Provisions of Equality (Kafa'ah) in the Marriage Contract between Islamic Jurisprudence and the Libyan Personal Status Law: A Comparative Jurisprudential and Legal Study

Abstract

This research aimed to define the precise concept of "Kafa'ah" (suitability/equivalence) in Islamic jurisprudence, particularly within the Maliki school, and to examine its reflection in the Libyan Personal Status Law (No. 10 of 1984). It sought to uncover the criteria of "righteousness in religion and character" as the sole measure of suitability, clarifying its legal nature as a condition for the binding validity of the contract (Luzum) rather than its fundamental validity (Sihha). Furthermore, it delineated the boundaries between a guardian's right to object and the abuse of that right, while exploring the grounds for the forfeiture of this right and the law's responsiveness to social changes.
The study utilized a descriptive-analytical approach to monitor and describe the provisions of suitability and analyze legal texts. It also employed a comparative method to balance Maliki jurisprudence with Libyan legislation, utilizing deductive reasoning to analyze Libyan Supreme Court rulings. For data collection, the researcher relied on "library research" as a primary tool, sourcing from primary references (The Quran, Sunnah, and Maliki texts) and secondary sources (specialized legal books, academic theses, and judicial gazettes).
The research concluded that the Libyan legislator was deeply influenced by the Maliki school by dismissing criteria such as "lineage and wealth" and restricting suitability to "religion and character," asserting it as a "condition of necessity" to protect the woman and the guardian from harm. The findings also confirmed that the legislator prioritized family stability and children's rights over the guardian's right to annulment, despite the broad discretionary power granted to judges in interpreting moral standards.
The research recommended the necessity of establishing detailed regulations or an explanatory memorandum for the "character" criterion to ensure judicial consistency and proposed limiting the timeframe for a guardian’s objection to prevent malicious lawsuits. Additionally, it called for activating the role of social reconciliation offices within courts and promoting legal awareness to distinguish between legitimate Sharia suitability and false tribal or class-based prejudices that hinder marriage.