1 - 7 June 2000
Issue No. 484
|Published in Cairo by AL-AHRAM established in 1875|
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The terms of engagementBy Reem Leila
The idea of the "new marriage contract" was first mooted in 1985, during the preparatory stages of a consciousness-raising and legal literacy campaign. The new contract, say legislators, is designed to help every woman striving to achieve a better life for herself, her family, and to give women a better understanding of their rights and obligations under the law.
The new marriage contract was conceived as a civil contract including conditions agreed upon by the parties. It was also the result of attempts to narrow the gap between women's rights in Islam and the Personal Status Law. The latter, before the passing of the new law, did not recognise some of the rights guaranteed by Islam. The Khul', which gives a woman the right to divorce even if her husband has not wronged her, as long as she forgoes her mu'akhar sadaq (deferred dowry: a portion of the bride-gift that the wife receives if her husband divorces her or dies), is one such right; another is the possibility for the woman to include in her marriage contract her right to divorce herself without having to resort to a court, or to restrict her husband's right to take a second wife. The Shari'a recognises these rights as legitimate, but they are not widely used, enshrined in legislation, recognised by the courts or culturally condoned.
The new marriage contract offers the couple the option of agreeing on these conditions or simply deleting those they do not choose to include. This measure is intended to minimise social pressure and to foil the standard strategy used to discourage women from asserting their rights in the marriage contract. Families often heap shame on both the groom who accepts such conditions and the bride who claims such rights, chastising her for having no confidence in her husband's "gallantry."
According to Fathi Naguib, adviser to the minister of justice, the new contract also aims at ensuring that underage marriages are not concluded (the minimum required age is 16 years for the woman and 18 for the man). Identification measures include photographs and fingerprinting; the ma'zoun (who is legally authorised to conclude Muslim marriages and divorces) must also sign below the photos affixed to the contract. This is to avoid falsification and the abusive practices noted particularly with respect to forged delivery of divorce notices. The new marriage contract requires precise information on the employment of the parties and the place where the contract is concluded, in addition to a specific address for the marital residence, and the address at which each of the parties wish to receive correspondence. Finally, both parties must pledge that they have no serious diseases. If the groom is already married, he must provide and prove such information. If he was married previously and has since divorced, he must mention his first wife's name and address. "The new marriage contract will enter into effect within two months at most. Copies of the new contract are now being printed, after which they will be distributed among the ma'zouns so that they can start using them," says Naguib.
Even these relatively straightforward measures have their critics, however. Abdel-Meneim Ishaq Mohamed, vice-president of the State Defence Authority, argues that the medical certificates intended to function as legal proof of age will not solve the problem since a law already exists stating that divorce cases are not to be heard if the wife was younger than 16 and the husband younger than 18 at the time of marriage. "I expect the problem of early marriage will only increase," states Mohamed. "We need a radical solution, which will target illiterate groups as well as the educated. There must be an intensive media campaign to increase people's awareness about the dangers of early marriage. In the long term, the state must penalise parents who do not register their children immediately after birth. This is the only legal and accurate means of proving age."
It would therefore seem difficult for the new contract alone to address the problem of forged medical certificates, which are often obtained by parents eager to marry off their children as early as possible.
The contract provides seven optional conditions, which the parties are free to incorporate or not in the blank space left for this purpose. According to lawyer and human rights activist Mona Zul-Fiqar, many commentators were sceptical about these conditions, although they conform to both the law and the Shari'a. The following points may be subject to a binding agreement upon marriage. The prospective wife and husband may freely agree upon any, some or all of these matters. "The ma'zoun will have to tell the parties about these conditions. The couple may add whatever they see suitable in the space left for this purpose," explains Zul-Fiqar.
Ismail Sha'ban, an employee, has six daughters. He is puzzled about the conditions, and not very pleased. "They are just making the situation worse, they do not want anybody to get married," he protests. "How am I going to find suitable husbands for my daughters? There is no way I am going to include any of these conditions in any of my daughters' contracts. I just want them to get married," Sha'ban says.
There is another problem, according to Zeinab Radwan, dean of Cairo University's Dar Al-Ulum (Fayoum branch). "The contract mentions certain ailments that will prevent the husband from fulfilling his conjugal duties; but in legal terms, a host of other diseases should prevent the marriage from taking place, and who is to say if the ma'zoun -- or, indeed, the parties themselves -- know about them? Furthermore, how is it possible to guarantee the spouses' honesty?"
Radwan foresees further complications. "When exactly will the ma'zoun tell the couple about the conditions? It is difficult to acquaint them with the fine print of the contract just before they sign it -- this will lead to interminable disputes." Radwan also suggests that the prospective husband must prove legally whether or not he is already married. "I suggest that a booklet be issued detailing all these controversial points. People who want to get married should read it and make sure they understand every word. Once they agree, they can get married and avoid disputes," says Radwan.
Mustafa Abu El-Su'oud, a ma'zoun, agrees with Radwan that not all his colleagues are well informed of all the points that could prohibit marriage.
Mohsen El-Sayed, who has been a ma'zoun for 11 years, adds that the new contract represents a legal burden, since he is the one who must verify the claims of the parties. "This is not my responsibility. The contract does not state that any legal paperwork is necessary, which means that I have to depend on people's honesty. This is absurd."
For those who married too early to take advantage of whatever benefits the new contract offers, however, there is also a new divorce document. It replaces the old papers, which were simply blank sheets filled out by the ma'zoun. The new version includes basic information on the parties seeking a divorce, and requires the wife's signature to be legally effective. According to Radwan, while the new papers represent a vast improvement, they still do not guarantee a quick divorce, since they stipulate that the divorce is only final after the completion of the necessary "legal arbitration." This, explains Radwan, means that each of the parties must request arbitration, designed to bring about a reconciliation if possible. If the first attempt fails, the couple must return to the ma'zoun, who in turn tries to convince them to remain married. Only after these measures fail is the divorce final. Other couples, having completed the basic proceedings already (i.e., the man having pronounced the formula "I divorce you three times") must simply register the divorce.
Other conditions prevent a couple from divorcing at certain times. Radwan explains that a man may not divorce his wife while she is menstruating; if they have had sexual intercourse, he must wait until her next menses are completed before divorcing her. "Of course, not everyone knows this," says Radwan. "All this information should be made widely available and stated in simple terms, so that people are aware of the legal points that can prohibit them from getting married or divorced."
Setting the seven
-- Agreement on the ownership of the furniture in the marital abode, and to whom it should devolve in case of divorce.
-- Agreement on who should keep the marital abode in case of divorce, without prejudice to the current law on maternal custody.
-- A specific amount of compensation to be given in monthly installments or cash to a wife who is divorced against her will, in addition to her other legal rights.
-- The right of the wife to obtain employment and education or to continue her education, as well as her right to travel abroad for a legitimate cause.
-- Agreement that the husband may not take a second wife.
-- Agreement on the wife's right to divorce herself [which does not deprive the husband of his right to divorce his wife].
-- Agreement that the wife may renounce all her financial rights in exchange for an irrevocable divorce, if such divorce is not due to a fault on the part of the husband (Khul').