Gender Justice and Legal Reform in Egypt: Negotiating Muslim Family Law

Introduction

In 1975, I went with my father to a movie theater in Cairo to see the Egyptian movie Uridu hallan (I Want a Solution). It was my first time, a ten-year-old, to go to a movie theater and to be exposed to the message of this classic movie. The film—which features the renowned Egyptian actress the late Faten Hamama—has often been described as a dramatic and poignant artistic depiction of the gender-based legal inequalities that Egyptian women suffer in marriage and divorce (Elsadda 2011; Sonneveld 2012). The story of the protagonist of the film, Duriya, and her painful and unsuccessful pursuit of a fault-based judicial divorce from a violent and cheating husband highlight several key issues in the relationship between gender justice and family law. The film, first and foremost, raises the issue of unequal divorce rights. While Duriya’s husband, if he so wished, could divorce her unilaterally and extrajudicially, Duriya’s only option for a way out of an abusive marriage (since her husband declined to divorce her) was a long and arduous legal process in which she faced insurmountable obstacles to substantiate spousal harm.

The movie also highlights the challenges that women encounter due to gaps and loopholes in both the written codes and the legal process, which marginalize female disputants. Some of the featured problems in the movie include the inability of wives to make claims to the conjugal home when their husbands divorce them unilaterally and the ensuing injustice to women, particularly elderly and childless wives. Another problem depicted in the movie is men’s abuse of the principle of ‘wifely obedience’ as they petition obedience lawsuits against their wives in order to avoid paying spousal maintenance or to derail their wives’ pursuit of divorce.

The complex relationship between state-codified family law and religion is another message alluded to in the movie. Duriya asks the minister of justice, in a meeting arranged by her influential journalist friend, why the family law (at the time) does not give women the right to khul‘ divorce. This no-fault divorce, which comes from fiqh (Islamic jurisprudence), is initiated by women and is secured without the need to prove any spousal harm, provided that wives relinquish some (or all) of their financial rights (Arabi 2001; Tucker 2008). Duriya raises the question of the divergence between the state family law and Islamic jurisprudence because Egyptian personal status laws are drawn from Islamic jurisprudence—albeit through a modern process of codification resulting in mixed and uneven consequences. The legal model of spousal roles, encapsulated in the fiqh concept of a husband’s qiwamah (guardianship and authority) over the wife, has been the framework under which unequal divorce rights, unequal parental rights, and polygyny have been sanctioned in classical jurisprudence as well as in many modern family laws (Mir-Hosseini 2015). The principle of ‘wifely obedience’ itself, which is drawn from Islamic jurisprudence, also reflects the hierarchical model of spousal roles and rights: spousal maintenance in exchange for wifely obedience. With codification, wifely obedience, furthermore, became physically enforceable by the state’s machinery, as husbands who won obedience cases resorted to the power of law enforcement officials to force their wives to return to the conjugal home, until this measure was abolished in 1967. In fact, in the movie, after Duriya’s husband wins an obedience case against her, she runs away from the police who have come to take her by force to the conjugal home. Thus, while wifely obedience is derived from Islamic jurisprudence, the forced return of wives to the conjugal home was the result of the state’s appropriation and transformation of fiqh rulings.

At the end of the movie, viewers are left with the sense that women, whether poor or from privileged backgrounds, are marginalized citizens with limited agency, precisely because of their subordinate legal position in the family domain. Duriya may be a well-educated woman with financial and family resources, but her life is still in limbo and she is unable to make any decisions to move forward as she is locked in an unwanted marriage because of the state’s family law. Similarly, poor wives, as depicted in the courtroom scenes in the movie, can do very little to protect themselves from the economic hardships resulting from husbands divorcing them at whim and often without giving them their financial dues.

Uridu hallan, though better known, is not the only film that tackled the problem of gender-based inequalities in Egyptian family law. In the 1980s, the television film Asfa, arfud al-talaq (I Am Sorry, I Refuse the Divorce) was aired. The screenplay was written by the actress and scriptwriter Nadia Rashad, known for her socially conscious and gender-sensitive work.¹ Rashad also plays the role of a lawyer and a close friend of the protagonist in the film, the latter played by the popular actress Mervat Amin. The film focuses on the problem of men’s right to unilateral divorce, sanctioned by state laws as well as dominant religious discourse, through the story of a devoted stay-at-home wife and mother who has been happily married for ten years to a successful doctor (played in the movie by the actor Hussein Fahmy). The wife’s world is shattered when her husband divorces her unilaterally after he became romantically attached to another woman. It is not only the betrayal of her husband that causes the protagonist great distress, but also, and particularly, the injustice of her husband’s unchecked right to end their marriage unilaterally and extrajudicially. She solicits the help of her best friend who is a lawyer to bring an unusual court case against her husband, contesting his right to unilateral repudiation.

