Divorced from justice?

In its first-ever report on personal status laws, Human Rights Watch (HRW) paints a bleak picture of women suffering under Egypt's divorce system. Gihan Shahine reviews the report and asks its author, Farida Deif, some tough questions
Divorced from justice?
In its first-ever report on personal status laws, Human Rights Watch (HRW) paints a bleak picture of women suffering under Egypt's divorce system. Gihan Shahine reviews the report and asks its author, Farida Deif, some tough questions
The new Human Rights Watch (HRW) report on Egypt's divorce system has provoked considerable controversy. In particular, it casts doubt on whether the current state of the law really provides women with equal access to divorce and a fair share of their marital assets.
"I wanted a divorce, but he [my husband] refused," said Hamida Tawfiq from Qalyubiya. "He left the house. He told me, 'You're not getting a divorce. You're staying just in case, like a spare tire'."
Hamida is one of many cases in which the New York-based organisation found women to be victims of what it describes as a "discriminatory" legal system. The 62-page report, Divorced from Justice: Women's Unequal Access to Divorce in Egypt, is the group's first-ever survey to tackle personal status laws as a human rights' issue. The report concludes that the latest initiatives to amend the Egyptian divorce system, which introduced the family court and the no-fault divorce ( khul' ), are "half-hearted" solutions and calls for granting women genuinely equal access.
The novelty of the subject, and the fact that an American organisation is introducing an alternative Western model to a Shariaa-based system, has provoked a heated public debate. Critics slammed the report as "exaggerated", and the fact that HRW recently issued a report on homosexual rights in Egypt made many speculate that the group had a "hidden agenda", presumably linked to US social reform plans for the Middle East -- a claim which HRW vigorously denies. Many analysts criticised the exclusion of husbands from the report's research, and rejected the recommendations as "alien" to Egypt and "an intrusion whose only purpose is to break up families". Conservatives have also condemned the report as anti-Islamic.
While the report says that HRW "does not advocate for or against Shariaa per se", it does call upon Egypt to withdraw its religious-based reservations to the international treaties it has ratified. The report also insists that "religious-based personal status laws violate equality provisions in Egypt's constitution", and some of the solutions it suggests may contradict certain Islamic tenets.
The report states that Egypt's divorce system grants men a unilateral and unconditional right to divorce. They do not even need to enter a courtroom in order to end their marriages. Egyptian women, on the other hand, must resort to Egypt's notoriously backlogged and inefficient court system to divorce their spouse, which, the report laments, "undermines their right to end a marriage".
As a result, the report argues, many Egyptian women avoid the courts and are left with two equally distressing options: "either remain in an unwanted marriage and possibly endure physical and psychological abuse, or beg their husbands to divorce them, giving up everything they own and cherish in return".
The report therefore recommends adding the equal right to divorce ( isma ) as a default provision within standard marriage contracts.
Mohamed Selim El-Awwa, an expert in international law and secretary-general of both the Union of Islamic Scholars and the Egyptian Association for Cultures and Dialogue, explains that Islam put the right to divorce in the hands of men because it is the husband who bears the financial consequences of a divorce (through the various categories of alimony and child support). "It has nothing to do with women being irrational, emotional or less wise than men, as the report claims," El-Awwa maintains. "Islam puts men and women on an equal footing."
Muslim women are entitled to divorce in two cases: they must either prove harm, or forfeit their financial rights in case of the wife's change of heart, in what is called a "no-fault divorce" ( khul' ). A husband, however, can choose to proxy his wife to divorce him, either in the marriage contract or after marriage. That proxy, according to El-Awwa, cannot be annulled except with the wife's approval. "It allows a wife to divorce of her own will without having to go to court, and provides her with full financial rights," El-Awwa said. "I personally encourage women to include isma in the marriage contract, and I would say that 90 per cent of Cairene women attempt to do so nowadays."
