Monday,27 May, 2019
Current issue | Issue 1327, (12 - 18 January 2017)
Monday,27 May, 2019
Issue 1327, (12 - 18 January 2017)

Ahram Weekly

The cart before the horse?

New child custody proposals have raised a storm, bringing back attention to the need for reform of Egypt’s personal status laws, writes Salonaz Sami

The cart before the horse?
The cart before the horse?

Traditionally, custody of children following a divorce was primarily given to the mother until the age of 15. After that the judge would ask the children if they wanted to stay with the same parent or go to the other one.

However, if the mother were to remarry, custody would normally shift to her mother and then the father’s mother, giving priority to female relatives from the mother’s side over those from the father’s side.

The law derives these rules from Muslim Sharia Law, recognising that at such an early age, children have special needs that are best met through their mothers in particular or by a woman in general.

Many have argued that it is discrimination against women and their constitutional rights to take their children from their custody upon remarriage, however. The law pushes women who can financially support themselves to refrain from remarriage altogether in order to maintain their children’s custody.

Some 90 per cent of divorced women chose not to remarry in order not to lose their children’s custody, according to a survey by the Association for the Development and Enhancement of Women (ADEW), an NGO.  

Last month, however, MP Souheir Al-Hadi along with 60 other MPs proposed a new custody law that shifts custody directly to the father once the mother decides to remarry.

According to the current personal status law that regulates all matters related to marriage, divorce and custody, following divorce custody of the children goes to the mother while allowing the father the right to a weekly visit.

Amendments to several articles of the law have been made over the years. But Al-Hadi’s amendments, which have sparked outrage on social media, also call for allowing fathers to host children in the custody of their ex-wives for 48 hours a week, instead of just three hours a week at present, and for one week during mid-year vacation and one month during the end of year vacation.

The proposed amendments have been met with criticisms from the National Council for Women (NCW), women’s rights advocates, scholars and women of all classes.

“According to the current law, the mother has the upper hand,” explains Ahmed Ezz, an executive in a multinational company and an advocate for the Rebelling against the Family Law Campaign, an action group. “Three hours a week is surely not enough, and they are not even guaranteed,” Ezz added. “Many women prohibit their ex-husbands from seeing and spending time with their children as it is,” he noted.

Ironically, Ezz, whose campaign supports Al-Hadi’s proposals, has been accused of “kidnapping” his son by his ex-wife Maha Al-Khattib on live TV.

Abduction and a refusal to return the children after a visit are main concerns of mothers who can prohibit fathers’ visits as a result.

According to Nermine Abu Sallem, founder of the Egyptian Single Mothers group (ESM), a campaign organisation, many women have been trying for years to get back their abducted children, but with little luck.

“My ex-husband took away my son, not just once or twice, but three times,” explains Mai Esmat, the mother of a four-year-old boy. The proposed law, according to Esmat, would only open the door to more tragic incidents of that kind. “I have seen other similar cases where fathers take their kids during visitation hours and then leave the country,” she noted. “The new law will only help them get away with it.” Moreover, Al-Hadi’s proposal does not include safeguards to protect children during the proposed hosting times.

One recent case that has made a lot of buzz on social media was that of Jailan Al-Bayaa, a young mother whose ex-husband abducted their daughter, took her out of school and then disappeared. The father took the girl and managed to hide his trail as well. Al-Bayaa was unaware of the whereabouts of her daughter for weeks as a result.

As a last resort she took to social media in an attempt to find clues of the location of her daughter. Her case is a reminder that besides looking into amending custody and visitation rights, the entire family law needs to be reviewed so that any father who acts similarly will be punished.

Letter of the law: Law 58 of 1937 says in Article 292 that “a penalty of detention for a period not exceeding one year, or a fine not exceeding LE500, shall be inflicted on either a parent or a grandparent who does not hand over his or her child or grandchild to the person having the right to claim that child, according to the decision of the judicial authority.”

The abduction of a child by either a parent or a grandparent from the court-appointed custodian is an offence, according to Article 292 of the Penal Code.

However, in reality such laws have no teeth. “The father takes the child, relocates, and bribes officials, and the mother is then left to agonise indefinitely,” said lawyer Mahmoud Shehab.

Abduction is but one of the many problems Egyptian single mothers can face under the current law. Another major problem is alimony. “The court can take forever to rule, and there are many loopholes in the system that husbands take advantage of,” explained Shehab.

“They may present misleading documents about their salaries so that they will only pay the minimum, for example,” Shehab said. Often, the amount of money the judge decides on for the mother for housing and child support does not even cover the basics. “My ex-husband’s salary is over LE8,000 a month,” explained Doaa Abdel-Sattar, one of hundreds of single mothers caught in family court battles.  

“The judge gave me LE200 a month. Can you believe it? Do you think this is enough for baby formula, diapers, medications and vaccinations among so many other things,” she asked. Abdel-Sattar gets another LE150 for housing, while her rent is LE1,200 for a one-bedroom apartment.

A man who forces his wife to take him to court to get what is rightfully hers is not a man, said sheikh Ahmed Badr, a maazoun, or religious notary. A real man, according to Badr, would take care of his children along with his ex-wife out of his own choice and not be forced to do so by a court order.

“Taking care of children doesn’t only mean paying their bills. It means being there for them when needed and investing in them emotionally,” Badr explained. “No woman would go to court unless she had no other choice,” he noted. “If any of the MPs who have proposed the new law visited the family courts they would realise how many women suffer for years regarding divorce, custody and alimony issues at present,” Abdel-Sattar added.