At the other end of the spectrum of movies about family law and gender rights, there have also been a number of well-known films that questioned some of the gender-sensitive reforms that were introduced in the country’s family law over the last four decades. For example, and again in the 1980s, the film al-Shaqa min haq al-zawja (The Apartment is the Wife’s Right) was a satire on the newly introduced law at the time, which gave divorced custodial mothers the right to reside in the conjugal home with their children. Notably, the law was revoked by the Supreme Constitutional Court in 1985. And after 2000, a series of films that satirized the new and contested khul‘ law were made. The anthropologist Nadia Sonneveld, in an insightful study of khul‘ in Egypt, examines some of these movies and their depictions of societal resistance and contestations of the law and their underlying gendered assumptions about marital roles and women’s moral character (Sonneveld 2012). All of the above movies, as artistic expressions of the public discourse in the country, underscore that family law has been the main domain where Egyptian women confront inequalities and where justice has eluded them. Family law has also been the site where women’s rights advocates and diverse state and non-state actors have been pursuing reform of gender rights.

The focus of this book, similarly, is on Egyptian Muslim family law and gender justice. It is a modest effort to engage with three dimensions of the relationship between the reform of family law and the pursuit of gender justice. Adopting Joan Scott’s definition, I understand gender to be not simply . . . how men and women are being defined in relation to one another, but also . . . what visions of social order are being contested, built upon, resisted, and defended in terms of those male/female definitions (Scott 2013: 74). In the context of researching family law, the question of gender is layered. It is related to (but also goes beyond) the legal identities that are constructed for men and women in the context of marriage (for example, male providers/guardians versus female dependents) and the assumed rights and responsibilities that go with these identities. It is also the question of systems of meaning in which family law intersects with prevalent socioreligious discourses to create, reproduce, or destabilize social relations (and their power dynamics) in which women and men are situated.

The first dimension of the relationship between family law and gender justice which this book will tackle is the process of legal reform and how it shapes the written texts of new laws and their subsequent implementation. The issue of process raises a number of significant questions: Who are the actors advocating for particular reforms? What are the goals driving their reform efforts? How do they understand these reforms and their purposes? How do their reform strategies play out? For instance, what happens when, in the pursuit of legal reforms, alliances are made between actors with divergent goals and different understandings of the underlying philosophy and purposes of the proposed new laws? What are the ramifications for the goals of gender justice?

The second dimension of this relationship is concerned with women’s legal agency and experiences of the legal process. The questions that come to the fore in this aspect are: How do women use new laws? How do they experience the legal process? What opportunities and challenges do the legal reforms create for women with regard to legal options, the ability to exercise a particular option, and the ability to resolve disputes or make claims to particular rights?

Thirdly, the book explores the role and impact of legal reforms outside the courtroom. How do family law and its reform impact marriage norms and practices? How do they impact the lived realities of spousal roles? What options or challenges do the reforms create for women as they navigate gender relations as single or married women? The book will examine these three dimensions, focusing on the period from 2000 to 2010. This was an important period that ushered in significant legal gains for women. I focus on two of the reforms that were introduced at the time: the new family courts that were established in 2004 and the khul‘ law that was legislated in 2000.

Reforming Egyptian Personal Status Laws: 2000–2010

The first five years of the new millennium in Egypt witnessed a vibrant period of legal reform in the family domain with important but also mixed ramifications (and challenges) for women’s rights. On January 26, 2000, the Egyptian Parliament passed the Personal Status Law (hereafter PSL) No. 1 of 2000. The new code, which was titled The Law for Reorganization of Certain Terms and Procedures of Litigation in Personal Status Matters, serves primarily to regulate and facilitate the litigation process in family disputes. Unlike the several hundred clauses of previous procedural laws that regulated the legal process in family dispute cases, PSL No. 1 consists of a mere seventy-nine articles.² This new and concise procedural law was to make efficient the proceedings of family law cases, which would accordingly cut down on the amount of time and resources that disputants, most of whom tend to be women, spend on litigation.

But the most significant, and contested, article in this procedural law is Article 20, which grants women the right to petition for khul‘ divorce. In this type of divorce, female disputants do not need to claim or substantiate to the court any fault-based grounds for their divorce petition and their husbands’ consent is not required, provided that they forfeit their right to the mahr (dower) and all post-divorce financial rights. The khul‘ article also stipulates a period of ninety-day arbitration during which reconciliation is attempted by court-appointed arbiters before the court judgment is issued. The khul‘ article was met with a lot of opposition from different sectors of the society. Opponents of the law argued that it would be abused by irrational and morally weak wives. It was also argued that the new law contravened Islamic sharia since it did not require the husband’s consent, unlike the case in the main schools of Islamic jurisprudence where khul‘ is framed as a divorce initiated by the wife but only obtained through negotiation with the husband (Fawzy 2004; Singerman 2005; Sonneveld 2012; Tucker 2008). PSL No. 1 also granted women another substantive and controversial right: Article 17 gives women who are in ‘urfi marriages, which are unregistered marriages, the right to file for divorce. The idea behind this article is to give women a way out of unregistered marriages that are not recognized by law, and thus women in such marriages lack legal rights such as spousal maintenance, alimony, and inheritance.

