|Al-Ahram Weekly Online
7 - 13 March 2002
|Published in Cairo by AL-AHRAM established in 1875||Current issue | Previous issue | Site map|
What price freedom?Two years ago, women were granted the right to instigate unilateral khul' divorce. It was supposed to change the face of Egyptian family life. However the results, Mariz Tadros discovers, have confounded all predictions
It has been two years since procedural personal status law in Egypt was radically altered. The new law was supposed to speed up legal procedures in matters of divorce, accept appeals for divorce from urfi marriage (marriage without an official contract) and establish a family court.
For most people, though, the law will forever be known as the khul' divorce law. It took the unprecedented step of allowing women to divorce unilaterally, on the condition that they forego almost all financial rights -- such as alimony and other benefits.
In regular divorce cases, women have to prove that they have been exposed to harm or hardship and the judge may reject or accept the application. The khul' procedure offers a very different terrain indeed. Under khul', a woman does not have to give a reason for seeking a divorce. Her hatred for her husband is enough.
Before the law was passed, many sociologists, criminologists, religious and political figures and prominent writers warned that granting women the right to khul' would lead to the complete breakdown and disintegration of the Egyptian family. The outcome, they argued, would be social instability. Giving women the right to khul' would emasculate men.
Women, the argument went, would rush to khul' at the first sign of trouble (being the highly emotional, irrational beings that they are) thus breaking up their own homes, later to regret it miserably. Families would be fragmented. Women would be enticed by rich businessmen who would offer to buy them out of their marriages.
The number if unmarried men and women in society was predicted to sky-rocket, with men being too scared to marry women empowered to exercise the right to khul' and destroy their households in a minute. As for the children, the critics lamented, what would be their fate after growing up in broken homes because their mothers had chosen to opt out? They would no doubt become criminals and thugs, the experts predicted.
The number of articles warning against the passing of the khul' law, in the name of the protection of the Egyptian family, were countless. Massive campaigns were launched by opposition papers such as the liberal Al-Wafd, the Nasserite Al-Arabi and Islamist Al-Shaab.
But the official newspapers also spoke in the name of the Egyptian family when they professed that the new law would render justice, stability and harmony to Egyptian households without affecting man's God-given rights one iota.
For the law to change things, however, it has to be fully implemented. So far, that hasn't happened.
Every woman has her day in court: women going through the khul' divorce procedure are finding it difficult, and sometimes nearly impossible
photo: Abdel-Wahab El-Seheiti
When I set out to interview women who have applied for khul', I soon discovered that finding them would be no easy task. As one social worker pointed out, it is one thing for a woman to say she is applying for divorce and quite another for her to say that she is applying for khul'. The image of a woman who files for khul' portrayed in the newspapers -- selfish, greedy, disrespectful to her husband and a bad mother -- hardly helps women out in this department.
So the anti-khul' campaigners' prediction that thousands, or perhaps millions, of women would rush to divorce their husbands has proven to be hollow.
But there are still some women who applied for khul'. Amany, 33, is one of them. She is a mother of two children: 10-year-old Mohamed, and two-and-a-half-year-old Ahmed. Amany applied for khul' in March 2001, but the court has yet to issue a ruling. Her case has been postponed more than once, because her husband repeatedly failed to turn up for reconciliation sessions -- which are required by the law before khul' can be granted -- and because neither he nor his lawyer appeared for one of the court sessions.
Amany married her husband Mohamed 11 years ago, but, she confides, they have been living separately for almost three quarters of their marriage. When they first got married, she went to live with her in-laws, and the problems started. Two and a half years later, his father asked them to move out. Amany went back to her parents' house, and he stayed at his family home until he was able to save up enough money for a place of his own.
The fighting, however, did not stop in the new home. Amany said she got sick and tired of his threatening to divorce her every time they fought or squabbled, and of his verbal abuse and the fact that he never spent any money on the family. She left for her family's house despite being pregnant.
They later made amends but the trouble soon started again, when she insisted on enrolling her son at school herself. He thought it was a completely unnecessary thing to do. "It was really the idea that I would be leaving the house that he didn't like; he was the jealous type." Her decision to join a household management school herself, and to take up sewing classes only made things worse. It meant being out of the house even more. After she got pregnant with her second child, more fights ensued and she found herself back at her family's house where she has been living for the past two and a half years.
When she applied for khul', he sent his sister to ask for reconciliation. Amany consented and temporarily stopped the procedures. "Once he was assured that I was not pursuing a divorce any longer, he called up to say that he didn't want me anymore. He neither wanted me in his home, nor did he want to set me free. It was also very hard on him to think that a woman could divorce him." Amany then went back to the procedures applying for khul'.
