Ages of marriage and custody
There are significant differences between Gaza and the West Bank in the rules governing both the minimum age of marriage and the maximum age of child custody. In the LFR 1954, rather than introducing the reforms they had codified in the 1920s in Egypt, the Egyptian authorities reproduced the provisions of the OLFR of 1917.
The Ottoman law, in provisions that were innovative for their time, had set capacity for marriage at the ages of eighteen for the male and seventeen for the female, but allowed the judge to give permission for marriage below that age provided the applicant had reached puberty and in the case of the female her guardian gave permission for her marriage.14 No marriage was allowed below the ages of twelve for the boy or nine for the girl. By the time these rules were reproduced in the law the Egyptians issued for Gaza, Jordanian law had already raised the minimum age to fifteen for both spouses, with the judge being allowed to authorize marriage from that age up to the ages of full capacity of eighteen for males and seventeen for females - again, provided the female had the consent of her guardian.15 In 1976 this was amended to sixteen for the male, who no longer needs the judge’s permission to marry once he has reached that age, while the female of fifteen has reached capacity for marriage but is still required to have either her guardian’s or the court’s consent until she reaches full capacity.16 One final point that needs to be made here is that according to the explicit text of both the LFR and the JLPS, the ages are calculated according to the lunar year; so the minimum age of marriage for the female in the West Bank is around fourteen years and seven months by the solar calendar. The setting of a minimum age of capacity in marriage at the age of eighteen by the solar calendar has been identified as a lobbying priority by a number of initiatives in Palestine in the transitional period, and was endorsed by the model parliament outcomes discussed below in Chapter 9.The Gaza law is also more conservative than the JLPS in its approach to female custody over children. Dominant Hanafi rules presume the mother to be the natural custodian of her minor children until the boy reaches the age of seven and the girl nine,17 after which the children return to their father as the natural guardian (wall). In 1976 the Jordanians extended the custody of the mother ‘who has devoted herself to the upbringing and custody of her children’ to the age of puberty - that is, when the children physically reach puberty. The custody of a woman other than the mother was extended to the ages of nine for boys and eleven for girls.18 In the Gaza Strip, on the other hand, the ‘classical’ Hanafi rules are maintained in the LFR 1954, allowing only the limited extension of the custody of the mother for a girl up to eleven years and a boy up to nine.19