Tunisian Law: Child / children / kids with a Tunisian husband or wife

Discussion in 'Tunisian Family Law' started by NetNiet, Aug 16, 2012.

  1. NetNiet

    NetNiet EVIL member :D

    I collected some information together about this subject, because I think it's so important to know and to discuss with the Tunisian man BEFORE you get married to him!

    Most of the information is coming from Tunisianbelle, who has a great knowledge about this subject!
    So some off the remarks you will recognize aswell as written by Tunisianbelle;)

    When one of the parents is Tunisian, a child is considered Tunisian regardless of the child’s place of birth or whether the child had acquired the nationality of another country.

    Children of a Tunisian father, no matter where they are born, have always automatically (also) the Tunisian nationality/citizenship and will be considered during a stay in Tunisia only being Tunisian nationals who may enter (and leave) only with tunisian identity documents.
    Since 2010, the same is true for children of a Tunisian mother.

    This means that western embassies will not be able to intervene in case of any problems (they only can do that for citizens who do NOT have the citizenship of the host country).

    Each child of a Muslim father receives by birth automatically the religion "Islam".

    Entering and Leaving Tunisia with a Tunisian child:
    When the mother or father is Tunisian, the child has automatically the Tunisian Nationality.
    Therefore the child is only allowed to enter and to leave with Tunisian passport.

    If upon entry, passport control deems your child a Tunisian citizen (because father is Tunisian) and they are trying to enter the country without a Tunisian passport, they can deny them entry and will make arrangements to send them back on the next available flight. If it happens upon exit, you will not be allowed to leave the country until a Tunisian passport has been issued for your child. Some people have said they have been able to enter/exit without having a Tunisian passport for their child, but others have not been so lucky. It really depends on how strict the particular passport control officer you get is. It is a chance you take each and every time.

    Entering and Leaving Tunisia with a Tunisian child, without the Tunisian father present;
    When the mother is traveling with a Tunisian child without the Tunisian father with them, the mother needs a letter of authorisation from your husband saying he gives permission for the children to travel with you, you need to quote his id number and flight dates etc then get his signature. You have to get this legalized by the Municipalty.
    If you do not have this legalized authorization, the authorities are fully within the rights of the law to deny your child exit from the country. You will be permitted to leave, but honestly, what mother wants to leave without her child?

    Tunisian law will favor Tunisian kids to stay in Tunisia in Custody disputes?
    Yes and no.
    If her husband is not Muslim, then Tunisia will "allow" the children to stay with her forever.

    However, if her husband IS Muslim, Tunisia will follow Islamic law, which says that at the age of 7 for boy, and 9 for girls they should live with their father if he so requests.

    Of course, the father would most likely have to file the motions here.
    I should note that this is NOT always the case though. Tunisian courts also look at which parent is better equipped to care for the child. So if a woman can prove that she can better care for the child(ren), then she would most likely be awarded custody.

    And according to Tunisian law, if the mother is awarded custody, the father must pay child support and spousal support to ensure the children are well taken care of.

    After a divorce in Tunisia, like in Europe, both parents of a child are awarded custody and it is usually exercised by the mother (because the child usually lives with her).
    However, there are rights in Tunisia, which always remain with father.

    For example, a Muslim father always has the right to determine the place of residence for his children.
    As a result, a child cannot leave the country, even not together with its mother, without the written approval of the father.

    This explicit approval can not be overridden by a prenuptial agreement (or a "permanent consent" clause) - the father can, at any time, even in the last minute, change his mind.

    In other words: the mother has the "right" to raise her child, but the father is the custodian and decides in all legal matters on behalf of the child.

    The so-called "abduction" of a child by its muslim father in a muslim country is, under the laws of these countries, not an "abduction", but the legal exercise of the paternal rights.

    Tunisia has not signed the "Hague Convention on the Civil Aspects of International Child Abduction".

    The bottom line is that a father can refuse his child at any time (until it is of legal age) to leave Tunisia.

