Problems in practice

Many of the provisions of the personal status laws described above contradicted the basic rights of women, and the field study, the intensive interviews conducted with some of the respondents in the sample and the observations by researchers of personal status cases in court revealed particular problems as a result.

Divorce Divorce law is a striking example of the principle of qiwama informing Egyptian personal status law; talaq occurs at the wish of men, while women have to go to court to establish cause if they wish to obtain a divorce against the wishes of their husband. Furthermore, in practice, women going to court to seek a judicial divorce faced enormous difficulties. As noted above, laws of the 1920s introduced rulings from the non-Hanafi schools allowing women to seek divorce on such grounds as discord or injury, non-payment of maintenance, and certain chronic physical or psychological conditions (impotence, madness etc.), or the husband’s absence for more than a year. In regard to injury, a woman generally has to prove that the harm inflicted on her by her husband is intolerable for ‘women like her’ (i.e. her peers from a similar social and cultural background). In practice, it appears to have been difficult for women to prove injury in general, and psychological injury in particular, as a basis for divorce, and such claims often led to very long court procedures, sometimes continuing for as long as five to seven years. Furthermore, the husband may use an obedience claim against the divorce petition to also deprive her of maintenance.

Another particularly acute problem observed by our researchers was faced by women who had finally managed to get a judicial divorce at the appeal court and then remarried, only for the Court of Cassation to refuse the divorce.

Maintenance A consideration of several maintenance cases in the courts re­vealed many problems of implementation. Among the most important of these perhaps were the lengthy procedures involved in settling maintenance cases through the courts and the issuing of rulings that cannot be enforced. Time­consuming investigations of the husband’s income might be diverted to bring about misleading assessments, leading to the undermining of the rights of wife and children, especially where the husband worked freelance. If a prison order was made in accordance with Article 347 of the 1931 regulations on shaτi'a courts, allowing for a prison sentence of up to thirty days against a man able but refusing to pay a maintenance award made against him, enforcement was difficult because final investigations of the husband’s ability to pay might not have reached the court. There were cases where the husband would pay a small amount of money towards the debt to undermine the wife’s rights just as, after many sessions, the court prepared to make a final ruling that could be implemented.

Denial of paternity (nasab) The Egyptian courts see around twelve thousand cases of denial of paternity annually. Where the man and woman involved are married, the husband’s denial of paternity might be based on adultery by the wife - she either having been caught in the act or having confessed to it. These claims are always rejected and the courts rule to establish paternity of the child to the husband, on the basis of the hαdith ‘the child belongs to the [marriage] bed and the adulterer shall be stoned’.

As for when the man and woman are not married, if a woman claims that she has had a child from an unlawful relationship with a man and wants to have his paternity of her child established, even if the man acknowledges this relationship, the court rules to reject the claim. This is because an acknowledgement must either ‘legitimize the lawful or prevent the prohibited’, and adultery and fornica­tion do not give rise to legitimate paternity; the latter is established by a its mother if she gave birth less than six months after she got married.

The 'virgin wife' Few women petition the courts for divorce on the grounds that the marriage has not been consummated despite years of marriage; many women face this problem but it is too shameful for most of them to seek divorce, and the few who do have recourse to the courts confront further problems in the form of the measures necessary to prove the husband’s incapacity. In the case of a ‘virgin wife’, both spouses have to undergo tests to identify the reason for the impotence and the potential for the marriage to be consummated following treatment; the court will usually rule for a ‘trial period’ of a year, after which another investigation of both spouses will be undertaken, to see whether or not the marriage has been consummated. These procedures take a very long time, and lawyers in such cases, particularly where the husband is mistreating his wife, often resort to changing the claim to divorce for injury, in the expectation of speedier resolution. A further complication in divorce for the husband’s sexual incapacity, according to a newspaper report, is the lack of consensus among the jurists as to how^r often the husband was required to have intercourse with his wife to maintain the marriage — for example, once in his life (i.e. consummation), once every two months, or other views (al-Wafd, 6 December 1998).

