Chapter five

The Personal Status Law organises the relationship of marriage through all its stages, from the engagement on, and in all its aspects, laying down the conditions for its constitution and organising its effects, both as regards the mutual duties of the spouses on the one hand and between parents and children on the other. It also organises the effects of termination of the relationship by reason of divorce or death.
The Personal Status law, promulgated in 1925 as Law No. 25, was amended by Law No. 25/1929. Fifty years later, Law No. 44/1979 amending the above two laws was passed, only to be abrogated in 1 985 by the Supreme Constitutional Court on procedural grounds. In June, 1985, Law No. 100 amending the 1925 and 1929 laws was enacted and is now the law in force. It should be noted that the provisions governing marriage and divorce which are derived from Shari'a Law do not apply to non-Moslems, who are subject to the rules of their respective religious sects. In case of conflict of sects where the husband and wife do not follow the same religion or the same sect, the personal status law would apply. Law 62 for 1976 governs financial support and alimony and Law These laws apply to all Egyptians, 77 for 1943 governs inheritance. Moslems and non-Moslems.
1 The Marriage Contract
1.1 The marriage contract is a voluntary agreement:
Since the marriage contract is a civil contract reflecting the concordant will of the parties, they may agree to include any conditions as they deem necessary for the organisation of their relationship. Some of the conditions must be agreed for the contract to be valid such as the "Mahr" and the others are suggested as options:
  1. "Mahr" (dowry paid to the bride at the time of the marriage) and "Moakhar el Sadaq" (literally "deferred dowry"), which is paid to the wife on termination of the marriage by reason of divorce or the husband's death.
  2. To include the provision investing the wife with the right to pronounce herself divorced. The "esma", or right of divorce, is automatically vested in the husband, who may exercise his right without being required to prove fault or ground for divorce simply by reciting the following formula to his wife, privately and without witnesses: "Go; you are divorced". To make it official, the husband must then register the divorce with the Ma'azoun. Giving the "esma" to the wife does not derogate from the husband's right to divorce his wife whenever he wishes. Rather, it is an affirmation of the consensual nature of the marriage contract which, having been entered into by the free will of its parties, should also continue to exist by their mutual accord. There is widespread belief that giving the wife the right to divorce entails depriving the husband of his unilateral right to divorce her. This is completely untrue. As a matter of fact it is construed by certain jurists as a delegation of authority by the husband to the wife that is recorded in the marriage contract. Further, the inclusion of such a provision in the marriage contract would exempt the wife from the requirement of proving prejudice in order to obtain a divorce, a requirement which a review of judicial precedents shows is quite difficult in most cases and virtually impossible to meet in some cases.
  3. To include a provision that the husband may not take a second wife:
    Pursuant to Law No. 100/1985, the wife may, if her husband marries another woman, apply for divorce if she suffers material or moral prejudice as a result of this action on his part. The inclusion of a clause giving the wife the right to divorce herself if the husband marries a second wife, would exempt the wife from having to prove that she suffered prejudice in order to obtain a divorce.
  4. The right to work outside the home:
    The inclusion of a provision to that effect in the marriage contract in no way implies that a wife's right to work outside the home is contingent on her husband's approval. As explained above, this right is secured by the Constitution and by law. Nevertheless, it is advisable to include this provision to safeguard the wife's right to financial support in case of divorce, as husbands have been known in some cases to use the wife's exercise of this right as an excuse to avoid making such payments, by claiming that they were opposed to her working outside the home and by relying on opinions of certain Shari'a jurists who debate the woman's right to work.
  5. Humane treatment:
    According to a Field Survey conducted in 1986, cited in Legal Rights of the Egyptian Women in Theory and in Practice (Hussein, Dr. A., Saleh, Dr. S. and others) women cite cruel and inhumane treatment in domestic relations as a major cause for the failure of marriages, making humane treatment one of the conditions that should be expressly provided for in the marriage contract.
In addition to the above examples, a marriage contract can include other conditions by agreement between the parties, as long as they are compatible with the general requirements and objects of such contract. For example a contract of marriage may not be temporary or have a limited duration.