    A western woman receives the custody of her Muslim child in Tunisia only as long as she

    1) lives in Tunisia - and -
    2) she guarantees that the child is educated in accordance with Islamic principles and in a morally proper environment

    A mother might, for example, loose the custody when she remarries to a non-Muslim or even when she lives unmarried together with a man.

    Stipulations and postnuptial in marriage contract:
    You can put stipulations in your marriage contracts. Many women stipulate that the man must pay for their education, or (in countries where it is allowed) that the husband must not take a second wife, or a number of other things. If this child abduction worries you so much, sit down with your loved one and write out a stipulation that you both agree on.
    Or if you are already married do a postnuptial

    Important to know:
    Regardless of whether you are married or not, when one of the parents is Tunisian, your child is considered Tunisian.

    You should also know that at any time, the father can easily apply for and obtain a Tunisian passport for the child without your knowledge or consent either at the Tunisian Embassy where you live, or here in Tunisia.

    According to Tunisian law, even if the father is not listed on the birth certificate, if he is/was married to you or living with you at the time of conception, the child is automatically considered his. If the father just declares that the child is his, the child will then be considered his. Or if two male witness state that the child is the fathers, the child will be considered his.
    Because of this dual citizenship, your child would be subjected to Tunisian law as a Tunisian citizen while in Tunisia, and NO embassy will get involved.

    Tunisia has not signed any international child abduction treaties, so the very most that any embassy could offer is to do a welfare check - they can check on the child one or two times a year at the residence (but have no authority to go inside the residence unless allowed/invited) to verify the child still lives there and looks to be in good health.

    None of this is meant to scare you in any way, but rather to make you aware of what the laws states. Forewarned is forearmed.
    You should discuss children and all situations BEFORE marriage.
    Mirta, jeszebel, marylou and 6 others like this.
  2. Laurence

    Laurence Well-Known Member

    Even if and when agreements are made before marriage between the partners, they have no legal importance... have been stuck myself in an awful marriage (same goes for a free relationship with children of both) because of our 3 children and the knowledge that the father would keep them in/abduct them to Tunisia.
    If the father is Tunisian, you have no guarantee whatsoever that he will stand up to his promisses!
  3. Tunisianbelle

    Tunisianbelle 'Don't call me Darling!' Mod Staff Member

    That rings true for either parent of any nationality unfortunately.
    Monastirienne and tunisiasun like this.
  4. Tunisianbelle

    Tunisianbelle 'Don't call me Darling!' Mod Staff Member

    If you have stipulations written into your marriage contract, it does have legal importance and weighs heavily in the courts decision.
  5. Mona1

    Mona1 Well-Known Member

    Really important information that everyone entering a relationship with a Tunisian should take to heart and then think very carefully if they are happy to live with the consequences should the worst happen.
    Bergo, DragonZest, NetNiet and 2 others like this.
  6. marylou

    marylou Tigerlils favourite

    good info there Net ;)
    NetNiet and tunisiasun like this.
  7. NetNiet

    NetNiet EVIL member :D

    Thanks Marylou, but I only collected it together, the big thank you deserves TunisianBelle!
    tigerlil, Bergo and marylou like this.
  8. DragonZest

    DragonZest TLR tester

    Ok, I was thinking about nationalities earlier and wondered if anyone would know the answer to this......I'll try not to make it too confusing :p

    The hypothetical situation is:-

    Mohammed (Tunisian) marries Kate (British)
    The have a baby called Khalid who was born in the UK
    Khalid is therefore recognised as a duel Tunisian/British nationality in the UK
    But in Tunisia he is only recognised as Tunisian nationality

    Khalid marries Susan (British)
    They have a baby called Sami who was born in the UK
    The UK would now only recognise Sami as being a British national (as I'm lead to believe) as in the UK, nationality can only be passed down from parent to child, not from grandparent to child.
    Would Sami be recognised as a Tunisian national when in Tunisia as his father Khalid is?