Many women are forced to wade through procedural and evidentiary obstacles on their path towards divorce -- a process that the report describes as "inherently discriminatory". While conceding that those hurdles are a necessary by-product of a busy, overcrowded, and archaic judicial system, the report insists on singling out the personal status law as "a particularly egregious example of discrimination".
"It is true women suffer prolonged legal battles in the courts," El-Awwa concedes. He insists, however, that this is a "procedural, and not a legislative, problem that affects all areas of litigation, and is not meant to discriminate against women as such".
Corruption among court bailiffs has also been identified as a major administrative problem. "Attorneys repeatedly told Human Rights Watch that bailiffs assigned to notify a husband of a court session or an alimony ruling often take bribes in return for neglecting these duties," the report says. "In return for a bribe, a bailiff will inform the court that he could not locate the person."
Activists in Egypt agree that the government should adopt policies and procedures for training and monitoring the work of bailiffs in a way that promptly and effectively penalises those who are found to have taken bribes.
But beyond such operational matters, the report insists that the system itself allows men to "manipulate the many defences and tactics Egyptian law reserves only for them". In order to initiate a divorce providing full financial rights, an Egyptian woman must show evidence of harm inflicted by her spouse during the course of their marriage, often supported by eyewitness testimony.
El-Awwa concedes that the need for witnesses is a huge barrier and agrees with the HRW's finding that "most cases fail because of a lack of witnesses". For El-Awwa, an alternative solution which conforms with Shariaa "is to apply a proof procedure by oath of the claimant (the woman), which can only be challenged by stronger evidence provided by the defendant, subject to the acceptance of the judge".
But the fact that the law does not strictly define the degree of harm sufficient to warrant the granting of a divorce leaves room for the judge to exercise discretion. According to the report, this allows judges to "discriminate against women" of lower social strata. The report quotes a chief judicial inspector as saying that "what is harm for one women isn't harm for another. Some women accept beatings and insults as a joke, while others do not."
But for El-Awwa, "judging according to social custom is by no way discriminatory against either sex. On the contrary, it produces acceptable solutions in line with the norms of society to which people adhere both before and after their appearance before the court."
While khul' has clearly helped some women have easier access to divorce, HRW's interviews reveal that because the system makes women forfeit the right both to any marital assets and to any future support, this option is only accessible to those who have significant financial resources or are absolutely desperate for a divorce.
In addition, women, under Egyptian law, are obliged to accept compulsory mediation, while men are not. The report says that this law, which further delays legal proceedings, is based on "discriminatory notions" that women are more emotional and less rational than men, and so, they may be "hasty in filing for divorce".
El-Awwa, however, explains that "referring a marriage dispute to reconciliation is obligatory for both husband and wife, according to the Quranic text itself. In case of dispute, the overwhelming practice in Muslim families is to resort to reconciliation before taking the matter to court."
Abolishing the mandatory mediation programme on grounds of discrimination is, thus, not an option for critics such as El-Awwa. "There is no discrimination in relation to the obligatory reconciliation between husband and wife," he argues. "On the contrary, in practice this system leads to reconciliation in more cases than not. Neither the man nor the woman are obliged to accept the decision of reconciliation, but the party that refuses has to bear the financial and legal responsibilities of their decision."
The report also raises a host of other problems. Under the law, a husband may file an obedience ( ta'a ) complaint against his wife if she leaves the marital home without his permission in order "to humiliate [her], delay the divorce proceedings and avoid paying any alimony". Egyptian women who have separated from their husbands and have filed for divorce in Egypt's courts may find themselves facing destitution: they have no access to any form of government-sponsored financial assistance, since they are officially still married. And after divorce women may remain impoverished due to the government's failure to enforce court rulings on alimony and child support.
This state of affairs, the report warns, discourages many women from leaving unwanted, and sometimes violent, marriages. Rania Omar, 47, may be a case in point. "Sometimes he was good to me," she told HRW. "But when there was no work, he was disgusted at life. He would take it out on me. I endured it. Where could I go? I have five children."
