Khul' law passes major test
Although the Supreme Constitutional Court recently ruled in favour of a controversial new divorce law, Mariz Tadros discovers that the path to marital equality for all remains mired with thorns
Feminists, human rights activists and civil society organisations are cheering the recent Supreme Constitutional Court (SCC) ruling declaring the Procedural Personal Status Law passed in 2000 constitutional. The law was being appealed, with particular critical emphasis placed on its Article 20, which grants women the right of khul' -- the right to get divorced by court order on condition the woman forgoes many of her financial entitlements.
Alexandria resident Alaa Abul-Ma'aty Abul- Fotouh decided to fight the law after his former wife -- Aliaa Sayed Mohamed -- was granted the right of khul' by Alexandria's Personal Status Court. Mohamed had appealed for khul' to end the three-year marriage on the grounds that repeated disputes had taken her to the point of no longer being able to live with her husband. Abul-Fotouh's lawyer was contesting the constitutionality of the law because it did not grant his client the right to appeal the ruling, and because it violates Islamic Shari'a (rulings) since it does not require a husband's consent as a prerequisite for granting a woman khul'.
The lawsuit was highly controversial, so much so that Judge Maher El-Beheiri ended up heading the court and pronouncing the verdict instead of Fathi Naguib, who stepped down from his head judge post on the case because he had taken part in formulating the law while he was assistant to the minister of justice. Judge El-Beheiri's ruling confirmed that khul' does not violate the Shari'a because there are definitive Qur'anic verses supporting it. On the second point, El- Beheiri argued that legislators have the right to promulgate a law whose rulings are not open to appeal, if there is a justification for such a thing.
Last week the State Commissioners Authority -- an advisory committee of legal experts attached to the High Constitutional Court -- issued a detailed report recommending the law be declared constitutional. Although the recommendations are not legally binding, the report featured extensive evidence drawn from Islamic jurisprudence indicating that a woman can be granted khul' without her husband's consent. The whole point of the law is that the wife can buy her freedom -- at the cost of relinquishing some of her financial rights, such as the mo'akhar (a sum agreed upon by both parties to be paid to the wife in case of divorce), the alimony and any gifts that were given to the wife by the husband.
Prominent lawyer Mona Zulfuqar, who helped formulate the law, hailed the court's decision as "a victory for human rights, women's rights, and for all those working for social progress in this country".
Zulfuqar said that "the first turning point in Egyptian women's history was made by Qassem Amin 100 years ago [by encouraging women's emergence into public society], and the second was made by the Supreme Constitutional Court when it ruled that the law is in full compliance with the Shari'a and that it does not violate the right of appeal."
Fawziya Abdel-Sattar, former head of parliament's legislative committee, said the court ruling was expected, considering that the law itself was drawn from Islamic Shari'a and relied on a definitive hadith which was applied at the time of the Prophet. "Khul' is an essentially Islamic concept, so there was no reason for it to be ruled unconstitutional," she said.
Regarding the issue of appeals, Abdel-Sattar argued that with khul', there was no legal justification for appeal. "If a woman appeals for khul' and tells the judge that she cannot stand living with her husband to the point of hatred, what would be the point of appealing? To force her to love him? It just does not make sense," said Abdel-Sattar, who also pointed out that in khul', two attempts are made at reconciliation and it is only when they fail that the verdict is issued -- thus proving that there is really no going back.
According to Abdel-Sattar, the constitution does not necessitate that an appeal be granted for each verdict, leaving that decision up to the legislators. She added that there are many laws in effect in Egypt -- such as those that govern some civil dispute cases -- where there is no appeal.
Psychiatrist and feminist Aida Seif El-Dawla also found the SCC ruling very positive, "especially when it comes in response to an appeal by a man who wants to forcefully live with his wife against her will."
Zulfuqar suggested that what is most important about the khul' law is that "it reinstated a balance of power within the family between husband and wife, so it's no longer a situation of master and handmaiden. Now [with khul'] both have the right to end the relationship -- not just the man."
Seif El-Dawla, however, does not think that khul' is a panacea for all of women's personal status problems. She says it is more like a step forward that is designed not to shake the foundations of the patriarchal system. Yet shake it did, even before it was passed, with the Procedural Personal Status Law becoming a bone of contention between advocates of change and those who believe no divorce should be granted without the consent of the husband. These latter argue that the law will ultimately lead to the breakdown of the family.
Seif El-Dawla says that the stigma associated with khul' and the portrayal of women who consider using it as lewd and immoral, have intimidated many to the point of thinking twice before filing a lawsuit. On the other hand, she points to the disturbing phenomenon of women who apply for khul' instead of divorce because khul' involves a shorter process, whereas they are entitled to financial benefits in case of a regular divorce. She believes that equal marital rights can only be achieved within the framework of civil marriages signed or broken with the consent of both parties in the presence of a judge. The current law prohibits civil marriages and only forces a wife to go to court to divorce her husband, and not vice versa.
While the controversy of the constitutionality of khul' may have come to an end with the SCC's decision this week, its application is still being hotly debated. Many argue that since the constitution guarantees equality for all citizens, irrespective of gender, class or religion, Christian women should enjoy the right to khul' as well. The current law stipulates that only when there is a difference in denominations between the two parties can one apply for khul', while a new Personal Status Law for Christians, due to come out soon, will prohibit Christians of different denominations from applying for khul'.
Al-Ahram Weekly Online : 19 - 25 December 2002 (Issue No. 617)
Located at: http://weekly.ahram.org.eg/2002/617/eg11.htm