Rights advocates: Patriarchy governs new personal status bill

At the end of February, the House of Representatives referred a new personal status bill to the Constitutional and Legislative Affairs Committee for review. For years, the government, Al-Azhar and civil society groups have battled for authority and influence over the creation of the new law, which would govern marriage, divorce, custody and inheritance for Muslims. This time, Al-Azhar asked the government to put the bill together, according to Judge Mohamed Eid Mahgoub, who chaired the drafting committee. 

Mahgoub told Mada Masr that representatives of 23 state entities took part in preparing the published draft, including the National Council for Women and the National Council for Human Rights, as well as the ministries of Endowments, Social Solidarity, Education, Higher Education, Interior and Defense, the Administrative Control Authority, the National Security Agency and the General Intelligence Service. “They all submitted proposals that were examined,” Mahgoub said, describing the bill as “full of positives.” 

Currently, several different laws organize matters such as marriage, divorce, khul‘ (whereby women can divorce their husbands by returning their dowry), alimony, custody, inheritance and wills for Muslims. The new bill would create one unified personal status law for Muslims. According to the Constitution, the personal affairs of Christians and Jews are governed according to their religious laws. The Coptic church presented a draft personal status law for Christians in the 1970s, but it was never adopted, and the lack of a clear law for the country’s biggest religious minority continues to cause confusion and tension in matters of marriage, divorce, and inheritance.

The draft law for Muslims caused instant controversy upon publication in the press. Civil society and women’s rights organizations opposed several articles, and a campaign decrying the draft’s approach to women’s legal and financial guardianship over themselves and their children swept social media under the hashtag #guardianshipismyright. Some rights organizations said the bill adopts a “pejorative philosophy against Egyptian women and blows away a 100-year long struggle by Egypt’s feminist movement.” Former National Council for Women head Mervat al-Talawy and director of the Cairo Foundation for Development and Law Intisar al-Saeed see the draft as a reproduction of the law that has been in effect since 1920. Speaking to Mada Masr, they stressed that now is the time to draft a civil law on personal status that would be applied to everyone.

Like its previous iterations, the unified bill emphasizes reference to the Hanafi school of Islamic jurisprudence for direction on matters not covered in the law. Exploring the various topics covered under the new bill reveals its similarities to and changes from existing personal status legislation, and how the law might be interpreted by the judiciary.

Marriage contracts

The first area the bill deals with is marriage contracts, which it defines as “an offer and acceptance of marriage with two witnesses,” and stipulates that they are to be concluded before a ma’zoun (marriage officiant) or a competent authority. It then conditions the contract upon the consent of the woman’s guardian: her “father, brother, grandfather, paternal uncle, maternal uncle, etc.” If a woman marries without the guardian’s knowledge, the bill gives the latter the right to demand the dissolution of the marriage within one year from the date of its signing or his knowledge of it, on the grounds that the husband is incompetent or that he married her without a dowry.

Mahgoub explains legislating this power to a woman’s guardian as a matter of Islamic Sharia, with little room for interpretive judgement. He says that the committee tried to incorporate exceptions that would prevent the invocation of this right in real life. “If [the marriage has been] conjugated, if there has been a pregnancy, or if a year has passed, the guardian loses the right to request the dissolution of the marriage [on grounds of] incompetence.”

In contrast, Talawy says that the four schools of Islamic jurisprudence on which the proposed law is based are man-made, but the new law takes them as sources of governance equal to the Quran and the Constitution. The drafting committee did not make the effort to interpret the provisions of Sharia and draft them into legal articles suitable for the present day, Talawy said.

Judge Mohamed Samir is vice president of the Administrative Prosecution Authority and is a vocal supporter of appointing women to the judiciary. In his view, the bill deals with marriage as defined by the imams of the four schools. Rather than dealing with marriage as a contract organizing a relationship between two competent and equal parties, it is dealt with as one of reciprocal obligations in which husbands must spend and wives obey. The law’s philosophy is underpinned by an idea of men’s guardianship over women, whom it views as less capable, he says. It’s on this basis that the law then grants a woman’s father, brother or any male member of her family the right to contest her marriage contract on the grounds of incompetency — a right which she herself does not have. 