She had hoped that khul' would mean independence, but the reality has been far from the dream. Amany faces another battle at home now, more so this time because she returned with the status of divorcee-to-be. "I am suffocating at my parents home. They watch my every move, because there is nothing worse than being a divorced woman."
Jobless, she does not know how she is going to support herself and her sons after the divorce. The children's alimony is unlikely to be more than LE100 a month. "I know I gave up everything when I chose khul', but I know that if I had sought a divorce the regular way it might take years and years on end."
"You must understand that it is not easy for a woman to ask for khul', no woman wants to destroy her home with her own two hands, but you reach a point where you can't bear it."
Zeinab (not her real name), who is aged 29, applied for khul' in April 2000 and was divorced one year later. She is still awaiting the alimony for her son. During the year that has passed, her parents have been supporting her and her six- year-old child, Islam.
"After I applied for khul'," she says, "we had to go to the reconciliation session at Al-Azhar. The sheikh there urged me not to file a suit. He told me that I would lose everything, including the ayma (list of wife-owned household furniture which the husband signs before marriage). I thought I would not go on if I were to lose that. Later, when I discovered that what he told me was not true, I proceeded with the paperwork. Half-way through, I found out that my husband had sold my furniture."
Zeinab said she left her husband because he was very miserly and did not spend any money on the household. She has since been living with her parents, but given that they are of modest means, she is very anxious to receive her child's alimony, which has yet to arrive. "It is a lot to give up for my freedom, and that is the worst thing about khul'," she sighed.
Ghada Nabil, a lawyer at the Arab Office for Law, explained that according to the new procedural personal status law, women were entitled to immediate alimony payments for their children, which are meant to be dispensed through Bank Nasser. The bank is supposed to pay the former wife then collect the money from the former husband.
"So far," explained Nabil, "this has not happened. Bank Nasser is not paying up child alimony and women find themselves stuck." The whole idea behind the scheme was to ensure that khul' would not simply be a right enjoyed only by women who could afford to support themselves and their children. Nabil confided that there were times when she herself discouraged women from applying for khul' if they had no means to provide for their children.
Lack of alimony payments, however, is not the only broken promise. Nabil pointed out that "according to the law, any khul' application should be ruled on by the courts within a period not exceeding six months. But realistically speaking, in all the cases I have dealt with, it takes no less than a year."
She attributes this delay to a strong reluctance to the application of the law on the part of judges. "I think that the majority of judges do not personally believe in khul'. They don't think it is Islamic and they believe that just because it so happened that once in the Prophet's lifetime a woman was granted khul', there is no reason that it should be made into a general right, nor should it be legislated for."
One of the main official strategies in the campaign to win public opinion over to the new law has been to emphasise the Islamic basis of khul'. Politicians, religious scholars and even the Sheikh of Al-Azhar himself have all reiterated that the right to khul' is enshrined in Islam, following the example of the Prophet Mohamed himself. According to the hadiths (teachings and examples of the Prophet), the Prophet was once approached by a woman, Thabet Ibn Qays's wife who said that while she found nothing wrong with her husband, she hated him and feared that she would not be able to live with him in compliance with God's hadiths. The Prophet asked her to return the garden which her husband had given to her, and said that she would be granted khul'.
But the strategy to win full religious legitimacy seems to have somehow backfired. Different people have interpreted the hadith in different ways, depending on their social views on khul'.
"The resistance of the judges to implement the law really complicates matters for us, especially so because the law was not followed with an explanatory document clarifying the specific details of how it should be applied," Nabil said. Sometimes, she argued, the judge does not actually apply the law as it is supposed to be. "For example, the law stipulates that a wife is to return to her husband the mokadam sadak (amount given to the wife prior to marriage) according to its value stipulated in the marriage contract. In one court session, the husband objected and said the amount in the contract was not the amount he really paid. According to what the law says, the judge is obliged to abide by the amount that is written, yet he did not, but referred them to a committee to investigate the matter, which only meant prolonging the case." The general atmosphere in courts was against the implementation of the law, protested Nabil, adding that she still heard lawyers around her talking about khul' leading to the "extinction of men."
A one-year survey was conducted by the Centre for Egyptian Women's Legal Assistance (CEWLA) comparing the number of khul' appeals made with those that actually received a court ruling in six governorates. The survey covers the period from when the law was issued, at the beginning of March 2000, to the end of March 2001. The full findings of the survey will be released at a conference on khul' to be held in mid-April. The preliminary results, however, show that only a small proportion of the appeals made in court were ruled on in the space of one year.