Then in March 2004, PSL No. 10 was passed, which introduced the new family courts. The idea behind the new courts is to enable disputants to resolve their conflicts through legal mechanisms that are non-adversarial, family-friendly, inexpensive, and efficient. In particular, the new courts system had a number of distinct features with the goal of putting in place alternative mechanisms of dispute resolution. For instance, before disputants can begin the litigation process, they are obligated to go through court mediation, undertaken by three settlement specialists (akhissa’iyin al-taswiya) who are trained in social work/sociology, psychology, and law respectively. In addition, the lawsuits are adjudicated by a panel of three judges who are specialized in family law and who are assisted by two court experts (khubara’ al-mahkama). The latter are trained in social work/sociology and psychology, and one of these experts has to be a woman. Another important feature of the new legal system is the abolishment of adjudication on the level of the Court of Cassation, thus reducing the amount of time and expenses spent in litigation.

The new family courts, despite being a procedural reform, were to have significant (but also mixed) implications for women’s access to justice. On the one hand, the new courts, with their mediation-based mechanisms of dispute resolution, were hailed as an important reform that would greatly facilitate women’s pursuit of legal claims, particularly in maintenance and divorce cases, which often cost disputants a lot of time and resources.³ On the other hand, the role of the new courts system was also depicted in the public discourse as salvaging marriages and ensuring the stability of families through its mediation-based mechanisms.⁴ It was this latter notion that made some nongovernmental women’s rights organizations wary at the time, particularly since the substantive personal status laws that were being implemented in these courts remained premised on gender hierarchies and unequal spousal and parental rights.

In the same year, a third new law was passed, PSL No. 11, which established the Family Security Fund. The function of this state fund is to dispense court-ordered spousal and child maintenance to ‘vulnerable’ plaintiffs, and the relevant state institutions undertake the task of collecting the money from husbands/fathers. Lastly, in 2005, PSL No. 4 was promulgated. This law grants divorced women the right to the custody of their children until they reach the age of fifteen.

In addition, in August of 2000, the Ministry of Justice introduced a new marriage contract with a marked blank space where the spouses could insert agreed-upon stipulations. This contract was a much watered-down version of the original draft that was proposed by a coalition of women’s rights activists, legal figures, and government officials. The earlier version listed nine explicit stipulations to be read by the state notary (ma’zun) officiating the marriage to the two parties as possible conditions that they could agree on and include in the contract. The stipulations included, among other things, restricting the husband’s right to polygamy, protecting the wife’s right to work and travel, negotiating for delegated divorce, and securing the wife’s right to the conjugal home and furniture. But after a strong opposition from the country’s main religious establishment, al-Azhar, the listed stipulations were removed from the contract (Shaham 1999; Singerman 2005). Nonetheless, the new contract still kept the idea of inserting stipulations alive by including this marked blank space where conditions negotiated by the couple could be inserted in the contract.

PSLs Nos. 1, 10, and 11 are closely interrelated, and in fact they paved the way for one another. Article 10 in PSL No. 1 stipulates that all personal status cases will be reviewed by ‘first-instance’ family courts. In other words, this article calls for a unified legal system for PSL cases, which later evolved into the new courts system and PSL No. 10. In addition, Article 72 in PSL No. 1 stipulates that Nasser Bank, a government-owned fund, will implement court judgments in alimony and maintenance cases. Again, this new system was later developed into a full-fledged Family Security Fund through PSL No. 11. The interconnectedness among the new laws was the result of interrelated advocacy processes, which were undertaken by a coalition of diverse actors (Al-Sharmani 2009, 2013a; Singerman 2005; Sonneveld 2012). Interestingly, all the reforms that were introduced in these first five years of the new millennium were procedural, except for PSL No. 4. This point draws our attention to the choice of reform strategy that was made by some of the key actors seeking to address gender-based inequalities through these new laws.