However, this is a new concept of the marriage contract in Egypt and its application will come up against cultural constraints, such as the reluctance of family members to mar a happy occasion like a marriage with talk of problems and conditions. One solution could be for the Government to replace the present printed standard contract of marriage which was issued more than sixty years ago by a new model marriage contract that would include optional provisions which must be considered before conclusion of the contract. This would remove any awkwardness for family members during the marriage ceremony. It should be remembered that marriage is supposed to unite a man and a woman for life and the contract by which they enter this state of union must therefore be constituted on solid grounds, with specific provisions stated in distinct and explicit language. In fact, the clearer the terms of the marriage contract, the better its chances of success. We have prepared a standard marriage contract (Annex 1 ) that we hope will strengthen the institution of marriage and serve as a guideline for young people embarking on this important step. This standard contract provides a checklist for the parties and optional clauses. Hence, while it does not restrict their freedom to agree on the provisions to be included, it raises the issues worthy of consideration before the contract is signed. Moreover, this new form makes satisfaction of a special medical examination a condition precedent for concluding the marriage contract.
1.2 Notarisation of the marriage contract:
The marriage contract is notarised. However, it is not drawn before a notary public, but it is drawn up before the Ma'zoun, who is the official authorised to perform the marriage ceremony. The contract is then registered in the official registers of the State. It is issued in duplicate, one copy for each of the parties. However, a marriage contract is valid even if it is not notarised. Thus an "orfy" (unofficial) or non-registered marriage contract meets all the legal requirements for the constitution of a contract. However, an "orfy" marriage does not invest the wife with the rights she would enjoy under a notarised marriage contract. For example, an "orfy" wife is not entitled to financial support or alimony in case of divorce or to her husband's pension on his death, and the marriage relationship does not enjoy judicial protection unless it is officially acknowledged by the husband. Moreover, the wife in an 'orfy" marriage must institute legal proceedings to establish her children's parentage.
Further, if for any reason, she is unable to agree on a divorce, the court will not hear her case for divorce according to the present procedures. This puts the wife in an impossible situation where the husband can and may divorce her at any time while she cannot even obtain divorce through the court. Legislative Reform is urgently needed in this respect.
1.3 Conditions for the constitution of a marriage contract:
The essential condition for the validity of a marriage contract is mutuality of consent between the man and the woman. To ensure that this condition is met, the law sets the minimum age of marriage at 18 for men and 1 6 for women, in addition to requiring that the marriage be announced, that the marriage contract be notarised and that it be signed by two witnesses.
2 Divorce
The Prophet Mohammed called divorce "the most hated of 'hallal' (legitimate) acts before God".
2.1 Definition
Divorce is a means of terminating the marriage contract, and takes one of two forms:
  1. Irrevocable divorce:
    This dissolution of the marriage tie is effective on its occurrence, irrespective of whether the "idda" (the three months following the divorce during which the husband may reinstate his wife and during which the woman may not remarry), has ended or not. Irrevocable divorce must be explicitly declared "irrevocable", otherwise it is deemed revocable, unless it is the third divorce between the same husband and wife, in which case it automatically becomes "irrevocable" by operation of law.
  2. Revocable divorce:
    With this type of divorce, the marriage tie is not dissolved until the lapse of the "idda", during which time the husband may reinstate the wife without her consent. The revocable divorce is calculated as one of the three divorces which the husband is allowed to effect with the same wife, without having to conclude a new contract of marriage.
2.2 Effect of Irrevocable divorce:
A husband who divorces his wife three times may not remarry her before she marries another man, (the "muhallal" or legitimizer), and consummates such marriage. The first husband may remarry her after the divorce from the "muhallal" but in this case it is as though they were getting married for the first time, i.e., a new marriage contract must be drawn up, a new dowry negotiated, etc.
2.3 Notifying the wife of the divorce:
Law No. 1 00/1 985 requires the husband who divorces his wife to notarise the divorce before the "Mazoun" within 30 days from the date of the divorce. To guarantee that the wife does not remain ignorant of the divorce, the law requires the "Ma'zoun" to notify her through a process-server and to deliver a copy of the divorce instrument to her or her attorney. To protect the wife in case the husband keeps the divorce secret from her, her right to inherit and other pecuniary rights are not affected until the date she learns of the divorce. It should be noted that under the old Personal Status law, a husband who took a second wife was under no obligation to inform his first wife of his new marriage. Moreover, a husband who divorced his wife could evade the procedures for notifying the wife of the divorce.
