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Al-Ahram Weekly 11 - 17 March 1999 Issue No. 420 
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Published in Cairo by AL-AHRAM established in 1875 |
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Al-Ahram Weekly 11 - 17 March 1999 Issue No. 420
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| Published in Cairo by AL-AHRAM established in 1875 |
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Egypt Region International Economy Opinion Culture Focus Special Features Travel Sports People Time Out Chronicles Cartoons Letters Hope on the horizon?
By Amira IbrahimThe final touches are being added to the new Personal Status bill, which has been approved by Al-Azhar. The bill includes 83 items, the majority of which are related to procedural aspects aimed to simplify legal battles and shorten the years many litigants spend in court to a maximum of one year.
After eight years of preparation, the bill is currently being studied by the State Council. It will then be reviewed by the cabinet before being discussed by the People's Assembly.
The bill stipulates that divorced women should receive alimony -- which husbands often refuse to pay -- from the Nasser Social Bank until they can obtain a court ruling. According to the amended law, alimony can be taken from any of the husband's sources of income. The portion awarded the woman and children, furthermore, has been increased from 25 to 60 per cent.
In absentia rules that have often allowed litigants to provide the courts with false information about their place of residence or their identity are also to be nullified.
The draft, furthermore, addresses the problem of women who remarry after having obtained a divorce ruling from the Court of Appeals, but find themselves in trouble when the Court of Cassation cancels this ruling. To help women in this situation avoid charges of bigamy, the draft law stipulates that divorced women should not remarry until they obtain a final ruling from the Court of Cassation, which must be issued within six months of the filing of the request.
The 'idda, or the time which divorced women must wait before remarrying (in order to avoid paternity disputes), has been limited to two months instead of three.
The amended law, if passed, will also put an end to conflicts caused when men refuse to allow their wives to travel abroad, since it authorises the court to grant permission on the husband's behalf.
Although the bill seems to give women several advantages not afforded by the current Personal Status Law, it has aroused heated controversy among religious scholars, lawyers and women's rights activists.
Several feminists have welcomed the modifications but called for a comprehensive change to the Personal Status Law, not one limited to procedural aspects.
Speaking to the Weekly, legislator Mohamed Fathi Naguib, assistant to the minister of justice, emphasised that the draft is designed to replace the current procedural laws with a more comprehensive approach. "The new law is simplified to avoid the restrictions on personal status procedures," he explained.
The bill has also been criticised sharply by religious scholars since it allows women to resort to khul', a mechanism sanctioned by the Prophet Mohamed whereby they can obtain a divorce in return for ceding the mahr (bridal gift), the mu'akhar (a sum usually paid if the husband initiates the divorce), and alimony.
Grand Sheikh of Al-Azhar Mohamed Sayed Tantawi explained that women may obtain a divorce in either of two ways. "The first is to prove that the wife has incurred harm in any way. The court then grants her a divorce, and all her rights are preserved. The second is khul'. Husbands, on the other hand, have an absolute right to divorce with no restrictions," he stated.
Several religious scholars, however, object that the acceptance of the husband is a basic condition of khul', while the new law would allow a woman to obtain a divorce in this way even against her husband's will.
(photos: Sherif Sonbol)
"The husband's acceptance is a basic condition," Tantawi agreed. "If he agrees, this is a good deed. If not, the judicial board will consider the circumstances and determine whether he is being obstinate," he explained.
Naguib, however, argued that two separate mechanisms for divorce exist: khul' and ibraa. "Ibraa means that the divorced woman cedes her financial rights, and is conditional upon the husband's acceptance," he noted. "Khul', on the other hand, does not require such acceptance. The woman is authorised to dissolve the marriage by the offer she makes."
Some legislators suggest that khul' will have to be tested in practice before its efficacy as a divorce mechanism can be determined. At any rate, it could be nullified by the Supreme Constitutional Court -- the fate of an amendment issued in the late '70s, which allowed women to obtain a divorce if their husbands took a second wife.
Adding to the controversy surrounding the draft law is the fact that it allows divorce cases in 'urfi or unofficial marriages to be heard in court. "The items in the bill do not imply recognition of 'urfi marriage," Tantawi cautioned. "Courts do not investigate personal status lawsuits unless an official marriage contract is presented. Since 'urfi marriage is not documented, it is not regulated by the state, and thus cannot be dealt with by the judicial system."
Tantawi recognised the legitimate nature of 'urfi marriage, however. "It fulfils all the conditions required by Islamic law: the acceptance of both parties and the presence of witnesses. I cannot describe it as adultery," he explained.
