Critical articles of Law no. 1 of 2000 as promulgated

Judicial khul' Article 20 of the law provides that if the spouses do not agree on khul' between themselves, the wife has the right to petition the court for a khul' in which she ‘ransoms herself’ by waiving all her shar'i financial rights and returns the dower.

This judicial khul' differs from an agreement between the spouses to end the marriage by mutual consent with a talaq with ibra', the wife’s waiving of any financial rights from her Imsband-Judicial khul' is also different to judicial separa­tion for injury, which does not affect the wife’s financial rights in the event the injury is established.

Injustification of Article 20, a draft explanatory memorandum that was pre­pared to Law no. ³ of 2000 cited Surat al-Baqara, 229, and the Prophetic hadith related by Ibn Abbas of Jamila Bint Abdullah, wife of Thabit Ibn Qays, who came to the Prophet and said that although she could not reprove her husband morally or religiously, she detested him and feared matrimonial rights would not be fulfilled because of the extent of her aversion to him. The Prophet asked her if she would return the garden she had received from him as dower, and she said she would, so the Prophet told Thabit to accept the garden and divorce her.

Establishment of talaq Article 21 of the law provides that in the event of denial, tαlαq shall be established only by testimony and documentation; the notary, when asked to witness and document a divorce, must call both spouses and invite them to chose an arbitrator from each of their families, but if they insist on the incidence of the talaq, or the couple or the husband confirm it has occurred, then it must be documented immediately after the witnessing.

This might have the effect of putting women in a very difficult situation, since a husband might divorce his wife orally, at home with no witnesses, and then not document the talaq with the ma'dhu∏∙, she cannot conclude another contract of marriage after the end of the 'idda period, and indeed he might deny he has divorced her and call her to obedience. He might even divorce her three times without documenting it, so that she becomes irrevocably prohibited to him under the terms of the shari'a, while in official documents she is still married to him.

Mandatory reconciliation efforts in divorce cases Article ι8 of the law provides that in cases of talaq and judicial divorce, the court is to attempt to reconcile the spouses before ruling on divorce; if they have children, the court is to offer reconciliation efforts on at least two occasions separated by at least thirty and not more than sixty days.

Establishment of revocation of talaq Article 22 of the law allows the wife to establish her husband’s revocation of his tαlαq of her by all possible means. On the other hand, in the event of her denial of a revocation, the husband’s claim to have revoked the talaq will be heard only if he had informed her by official document of the revocation within a period of sixty days for women who men­struate and ninety for those who count the 'idda by month, starting from the date she was informed of the divorce.³⁶

Divorce from 'urfι marriage Article 17 of the law provides, in line with the previous (1931) law, that in the event of denial, claims arising from a contract of marriage will not be heard unless the marriage is established by official document, adding however that claims of divorce (tatlig) or dissolution Jaskh) can be heard in the event that the marriage is established by any document.

Consolidation of claims in one court Article 10 of the law authorizes the first instance court with local jurisdiction over talaq Or judicial divorce to rule also in the first instance on related claims for maintenance or for fees — whether for the wife, children or relatives — and also on child custody, access, removal of the child (from the area), and the accommodation of the child’s custodian. Other courts of first instance, or courts of summary justice, where claims are filed related to the parties involved in the divorce claim, must transfer them to the first instance court Withjurisdiction over the divorce case. The draft explanatory memorandum pointed out that this would avoid having several courts involved, enabling the one court to rule on the different aspects of the dispute in a more speedy and equitable manner as it will have before it all the elements of the dispute. This provision was popular with members of the judiciary.³⁷ Also, where there is a dispute over the income of the person from whom maintenance or fees are claimed, the office of the public prosecutor is required under Article 23 to cany out an investigation to identify the level of income, submitting its conclusions in not more than thirty days from the date of receiving the court’s request. While having regard specifically for the confidentiality of bank accounts,³⁸ the article requires any governmental or non-governmental party to provide any information they have identifying the income of the person from whom maintenance is required. The draft explanatory memorandum noted the ‘practical reality’ of the inaccuracy of pre-existing administrative inquiries and predicted that the instigation of this new judicial investigation would contribute to more equitable rulings on maintenance.

