Kyrgyz Republic became sovereign and independent in 1991. Restoration of independence in Kyrgyzstan, as well as in its neighboring countries, was connected to the collapse of the USSR. With independence came the opportunity to continue the interrupted development of the market economy and institutions of the democratic state.
The Constitution of the Kyrgyz Republic, accepted by the Supreme Soviet in 1993, continues Soviet-era protection by providing in Article 26 that motherhood, fatherhood, and childhood will be under the defense of the State. The addition of fatherhood enlarges the provisions of the constitution.
Since independence, the Parliament of the Kyrgyz Republic (Jokorku Kenesh) has ratified many international conventions. Analysis of the conventions in the fields of women's and children's rights has shown that the existing base of Kyrgyz law as a whole agrees with international norms.
Development of family law after the restoration of independence has been determined by the common conception of civil or private law. A new civil code went into effect in 1996. According to Art.1 of this code, "Civil legislation shall be applied to family relationships, if such relationships are not regulated by family legislation." Portions of the 1969 family code have been moved into the 1996 civil code including trusteeship and the acts of a civil condition.
Legal regulation of marriage. In Kyrgyz law, marriage is the union of men and women, which brings legal consequences, creating a status for the married person and for the state. The only legal marriage ceremonies are state-sanctioned, although the participants may have religious ceremonies as well. Couples who plan to marry must file applications at a government office (the ZAGS bureau) one month in advance of the wedding. The waiting period may be reduced or extended by up to one month for justifiable reasons. In both cases, the ceremony must be preceded by a procedure before a civil registrar who issues written findings that there are no obstacles to the marriage. A civil wedding may be accompanied by a religious ceremony, but a religious ceremony without the civil ruling is not valid. Marriage is finalized by registration.
Under law, both parties to a marriage must be at least eighteen years old. The CMF Art.18 provides for the possibility of lowering the marriageable age, but only for the woman and not by more than one year. Couples who marry in religious ceremonies or under customary law at younger ages are not legally married and do not receive legal marriage benefits. The department of state generally decides questions about the lowering of marriageable age. Many marriages today are based on mutual consent of spouses; paternal consent is still a requirement by custom, maintaining a semblance of the tradition of arranged marriages.
According to civil wedding statistics from by the Ministries of Justice, the number of registered marriages has diminished. In 1996, 36,710 couples registered to marry; in 1997, the figure was 26,110; in 1998, 26,910; in 1999, 26,060; and in 2000, 26,557. There is an increasing number of unregistered, traditional unions or de facto marriages. De facto unions are popular especially in the south and among rich men in cities.
In Kyrgyzstan, bride-price, known as kalym, is again openly practiced in the post-Soviet era. According to Kyrgyz custom, the groom gives the bride's family a gift of livestock. Kyrgyz women sometimes bring family livestock into the marriage. The children of the marriage subsequently inherit the bride-wealth, not the husband and his family. De facto polygamous marriages have also increased in number. One statistic showed that as many as 70 percent of the men in the south had multiple wives. Polygamy typically takes the form of acquiring a woman over the age of twenty-five as a second wife. The second wife is called the tokol and is married in a religious ceremony conducted by the iman, or Muslim cleric. The tokol has no legal rights under Kygyz law.
Under the Criminal Code of 1997, bigamy and polygamy are punishable crimes and result in the annulment of the second marriage. Nevertheless, men take on additional wives under traditional and Muslim law. Traditional law permits more wives does Islamic law, which limits a man to four wives. These unions have created a conflict between traditional, religious, and civil law.
De facto marriage, or cohabitation, is of a personal and spiritual nature; it carries no legal family obligations (such as alimony or division of property) according to the civil code. De facto unions are not forbidden by law and are not prosecutable, but the law does not accord them any legal significance. Thus, men and women living together are not considered spouses and do not inherit from each other. Children born from these unions are considered illegitimate and bear the mother's surname. The relations between children and their natural fathers are not considered paternal in the same sense as those involving legitimate children. Although children have the right to receive child support from their natural father, the law does not provide for inheritance rights after his death. Nevertheless, many women who are second wives—who joined the household as a result of de facto marriage—apply to courts to defend the inheritance rights of their children. Such cases are a problem in legal practice.