Gender Justice and Navigating Egyptian Family Law

This book is an inquiry into some of the aspects of the legal reforms focusing on the new family courts and khul‘. While the advocacy and contestations around khul‘ had been well researched (Arabi 2001; Fawzy 2004; Singerman 2005; Sonneveld 2012; Tadros 2003), in-depth empirical research on the new family courts is still lacking. The existing Arabic literature on the new family courts falls into two categories. The first consists of a series of legal books that were written by judges and lawyers that explain the structure and functions of the new courts through an analysis of the written text of PSL No. 10 (Abdel Qader 2004; Abdel-Sattar 2004; al-Bakri 2004; al-Lamsawy and al-Lamsawy 2006; Mansour 2006; Sheta 2006; Zuwein 2006). The other body of literature consists, for the most part, of short papers presented in workshops by academics and women’s rights activists, which reflect on the advantages and drawbacks of the new system and its effects on female disputants. However, this literature is not based on any systematic primary research (Abdel Qader 2004; Bibars 2007; al-Menshawy 2004; al-Samaluti 2007; al-Sayed 2004). In 2007, the Egyptian Ombudsman’s Office for Women conducted a study to explore the problems that women encountered in family courts, drawing on data collected from the complaints of female disputants that were reported to the Ombudsman’s Office as well as focus group discussions with lawyers (Ombudsman’s Office 2007). While this latter study drew on some data collected from disputants, it was also not based on first-hand empirical research.

With regard to the English literature, in 2006, Jamila Chowdhury, a lecturer in the School of Law at Bangladesh Open University, wrote an article about Egyptian family courts (Chowdhury 2006). Chowdhury’s article explains the structure and procedures of the new system and concludes that it is an advantageous legal model that is to be replicated in other Muslim countries. The author’s arguments, however, were primarily based on an analysis of the text of PSL No. 10 as well as newspaper articles on the new courts system and interview data with two disputants.

But it is Nadia Sonneveld’s book on khul‘ that presents important insights into the new courts (Sonneveld 2012). Sonneveld’s multidimensional research investigates khul‘ from multiple angles: the debates and contestations around this divorce law; the courtroom practices; and the lived realities of women who opt for this kind of divorce. In chapter 5 of her book, Sonneveld, drawing on field research, examines the role of court mediation in khul‘ cases. Her findings regarding this latter point as well as the lived realities of the women who resort to khul‘ are very relevant to this book. My research corroborates and builds on many of the author’s insightful findings, and it also sheds light on other findings that suggest a somewhat different reading from some of Sonneveld’s analysis. I will elaborate on these points in due course. But the fact remains that none of the aforementioned Arabic and English literature, including Sonneveld’s significant study, provides a close analysis of the various actors and agendas behind the establishment of this new courts system in particular.

The first aim of this book is to fill that gap. I examine how three main agendas drove the establishment of the new family courts. One agenda was led by Laila Takla, the prominent Egyptian legal expert who spearheaded the establishment of the new family courts. Takla’s agenda was shaped by a global trend toward specialized, mediation-based family courts that take into account the well-being of the family and in particular the best interests of children, and hence seek to deliver therapeutic justice (Kelly 2004; Rhoades 2010; Roberts 2014; Singer 2009). The new family courts law was also pushed by a state agenda seeking to modernize and make efficient the legal system, a goal that was linked to larger development and governance agendas (Hasso 2011; Sonneveld 2012). The cause of establishing new family courts was, furthermore, espoused by prominent women’s rights advocates whose goal was to address gender-based inequalities and injustice. Adopting a strategy of gradual and procedure-oriented reform, these advocates lobbied for the new family courts through their roles as key figures in state institutions such as the National Council for Women and the then-ruling but now-dissolved National Democratic Party (NDP). For these women’s rights advocates, the new family courts were an important step on the pathway toward egalitarian gender rights in the family domain as the new legal system was meant to provide female disputants with an accessible, efficient, and affordable justice system.

I shed light on these diverse reform actors and investigate to what extent their respective agendas were congruent. I examine how the alliance between these diverse actors and their goals played out in the process of drafting and promulgating PSL No. 10. In addition, I trace the top-down and rushed reform process, which did not adequately take into account the reservations of various nongovernmental women’s rights organizations on the proposed new courts system, highlighting how this reform process shaped the drafting of the text of the law as well as its implementation. This research shows that it is not only the content of the written texts of new laws that matters in the pursuit of gender-sensitive reforms, but also the process through which these laws are proposed and advocated, for the reform process is itself part of the discursive space where new laws take on their social meanings, and these meanings accordingly have their bearings on the implementation of the new courts system and women’s access to justice.

My second aim is to examine how female disputants use and experience the legal process in the new family courts. I provide an empirically-grounded, in-depth analysis of how the new courts system works for and against women, particularly with regard to the role of court mediation both as a compulsory pre-litigation mechanism of dispute resolution and as part of the litigation process itself. I investigate the following questions: Does the new courts system deliver speedy, inexpensive, and accessible means to justice, particularly in maintenance claims, which constitute the largest bulk of court cases in family courts? How do the premises of the new courts and their resources influence their work? How do the actors in the new courts system such as settlement specialists, court experts, and judges understand their respective roles and implement the philosophy and the functions of the