Non-payment of maintenance Law no. ι of 2000 repealed, inter alia, the regulation on the organization of shari'a courts issued in accordance with Law Decree no. 78 of 1931 and with it Article 347 thereof, which set out the procedures for the imprisonment for up to thirty days of a man able but refusing to im­plement a court order against him for maintenance, fees for hadana or breastfeeding or accommodation. The article had been challenged as unconstitutional, but the Supreme Constitutional Court had held it constitutional on the basis of the opinion agreed upon among the Muslim Imams that a prosperous debtor able to pay his due may be imprisoned in order to force him to pay it.³⁹ Claims regarding maintenance debts were therefore subject to the Penal Code. Under the new law, maintenance became like any other financial obligation, so whether it be an order for maintenance for wives, divorcees, children or relatives, imprisonment does not arise but the provisions of civil law allow the attachment of part of the husband’s salary or of his property in service of his debt. Law no. 1 of 2000 provided for the establishment of a system of family security to include guaranteeing the implementation of maintenance awards through their payment by the Nasser Social Bank, under regulations to be issued by the Minister of Justice.⁴⁰ On implementation, however, shortcomings in the text came to light. The bank was frequently unable to define the real income of the husband, particularly those not working in the governmental sector; it was reported that the source for funding for maintenance was not clear, nor whether monthly maintenance only should be paid out or also deferred maintenance. In view of these practical problems and faced with a need to close the legislative gap that they indicated, the People’s Assembly reconsidered the matter and agreed on 15 May 2000 to amend the new law to allow the imprisonment of a man refusing to pay maintenance for up to thirty days.

The new marriage document

In accordance with Law no. 1 of 2000, a new marriage document was issued for the process of registration of the marriage. The standard form had been limited to details such as the names of the spouses, the agreed prompt and deferred dower and the witnesses to the conclusion of the contract. The new form allows inclusion of whatever conditions the two spouses wish to agree upon in the interests of ensuing the continuity of married life and the minimizing of disputes, whether during matrimony or even after its termination. These stipulations thus constitute a sort of special constitution for their relationship which binds both of them by its terms.⁴¹ The basic principle is that the stipulations may not make what is prohibited lawful nor what is lawful prohibited. Thus the wife, for ex­ample, may not stipulate that her husband shall never divorce her for any reason whatsoever, nor may she stipulate that if he does divorce her, he may not revoke the divorce during the 'idda period. For his part, the husband may not, for example, stipulate that his wife should not have children. However, the wife may, for example, stipulate that, upon divorce, all the marital moveable property be handed over to her as its owner.

Two issues that were the subject of much debate in the context of stipulations were the wife’s stipulation that she had the right to divorce herself from her husband, and whether he had the right to forbid her from working. In-depth interviews with members of the judiciary in Egypt indicated that if the husband delegates his power of talaq to his wife,⁴² and the wife elects to exercise it, her divorce of herself from him will be revocable in the same circumstances in which his would have been, and in theory the husband (but not the wife) could revoke the talaq during the 'idda. If the delegation has been to divorce herself ‘whenever and each time she wishes’, then she will be empowered to divorce herself again from him if he revokes the first or second talaq?, against her wishes. As for the husband, he may indeed stipulate that his wife may not go out to work, but jurisprudence of the Supreme Constitutional Court has held that if he has given his permission for her to work, then he may not subsequently forbid her unless there is evidence that she is abusing the reasonable limits of the right to work or is acting against the interests of her family.⁴³ Also on the marriage contract, the marriage notaries are instructed to verify the identification of the couple and to attach a photo of both husband and wife to the marriage document, with their thumbprints on their photographs accompanied by the signature of the ma'dhun. The couple must also confirm that they are free of any physical condition or disease that would lead to judicial divorce.