Results of the field survey: the opinions of the elite

Divorce from 'urfi marriage Table 1.20 shows that while the majority (69.2 per cent) of respondents approved of the part of Article 17 of the new law, a not insignificant minority of 30.8 per cent disapproved.

The main reasons given for disapproval of the provision were that recognition of divorce in an 'urfi marriage would lead to moral and social disaster; men and women use the customary marriage regime to avoid the constraints of official marriage, and the law would encourage this type of secret marriage, giving rise to an increase in prohibited relationships and in adultery and fornication rfind}. When previously a man and woman decided on an 'urfi marriage, they knew that it was not proper, and that it would be recognized only in claims of paternity. Now, however, by permitting divorce from this kind of marriage, the new law was officially recognizing it.

Those approving of the provision pointed out that the new law gave to young women who got involved in an 'urfi marriage without being aware of its serious consequences the opportunity of freeing themselves from the relationship, through seeking divorce at court, without recognizing any other claims related to the marriage.

Reconciliation in divorce cases This question related to Article 18 of the new law regarding the requirement that the court not rule on talaq or Iatliq before attempting reconciliation between the spouses; and also to Article 19, which sets out procedures for the appointment of arbitrators where required in cases of judicial divorce, and allows the court to appoint an arbitrator for any parties refraining from appointing a family arbitrator or not attending the session.

^rΓhe main reservations about the text were expressed as follows:

i. The law should have specified when reconciliation efforts were to be presented to the disputing parties, and what the procedures should be.

Table 1.20 Approval or disapproval of Article 17 regarding divorce from 'wfi marriage

Table 1.21 Approval or disapproval of Article 18 on reconciliation efforts in cases of talaq and tatlιq

Party political

Civil

2.

3. The specification of a time period for reconciliation efforts of between sixty and ninety days is unjustifiably lengthy, and could be used by the husband to put pressure on his wife to accept reconciliation under conditions prejudicial to her interests.

KhuΓ An overall majority of 60 per cent of respondents agreed with the pro­vision on khul', leaving a substantial minority who disapproved. Table 1.22 shows that less than half of the political party functionaries in the sample (46.3 per cent) approved of the article, while approval ratings among the other groups of respondents fell in the same broad range: 62.2 per cent of the journalists, 68 per cent of the judiciary, 62.9 per cent of lawyers, and 66.7 per cent of the civil society activists and women leaders. The low level of approval among those working with political parties might be attributed to the imminent elections for the People’s Assembly, as noted earlier in this section. Those disapproving of the provision gave the following reasons for their rejection:

1. The new law casts doubt on the concept of qiwama in the relationship between the man and the woman. The Qur^,anic text states explicitly that men have qiwama over women and stands in no need of further interpretation or exegesis; this qiwama, conditioned as it may be by maintenance or other matters, is in any case not to be transferred to women. The new law, however, affirms the qiwama of women; she can divorce herself by khul' from her husband by a judge’s decision, and this means the complete annulment of the man’s qiwama.

2. Talaq is legislated as the man’s right alone, and it may not be shared by anyone else.

3. The article on khul' is an explicit violation of the rulings of the shari'a and a serious danger to the cohesion of the family. It destroys the principle of mutual agreement, transferring the decision on acceptance and rejection to the judge and annulling the will of the husband, while he is a party to the contract which cannot be implemented without his consent.

4. It is impossible to establish the real expenses incurred by the husband during the engagement, such as gifts for the fiancee and her family, the costs of going out and the value of the shabka.

5. There was only one case of khul' recorded during the time of the Prophet,

Table 1.22 Approval or rejection of Article 20 on khul'

Party political

Civil

Table 1.23 Approval or disapproval of the clause denying appeal in khul' rulings

which means it is to be considered the exception to the rule.

6. Some questioned how a khul' could happen when many people agree to register^- a symbolic sum as dower in order to reduce the associated fees calculated as a proportion.

7. Some of those rejecting the provision used as a pretext a hadith to the effect that women who divorce by khul' are hypocrites.

8. When God put War/ in the hands of men, he did so knowing they had the ability to control their emotions and to be rational in difficult situations. God gave men the advantage of full reason and religion and gave them qiwama over women.

It should be noted that some of the respondents who accepted the article nevertheless suggested conditions by which the judge should abide. These in­cluded:

1. Thejudge should ascertain the reasons that led the woman to seek khul'.

2. The judge should have discretionary authority in assessing the seriousness of these reasons.

3. The judge should have the right to rule in favour of the husband after the khul' claim and leave the woman in the marriage with him.

4. The judge may make serious efforts to reconcile the woman who is seeking khul' and the husband divorced by khul'.

5. If the judge is unable to reconcile the couple and holds that the marriage cannot continue, he shall rule for khul'.

Lack of appeal in rulings for khul' The responses of the sample to this issue (see Table i.23) followed those on the general principle of khul' set out above. Γhe overall approval rate for the lack of appeal in khul' rulings was just over half (57.6 per cent); the rate of approval was highest among members of the judiciary (68 per cent), followed by civil society activists and women leaders (both at 66.7 per cent), Ihenjournalists (57.8 per cent) and lawyers (54.3 per cent).

Witnessing and documentation of divorce An overall majority of 72 per cent of the respondents agreed with the terms of Article 21 of the new law requiring that in the event of denial talaq has to be witnessed and documented to have legal validity (Table 1.24). The highest approval rate was among women activists (88.7 per cent), members of the judiciary (88 per cent), and lawyers (85.7 per cent). The lowest approval rate was registered among civil society activists

Table 1.24 Approval or disapproval of establishment of talaq by witnessing and documentation

Table 1.25 Requirement of the husband’s consent to the wife’s travel

Party political

Civil

(6o per cent). From the reasons for approval cited by members of the judicial institutions it is clear that they find in this article a way out of the predicaments faced by those working in personal status. As for women leaders, most of them welcomed this clause as a means to protect women, particularly among the popular classes, from their husbands’ frivolous abuse of the oath of talaq.

