Ruling out inequality

Women striving to achieve a better life for themselves and their families will benefit from more concise formulations of their legal rights and duties. Reem Leila reports on preparations for a very different summit
"Arab Women and the Law" -- such is the theme of the forum that will be held in Bahrain on 28 and 29 April, launching a series of gatherings that will be held monthly to mark Arab Women's Year and that will culminate in the Arab Women's Summit, scheduled to take place in Morocco in November. Each of the 18 Arab countries scheduled to participate in the forum is responsible for preparing a comprehensive comparative study of a specific topic within the overarching framework.
Egypt's paper, prepared by the National Council for Women (NCW), focuses on marriage contracts in Egypt and other Arab countries. Farkhonda Hassan, secretary-general of the NCW and head of the official delegation, explains that personal status law "affects, and is affected by, every member of society. [The NCW's work] is an attempt to use law and legal awareness as instruments of social change."
According to Fawziya Abdel-Sattar, professor of law at Cairo University and head of the NCW's legislative committee, the advent of Islam marked the beginning of contractual marriage relations in pre-Islamic Arabia -- where a variety of forms of marriage, including polyandrous and temporary marriage, were known -- and later in the lands conquered by the Muslim armies. In other words, she argues, marriage in Islamic society was regulated by "a voluntary civil (not a religious) contract, concluded through the free and mutual consent of the parties, giving rise to reciprocal rights and obligations and including substantive terms and conditions for the continuation of the contract." Parties to the marriage contract must be mature and agree to the marriage; the bride, furthermore, must have an authorised representative (wakil). In several Arab countries, Abdel-Sattar adds, legislation stipulates explicitly that the wakil may not force the woman to marry someone she dislikes; doing so constitutes a misdemeanour.
In Egypt, furthermore, "personal status law specifies a minimum required age: 16 for the woman and 18 for the man. In other countries, like Iraq, personal status law sets the age of both parties at 18 years, while the required age in Tunisia is 20 for the man and 17 for the woman and in Jordan 16 for the man and 15 for the woman," says Abdel-Sattar. Additionally, both parties must be financially and psychologically capable of entering the marriage contract; some form of social parity is also often stipulated, at least in theory.
Further underlining the wide divergences in personal status law across the Arab world -- divergences that show the extent to which legislators in each country have interpreted and thereby shaped regulations still presented as divine -- Abdel-Sattar notes that some countries prohibit polygamy entirely. In Tunisia, for instance, a man found guilty of this practice may be imprisoned for a misdemeanor. In Iraq, on the other hand, the state intervenes to establish its control over polygamous marital relations, since a man wishing to remarry must obtain court permission before doing so.
According to Zeinab Radwan, dean of Cairo University's Dar Al-Ulum (Fayoum branch) and member of the NCW's legislative committee, Tunisia's personal status law does not follow the stipulations of the Shari'a "because it is a secular country." In other circumstances, she argues, men could not be prohibited from marrying more than one woman: "A man's first wife could be barren, or seriously ill; he may love her yet want children. In other cases, it is possible to imagine that a woman has no money and no place to go to if her husband divorces her. Islamic regulations allow men to marry more than one woman, under the conditions set down by Islam," Radwan adds.
Egyptian personal status law permits a man to terminate the marriage contract unilaterally; a woman may do the same through a court judgement or thanks to the mechanism of Khul' (which allows women to obtain a divorce on the condition that they forsake such financial rights as alimony). If, on the other hand, a woman makes sure that her marriage contract stipulates her right to divorce unilaterally (the isma), this condition is upheld as valid if she seeks to take advantage of it -- underscoring once more the contractual nature of the marriage relationship. "This formulation of the legal basis of marriage as a civil, voluntary and contractual relationship, that is legally binding on the parties, represented a fundamental change and reconceptualisation of the marriage institution," says Fathi Naguib, first deputy to the Egyptian Court of Cassation and member of the legislative committee of the NCW.
The contractual nature of marriage in Islamic law may therefore be used to restore equilibrium between the spouses' rights and duties, or may be abused to further strengthen the patriarchal features of a given legal system. This contractual nature, legislators argue, is also sufficiently flexible for women to include a variety of conditions, ranging from restrictions on the husband's right to polygamy and the assertion of the wife's right to divorce, to any substantive or financial conditions that do not contravene state law.
The 1931 marriage contract, legislators argue, could not serve to protect the wife's rights. Society therefore devised other means of satisfying this requirement, such as the qa'ima, a list of the wife's belongings frequently drawn up by brides' families in Egypt and a few other Arab countries such as Sudan. This list -- in which the prices of various items are commonly inflated -- is signed by the husband in the form of a trust receipt, and is commonly regarded as equivalent to the whole value or part of the wife's deferred dowry (mu'akhar). The trust receipt is then kept by the wife's family, which may demand payment of the stipulated sum or return of the items on the list if they feel her husband has mistreated her, failed to fulfill his obligations or divorced her for no cause against her will. If he fails to do so, he may be convicted of breach of trust, which is a misdemeanor -- i.e., a criminal offence.
Radwan argues that the qa'ima is an Egyptian tradition preserving women's rights, but must not be seen as equivalent to the mu'akhar. "According to the Shari'a," she elaborates, "there is no allowance for such a list." It cannot be used as a deferred dowry, since the mu'akhar is a woman's legal right. The dower is divided into two parts, the first paid before marriage and the second in case of divorce or the husband's death. "It is mentioned in the marriage contract, while the qa'ima is different, and cannot be a substitute for the mu'akhar. The wife's father lists the contents of the trust receipt, as a debt that must be returned when it is requested. There can be no debts between husband and wife. But the man is traditionally responsible for furnishing the house; most of the time this does not happen, and the wife or her family are the ones who furnish the house, so the contents of the qa'ima are considered a debt, not a form of mu'akhar."
In most Arab countries, upon divorce instigated by the husband a woman is entitled to her deferred dower, financial maintenance (nafaqa) for at least one year, and alimony for at least two years, depending on the number of years of marriage and the circumstances of divorce. The amount required is assessed according to the husband's income and the wife's standard of living. According to Naguib, only in Somalia does the law hold husband and wife equally responsible for nafaqa and alimony. If either of the parties does not fulfill this responsibility, the judge may consider the amount owed as a debt that must be repaid within a certain time. The creditor in this case is permitted to receive the amount from the government, which will collect it from the debtor at a later date. This is a particularly relevant example for Egypt, where one of the issues guiding debates over personal status law has been men's failure to pay their former wives alimony and child support.
Under current legislation in most Arab countries, in the case of divorce, the conjugal home belongs to the husband, and must be vacated by the wife if she does not have custody of the children. If she has custody, the husband must leave the conjugal home or provide an alternative residence for her and the children until the custody period expires. Naguib notes: "Egyptian personal status law grants the mother custody of her sons until the age of 10 or longer, and of her daughters until the age of 12 or longer, as determined by the judge." Some countries, like Kuwait, do not insist that the mother be Muslim in order to retain custody. "Once the child reaches the age of seven and is able to differentiate between religions," adds Naguib, "he or she should be removed from the woman's care if she is not Muslim."
Radwan believes that custody should be given to the child's mother, whatever her religion; "if she cannot take the children, custody should be given to the grandmother, and so on. If this is not possible, the father's mother should be responsible for the children. Only if these female relatives are unable to take the children should custody be granted to the father."
Given such differences, it seems Arab legislators will have much to discuss in Bahrain. The question remains whether the conclusions they reach will have a direct bearing on Arab women's lives.
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