A survey of 10,000 divorcees by ADEW found that 90 per cent of the ex-husbands of the women interviewed did not pay alimony.

Theoretically, following a divorce a woman is entitled to the deferred dowry, (moakhar) and financial support (nafaqa) during the waiting period and compensation (mutaa) of at least two years maintenance, with consideration for the length of the marriage, the circumstances of the divorce and the husband’s means being taken into account.

In reality, however, “many women forfeit their financial rights in order to get a divorce in the first place, either by their own choice or by being forced to by the husbands,” noted Badr.  

Having to forfeit both the right to any marital assets and the right to any future support makes divorce an option limited to women with financial resources or those who are really desperate to get out of a marriage. “The discrimination in Egypt’s divorce and alimony system starts long before a woman files for divorce. As a matter of fact, it starts with the marriage itself,” explained human rights lawyer Abeer Qandil.

Although according to the law marriage contracts may contain conditions providing for certain rights along with a woman’s equal access to divorce, many women are not even informed of their right to negotiate such conditions, according to Qandil. “In such cases, a woman can get a divorce with the same ease as a man by going to a maazoun and divorcing herself,” she noted.

But while in principle all of the conditions contained in the marriage contract should be mutually agreed upon between the couple, in practice the process is far less equal, to say the least.  

“It is extremely rare for women to condition the marriage on equal divorce rights during the signing of the contract because this is deemed unacceptable to most Egyptian families,” explained Qandil. “Women fear that such an act could be considered a bad omen for the marriage and could result in the breaking off of the engagement,” she said.

While all a man has to do to get a divorce is to repudiate his wife by saying ‘you are divorced’ three times, making the divorce irrevocable (bayen), women need to go through a complex, time-consuming and costly process to get a divorce. Women who file for a fault-based divorce are required to obtain legal counsel, provide evidence of harm through witnesses, and submit to compulsory meditation in order to get a divorce, for example.

“I wanted a divorce, but he refused to give me one,” explained divorcee Ghada Wagih. “He left me with two kids and said he was not going to give me a divorce and that I would just hang around ‘like a spare tyre’,” she added.

“But I filed for a khulu, and eight months later I was free,” she added. Two years later, her ex-husband filed for visitation rights to see the daughters he had left without a penny, and the court allowed them, however.

While the khulu law issued in 2000 grants women an easier way out of marriage by allowing them to file for divorce on the basis of incompatibility without having to provide evidence of harm, it also obliges them to forfeit their rights to any future financial support.  

Currently, Wagih, along with millions of other mothers, fears that the father who did not spend a penny or do anything for his child will now be allowed to host her for two days a week.

“God only knows what he will tell the girls about me,” she said. “And what will it do to them being torn between two separate houses? As if it is not already hard enough being a single mother in Egypt, now they want to make it even harder for us,” she added.

While three hours a week are not enough to form a bond between a child and a parent, whether it is the mother or the father, according to Nadia Ali, a sociologist, it is also surely not the best thing for a child to get stuck in a vicious battle between a mother and a father who are mean about each other.

“If the relationship between the mother and father is already tense, allowing sleepovers for the children only adds fuel to the fire,” she noted.   

On the other hand, Mustafa Tawfik, a divorced father, explained that under the current law a child does not necessarily develop a relationship with the grandparents, aunts and other family members from the father’s side.

“We want visiting rights in order to be able to host our children for a sufficient amount of time for healthy relationships to develop,” he noted. Qandil agreed by saying that “visits are for the child’s benefit, not just the parents, and extending the time of visits instead of allowing hosting to take place is what I recommend. Fathers could have their children for an entire day instead of three hours, and then return them to their mother by the end of the day, for example,” she explained.

“If one of the parents violates the agreement, he or she should be punished,” she said. “The child’s rights are at stake, not those of the parents.”

Abu Sallem argues that visiting rights and alimony are interdependent. “You can’t allow visiting rights to a father who doesn’t support his child financially, and the opposite is also true. You can’t deny a father who supports his child the right to see him,” she explained. “This is just common sense.”

But this is exactly what may happen in reality. “Fathers decline to pay child support in an effort to make the life of the mother harder, so mothers respond by making it difficult for fathers to see their children regularly,” she added.

No end in sight: It seems the debate over divorce, alimony and custody in the family law will never end. NGOs and human rights advocates have been working for years on ways to reform the current law in the direction of giving mothers more custodial rights, while balancing the fathers’ rights as well, but with little success.   

“We need to find a way of accelerating alimony rulings, making sure the amount is sufficient for the mother and the children to maintain a decent living standard and shorten the litigation time a woman has to endure to get a court divorce,” said Abdallah Al-Naggar, a member of the Islamic Research Institute, in an interview with Al-Ahram Weekly.

Al-Naggar stressed that custody should remain with the mother, and hosting the child for a couple of days by the father should be conditional on the mother’s approval.

“The father surely has the right to see his children on a regular basis, and for him to be able to do this he has to maintain a decent relationship with the mother,” Al-Naggar noted. According to Al-Naggar, whatever the reasons that caused the divorce, they continue to affect the couple even after it.

“This is why maintaining a respectful relationship between the mother and the father following a divorce is crucial on so many levels, but most importantly for the sake of the children,” he explained.

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