Law no. 44 of 1979: an aborted effort

The best-known attempt to amend personal status law took place in 1979, when a presidential decree was issued as Law 44/1979 to ‘liberate’ personal status law. The law was known as Jihan’s law’, after the then First Lady and wife of late President Anwar Sadat who was a major supporter of the amendments.

1. The wife’s right to maintenance was not to be affected if she went out to work without her husband’s consent, unless her work was against the interest of her family or she misused the right.

2. The polygynous marriage of the husband without the wife’s consent was considered as injurious to the wife per se, even if she did not stipulate this in the marriage contract; similarly (for the new wife) the husband having hidden the fact that he was married to another woman. The wife then had a right to seek divorce from the court without having to establish injury; this right lapsed one year after she had been informed of her husband’s action, provided she had not consented to it explicitly or implicitly.

3. The use of force to execute awards of obedience was prohibited; this had already been established by administrative measures mentioned above, and the law confirmed that a wife who refused to obey her husband without good reason would forfeit her right to maintenance.

4. The period that a mother was entitled to keep her children in her custody was extended. Previously, mothers were entitled to keep their sons in their care until the age of seven years and daughters until they reached ten, with the possibility of extension to nine and eleven respectively. Under the 1979 law, these ages were extended to ten for the boy and twelve for the girl, while after these ages the judge could allow the son up to age fifteen and the daughter until she married to remain in the custody of the mother without the fee for custody being due, if it appeared their interest so required.

5. The law gave a divorced woman with custody of children the exclusive right to the rented matrimonial home, so long as the divorcing husband had not prepared another suitable dwelling. When the custody period ended, or if the woman remarried, her former husband had the exclusive right to the dwelling if he was legally entitled to keep it.

These amendments met with broad disagreement and opposition, mostly from men. The most important amendment was that a woman had the right to seek divorce if her husband married another wife without her consent, and this pro­vision in particular was among the reasons for opposition to the law among men and rejection by certain religious institutions and legal professionals. The striking thing is the significant role played by women in the campaign for repeal of the law; huge demonstrations gathered at Al-Azhar University (their mainstay being female students at the university) opposing the law, which they considered contraι^y to the Islamic shari'a. It is worth noting here that the fact that the law was popularly called ‘Jihan’s law’ indicates the public’s rejection of the intervention by the President’s wife in the formulation of laws having a direct effect on their daily lives, even if these laws brought a certain benefit to women. This incident raises important questions as to the extent of women’s awareness of their rights and how these might be realized in accordance with the shari'a. Moreover, the arguments against the law were constructed along masculine perspectives and conservative interpreta­tions of the shari'a.

The law also provoked wide opposition among the judiciary. In a study on the position of judges towards petitions for divorce (Shmais 1994), when asked about their view of the article giving the custodian exclusive right to the rented matri­monial home after divorce, almost 60 per cent of the judges questioned expressed antipathy, holding it to be contrary to Islam and to the shari'a, according to which a divorced woman should return home to her family.

Jihan’s law’ also faced much opposition from religious circles on the pretext that it restricted men’s right to polygyny and divorce. In fact, the law rather restructured men’s right to take another wife in a way that respected the humanity and dignity of both first and second wives. The law obliged the husband to state the name and address of the wife or wives to whom he was already married before concluding the new marriage contract; the notary was to give her or them notice of their husband’s new marriage by registered mail.

The second issue that provoked particular opposition was the provision regard­ing the right of the divorced wife to stay in the marital home with children in her custody, unless the husband offered alternative suitable accommodation. Here, the law took the children’s side regarding the economic interest, giving them the matrimonial home in the company of the custodian (male or female), but it failed to consider the circumstances of unemployed or older women made to leave their home when the period of child custody and their right to maintenance came to an end.

As for divorce, Law no. 44 of 1979 required the husband to register his divorce papers with the relevant authorized official. This obligation indicated a desire on the part of the legislator to regulate and protect the family. Close examination of divorce cases had shown that some husbands would resort to pronouncing talaq in the absence of their wives and hide the fact of the divorce from them, causing them injury; indeed, there were some cases where the husband actually registered the divorce officially but kept the document to himself and pretended that married life was going on as normal. A decision by the Minister of Justice in 1979¹⁷ accordingly obliged the notary responsible for registering certificates of divorce to establish clearly in the document the residential address of the divorcee and whether she was present at the notarization; the 1979 law also required the notary to provide a copy of the divorce certificate to the divorced wife in person or to her representative. The talaq was to take effect from the date the wife was informed of it; she would be considered informed of the divorce if she was present when it was registered, or when the notary provided her or her representative with a copy of the document.

In May 1985, the Supreme Constitutional Court ruled to abolish Law no. 44/ 1979, a decision based on reasons of form rather than substance: the law had been promulgated by presidential decree during a period of vacation when the People’s Assembly was not sitting, and had not thereafter been presented for approval when parliament reconvened, as required by the Constitution. This meant that the personal status laws issued in the ιg20s under very different social and economic conditions once again came into force in Egypt (Zulfikar 1995: 135-6). This situation was rectified to some extent in July by the promulgation of Law no. 100/1985.