On 13 January 2019, the Legislative Committee in Egypt’s Parliament began studying a number of bills submitted by a number of MPs to amend the personal status laws.[1] Similarly, on  January 16, President of the National Council for Women Maya Morsy announced that the council had finished preparing a personal status bill and already sent it to the Council of Ministers for review.[2] Meanwhile, on March 3, the Council of Senior Scholars announced that it had finished preparing a separate bill for the personal status laws.[3] Despite the varied orientations and views of those presenting these bills, most of the drafts focused on certain procedural issues in the personal status law, such as child support, the procedures for visiting children and the possibility of introducing the right for a father [i.e. the non-custodial parent] to host his children at his home, and establishing the right for both parents to prevent a child in the custody of one of them from traveling abroad.[4] On the other hand, fundamental issues such as establishing paternity, divorce, inheritance, and custody criteria did not receive the same attention even though millions of citizens, both men and women, suffer on account of them in the private sphere. Their rights remain suspended in the courts, teeter-tottering between judges’ discretion and the procedural and executive obstacles because of the legislative gap.

These problems stem primarily from the enshrinement of religious marriage as the only form of marriage in Egypt and the personal status laws’ reliance on principles of religious law. These issues affect marriage and all its outcomes, such as divorce and, subsequently, the right to custody and inheritance and so forth. Because of the reliance on religious law in personal status matters, these laws enshrine discrimination between citizens, both male and female, in civil rights, as well as adopt the prevailing patriarchal stereotypes about the nature of the relationship between men and women in the private sphere. In this article, I shall address the most important consequences of reliance on religious law in personal status matters, explaining the issues that the legislators should have heeded when they debated any amendment to the personal status law, in an attempt to induce them to draw from the principles of equality, rights, and freedoms to issue a civil personal status legislation.

The Traditional Issues with Religious Marriage

Religious marriage presents several issues. Firstly, it is the only option for Egyptian citizens, which means that the state treats each citizen as a Muslim or a Christian who wants to marry in accordance with the law of the religion to which they belong. Subsequently, the legislation enshrines a kind of religious discrimination among citizens: regarding marriage and its effects, each citizen follows the rules of their religion and sect, which means, for example, that some citizens have the right to divorce while others do not. Secondly, the legislation grants the religious institutions the absolute and exclusive right to regulate the personal status matters of their adherents. Consequently, some citizens are deprived of certain fundamental rights guaranteed in the Constitution, and the religious institutions’ spiritual authority becomes actual authority controlling citizens, without the least oversight or review, in their personal status matters.

While marriage in Egypt may seem like “civil” marriage in that it is performed by an official overseen by the Ministry of Justice, the contracts explicitly draw upon religious precepts, and the legal positions and civil and social rights of both parties to the marriage contract are defined in accordance with the precepts of religious law. For example, a Muslim man cannot marry any woman from a religion not among those recognized by Islam, such as Christianity or Judaism. Similarly, a Muslim woman cannot marry any non-Muslim man. Additionally, religious marriage has several consequences concerning other matters that we shall detail below.

Divorce: The Best Example of Gender and Religious Discrimination Among Citizens

While Muslim men and women have the right to divorce, Christian men and women struggle when seeking to exercise this right. In general, the regulation of divorce is the most outstanding example of gender discrimination as detailed below.

Muslim Men’s Right to Repudiation

Under the personal status law, only men have the right to divorce whenever they like. Women, on the other hand, are only afforded this right if the two spouses agreed to stipulate that she can exercise this right in the official marriage document, which is an exceptional occurrence rejected by the patriarchal customs and traditions even though it is legally acceptable. Some might imagine that khul’ is the procedure equivalent to men’s right to divorce, but that is untrue.[5] While a man can dissolve the marriage by going alone to the marriage registrar, a woman must submit a khul’ request to the Office for Settling Family Disputes in the Family Court and then file a case before the court 15 days after submitting the settlement request if she has not gone back on her decision. The court must offer the couple conciliation via arbiters selected from their families or an al-Azhar expert during the case and before the ruling. Evidently, there is a vast difference between men and women’s mechanisms for separation or divorce.

Additionally, men have the right to verbal divorce, i.e. the right to end the marriage by verbally divorcing their wives, without undertaking any official or legal procedures. Although the law requires the man to document the divorce via the marriage registrar, the law imposes no real punishment for failing to do so. Consequently, a significant number of men intentionally refrain from documenting the divorce in order to humiliate the women, forcing them to go to court to try to prove the divorce. In court, women face many obstacles as the law provides no clear mechanism to prove such a divorce, which usually occurs in private without witnesses. President Abdel Fattah el-Sisi referred to this problem on 24 January 2017, calling for only documented divorces to be officially recognized.[6] However, the Council of Senior Scholars, presided over by Grand Imam of al-Azhar Ahmed el-Tayeb, refused the suggestion, deeming that verbal divorce is legitimate according to Islamic jurists.[7] This issue clearly reflects the danger of relying on religious law to regulate personal status matters.

