Al-Azhar is currently drafting a new personal status law which is stirring up heated debate among experts and the public mainly because it slows down the process by which a woman can get a divorce. Al-Azhar intends to submit the draft after sending it to the cabinet for approval and before being passed by the House of Representatives.
“Very frustrating” is how lawyer and feminist Nehad Abul-Qomsan describes the draft. “It does not have a vision, methodology or even a clear purpose,” Abul-Qomsan said.
Article 61 of the draft law extends the duration of legal proceedings of the khu’, a procedure through which a woman can divorce her husband in Islam, to more than a year, thus depriving women of their legitimate right provided to them by Sharia Law. “In khul a woman is divorced once she returns her dowry and relinquishes the rest of her financial rights,” said Abul-Qomsan who asked why the legal procedures were being extended.
According to Abul-Qomsan, the draft did not impose any restriction on a man’s right to divorce his wife or on polygamy which affects children and exposes them to serious risks. “This is unfair and illegal,” she added.
Article 94 of the draft suggests that a wife uses her own money to spend on her children if the father is financially incapable. According to Abul-Qomsan, this article is against Islamic regulations which stipulate that the husband is responsible for financial matters.
Article 99 has also changed the order of the parties that have custody after divorce, putting the father ahead of the maternal grandmother. Abul-Qomsan praised that step but said she wondered that if the father who has custody of his children was financially incapable, what would the mother be obliged to spend.
Article 103 of the draft gives the father guardianship over his children in education if there is a dispute between the parents. Many fathers, according to Abul-Qomsan, intentionally downgrade the quality of education their children receive by paying cheaper tuition fees or simply trying to annoy the mother.
Abul-Qomsan said that while Al-Azhar’s draft allows girls to get married if they are younger than 18 on condition that a judge’s consent is granted, “it opens the door to selling our girls to old Arab men in return for big sums of money. This draft needs total overhaul in order to realise not only the welfare of women but that of children and society,” she added.
Meanwhile, Abdallah Al-Naggar, a member of the Islamic Research Centre (IRC) and a member of the committee which drafted the law, said the law complies with Islamic Sharia. For example, extending the legal procedures of khul, according to Al-Naggar, aims at protecting Egyptian families, in that a wife who files for khul might reconsider if the steps are increased. However, in any event, the extension does not exceed three months, not one year as is often claimed.
Al-Naggar defends the draft by stating that the father is given the right of custody in education because he is the decision maker “and he understands the welfare of his children better than the mother who cannot — in many cases — take decisive decisions”.
Al-Naggar believes the draft would help in “preserving society’s honour” by giving the judge the right to allow a girl under 18 to get married. “It is better to allow marriage at a young age — when necessary — instead of committing adultery or being involved in wrong relationships,” Al-Naggar said.
MP Mohamed Fouad of parliament’s Local Administration Committee said the role of Al-Azhar, the world’s centre of Islamic learning, is to provide its recommendations in the personal status draft law, not make laws. Throughout Al-Azhar’s history, it has never drafted laws. The constitution specifies that the government, the presidency and the parliament are entitled to propose bills. “As long as Al-Azhar’s opinion is advisory, it is better to read the current draft and provide its legitimate opinion,” Fouad said.
This is not the first time that Egypt’s personal status law is amended. Such calls were made after former president Hosni Mubarak was driven from power in 2011. Hundreds accused former first lady Suzanne Mubarak of harming Egyptian families by passing laws that supported the rights of women after divorce.
However, laws passed at the time, according to Fawziya Abdel-Sattar, professor of law at Cairo University and former MP, have helped millions of families, especially women. Law 100/1985 on alimony rights and Law 1/2000 on personal status procedural law and the khul are all based on Islamic Sharia. “Before the laws on khul and alimony rights, women were court victims, spending years trying to prove their right to alimony to get a divorce,” Abdel-Sattar said.
*A version of this article appears in print in the 7 November, 2019 edition of Al-Ahram Weekly.