There are two categories of de facto union. The first might be termed modern and voluntary. These unions exist as a result of a mutual agreement of the parties with little involvement of their families. They occur primarily in the cities. This is a contractual model as a voluntary union of two individuals. The second category, in which the family of the man or man himself pays a bride-price to woman's family, is consummated by the transfer of an agreed bride-wealth. These de facto unions are based on an agreement between families. A woman from a poor family may be forced to marry even if she believes that her rights are being violated. However, since the enactment of the 1997 criminal code, the purchase or ransom of bride-price by parents is no longer a criminal offense. The new code recognized this practice as a social custom and thus not punishable by criminal law.
The difficult question is determining the form of a relationship before its legal effects can be ascertained. Women in polygamous unions often believe that they are validly married under Islamic law, which recognizes these unions. Customary law in Kyrgyzstan also permitted polygamy. In the south, a first wife may not protest against her husband's expressed intention to marry other women. Women and their families do not demand a marriage certificate because the ceremony (nike) is performed by an Islamic official (moldo—a man who works in a mosque under an iman). These traditions date back to the prerevolutionary era and belong to both the Islamic and traditional laws. Given these circumstances, parties may remain ignorant of their actual legal status until a marital dispute or the death of one person throws a dark shadow on the validity of their marriage.
The Code of Marriage and Family does not include legal rules to govern the distribution of property when one of the cohabitants dies intestate before the validity of the relationship is decided in court. The law has no provisions that give economic protection to the woman who lives with the man and her children. This brings consequences for the second wife and her children. Fathers' and children's rights and duties arise from the establishment of the children's parentage. A child's parentage becomes legal when certified by the ZAGS. The parentage of a child born to unmarried parents may be established if the child's mother and father submit a joint declaration to the ZAGS. Based on the parents' free and willing declaration that they are the parents, ZAGS register the child's birth and issue the parents a birth certificate that indicates the child's father's and mother's name, patronymic, and surname.
The courts may determine a child's paternity if the child is born out of wedlock and if, at the time of birth, no joint declaration was submitted to the ZAGS. Paternity may be established based upon cohabitation and the running of a joint household by the mother and the respondent for at least six months prior to the birth of the child, the joint upbringing or maintenance of the child by the two, or documentary evidence authentically proving that the respondent recognizes his paternity. Paternity can be proved if only one of these is established. Cohabitation and running a joint household by the child's mother and the respondent before the child's birth may be proved if the two persons lived in the same household, ate together, took care of one another, and acquired property for mutual use and enjoyment or for the child. All these facts may be confirmed with various documents and witnesses' testimony. After the court exhaustively examines all evidence relevant to a paternity case, it declares whether the respondent is the child's father or not. The court's decision becomes the basis for the entry in the ZAGS registry, which brings about personal and property rights and obligations between the child and the father.
The process of establishing paternity may be difficult, particularly after the father has died. Documentary evidence is rarely available, and the illegal widow will have to offer proof of established cohabitation. In many cases, a de facto union may not last long enough to meet this test. Genetic evidence is accepted, but is expensive and only available in Moscow.
Experience shows that the woman usually loses when the second marriage is invalid under the general law. Since the Kyrgyz Republic republic gained its independence, polygamy and de facto marriage unions have spread in the neighboring republics of Kazakhstan, Uzbekistan, Tajikistan, and Turkmenistan. This has come about because of the interests of Muslim men and the revival of Central Asian traditions. Polygamy is against the law in all of these countries, but the governments do not enforce the laws. During the Soviet era, the criminal code prohibited both polygamy and the payment of bride-price. Even more important, a man with more than one wife (or a man who divorced) would lose his membership in the Communist Party and would lose prestige and even his job as a result.
Divorce. The Code of Marriage and Family required equal ownership and distribution of marital assets upon divorce. By the end of the twentieth century, the number of divorces exceeded 50 percent of the annual marriages.
Domestic violence increased in the post-Soviet era. Under the criminal code, husbands do not have a right to beat their wives, but domestic violence is only a crime if the abused partner complains. Hospital admission records indicate an increase in domestic violence injuries requiring medical attention.