Violating Christian Citizens’ Right to Divorce

The issues of religious marriage and divorce are more acute for Christian citizens, both male and female, than for Muslim citizens because of the variance in the internal regulations governing the affairs of the Orthodox, Catholic, and Evangelical sects. The doctrinal differences between the sects, particularly regarding personal status, are considered the main reason that no unified personal status law for Christians has been issued yet. Based on Article 3 of the Constitution, which states that the principles of Christians’ and Jews’ religious law are the primary source of the legislations governing their personal status,[8] the state leaves Christian citizens’ personal status completely up to the churches to regulate based on the precepts and beliefs of each sect. The Orthodox Copts’ personal status regulation, adopted in 1938, is considered the most important for regulating Christian citizens’ personal status because it covers the largest sect of Egyptian Christians.

According to the Orthodox Church, marriage is a sacrament and sacred contract.[9] Hence, while it recognized nineseven grounds for divorce in the 1938 regulation,[10] following Pope Shenouda’s amendment in 2008 it now recognizes only two: infidelity and apostasy. This change complicated divorce procedures, thereby infringing Christian citizens’ right [to divorce] and breaching the principle of equality in rights among citizens within the one country. Moreover, the Church has come to behave arbitrarily in granting Christian men and women permission to remarry after divorce, which conflicts with their right to form a family[11] and constitutes forced celibacy.

Some divorced Christians resorted to the administrative judiciary to challenge the Church’s decision to refuse them permission to remarry. On 29 May 2010, the Supreme Administrative Court ruled to compel Pope Shenouda to grant them permission to remarry [members of the Church], but he refused, deeming that the ruling contravenes Christian religious law.[12] This ruling caused such tension between the judiciary and the Church that the Supreme Constitutional Court intervened. On 7 July 2010, President of the Supreme Constitutional Court Counselor Farouk Sultan decided, by the power vested in him under Article 32 of the Supreme Constitutional Court Law, to stay the execution of the Supreme Administrative Court’s ruling until the court made a decision on the substance of the dispute, which has not yet occurred. This case clearly reflects how religious marriage violates fundamental principles for citizens and establishes discrimination among them based on religion. It also demonstrates the supremacy of the religious institutions’ authority over the state authorities, including the judicial authority.

Gender Discrimination Among Citizens

The Problems of Establishing Paternity: Punishing Women for Relationships Outside of Wedlock

The biggest problem arising from the state’s refusal, based on religious law, to recognize any other form of marriage or relationships outside of wedlock is establishing children’s paternity. Although Egyptian legislation has not criminalized relationships outside of wedlock, it does not recognize them either. For proving children’s paternity, it relies on the Islamic Law rule that there must be a legitimate marriage. This poses a real problem for proving the paternity of children born outside of wedlock and creates a stigma and implicit punishment for women who have sex outside of wedlock.

Pursuant to Article 2 of the Constitution, which stipulates that the principles of Islamic Law are the main source of legislation, for paternity to be established before the court, its conditions per Islamic Law must be met. The foremost among these conditions is that the woman and man were married at the time of conception.[13] Hence, the paternity of any pregnancy resulting from sex outside of wedlock is not legally established, even if the defendant (the father) admits to it.[14] This matter causes women to suffer in court cases aimed at establishing their children’s paternity in the family courts. It also causes the courts to refuse DNA profiling as evidence of paternity if no marriage was proven.

Applying Religious Law as a Tool for Religious Discrimination Among Citizens

The application of religious law in personal status matters constitutes discrimination among citizens based on religion, as we shall detail below.

Custody

According to the personal status law, after divorce, the mother has a right to custody of the children until the age of 15, and thereafter the children may choose which parent to stay with.[15] However, if the mother is not a Muslim, this right is threatened as some fathers resort to filing custody cases on the basis of certain jurisprudential views that support ending a non-Muslim mother’s custody after the child [from a Muslim father] reaches the age of seven for fear that the mother will influence the Muslim child’s religion. For example, in 2008, after a Christian couple divorced, the man converted to Islam and then filed a case to take custody from his Christian ex-wife. The Personal Status Court in Alexandria ruled to end her custody, and the Court of Appeal upheld the ruling.[16] The Court of Cassation overturned the ruling, deeming that the mother’s religion alone is not reason enough to end her custody and specifying certain conditions that must be met for a non-Muslim woman to lose custody.[17] However, as these are additional conditions that the court does not consider if the mother is a Muslim, there is discrimination between women on the basis of religion.