Naguib noted that the bill sought to address the plight of women who had entered into 'urfi marriages and had been abandoned by their husbands, or who sought to remarry officially yet had no way of obtaining a divorce. "The draft dealt with that part of the problem, but we did not intend to recognise 'urfi marriage as another form of official marriage," he insisted.
While the new personal status bill for Muslims seems to have made divorce easier, a new unified bill designed to apply to all Egypt's Christian denominations seeks to make divorce more difficult.
If this bill is passed into law, Christians will only be able to divorce if their spouse has committed adultery, declared that he or she has become an atheist, or converted to another religion. In contrast, the current personal status regulations pertaining to Christians, issued in 1938, list a variety of cases in which divorce is permissible.
The new draft has been prepared by a committee of eight jurists: two represent the Catholic community, two the Anglican and four the Coptic Orthodox Church, to which the majority of Egyptian Christians belong.
Work on a unified personal status law for Copts began in 1978 when the Coptic Church formulated a unified personal status project signed by the heads of all the Christian churches in Egypt. The draft was sent to the Ministry of Justice to be studied in 1980, but was shelved for almost two decades.
When the People's Assembly announced that it planned to discuss a new personal status draft law, Pope Shenouda III called upon the representatives of Egypt's various churches to revive the project and update it with the necessary amendments.
The draft consists of 146 items divided into five sections. The first of these is devoted to issues such as engagement, the basis for and procedures of marriage, the nullification of the marriage contract and the rights and duties of both spouses. The second explains financial commitments towards parents, children and relatives.
The third section of the draft discusses the limits of parental responsibility and authority over children. The fourth deals with legitimate and the illegitimate offspring. The fifth section of the draft discusses divorce, separation and adoption issues.
The draft, if passed, would entail large modifications to the 1938 personal status law for Copts currently being implemented. In fact, the draft can be described as a more restrictive substitute to the current legislation, which allows divorce in several cases besides adultery, the only cause mentioned in the Bible. The spouse's conversion to another religion or a different church, for instance, justifies divorce, as does a five-year absence with no news of the spouse's whereabouts.
Other acceptable reasons for divorce, under the current law, include imprisonment for seven years; a three-year period of mental illness with no hope of cure; a contagious disease that threatens the partner's health; joining a monastic order; immoral behaviour; domestic violence; and impotence.
The current legislation was formulated during the tenure of Pope Yo'annas XIX, known for his strict interpretation of religious matters. It remained in force under his three successors.
In 1978, the Coptic Church prepared a draft designed to restrict the definition of adultery and to nullify the other legal justifications for divorce, but this project came to nothing.
The new legislation is in keeping with this more restrictive trend, however. "Married couples have to commit to the marriage contract. If the two are from the same church, then the new personal status legislation will apply to them, even if one of them converts to another sect," notes Fouad El-Mote'i, a member of the legislative committee that prepared the drafts of 1978 and 1998.
According to the current personal status legislation, Christian couples who belong to different churches are subject to existing legislation if they take a personal status dispute to court. It is commonly believed that this has provided a way out for those seeking divorce, since they can simply convert to obtain a favourable ruling.
The Church, however, has recently refused to recognise nearly 50,000 divorce rulings handed down by the Personal Status Court, and many of those who used this tactic to divorce found themselves unable to obtain permission to remarry.
The new draft, furthermore, does not recognise conversion to another church if there is suspicion that it was used to facilitate divorce. El-Mote'i explains that the Catholic Church in Egypt does not permit divorce at all. "Until 1902, the Protestants also prohibited divorce except in cases of adultery," he comments.
The item which stipulates that conversion during or immediately preceding a divorce should not be recognised is also being criticised as a violation of the right to freedom of belief. "This freedom is largely maintained," replies El-Mote'i. "Copts are free to join the sect they want, but not at the expense of the institution of marriage. This legislation considers the family to be the fundamental component of society. The collapse of the family structure will lead to the collapse of the whole community," he adds.
The new draft also allows couples who adopt children to give them the adoptive parents' family name. This could be an obstacle to Al-Azhar's approval of the draft. Under Islamic law, adopted children must carry the name of their biological parents if known. If the biological parents are unknown, the Ministry of Social Affairs must choose a family name different from that of the adoptive parents. Adopted children are also forbidden from inheriting their adoptive parents' estates as biological children would.
The unified personal status bill for Christians is to be issued separately from the draft pertaining to Muslims. A long line of committees must study it before it ends up at the People's Assembly -- perhaps during the current session.
