فسخ عقد الزواج لعدم الكفاءة : دراسة فقهية مقارنة

الملخص EN

This study aimed to investigate the problem of having only one and whole stipulation in the Personal Status Law which regulates the annulment of marriage for incompetence reasons, whereby the Law does not address most provisions of this matter.

In case of no stipulation, the Law also refers judges and researchers to consider the strongest evidence from Islamic Sharia, which is a difficult task, if not impossible.

This has made provisions related to this matter unclear in the minds of most judges, advocates and researchers.

Therefore, to tackle this problem, using the inductive, descriptive and analytical method – whenever required, the researcher collected the provisions of this matter from reliable and approved Fiqh sources.

The purpose was to show how such provisions are dealt with in some Arab laws, which are appropriate to the Yemeni context.

Regarding competence in marriage, the researcher also made a comparison between the opinions of Fiqh doctrines and gave preference of one opinion over others.

In conclusion, the study indicated that the required legal trait between spouses should only pertain to the religion of Islam.

The study recommended the amendment of Yemeni Personal Law so as to include some provisions on competence and to specify the Islam (religion) trait which means that the husband should observe regular Islamic rituals, including performing prayers, fasting and Zakat, as well as noncommitting major sins.