Inheritance

The Egyptian inheritance law is based on the Hanafi School of Islamic Law and on Christian Law as a primary source of the articles of the Orthodox Copts’ personal status regulation. Consequently, interreligious spouses are deprived of their natural and legitimate right to inherit from one another after a stable life based on choice, support, and partnership. The inheritance law stipulates that, “There shall be no inheritance between a Muslim and non-Muslim”,[18] and the Orthodox Copts’ personal status regulation stipulates that anyone who belonged to a religion other than Christianity and remained so until the testator’s death is not eligible to inherit.[19]

This article is an edited translation from Arabic.

Keywords: Personal status law, Religion, Discrimination, Inheritance, Divorce, Custody, Paternity, Women, Egypt

[1] “Tashri’iyyat al-Barlaman Tabda’u Munaqashat al-Ahwal al-Shakhsiyya al-Ahad al-Muqbil”, Youm7, 9 January 2019.

[2] “Maya Morsi: Talaqayna 140 Muqtarahan wa-‘uqida 70 Liqa’ halwa Ta’idilat al-Ahwal al-Shakhsiyya”, Sada Elbalad, 16 January 2019.

[3] “Hay’at Kibar al-‘Ulama’ Tantahi min Mashru’ al-Ahwal al-Shakhsiyya fi 140 Madda”, Youm7, 5 March 2019.

[4] “7 Mashru’at Qawanin li-Ta’dil al-Ahwal al-Shakhsiyya wa-Hall Mashakil al-Usra”, Al Bawaba, 4 December 2018.

[5] As defined by the explanatory memorandum for Law no. 1 of 2000, khul’ involves a woman sacrificing [her financial rights] for her freedom from her husband.

[6] “al-Ra’is al-Sisi Yad’u Ila Isdar Qanun Yunazzimu al-Talaq al-Shafawiyy”, Youm7, 24 January 2017.

[7] “Nass Bayan Hay’at Kibar al-‘Ulama’ bi-Sha’n al-Talaq al-Shafawiyy”, Al-Masry Al-Youm, 5 February 2017.

[8] Article 3 of the Egyptian Constitution.

[9] Article 15 of the Personal Status Regulation for Orthodox Copts, issued 1938.

[10] These grounds were adultery, physical abuse and irreconcilable differences, misbehavior and indulging in vice, deep-rooted aversion, absence or abandonment, apostasy, that one or both of the spouses become a monk, imprisonment, and infectious disease or insanity or impotence .

[11] Article 10 of the Egyptian Constitution states, “The family is the foundation of society… and the state shall ensure its cohesion and stability”.

[12] Menna Omar, “al-Mar’a, al-Aqaliyyat, wa-l-Fi’at al-Muhammasha fi Misr (2011-2013)(1): al-Fatra bayna 25 Yanayir 2011 ila Yanayir 2012: Hukm al-Majlis al-‘Askariyy”, The Legal Agenda, 23 April 2014.

[13] According to the Court of Cassation in the ruling issued on 23 June 1997 (Challenge no. 194 of judicial year 63), “There must be a marriage contract between the man and woman. It is not required that this contract be valid; rather, filiation is established by the bed even if the marriage contract is invalid or the intercourse is doubtful. As for a promise of marriage or a marriage contingent on a future matter, this does not entail paternity by the bed”.

[14] According to the Court of Cassation in the ruling issued on 23 June 1997 (Challenge no. 69 of judicial year 63), “Among the principles established in Islamic Law jurisprudence is that filiation is established by the bed and valid marriage and, following that, intercourse that is based on an invalid contract or doubtful. On that basis, the jurists held that unlawful sexual intercourse [zina] does not establish filiation”.

[15] Article 20 of Law no. 25 of 1929.

[16] Ruling issued by the Court of Appeal in Alexandria in Challenge no. 679 of judicial year 62 on 24 September 2008.

[17] According to the Court of Cassation in Challenge no. 15277 of judicial year 78, the two conditions are

1. The child’s ability to reason in distinguishing between religions. The court explained that this relates not to a specific age but to each individual child’s mental abilities and aptitude.

2. That the non-Muslim mother’s statements or actions themselves suggest a danger that she would influence the child’s beliefs or ideas or the child would become accustomed to another religion not Islam.

[18] Article 6 of Law no. 77 of 1943 on Inheritance.

[19] Paragraph 2 of Article 235 of the Personal Status Regulation for Orthodox Copts adopted in 1938.