In the governorate of Qena, for example, out of 85 appeals made for khul', not a single case was ruled on. Courts in other governorates did not do much better. In Sohag, out of 223 appeals for khul', only 2.3 per cent received a ruling, while in Fayoum, out of 131 appeals made, only 1.5 per cent received a ruling. In the Giza governorate, out of 1,199 appeals for khul', 6.9 per cent received a ruling. As for Cairo governorate, which received the largest number of khul' appeals, the percentage did not exceed 14 per cent.
Azza Soliman, a lawyer and manager of CEWLA, conceded that simply the fact that applications had been filed in court showed that women were looking for any way out, even if it came at a high price. More conspicuous are the discrepancies and variations in the way different courts and judges have applied the law.
"As a woman and lawyer who believed that khul' may be one way out for women, I am disappointed at the way the law is being applied," she said. "For example, in one court, the judge ruled for the woman to return the moakhar sadak (the amount to be paid to the woman in case of divorce or in case of the death of her husband). Yet according to the law, she is not supposed to repay it, only forego her right to it. But in another court, another judge issued an ideal ruling referring to her right as a woman, and was very fair in his ruling."
As for the courts in the Upper Egyptian governorates of Qena and Sohag, Soliman explained, "The judge would not rule in favour of khul' for the sake of children. What would people say about children whose mother applied for khul'?" In this context, suggests Soliman, women who apply for khul' are just as stigmatised just as women who are declared nashez (disobedient to their husbands). Nashez women are allowed to apply for divorce, but they are not entitled to any financial rights. "Most of the cases in Sohag were switched from khul' to divorce although women were well aware that it would take three years or so," Soliman said.
For Soliman, patriarchal values aside, a major problem is the lack of training given to judges on how to apply the new procedural law. "For example, in case of dispute on the amount of the moakhar, the wife is supposed to get her divorce and then if the husband objects to the amount given to him, he should take the matter to the civil court (madani). Yet this does not happen, the judge may postpone the court appeal a few times until the husband makes a decision."
Furthermore, according to the law, two reconciliation sessions are to be held, and if they come to nothing a woman's appeal for khul' is to be granted. This idea was based on a suggestion made by MPs in the People's Assembly, who protested that attempts at reconciliation must be made, given that women were very impulsive and could apply for khul' only to regret it later.
In practice, suggests Soliman, the two arbiters in these reconciliation sessions can sometimes be biased. "Rather than trying to resolve issues between the couple, they try and put pressure on the woman to drop the case," she said.
Mona Zulficar, a member of the National Council for Women and a lawyer who helped formulate the procedural personal status law, admitted that there was a problem associated with the lack of experience in applying the new procedures. "They confuse the difference between having arbiters in cases of women who are applying for a regular divorce and the cases of those applying for khul'," she explained. "In the former, the arbiters have to check that a woman deserves to be divorced. In the latter, if the woman objects to going back, the case should not be postponed. The arbitration sessions should not take more than two months."
The prolonged periods of waiting for appeals, suggested Zulficar, could also be attributed to lawyers taking longer to inform the husband of his wife's appeal for khul', especially if his address was not known, or if the husband appealed for a postponement. Sometimes the woman's lawyer was inexperienced in the new procedures pertaining to application for khul', she suggested.
Zulficar conceded that although some of the positive aspects of the law had already been applied, such as the shortening of the time for regular divorce cases, the most important aspect of the law, the provision of child alimony via Bank Nasser, had unfortunately not been implemented. "Initially, the government had allocated LE30 million for this purpose, which was supposed to be transferred from the Ministry of Social Affairs to the Bank. The problem is that now the government fears that such payments would be to no end."
Frustrated and disillusioned, many female activists question whether the government is really serious about removing the legal forms of discrimination between men and women. Like Soliman, many argue that the government is averse to addressing the real sources of injustice, which are inherent in the actual personal status law, rather than simply the procedural law.
Judging by the level of social hostility and discontent in the People's Assembly and in the opposition newspapers two years ago when the procedural law was being discussed, it is not difficult to see why the government is cautious about touching the personal status law itself, which is the central bastion of the patriarchal system.
"We have a personal status law dating back to 1926. Rather than addressing it in its entirety, the government chose to deal with one aspect of it, namely the procedural, while ignoring the rest. The whole law needs to be reformed in the light of the changing social values, the economic crisis and the problems associated with entitlements and custody," Soliman argued.
Until that happens, it seems that poor women will have to weigh up the price they will have to pay for freedom very carefully.
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