and revenues of the absent person to the judge. If the proxy delays this submission after receiving a warning, they are dismissed from the function.
The judge announces the death of the absent person if it is highly probable and 10 years have passed since the person went missing. If there is no indication that the absent person is dead, after 10 years the judge carries out a detailed investigation which has to be conclusive as to whether the person is alive or dead.
After the announcement of the death of the absent person, as stated in Art. 134, the division of the property is carried out among the person’s beneficiaries. However, they cannot use the inheritance for a period of 2 years from the moment of the announcement of the absent person’s death.
If the missing person returns or it is proven that the person is alive, and the judge has already announced their death, the beneficiaries are obliged to return their share of the property in its original form or an equivalent in cash, the value of which is calculated on the basis of prices at the time when the property was divided.
The genealogy (an-nasb)
The minimal pregnancy period takes 180 days and the maximal 300 days.
If the wife gives birth after 180 days from the conclusion of the marriage, the child automatically takes the name of the husband. However, if the birth occurs before this period, the child takes the husband’s name only if he gives his clear consent.
The decision on not granting the child their father’s name must be made within a period of one month after the birth or after the absent father is notified.
The child cannot be rejected by the father if:
The father wants to reject the child after the period as indicated in Art. 139.
The father wants to reject the child after clearly expressing his will to give the child his name.
The mother gives birth to a stillborn child.
The father wants to reject the child after the court has announced that the child is entitled to his surname.
If a divorced woman, or one whose husband has died, gives birth to a child before the period of 300 days from the divorce or death, the child keeps the rights to the father’s surname. If the child is born after the period of 300 days, the right to receive the father’s name ceases.
If the wife announces the birth of her child and the husband does not acknowledge it, the truth is determined by the midwife and the women who were present during childbirth.
The child has the right to the father’s name if it is born before the period of 300 days after the separation of its parents is announced if the father knew about the pregnancy or it was visible.
The child’s rights are not recognised if no contact between the wife and the husband were concluded since signing the marriage certificate, or if the birth takes place 300 days from the moment the husband was absent.
The last will and the inheritance
The will is a voluntarily prepared document establishing the division of property in the case of death.
For the will to be valid, it must be written by a person of age and mentally healthy, who passes their property voluntarily onto their beneficiaries.
A will cannot be realised if its assets are pledged for a loan, unless the creditors release the property and allow the distribution of the inheritance.
The will may refer to the entire property of the deceased or only its part, which will be passed onto heirs or third parties.
Whoever commits a premeditated act of murder on the author of the will, will be excluded from its provisions.
The author of the will may donate their property to charity.
Religious differences between persons present in the will have no influence on the validity of the will.
The beneficiary can use the inheritance immediately after the announcement of the will. A rejected inheritance is divided according to the precepts of religion.
The author of the will can revoke it in whole or in part, and modify it as they wish.
If the assets of the will are lost by inadvertent errors of the beneficiaries, they are not required to provide a guarantee. If, however, the loss of property is a result of deliberate and intentional actions, the guilty beneficiary must submit a warranty – secured according to the value of the will.
If one of the beneficiaries mentioned in the will dies before the author of the will, who does not change the provision referring to this beneficiary before his death, the part passed onto this beneficiary in the will goes to his heirs, if there are any, if not – such a part of the will is shared between the remaining beneficiaries of the will who are alive.
If the author of the will and the beneficiary die at the same time and it can not be determined which one was first, then the right to the inheritance goes to the heirs of the beneficiary, if there are any, if not – it is divided between the remaining beneficiaries of the will according to the precepts of religion.
If a person writes a will as a bachelor and then gets married and God blesses him with children, such a will is invalid and the property is distributed according to the precepts of religion. If, however, the person has no children, the will shall be realised after the spouse’s share in the property is established.
The author of the will confirms and records it with a Druze judge or Sheikh al-Akl. After the will is recorded, it becomes ready for immediate implementation at any time without any further decisions of the judge. An unregistered will can only be realised when the judge has established its legitimacy.
The beneficiaries are obliged to ask the judge to legally validate the will within two years from the author’s death. If they fail to do so, they lose their right to the property bequeathed in the will. This does not apply to minors, the disabled and the mentally ill. The original of the will is deposited with the judge, the interested parties only receive a certified copy.
The judge may appoint a deputy in the person of one of the religious men to arrange and confirm the will. This person registers the will with the judge, if the author of the will asks him to do so.
If the author of the will resides abroad, the authenticity of the document can be confirmed by an authority designated for this purpose in this country. In Lebanon, a will can be implemented only upon presentation of the regulatory text from a Druze judge, in accordance with the regulatory procedure referring to foreign rights on the territories of Lebanon and Syria.
The register of wills takes place before a Druze judge. The author of the will signs the register in the presence of at least two witnesses, who also sign it. Then the judge certifies the formalities done in his presence. The author of the will receives a certified copy of the document.
If the author of the will is illiterate, the confirmation of legitimacy is done by applying a fingerprint in the registry in the presence of the judge. The judge reads the will in the presence of at least two of the will’s beneficiaries.
A will may remain undisclosed. To do so, the author of the will puts it in an envelope, then seals it with red wax, while the judge applies a judicial stamp and signs it. This procedure may also be performed by four witnesses. Then the judge makes a record of what has been done and assigns a number to the document in the book of wills. A certified copy is given to the author of the will. The judge keeps the sealed envelope and the contents of the will are known only to him.
After the death of the author of the will, the envelope is opened in the presence of his relatives and the will is read out, before it is recorded in the book of wills. The original of the will stays with the judge and the relatives receive a certified copy.
If the author wants to make changes in a will which is undisclosed or withdraw it, the judge makes a record of this event and signs it. The four witnesses of the act also sign the document.
If a relative requests that the death of the author of the will is declared and inheritance property estimated, the judge announces the division of the inheritance according to a legitimate will or, if there is none, the division of property takes place according to the precepts of religion.
If the deceased has not left a will or the will was invalidated, the division of property shall be according to the precepts of religion.
Every issue connected with inheritance refers to the wisdom of the precepts of religion. If the beneficiary designated in the will dies, his legal heirs take over the assets bequeathed to him in the will.
The donations “al-awqaf”
In all which refers to “al-awqaf” – its management, use, validity, the appointment of persons entitled to receive “al-awqaf”, the distribution of profits from it – we use special “al-awqaf” files, tradition and the precepts of religion, as well as the current legislation.
In the absence of a legal basis in the modern law, the Druze judge bases his decisions on the precepts of Islam, the Hanafi school or other legislation which is not in conflict with the Islamic doctrine.
The aforementioned laws will be published in the Journal of Laws. All laws inconsistent with the above lose their value with the release of the Collection of Laws and Responsibilities.