Samir says the article contradicts the principle of equality guaranteed by the Constitution. In his view, invoking the principles of Islamic Sharia in the article’s defense is insufficient, as other Muslim countries that govern marriage based on Islamic Sharia do not have this provision. 

Second marriages

Mahgoub, the drafting committee head, thinks the bill protects a woman’s right to know about her husband’s second marriage, and decide whether to stay married to him or ask for a divorce. As it currently stands, the personal status laws oblige a man to inform his wife that he is marrying someone else, but this is not applied in real life. This is why the committee added a provision that punishes men who enter second marriages without informing the first wife with one-year imprisonment and a fine of between LE20,000 and LE50,000. not only for the husband, but also for the ma’zoun who drafts the contract. 

Samir agrees with Mahgoub on the importance of this article, but he disagrees on its preservation of a woman’s right to accept or oppose a second marriage. The VP of the Administrative Prosecution explains that the draft does not grant the first wife the right to an immediate divorce if her husband marries another. Rather, to get a divorce, she must still prove that this second marriage has caused her “material” or “moral” damage. According to Samir, damage is a broad term which individual judges interpret differently. Some judges, he adds, think that a man’s marriage to another, as long as he is financially capable, is an implementation of Sharia and that no damage befalls the first wife. 

Saeed emphasizes that in practice, wives are unable in many instances to prove material, let alone moral, damage. She explains that the court requires the testimony of two witnesses in any dispute, be it custody, alimony or any other issue. Witnesses often shy away from giving sworn testimonies about something they are not sure about, and so cases of this kind are often dismissed. 

Talawy goes even further in her criticism of the provision, advocating for the criminalization of second marriages altogether or a requirement for both wives to submit written legal consent to a judge.

Khul‘

Khul‘ is divorce initiated by women, who do so by returning their dowry. Saeed believes that, like the current law, the proposed bill underwrites a reality in which “wives who don’t work and don’t have anyone to provide for them are forced to remain with their husbands.” The bill stipulates that courts can only approve a woman’s request to divorce her husband if she forfeits all her financial rights, and reiterates the current law’s articles on a woman losing her rights to alimony and to living in the marital home if she is not the custodial parent. Khul‘ for women who have not had children or whose children have surpassed the age of custody means eviction from their homes, according to Saeed.

Also in keeping with the current law, the bill ignores the wife’s role in accumulating shared wealth resulting from the marriage. It simply stipulates that she be given the dowry and the deferred dower.

Verbal divorce

The government’s bill bans verbal divorce, stipulating that divorce be documented before a competent registrar within a week of its occurrence. The registrar would then inform the divorced woman within two weeks of documentation. This proposal has caused disagreement between the grand imam and the president in the past. 

An appendix to the marriage certificate

Mahgoub and Samir agree that the most notable upside of the draft law is the introduction of an appendix to the marriage or divorce certificate that codifies rights and obligations of each party at the time of marriage or divorce. The head of the law-drafting committee stresses that this gives the woman and the man the right to make a deal about all kinds of details “similar to civil marriage” in a manner consistent with Islamic Sharia. This agreement is then attached to the marriage contract or the divorce certificate and can be invoked in any dispute thereafter before a family court.

According to Mahgoub, this appendix allows both parties to agree on all aspects of their lives together: “If the woman wants to work after marriage, she can write that. If her job entails travel, she can write that she’ll be traveling. If she wants to have the power to divorce her husband, she can write that. She can write that in case of divorce, she will continue to live at the marital home, and whether the children will be in her custody or her mother’s.” In case either party objects to the implementation of any terms stipulated by the agreement, the other must present the appendix and bring the matter before an interim relief judge, who is to issue a decision within 24 hours, “meaning that if it’s written in the appendix that the woman will be traveling for work and the husband objects, she wouldn’t need to go to the family court and challenge him. Instead, she would file a writ petition to travel. And as soon as the judge looks over the appendix, they would rule to allow her to travel.”

Educational guardianship for mothers

The draft law grants mothers educational guardianship as custodial parents without a court decision until the age of custody ends, which is when the child turns 15. But the new law also restricts women from procuring official documents on their own, such as registering the birth of a child, Talawy points out — a right women currently have under the law.

