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Al-Ahram Weekly 22 - 28 June 2000 Issue No. 487 
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Published in Cairo by AL-AHRAM established in 1875 |
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Al-Ahram Weekly 22 - 28 June 2000 Issue No. 487
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| Published in Cairo by AL-AHRAM established in 1875 |
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Egypt Region International Economy Focus Opinion Culture Features Travel Living Sports Profile People Time Out Chronicles Cartoons Letters
Before you sign on the dotted line...
By Reem LeilaThe new procedural Personal Status Law enshrines khul' -- a woman's right to obtain a divorce, even without her husband's approval, on the condition that she relinquish all her financial rights. That is well and good for women desperately seeking a way out of a dead-end or abusive marriage. Brides-to-be, on the other hand, would do well to contemplate a perfectly legal, far less time-consuming and costly alternative: the 'isma.
When a Muslim woman marries, she can request that her right to divorce be included as one of the conditions binding the signatories to the marriage contract. Although jurists construe such a condition as a delegation of authority by the husband -- in a sense, it is as his agent that the wife may "divorce herself from him," as the formula has it -- they unanimously agree that if such a condition is included in the contract, it is enforceable and may not be abrogated unilaterally by the husband.
The woman's right to divorce -- called the 'isma (signifying protection or custody, 'ismat al-nikah being the bond of marriage) -- may be exercised immediately in the presence of the ma'zoun (state official responsible for drawing up Muslim marriage and divorce contracts), without recourse to the court. Contrary to popular perception, furthermore, it does not affect the husband's right to divorce his wife unilaterally at any time. Patriarchal culture, however, discourages women from requesting the 'isma, since this right is perceived as somehow derogatory, threatening to the husband's manhood or, at best, a sign of mistrust in the intentions of the husband and his family.
According to lawyer and human rights activist Mona Zulfiqar, the legal effect of the 'isma is to guarantee equal rights of termination to both the husband and the wife. Including her right to divorce herself in the marriage contract can save the wife long, painful and costly legal procedures -- as many women will testify, attempting to obtain a divorce from their husbands in the absence of the 'isma can take seven or eight unsuccessful years.
The records of the Zananiri Court for a period extending from October 1998 until January 1999 show that over 1.5 million women file for divorce before the Egyptian courts every year. Had they retained the 'isma upon marriage, they could have done much to pre-empt this backlog, were social pressures not so great. The 'isma, furthermore, offers one great advantage over khul', although the latter has received the lion's share of media attention in recent times. "When the wife exercises her right to divorce, she is not obligated to waive her financial rights automatically, as she must do in the case of khul'. With the 'isma, she maintains such rights, according to the law," says Zulfiqar.
Were it not so difficult for women to brave the stereotype holding that "a man who gives his wife the 'isma is not a man," many tales of male tyranny would have no reason to be told. According to Zeinab Radwan, dean of Cairo University's Dar Al-Ulum (Fayoum branch), Shari'a principles stipulate that women have a (unilateral) right of divorce only if this is a condition included in the marriage contract. "If a man marries a woman on condition that she holds the matter of her divorce in her hands, contract and condition are valid. This is a natural reflection of the contractual nature of marriage," Radwan explains. "If the contract is concluded based on mutual consent, it is natural to require dissolution by mutual consent or provide for a unilateral right of termination by either party."
The 'isma, moreover, can serve as a useful tool in the negotiating process that inevitably accompanies marital alliances. If all else fails, notes Radwan, "a woman who has secured the right to divorce herself can go to the ma'zoun with two witnesses and her identity papers and register the divorce. The ma'zoun is then responsible for informing the husband."
According to the most recent statistics issued by the Central Agency for Public Mobilisation and Statistics (CAPMAS), 50,000 women have marriage contracts stipulating their right to divorce themselves. This rate is expected to increase due to the current social and economic circumstances. This phenomenon is generally more widespread in Cairo and Alexandria, where legal awareness tends to be relatively higher than in rural areas; in the countryside, moreover, small communities and larger, more closely-knit networks of family relations could make it more embarrassing for a woman to defy social taboos and insist upon her right to the 'isma. Generally, popular perceptions still associate the 'isma with powerful, wealthy women, who are educated, independent and preferably backed by their families.
Samia Khidr, professor of sociology at Ain Shams University, believes that men are reluctant to give their wives the 'isma because "according to Egyptian tradition it would be a disgrace, even though the Shari'a gives women that right. Men always want to feel they are superior to women," she concludes wryly.
Fawzi Shehata, a ma'zoun, disagrees. Perhaps, then, the situation is changing for the new generation? "Very often, young couples come to me to draw up their marriage contract, and the bride wants to get the right of divorcing herself. Strangely, the groom not only agrees, but he also wastes a lot of time convincing me to do as they wish. Then I have to spend the same amount of time convincing him not to give her that right because he is the one who will regret it," says Shehata. Evidently, if change is to occur, it will have to overcome such grassroots, widely diffused prejudice.
Another ma'zoun, Magdi El-Suweifi, feels that most women who request the right to divorce themselves are "wealthy or famous, or they have a strong personality." El-Suweifi argues that "most probably these women do not trust their husbands. Anyway, they will not obtain their financial rights unless they also stipulate that point on the contract," he adds.
According to Radwan, there are two instances of divorce that may be initiated by the wife. Her marriage contract may stipulate that she has the right to divorce herself three times, thus making the divorce irrevocable (ba'in), or only once. In the second case (talaq rag'i), the husband may compell her to return to him before a period of three months has elapsed. Also in the second case, however, if the wife relinquishes all her financial rights, the divorce is considered irrevocable. "In the case of an irrevocable divorce, a new contract of marriage and a new dower are necessary if the husband and wife want to return to each other. A revocable divorce allows revalidation of the original marriage contract by the husband within the waiting period ('idda)," says Radwan. Still, women may also stipulate in their marriage contract that they have the right to divorce themselves while maintaining all their financial rights (alimony, child support...). According to Radwan, if the wife does not make the preservation of her financial rights explicit, she will find it very difficult to obtain them following the divorce.
Esmat Ahmed, an engineer, asked her husband to divorce her when she discovered he had taken a second wife. She subsequently returned to him, but this time she has covered all the bases. "My contract stipulates that I can divorce whenever I want, and still keep all my financial rights," she says happily.
According to personal status lawyer Abdel-Hadi Ghozzi, many women do not know it is possible for them to retain their rights if they initiate the divorce. "When women are the ones who request the divorce, they are usually willing to give up everything for the sake of their freedom," says Ghozzi. Legally, it is the wife's right to divorce without the husband's knowledge, let alone his approval, he adds.
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