Tuesday, September 20, 2011

Islamic Women Divorce Laws in Egypt

Under the rules of Islamic sharia, the husband can end his marriage unilaterally by simply announcing the words “I divorce my wife” or “I divorce you” three times. He does not need to justify his decision, nor explain any reason for his divorce and never need to enter a courtroom to end his marriage. Egyptian Muslim women however are denied equal right to divorce. They are trapped in unwanted marriages or left begging for a divorce that can take years to obtain and leave them destitute.

Egypt’s Islamic family law of divorce is established in five legislations: (1) the law of 1920; (2) the law of 1929; the law of 1979; (4) the law of 1985; and (5) the law of 2000.

The Divorce Laws of 1920 & 1929
The 1920 law deals with divorce and financial support under which a woman might be eligible to seek a divorce from her husband, The law restricted woman’s right to divorce to lack of husband’s economic support, such as desertion, disappearance, and imprisonment. Article 1 of the Law of 1920 provides that maintenance was a cumulative debt owed by the husband to his wife, it starts from the first time the husband failed to support his wife. Article 2 decreed the wife’s maintenance debt should be computed from the date of her divorce. Articles 4 and 5 included the husband’s failure to provide maintenance as sufficient grounds for divorce.

The law of 1920 provided that if the husband is absent or imprisoned and if he does not own a property from which the wife’s maintenance can be extracted, the wife is then entitled to a divorce on the grounds of non-support. And, if the husband lives in a distant place, or his location is unknown, the wife is granted a divorce at once. Article 6 provides the husband a further period to pay the maintenance, the waiting period of the menstrual cycle (iddah). A divorce obtained from the religious court in nonsupport cases is irrevocable, however, payment of the current maintenance is a sign of good will and sufficient to reverse the divorce.

The 1920 law provides that a wife may seek judicial divorce if the husband suffered from an irreversible illness such as madness, leprosy, or impotence, whether or not the illness was developed before or after the marriage. According to the law of 1920, women were not allowed to divorce if the husband claims poverty. In all these cases, women had to file for divorce in front of a male judge. At the same time, the law allowed men to exercise their divorce according to Islamic sharia by uttering the formula of divorce anywhere they choose.

The law of 1929 granted women right to seek judicial divorce according to Maliki School of jurisprudence in case the husband was absent for an extended period of time. This particular cause for divorce is not included in the Hanafi doctrine. According to the Maliki School, the judge may issue a divorce decree when the husband abandons his wife for more than one year without the knowledge of his wife.

The law of 1929 stipulates that a woman whose husband had been sentenced to more than three years may seek divorce after a separation of at least one year. This complies with the Maliki doctrine.

In view of the maltreatment inflicted on by men on their wives, the Egyptian government deemed it necessary to adopt the doctrines of the Maliki School of jurisprudence to make it easy for women to get out of their dysfunctional marriages associated with maltreatment and sufferings, a doctrine which is absent from the Hanafi School. The 1929 legislation allowed judges dealing with Islamic divorce to refer to Maliki School instead of Hanafi in order to grant a woman the right to divorce her husband in case of maltreatment.

Furthermore, the Law of 1929 grants the wife the right to seek judicial divorce in case the husband suffers from serious and incurable disease, if such a cause makes life harmful to women.

Article 6 of the law decreed that where a wife’s allegation of maltreatment detrimental to the continuation of marital relationship is substantiated and reconciliation becomes impossible, the judge (qadi) shall grant the wife an irrevocable divorce. To prove the harm and bad treatment inflicted by the husband, the wife must present two witnesses, whose testimonies will be subject to the unconstrained assessment of the judge who evaluates the evidence.

If the judge rejects the wife’s petition for divorce, twice, the law mandates that he appoints two arbitrators for the couple in accordance with the Quran injunction: “And if you fear a breach between the two, then send forth an arbiter, one from his family, another from hers” (Q. 4:35). Article 7 stipulates that if this is not possible, men acquainted with the circumstances of the case should be appointed. These men should conduct thorough investigation of the causes for the married couple and submit recommendations to the court for reconciliation if that becomes possible.

Article 10 provides that should the arbitrators indicate a deadlock, the judge is to order them to make a new attempt. If the new attempt fails, then other arbitrators are to be appointed. Article 11 stipulates that the final judgment of divorce is made after the newer attempts were fruitless and the prospect for reconciliation reached a deadlock.

The Divorce Laws of 1979 and 1985Under Islamic sharia, a Muslim husband is entitled to marry up to four wives at a time. In 1979 President Anwar Sadat issued Decree-Law No.44 to amend the previous laws of 1920 and 1929, mainly in the area of polygamous marriages. A new provision was added requiring that the husband’s remarrying without the first wife’s (or first wives’) consent be considered harmful and that if the husband remarries a second wife, his first wife is granted a judicial divorce upon her request provided that she became aware of his second marriage within a year from the day she got to know of his remarriage. The ground for such a divorce is based on the notion of harm inflicted on the wife. This law was criticized and challenged on the basis of restriction to polygamy which is considered legal and religiously legitimate in Islam.

