Category: Family Lawyer

In Egypt over the past few years, the space for public discussion—much less contestation—about political issues has become as narrow as at any time over the past half century. Much discussion in Egypt (and among Egypt watchers) has been focused on this month’s presidential initiative for some kind of national dialogue—a vaguely defined process that is expected to produce little concrete change but might be seen as a slight loosening of the strictures on political discussion for a small number of (generally fairly tame) actors. But in one area far from the unexciting news about an unpromising dialogue, Egypt has seen politics aplenty: family law reform.

An Oasis of Debate

The field of family or “personal status” law is technical in some ways (precise legal provisions for guardianship or for registering divorces, for instance) but the details on such matters pack tremendous punch. All Egyptian citizens are subject to family law from the moment they are born (when their religion—and thus the family law that is applied to them—is entered on their identity papers) and even after they die (when their property is distributed among their heirs). The stakes for Egyptian husbands and wives; those who are betrothed and those who are widowed or divorced; children and parents; and even grandparents and grandchildren can be high. Unsurprisingly, therefore, discussion of change has always attracted great attention.

Even in Egypt’s constricted public sphere, family law is a subject of lively debate and lobbying—and the country’s leadership has promised a comprehensive new law. Yet the public debate and the private drafting seem disconnected—people are free to talk all they want, but a small number of officials will draft a law out of public view. And it is not clear what it will say.

Among the matters that have attracted the most debate in recent years are divorce rights and procedures for husbands and wives, visitation rights, child support payments, and the distribution of various facets of child custody and guardianship. On none of these is there any attempt by any significant actor to move outside of an Islamic legal framework or existing legal categories (many of which are derived from Islamic jurisprudence). So any discussion of family law in Egypt is filled with legal terms that come out of Islamic jurisprudence, generally involving the contractual aspects of a marriage or provisions for raising children. But for all the common vocabulary, variations in how those terms are defined, interpreted, and applied can be wide indeed. Even seemingly small changes in what a term means or how it is applied can have tremendous impact. For instance, how harm (darar) is defined—in either legal text or judicial practice—profoundly affects not merely whether a wife can seek divorce but also material claims in the event of a divorce and the balance of power in a troubled marriage. The profound implications of subtle shifts in family law and official practice have led to a large number of technical or legal questions becoming the focus of protracted wrangling. The financial obligations of a husband divorcing his wife; how those are calculated and enforced; and the grounds for which a wife can ask a court to divorce her from her husband have been the subject of legal tinkering for a century.

And it is not merely text that is at issue: enforcement mechanisms matter a great deal in determining whether a right in law exists in practice. Many areas marry the moral with the material: A mother caring for children is entitled to housing support from her former husband, raising the stakes in custody disputes. Rapid inflation has decreased the value of the mahr (a sum given to the bride by the groom at the time of a wedding with a later portion sometimes promised to her in the event of divorce or the husband’s death), with deep social effects. Because of this inflation, husbands who promised a large mahr in the event of divorce are less inhibited; but wives, too, find divorce through khul’ (a form of divorce, now the most common in Egypt, in which the wife does not need to claim abandonment or harm but is obligated to return the mahr) more attractive.

But not just real estate and money are at issue: many Egyptian fathers have complained that the law gives them few rights to see their children; mothers sometimes complain that they are deprived of say in some critical matters, or that they have trouble obtaining the support they are entitled to. The precise blend of rights and obligations of divorced parents has thus been the subject of particularly intense tussling in recent years.

Is Religion the Issue or Not?

The debates are sometimes broadly understood as pitting advocates for against advocates for women’s rights. And certainly proponents for religion in public life and for gender equality are active participants in the debate. Since the drafting of the 1971 constitution (when a very general gender equality clause was qualified by reference to the rulings of the Islamic sharia), some arguments are framed precisely as pitting two camps against each other. The country’s current constitution has perhaps the least qualified endorsement of gender equality, but that language remains vague and its precise meaning uncertain because of the deeply gendered nature of Egyptian family law, based as it is on Islamic jurisprudential conceptions of marriage as involving reciprocal but not identical rights and duties between husband and wife.

But even on a philosophical or ideological level, much more is involved than quoting religious texts, constitutional clauses, or international human rights standards. Advocates of religious law often posit that it is actually quite protective of women; advocates of women’s rights similarly argue that their demands are completely consistent with divine guidance properly understood. Debates sometimes therefore seem to be less about differences of principle than disagreements about authority. Who can speak for religious or legal standards is often as divisive an issue as what those standards say.

And on a practical level, understanding the debate solely as one between Islamism and feminism misses much of what Egyptians actually experience. In real life, the issues are complex and sometimes leave the abstract debates quickly behind. The most searing conflicts can go much deeper than sloganeering about religion, secularism, liberalism, and cultural authenticity. The practices being regulated by the state reach deep into family life and have grown up along with a host of social practices that seek to steer them, build on them, or mitigate their effects. Negotiations during an engagement often focus far more on precise arrangements governing housing and major appliances, where law and religion provide only the vaguest guidance. And most reform proposals being discussed in Egypt today start with such social realities (and attempts to modify them) rather than abstract principles.