    If so, where do they draw the line? :confused:
  9. marylou

    marylou Tigerlils favourite

    good info from you as well tunisianbelle ;)
  10. Mona1

    Mona1 Well-Known Member

    I think that as Khalid is seen as being Tunisian then Sami is also Tunisian by birth throught the father and he will be British through his mother.
    Tunisianbelle and NetNiet like this.
  11. DragonZest

    DragonZest TLR tester

    But then where would it stop?? 500 years down the line would their great great great great yadda yadda yadda grandchildren still be Tunisian Nationals?
    galaxycaramel and NetNiet like this.
  12. NetNiet

    NetNiet EVIL member :D

    Because Khalid is for Tunisia, Tunisian, his child Sami will be automatically Tunisian aswell and his children aswell and again and again
    Monastirienne and Tunisianbelle like this.
  13. Mona1

    Mona1 Well-Known Member

    As far as I understand the Tunisian nationality laws (and I am sure that TB or NN will correct me if I am wrong), yes, once a Tunisian always a Tunisian but maybe that stops if it gets too diluted. I don't know!!
    DragonZest likes this.
  14. NetNiet

    NetNiet EVIL member :D

    Yes they will be all Tunisians and it will never stop
  15. Tunisianbelle

    Tunisianbelle 'Don't call me Darling!' Mod Staff Member

    Yes, Sami would be recognized as Tunisian because of his father. Khalid would have FULL Tunisian nationality because of HIS father. Therefore, even in the UK, Sami should be considered a dual national due to jus sanguinis.

    Tunisian nationality is passed on automatically no matter where the child is born, so theoretically, this will never end. And in fact, many other countries have the same practice as Tunisia (jus sanguinis).
    Bergo, NetNiet, DragonZest and 2 others like this.
  16. Mona1

    Mona1 Well-Known Member

    I thought this was the case but I was not 100% sure. Thanks TB and NN for confirming it.
    Bergo, NetNiet and Tunisianbelle like this.
  17. DragonZest

    DragonZest TLR tester

    Thanks!! I thought this would be the way but thought somehow, one way or another it would eventually stop! Didn't realise that the UK would recognise it though....maybe I've got that mixed up as I know that if it was a similar scenario except that the children were born in Tunisia and all apart from the grandmother or father were Tunisian the the British nationality cannot be passed down any further than from parent to child.....

    Anyways, interesting stuff!
    Tunisianbelle and marylou like this.
  18. annabella

    annabella Active Member

    Hi all, im in this kinda situation at the moment, and have a few questions that i hope someone can help me with

    Does this mean if my child does not have a tunisian passport or been registered in tunisia then our embassy would help me there if i needed it?

    My child only has a british passport and can travel in and out of tunisia??

    I have been subject to both of these situations, the latter my husband had to give permission.

    How does he not need the mother to sign anything, and if you have an order prohibiting him taking the child out england then will this still show up if he uses a secret tunisian passport and not a british one, at the airport when he tries to leave?

    What if the child is female and lives in the uk and goes on to marry a british muslim what are the grandchildren classed as then, english or tunisian??

    Hope someone can help me, on these. At the moment i am having to be cautious about my husbands intentions regarding our child, i have solicitors involved but didnt take into account the tunisian passport he could get and if the orders would prevent him taking her if he used one.

    Any help would be much appreciated thanks x
    marilyna likes this.
  19. Ariel

    Ariel Under the Sea Staff Member

    Well, in the UK, nobody is to know (legally/formally) that that child is a dual national unless the parents (or the child when it becomes adult) lays claim to the Tunisian nationality. There won't be any 'automatic' formal records other than a UK birth certificate and, subsequently, passport. There are probably lots of half-Tunisian babies in the UK who will never be known as 'Tunisian' I would think.
    marilyna and DragonZest like this.
  20. Ariel