Most respondents approving this article reasoned that it represents a guarantee of women’s rights, protecting her against continued intimacy with a man who has divorced her without her knowledge. A talaq that is simply pronounced verbally and not witnessed or documented does not give rise to legal effects so in such circumstances the wife’s rights would be preserved in full. This would oblige a man who has divorced his wife to document it, effectively ending talaq in the absence of the wife.

Those disapproving of the provision held that it had affirmed an extremely dangerous principle, not recognizing a talaq which occurs in religion. That is, if a man says to his wife ‘you are divorced’, in order to complete this process he has to go and document it officially, and this contradicts clear sunna from the Prophetic hadith on this matter. If the husband divorces his wife three times, thus divorcing her irrevocably, but does not have it witnessed or documented, he might continue to live and have marital relations with a woman who can no longer be his wife, a very dangerous situation for society. Furthermore, those rejecting this provision observed that the schools of law affirmed that talaq occurs in all circumstances.

Husband's consent to wife's travel The debate in the People’s Assembly had resulted in the Shaykh of al-Azhar agreeing that the wife had to have her husband’s permission before travelling; she is permitted to have recourse to the judge to complain if her husband forbids her. The original text, as noted in this study, had proposed that the judge be authorized to permit her travel instead of the husband, and had been removed from the draft law after much opposition and debate. The overall approval rate of respondents of the text as promulgated was 68.4 per cent (Table 1.25). The lowest rate of approval among respondents came from women leaders (33.3 per cent) followed by civil society activists (40 per cent). Fhe lawyers gave it the highest rate of approval (88.6 per cent), followed by members of Urejudiciary (88 per cent), political party functionaries (82.1 per cent), and journalists (73.3 per cent).

'Fhe reasons cited by respondents for their approval of the position taken by the law were as follows:

1. The principle of qiwama, a right given to the husband by the Qur'an itself, implies also his right to decide in the case of the wife’s travel.

2. The man is more capable of deciding what is to the advantage or disadvantage of the family or indeed the wife.

3. 'I he law seeks to protect the interests of the family and thus stresses women’s responsibilities in bringing up the children.

4. The Qur'an and sunna stipulate that the wife can only leave the house with her husband’s consent. Travel by the wife must be considered one type of leaving the house.’

Those who disagreed gave the following reasons:

1. Article 31 of the Constitution provides that every citizen has the right of freedom of movement, and as citizens, women have full constitutional rights.

2. As passed, the law provides the husband with the possibility to arbitrarily dominate and suppress his wife.

3. It places obstacles to women’s potential to develop their abilities by studying and working abroad.

4. It may constrain financial opportunities for the family.

Penalties for husbands refusing to pay maintenance In comparison with their answers on the previous positions taken in the law, there were wide dif­ferences between the respondents on this issue, with an overall majority' disagreeing with the original position in the law ruling out imprisonment of a husband refusing to pay maintenance (see Table 1.26). The approval rate was 41.6 per cent, while 53.2 per cent disagreed. The highest rate of disapproval came from members of Ihejudiciary at 92 per cent, followed by the lawyers at 82.9 per cent. This may be attributed to the fact that, more than the other groups of respondents, these two are involved in the implementation of the law in the courts, and are aware that the removal of the penalty of imprisonment would lead to husbands avoiding paying maintenance to their divorced wives and children, and other means would be of no avail in obliging them to do so.

Those who approved of the article reasoned as follows:

1. Some wives used to abuse the old provision allowing for imprisonment for refusal to pay delayed maintenance as an opportunity for revenge on their husbands.

2. Just as the forcible implementation of la'a awards had been annulled, so the

imprisonment provision had to be repealed, since some wives used to leave the maintenance to accumulate and then petition the court for their husbands either to pay up or go to prison.

3. A husband imprisoned for refusing to pay maintenance might be more hostile towards his wife and might take revenge on her.

4. Modern laws always seek alternative penalties to imprisonment because of its negative effects on family relationships; nobody gains from imprisonment, in­cluding the wife, and so it is better to have an alternative penalty such as a fine.

Reasons given for those disapproving of the provision were as follows:

1. The previous provision allowing for imprisonment was a deterrent for hus­bands, encouraging them to pay.

2. The Nasser Social Bank would not be able to determine the income of hus-

Table 1.26 Opinion of the ruling out of imprisonment of husband refusing to pay maintenance

Party political Civil

Respondents Journalists Judiciary Lawyers officials society activists Women leaders Total

bands refusing to payment maintenance if they were not employed in the governmental sector.

Comments A number of comments can be made on the findings of the opinion survey as carried out in its various stages. First, people were generally disconcerted about the new law and its effects when implemented. Many of the respondents expressed concern that it would have destabilizing effects on the Egyptian family, meaning that the status quo should be preserved even if this involved serious prejudice against women. Second, the groups of respondents most opposed to the law were the political party leaderships, whose objections arose from narrow interests related to upcoming elections. Third, some members of the judiciary opposed certain elements of the law on the basis of lack of clarity in method of application. Fourth, some members of the judiciary opposed the law on the basis of the views of certain scholars and their interpretations of the Islamic shari'a, while others were much more flexible in their understanding of the spirit of Islam. Finally, the presence of elements adhering to Islamic tendencies had an effect on the proportions of approval and disapproval of the provisions of the law. These elements were highly influenced by the views expressed by strict religious figures in the press. This was behind the low approval rates of certain groups of respondents such as civil society activists and women leaders, who might have been assumed to be the groups more likely to defend women’s interests.