In 1985, the Decree-Law No.44/1979 was declared unconstitutional on the grounds that it was passed by presidential decree and presented to the Egyptian Assembly as a done-deal. Later in the same year the Law No. 100/1985 was passed again with some revisions. It states that polygamy may be considered a possible source of harm, according to which a woman may seek judicial divorce. Under such circumstances, the wife presents the court with evidence showing the harm. The judge evaluates the evidence and issues his ruling. The law of 1985 does not prohibit the husband from having a polygamous marriage; it only offers a remedy to the first wife who would can seek divorce for damage resulting from her husband’s second marriage. A wife seeking divorce on this ground has to bring two witnesses to testify for the damage incurred. Such a procedure is lengthy and costly for the wife.

Although the law allows women to divorce for polygamy, in many instances, judges refuse to apply this provision, which they consider to be contrary to Islamic sharia and to the Constitution of Egypt. Article 2 of the Constitution of 1980 affirms that Islamic sharia is “The main source of legislation”. Accordingly, judges who opposed the new provisions in the divorce law brought up the “unconstitutionality” issue.

The Law of 2000
In 2000, a new legislation was introduced in Egypt allowing women to seek judicial divorce in a procedure called khul’, according to which, a married woman can request a judicial divorce in exchange for monetary compensation. This procedure is well known in Islamic sharia, but Egyptian judges did not intervene in such a divorce. Islamic sharia requires that the husband consent to this type of divorce without judiciary interference. The new law grants the wife right to seek a judicial divorce through khul’ without the consent of the husband. Under such divorce, the wife declares that she detests life with her husband, that the marital status between the couple has become impossible to continue, and that she fears she will not be able to maintain the “Limits of God” due the deteriorating relationship with her husband.

As a compensation for the husband, she has to forfeit her maintenance (nafaqah), her compensation of “mahr” and agrees to return to him the amount of “mahr” that he paid her at the marriage and she must renounce the amount of the “deferred mahr” (mu’akhar). The law of 2000 made it possible for a wife to get a “no fault divorce” from the judge after a lengthy process of reconciliation. For more on the khul’ divorce in Egypt, see our piece on this topic titled: “The Khul’ Divorce in Egypt”.

Anti-Women Sentiments in the Egyptian Law
It is extremely important to note that this discussion covering the Egyptian Personal Status Laws (or family law for the Muslim community) is derived from Islamic sharia and codified by the Egyptian government.

Furthermore, Muslim women seeking divorce in Egypt are denied equal access; they are at a distinct disadvantage for no reason other than they are women. Muslim women seeking divorce in Egypt must resort to the notoriously backlogged, inefficient court system and face procedural and evidentiary hurdles that are inherently discriminatory and may take several years to get a divorce.

When men initiate divorce, they do not have to go through reconciliation process. In fact a husband can divorce his wife in as little as one hour with the local marriage registrar. The wife does not have to be informed.

When women seek divorce, including those of domestic violence, they must submit to compulsory mediation in the name of family preservation and the biased notion that women are unable to make rational decisions about family issues. Many Egyptian Muslim women, including those in abusive relationships, refrain from ever attempting to seek divorce for fear of violence and potentially life-threatening marriages.

In all other court cases in Egypt, a woman’s testimony is worth half of a man. Therefore a woman living with a violent husband would need testimonies from two men, four women, or one man and two women to prove her case.

The khul’ law of 2000 failed to address the discriminatory aspects of the divorce system. Its introduction has spared women the need to specify grounds for divorce, but forced them to give up critical financial rights in exchange for divorce, such as returning any cash or property provided by her husband under their marriage contract. This option is limited only to women with significant resource or those who are desperate for a divorce.

Recognition of Egyptian Divorce in USA
In the United States, state courts decide on divorce cases. A divorce judgment issued in Egypt is generally recognized in the United States on the basis of “comity”, provided that both parties to the divorce receive adequate notice, such as services of process and at least one of them is domiciled in Egypt at the time of the divorce.

Egyptian women citizens of the U.S. must obtain divorce decrees from Egypt as proof of divorce. The documents must be authenticated by the relevant authorities in Egypt and the U.S. This is important to women who could not remarry without presenting proof that they are free to remarry. Egyptian Muslim women who remarry without obtaining a divorce decree from Egypt, their second marriage may be considered illegal. In Islamic countries, women who remarry without divorce documents, may be labeled as adulterous, and in some countries like Pakistan, Iran, Saudi Arabia and Sudan may be subject to the death penalty by stoning under strict interpretations of Islamic sharia.

As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend clients, successfully, by submitting legal opinions and affidavits in their support on issues related  to Islamic divorce to State and Federal Courts and to Immigration Boards. Some of these cases have been reported by major U.S. law journals.

Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. The honorable Court agreed with our argument and granted the client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Supreme Court on the following link:


DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S. He also travelled to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:


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19 comments:

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