    Ariel Under the Sea Staff Member

    Hi Annabella,

    I will start by stressing that, however cautious you are being, be doubly cautious - because once a child is taken by the father to Tunisia it is nigh-on impossible to get them back. There is a lady in the UK, can't remember her name and she even has a court order from the UK courts to have her daughter returned to the UK but it is the Tunisian courts who ultimately decide whether to honour it because Tunisia is not signatory to the Hague Convention. I believe she has been trying to get her daughter back for around four years :(. There are other examples - one in the US where the Tunisian Embassy was made aware of a prohibited steps order and the children were still issued with Tunisian passports (mother's signature not required) and the children were subsequently allowed to leave the country with their Tunisian father. The Embassy argued that they were adhering to Tunisian law, so this takes precedence. The British Embassy will not be able to ensure the return of your child if she has been taken by a Tunisian father, irrespective of whether the child has a Tunisian passport or not - they are seen as Tunisian nationals at birth (even with a British passport). Solicitors do not seem to know about the father's ability to get a Tunisian passport issued without a mother's consent. The fact that you have been able to take your child in and out of Tunisia on a british passport means nothing - you have just gotten away with it (they ask some people and not others), but then it is this inconsistency that is the very problem. Ultimately, by having a Tunisian father your child is Tunisian according to the Tunisian Embassy in the UK and, once on Tunisian soil, the Tunisian nationality takes precedence over the British nationality - hence why the British Embassy in Tunisia are limited as to how they can help you.
    I don't really know therefore how you can manage the situation, other than to make sure you can verify the whereabouts of your child at all times in the UK and not allow enough time where they could get to an airport :(
  21. Ariel

    Ariel Under the Sea Staff Member

    In terms of Prohibited Steps Orders, I am not sure how these are 'flagged' in an airport and whether such a 'flag' is attached to a passport number on the computer system? Does anyone else know more? What is worrying is that the lady in the US seemingly had one issued for her children and still they managed to leave the country.
    marilyna likes this.
  22. Tunisianbelle

    Tunisianbelle 'Don't call me Darling!' Mod Staff Member

    They are to be flagged in the computer system so that a passport is scanned, it comes up. However, if you have only one passport (UK/US/etc) attached to that order, then nothing will come up if they leave on a different passport (Tunisian).
    marilyna and DragonZest like this.
  23. Tunisianbelle

    Tunisianbelle 'Don't call me Darling!' Mod Staff Member

    You need to be very careful. Bring it to the attention of your solicitors what he is capable of, and what Tunisian law is. You really need to have solicitors that are versed in international law, and it wouldn't hurt to have a lawyer here in Tunisia in case he does manage to enter the country.

    As said, once he does get in country with your child, it will be a very long up hill battle to get her out. Some have been successful, some haven't.
    marilyna, Monastirienne and NetNiet like this.
  24. Ariel

    Ariel Under the Sea Staff Member

    This is exactly what I was thinking must happen - so, in the UK, the prohibited steps order would only be flagged in an airport if the father presented the British passport - if he presents the Tunisian passport (which the mother might be unaware that he has) then there will be no alert.
  25. annabella

    annabella Active Member

    Well if i was stressed before i am a million more times stressed now!! so basically i can get the orders but they will mean jack if he gets her a tunisian passport, is there a way of stopping him getting a tunisian passport, doesnt he need up to date photos of her?? Also im thinking the only way then is to not ever let her out of my sight until the age of 21 when she can come and go to and from tunisia as she pleases!

    Also his passport is due for renewal end of this year, so i take it that does not bode well for me either??

    I hear you can change the name of your childs birth certificate in the first year if needed, would this make a difference if he has her original one???

    Unfortunatly i know more about tunisian law than my solicitor but im sure all this info will help and we may be able to do something, the only other option is to cancel sponsership but i do feel that under sepervision they do have the right to have a relationship and i would rather that here than there, but then also worry about the family.

    I am really stressed about this, every time i think i can get something done about it, im proved wrong and have to go on searching x
    marilyna likes this.

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