Arbitration in Family Disputes as Per Sudanese Family Law: An Analytical Study Vis-Avis Objective of Family Law

Abstract

This research investigates the role of arbitration in resolving family disputes while emphasizing the significance of aligning with Maqasid al-Shariah in family judgments and in comprehending the root causes of family disputes in general, particularly those issues related to marital relations. It also examines how these Maqasidi considerations influence the arbitration process within the framework of Sudanese Personal Law of 1991 AD. The study is divided into five chapters, which elucidate the concept of family and the importance of considering Maqasid al-Shariah as a benchmark for understanding family disputes and finding appropriate resolutions. Also, it provides insights into arbitration, discussing its legitimacy, prerequisites, and objectives. Moreover, the research delves into the role of arbitration in resolving disputes between spouses within the Sudanese context by addressing situations of discord. It assesses the extent to which family arbitration is observed in Sudanese society and underscores the importance of activating it by aligning with Maqasid al-Shariah concerning family matters. This involves comprehending the disputes, their causes, interconnections, and ramifications while seeking effective solutions. The study evaluates the effectiveness of implementing the Sudanese Family Law of 1991 AD concerning arbitration by considering the Maqasid al-Shariah. The research employs both descriptive and analytical approaches, complemented by fieldwork. Key findings include that Sudanese personal laws and statutes are rooted in Islamic Sharia principles. Additionally, the study acknowledges the acceptability of the role played by two arbitrators in reaching a legal resolution for disputes. Despite its legal importance, customary arbitration remains prevalent. Furthermore, along with adequate hearing, confidentiality maintenance, communication coordination between spouses, and alignment with common interests observed by arbitrators, there is a need for further actualization of Maqasid al-Shariah in family matters comprehensively as guiding standards and means to comprehend the reality of disputes, their causes, effects, and to rationalize arbitration decisions towards appropriate resolutions. In conclusion, the research recommends that scholars undertake complementary studies to emphasize the realization of Maqasid al-Shariah in mediation and reconciliation as alternative methods for resolving family disputes within the Sudanese context.