'Urfi marriage 'Urfi or ‘customary’ marriage is a valid shar'i marriage provided it meets the requirements of the pillars of the contract, the conditions of con­clusion and the requirements of publicity, as set out, with differences between the schools, by the scholars of fiqh. The rules of the Islamic shari'a do not require an official document or a state notary for the contract to be valid. However, the 1931 law provided that ‘in the event of denial, claims of marriage or confirmation (iqrar) of marriage shall not be heard unless established by an official marriage document’. The potential non-recognition of such marriages held serious im­plications for the rights of both husband and wife.²⁴

In recent years, 'uιfi marriage has become a phenomenon for several reasons. In some cases such a marriage takes place because of the elevated social status of the husband, particularly one w^rho has been married before, who wants to be with a woman who in society’s view is of a lesser social status; examples might be the marriage of a doctor to a nurse, a director to a secretary, a master to a servant. Other reasons include a husband who wants to take another wife but not leave his existing wdfe, thus protecting her and their children. Financial reasons may also encourage 'uφ marriage, for example a woman who does not want to lose her entitlement to her former husband’s pension, or a widow seeking to keep her son exempted from military service as her only son and sole provider.²⁵

Although 'urfι marriage is not acknowledged by the law, it is nevertheless valid in shar'i terms, so a wife in such a marriage is in the position of being married, and therefore not allowed to marry anyone else, but unable to get a divorce, should she wish to end the 'uιfi marriage. Imagine her husband has married another woman officially, but is refusing to divorce his wife in the 'urfι marriage. By his possession of the customary document of the 'wfi marriage, he effectively controls the future of this woman and any children she may have had by him, whom he may even be refusing to acknowledge.

The marital home One of the reasons why the issue of child custody pre­occupies both the social and legal sectors is its connection with the matrimonial home. The abiding housing crisis in Egypt has problematized the provision of accommodation for custody and the extent of the entitlement of a divorced wife with custody to the matrimonial home after the marriage has ended.

Under Law no. 25 of 1920, the person responsible for maintaining the children was required to pay a sum of money to the mother or other custodian for her breastfeeding and caring for the children, including the cost of accommodation. In previous times, the divorced wife would generally go back to her birth family’s home, or could easily rent a separate dwelling for herself and the children. These days, however, things are much more complicated in light of the housing crisis; the wife’s birth family home might not be able to accommodate her and her children, and it is extremely difficult for the woman to get a separate dwelling because of the huge costs involved. Disputes and cases abounded between divorced couples over entitlement to the matrimonial home. Court rulings varied, with some giving the right to the husband and evicting the wife and children, leaving them to try to sort out a home for themselves; others allowed both the disputing parties to stay in the home, despite the serious social implications of this and the fact that it was in violation of shar'i rulings on irrevocable divorce; and yet others gave the right to the wife and children to stay in the home.

The conflicting rulings attracted the attention of legal experts, and in a report on Law no. 44 of 1979, the parliament’s Joint Committee of the Legislative Committee and the Office of Social Affairs and Awqaf and Religious Affairs called for ‘a speedy and decisive remedy’. The 1979 law responded by empowering the divorced mother to take over the matrimonial home independently, including the right to conclude a new contract with the landlord as long as she was in occupation of the place during the custody period; the husband had to move elsewhere. The exception this constituted to the normal principles of tenant­landlord contracts is indicative of the inter-relationship between the economic and the social. It was restricted to rented homes; in the case of a home either owned by the husband or assigned to him by his employment, the divorced wife did not have the entitlement. As it was, many men found ways to circumvent the law. By way of example, the Giza court of appeal for personal status ruled in favour of one man’s right to the matrimonial flat after he had bought the building in which it was situated; the first instance court had given the right to his ex-wife who had custody, but the husband appealed after buying the property (Mansur n.d.: 45).

The need for new personal status legislation in Egypt The contradic­tions and discrimination described in this section attracted wide objections from intellectuals and human rights activists rejecting the injustice being done to the weaker sectors of society. For its part, the judicial system faced many problems in dealing with the accumulated numbers of disputes and cases arising from implementation of the law. The examination in this section of the legislative instruments regulating family relations in Egypt serves to contextualize the results of the field study set out in the following chapter. ∙