Saeed stresses that the draft granting women educational guardianship is not new or enough. Although the 2008 child law includes the same right, it is not implemented in practice. Schools refuse to deal with mothers and require a court decision that proves they are the custodial parents if they are divorced, or the presence of a paternal uncle or either grandfather if the father is absent.

Saeed adds that, for years, women’s organizations demanded that the government issue administrative orders to ensure the law is implemented, but to no avail. She notes that those who drafted the bill should have considered the calls to extend the age of custody to 18 years for the sake of the child’s best interests. They should have also addressed demands to give mothers and fathers equal status as guardians, whether before governmental bodies or in matters of inheritance. The bill should have organized these matters in a manner that guarantees their implementation in practice, she says.

Another aspect of the bill that both Samir and Mahgoub view positively is placing the father fourth in line for custody, following the child’s mother, maternal grandmother and paternal grandmother. Fathers were previously 16th in line following paternal and maternal female relatives of the child. But Saeed thinks fathers should be second, or at most third, in line for custody. Under the current law, children whose mother passes away go to everyone except the father, even though he is often best suited to raising them, she says.

The family support and care fund

The Nasser Social Bank-affiliated Family Insurance Fund is currently responsible for helping families whose heads of household abandoned them without financial support and for implementing alimony sentences for women and children in case the convicted man abstains from paying by “disbursing a maximum of LE500 per month to each family.”

The draft establishes a new Family Support and Care Fund to assume the same duties, and also support low-income, divorced single women and their children. 

Saeed believes that this is one of the most important articles in the draft. She notes that if husbands do not provide proof of income or if they are financially constrained, family courts currently rule in favor of divorced women with what is known as the “minimum level of subsistence,” which is only LE100. Saeed explains that according to the draft, the new fund shall cover the difference between the alimony amount and the minimum wage. So, if the latter is LE2,400, the fund will have to give the divorced woman LE2,300 per month and so on.

“All the money from fines stipulated by the draft won’t go to the treasury, but rather to divorced women and female heads of household to pay alimony if husbands do not,” Mahgoub explains.

The draft law also imposes a fee of LE100 to the fund for each marriage and divorce, as well as fees between LE5 and LE20 for every printout of official records. Additionally, it imposed a “solidarity and societal participation” tax of LE5 for various services performed by public authorities and agencies. Like the fines, these fees would go into the new fund. 

Legal proceedings

The draft gives family courts the sole authority to settle disputes about issues such as alimony, marriage and divorce. It stipulates that the maximum amount of time to adjudicate cases is three months, and requires all disputes brought before an interim relief judge to be decided within 24 hours.

Saeed thinks this is an upside, but needs further explanation, noting that the family court was established in 2004 to expedite litigation in cases related to family matters so that children who attend court proceedings do not mix with defendants in regular courts. This does not apply to cases related to the crime of squandering marital household goods because the latter is considered a crime of “theft and breach of trust,” according to the Penal Code and therefore falls under the jurisdiction of misdemeanor courts. The bill does not clarify this ambiguity, Saeed says. 

Overall, Samir thinks that the bill includes positives that could be the starting point for a serious societal discussion about the mechanism of drafting a balanced law that reflects the reality of personal status and stems from a broader view of the purposes of Islamic Sharia. 

Samir cites the example of Tunisia, which amended its inheritance law without departing from Sharia because the point, he says, is the intent of the text, rather than literal interpretation, in keeping with Quranic texts’ aim toward justice. He says that, for example, religious scholars repeatedly said that female circumcision is consistent with Islamic Sharia until 2007, when 12-year-old Bodour Shaker died during a medically supervised procedure in Minya Governorate. Only then did the Islamic Research Academy announce that circumcision has no root in Islamic jurisprudence. As a result, the People’s Assembly criminalized the practice for the first time.

In contrast, Talawy and Saeed agree that the bill is “patriarchal, reactionary and a worse reproduction of the existing law.” For them, its upsides are no more than simple touch ups to a flimsy law and show the need to draft a civil personal status law that applies to Muslims and non-Muslims alike. Talawy says that“the state is cleaning up and automating all fields, but when it comes to human beings and families, we shouldn’t send them back 100 years.”