For the rights' group, the Egyptian government's attempt to remedy this problem through the establishment of a specialised alimony and child support fund, although it represents progress, should not become a substitute for more aggressive enforcement of court rulings. HRW further provides a highly controversial suggestion that women have an equal right to marital assets and the marital home upon divorce.
El-Awwa rejects the suggestion as "impractical and contradictory with Islamic tenets and cultural norms". He adds, "And that system has proved a failure in the US." Moreover, Islamic societies have a different financial system. In Islam, men bear all the expenses of marriage, pay the woman a dowry, and support her financially after marriage. "Islam grants women the right to her own financial assets and does not allow men to take any of her money, except with her agreement," El-Awwa explains. "If we apply the Western system, wouldn't it be easy for men to manipulate the law and put their financial assets in the name of their children or parents? We should amend the procedures, not the law itself."
The report argues that women's unequal access to divorce condemns them to remain in violent marriages, and that domestic violence is not only prevalent, but socially acceptable in Egyptian society, because the disciplining of disobedient women is sanctioned under Egyptian law. Article 60 of the Criminal Code states that "the provisions of the penal code shall not apply to any deed committed in good faith, pursuant to a right determined by virtue of the Shariaa." The report argues that this article has been used to justify domestic violence. To further support its argument, HRW quotes Hossam Abu Youssef, state council deputy in Cairo, saying that a man "has the right in Shariaa to discipline his wife", but that "God says that the best of you will never use this power."
El-Awwa, however, refutes these claims as "cultural misconceptions" which have no roots in Islam. He insists that "Article 60 is by definition not applicable in family disputes", and that the word "Shariaa" in this article refers to the complete body of Egyptian law. "The conditions of beating women are taken from prophetic tradition, but the report ignores the fact that the Prophet himself allowed beating in one single case only, the purpose of which was not to cause a scandal for the family."
While admitting that no accurate statistics for domestic violence are available in Egypt, the report paints a bleak picture of family life based on a 1995 National Population Centre (NPC) survey of 7,000 married women aged between 15 and 49. The survey found that one out of every three women who were or had been married, mostly those with no education or only to primary level, have been beaten at least once since marriage. Nearly 86 per cent of the women surveyed thought that husbands were justified in beating their wives under certain circumstances.
Domestic violence, El-Awwa contends, "is not part of the social practice of Muslims anywhere in the world; nor is it unconditionally permissible under Islamic law. But in some places, and among some social classes, violence is a normal practice not only against women, but throughout the whole social class. When this phenomenon manifests itself in family life, it is misinterpreted, as in the report, as being part of some kind of specifically 'Islamic' behaviour."
Nevertheless, the legal system which must redress such wrongs remains dominated by men. "Regardless of which type of divorce a woman chooses, male officials largely still control every step of the process," the HRW report laments. "Egypt has only one female judge on the bench, and the prosecutors who provide advisory opinions in divorce cases are overwhelmingly male. In divorce cases, women themselves are left with little decision-making power."
The report says that judges and other representatives of the Ministry of Justice "gave deeply discriminatory reasons for why women should not be criminal prosecutors or judges". It cites a number of these "reasons", such as that "society cannot accept it", and that women are more emotional than men. Some told the HRW that "when the culture of the people changes, maybe they'll accept it."
But cultural norms, according to El-Awwa, take time to change. "The lack of female judges does not render the entire judicial process suspect, as the report claims," El-Awwa argues. "Does every woman seeking divorce need to appear before a female judge in order to feel fairly treated? That's ridiculous."
Egypt has ratified international treaties that require it to take measures to ensure equality for both men and women in marriage and divorce. But it has also registered reservations, citing adherence to Islamic law. HRW calls upon the Egyptian government to abolish these reservations, because "they contradict the purpose of the treaty".
El-Awwa remains pessimistic about the utility of such proposals. "The majority of society will not accept the proposed legal amendments," he argues, "and couples will go back to customary ways of alternative dispute resolution instead of going to the state court. Such a thing would only weaken the state's hold on its legal and social system."
photo: Al-Ahram archives