It is legal, for instance, for a husband to have more than one wife, though it may sometimes earn him moral disapproval. But social pressures and expectations, while strong, are not the only strictures governing the practice. Those are applied within a legal framework that has changed its approach to the fine print of such marriages. Debate and contestation have thus centered on a set of detailed questions: Must a husband notify his first wife? Is she entitled to ask a court for divorce if she wishes? How will courts calculate his material obligations? A total ban on polygamy has been mooted on occasion, but even advocates for women’s rights have hesitated before pressing the idea too hard for fear that a husband wishing to marry a second wife would be incentivized to divorce and abandon his first wife rather than continue to provide for her.

Nor is the law always what matters most. Often legal texts seem secondary to the practices that can give them meaning (or vitiate them) regarding how papers are served, where visitation takes place, and how incomes can be uncovered or concealed. In discussions of actual family disputes, one quickly enters into a world where people scramble to use or avoid the rules in ways that are barely visible in legal texts themselves. Reformers in the past have been aware of this, attempting to shift the system in subtle ways from one that is largely adjudicative to one that works for conciliation, counseling, problem-solving, and remembering the interest of children. Such efforts have been limited in part by resources: the Egyptian state does not have the depth of personnel necessary to run a system that fully incorporates social workers and family counselors, though some initial forays have been made.

Politics Without Process; Process without Politics

The debate about the law confronts some complicated social realities, but it is not only the detailed and technical nature of the thorny issues that makes the politics opaque. What makes the issue especially hard to follow is that the politicking, while intense, is only partially in public view. Many actors have come forward with proposals for a comprehensive new family law. Some parliamentarians in the 2016–2020 body pushed their ideas, but their proposals were shunted aside while the government drafted its own proposal. That process was protracted and very uncertain—in February 2021, a draft was finally ready and was initially presented as coming from the cabinet, but it was pulled from public view one day after it appeared without explanation. Other bodies have moved ahead with their own proposals. Most notably, Al-Azhar, the leading voice of official Islam in the country, made a move to transition from being reactive (criticizing those ideas being floated that it found inconsistent with Islamic law) to being proactive. Mindful of its constitutional role as the main reference for Islamic knowledge, Al-Azhar’s most senior body—the Council of Senior Scholars—finally weighed in with its full proposed draft in 2019. It was a bold move, but it was not welcomed by some advocates for women’s rights, who charged that its provisions were a move backward in their eyes. Other groups and individuals have flooded public discussions with a host of suggestions, amendments, and comprehensive drafts. A coalition of women’s rights groups launched a “Just Family Law” campaign earlier this year with its own set of proposals.

What is notable about the debate is not the participants or the positions—these have been somewhat consistent over years and even decades—but the politics. In post-2013 Egypt it is impossible to find an area in which there is such cacophonous and public debate with such a wide range of proposals and opinions: women’s rights groups, father’s rights advocates, religious scholars, and others all have weighed in. Some of these voices are not merely opinions but carry official weight (such as the National Council for Women, parliamentarians, and Al-Azhar). One of the most striking moments of public discord within the Egyptian state came when the country’s president publicly clashed with Grand Imam of Al-Azhar about provisions for husbands divorcing their wives orally. The dispute was a bit more technical than it appeared (Al-Azhar’s position is that oral divorce is valid but it is legitimate for the state to ask for official procedures registering the divorce before it is officially recognized), but the televised disagreement continues to reverberate in public discussion.

But that debate, while fully visible, seems disconnected from any actual policy and authoritative drafting process. Even as the noisy discussion has played out in the public sphere, there has been a quiet effort inside ministerial bodies and the cabinet—with unknown participants and procedures. So in public, arguments and politics seem to spin as if the debate will affect the outcome. But the debate seems ineffectual in practice and the various participants do a far better job of articulating their own positions rather than speaking to each other. Meanwhile, officials are free to act without regard to what is played out in public.

In May, President Abdel Fattah el-Sisi called into a television broadcast, cited his responsibility for Egyptian families, and called for a new law. The next month, he pushed the minister of justice to form a body to come up with a final answer—or at least a final proposal that should find its way to the parliament, where deputies are already making clear that they are hoping for a draft that will address most difficult issues in a manner that will satisfy all the competing demands.

So who are those who have been asked to find their way through the thicket and draft a law that will satisfy all these completing claims? Some observers quickly noted that the body is male-dominated. But just as remarkable is that it is formed exclusively of judicial personnel and is doing its work behind closed doors. It excludes representatives from Al-Azhar or concerned civil society groups. The committee has six months (subject to extension) to develop a comprehensive proposal. But it is not clear how (or if) it will consult with interested actors. By handing the matter to the committee, the regime has not forestalled the public debate, which continues to be quite lively. But it has disconnected any clear link between that debate and any eventual outcome.

An Imposed Consensus?

If the committee’s task is to incorporate all voices, that is likely impossible: there are too many interested parties who have staked out public positions to satisfy all demands. The committee’s makeup and operating procedure suggests it is more likely that there will be an outcome but not a resolution. When it comes to family law, Egyptian politics is lively—so much so that it seems difficult for any decision to be made that does not spark unhappiness in an influential quarter. And family law is unique among all areas of Egyptian life in that debate in society has led to gridlock thus far. It remains to be seen if the judges can break it; if they do so, it may be more by shutting the debate out than by steering it toward agreement, compromise, or consensus.