Shortly after attending the ‘interaction between legal systems’ conference, I visited Senegal to work on my research on the way women claim their marriage and divorce rights. There, I was confronted with a particularly harmful effect of interaction between legal systems on women in relationship crises.
When it comes to marriage and divorce Senegal has various legal systems. The national legal system exists in parallel with what most people call a customary legal system (droit coutumier), which in turn has a long history of interaction with Sharia, also known as Islamic law.
In cases of marriage and divorce, people usually refer to the norms of customary laws. Research in Senegal’s capital found that more than 80% of the divorced (female) respondents had been repudiated or granted a customary divorce by their husbands, notwithstanding that the 1973 Family Code had made a procedure before the court compulsory (Diall 2008).
What is the harmful interaction between these two systems?
Visiting the legal aid office of the Association de Juristes Sénégalaises, an organisation of female lawyers, I asked Marième* what she says when someone wants a divorce.
“First I tell her not to leave the house, then I explain the different forms of divorce [contentious and by mutual consent AB],” she began.
I already knew why women had to stay in their house: article 166 of the Family Code provides desertion of the family or marital home as one of the grounds for divorce. When a spouse leaves the house without the other spouse’s approval this may result in a contentious divorce at fault, for which damages have to be paid. Nevertheless, it surprised me that Marième deemed the advice so important.
But, as Marième explained, Senegalese women in a relationship crisis tend to move back to their parents until their husband comes to get them, a traditional practice called faay that usually results in an attempt to settle the dispute under the parents’ supervision (also: Lagoutte 2014). What’s more, when repudiated or granted an informal divorce by the husband at their own request, custom prescribes that Senegalese women leave the marital home.
These women thus run a serious risk of being brought to court by a revengeful (ex) husband. There, it is often difficult for women to prove that they left the marital home because they thought they had to. The Office of the High Commissioner for Human Rights in Senegal and a report by the Danish Institute for Human Rights confirm this problem (Lagoutte 2014).
Although the Senegalese family code is relatively progressive (Cooper 2010), few women know their rights and interactions between the national code and customary norms can at times cause serious problems. In order to gain a better understanding of these issues, women’s pathways to justice should be mapped and assessed. Such an analysis would also allow for a better understanding of the practices of the informal legal system, which so far has remained under researched.
[ *not her real name]