2.4 A wife's rights in case of divorce:
In case of divorce, the divorced wife has the following rights:
  1. "El idda" financial support for - one year. The competent court issues a summary judgement fixing a temporary amount and the judgement is enforceable by operation of law and can be executed through the Nasser Social Bank, which pays the sum awarded to the wife and seeks repayment from the husband. This exceptional system is designed to protect the wife and family by avoiding long drawn out legal procedures and difficulties in enforcing judgements. However, even this exceptional system assumes awareness and a certain limit of education and economic capacity to enable following the required procedures. Law 62 for 1976 provides priority to financial support and alimony as a debt over all other debts. This covers in the order of priority the wife's or divorcee's share, the children's share, the parents' share, the relatives' share and then other debts. Further, the debt of financial support and alimony is also protected by the Penal Code which provides in Article 29327 for a penalty of not more than one-year imprisonment and/or a fine of L.E.100 for any man who refuses to pay financial support or alimony to his wife, children or relatives for three months, pursuant to an enforceable judgement, while he is able to make such payment. Action under this provision must be filed by the beneficiary. If a second case is filed after a first judgement has been passed, the penalty becomes definitely imprisonment for not more than one year. In all cases, if the financial support or alimony is paid in full or an acceptable guarantor is provided, to the satisfaction of the beneficiary, the penalty is suspended.
  2. "El muta" alimony for at least two years is an additional alimony that is assessed on the basis of the husband's financial and social standing, the circumstances of the divorce and the duration of the marriage. This is intended as a compensation for damages suffered by the divorcee as a result of the divorce although its name, which should be changed, inaccurately implies that it is paid in consideration of the husband's "pleasure".
  3. "Muakhar el Sadaq" (deferred dowry) which is agreed upon in the marriage contract and is paid at the time of the divorce or on the husband's death.
2.5 Custody of Children:
Boys remain with the mother until they reach the age of ten and the judge may extend this period until the age of 1 5, while girls remain in the mother's custody until the age of 1 2 or, again at the discretion of the judge, until they are married. Either parent is entitled to see the children when they are in the other parent's custody. If they cannot agree amicably on visiting rights, the judge may organise a schedule of visits in a suitable place that will not have an adverse psychological effect on the child.
2.6 Habitation:
A husband who divorces his wife is held to provide her and their offspring with a home. If he has no place of abode other than the conjugal home, it is the divorced wife who lives there with her children until the period for which she retains custody over them expires. This also applies to Christian women. While this right may appear at first glance to be advantageous for women, it does not in fact give a mother any security in her own right after the expiry of the custody period. The law has in fact addressed an essentially economic problem of housing by siding with the children and ensuring that they enjoy the home with whoever of their parents or family has custody.
2.7 Wife's Obligations in case of Divorce:
  1. The wife is not allowed to marry during the period of "idda" which is three months in case of divorce and four months and three days in case of a husband's death. If a pregnancy is established during this period, the "idda" is extended until the date of delivery.
  2. If a divorced mother remarries she loses custody of her children, who are placed in the custody of their maternal grandmother or, if circumstances do not permit, of their paternal grandmother, until they reach the statutory age at which custody reverts to the father.
2.8 Wife's Right to Apply for Divorce:
A wife is entitled to obtain a divorce in any of the following cases:
  1. If the husband deserts her for more than one year.
  2. If the husband receives a prison term of more than three years, she may apply for a divorce one year after his conviction.
  3. If the husband stops supporting her.
  4. Social and temperamental incompatibility.
  5. If the husband suffers from a chronic incurable disease, such as leprosy or insanity, provided the wife was not aware of the disease at the time of marriage.
  6. Prejudice in general, which renders continued cohabitation impossible from the social and cultural points of view, such as the husband's mistreatment of his wife or his taking of a second wife.
  7. Sexual defects such as the husband's impotence or sterility.
It should be noted in this respect that precedents have consistently proven that it is extremely difficult for a wife to obtain a divorce through the court except in cases where the husband is absent, has deserted his wife or is convicted and imprisoned. This is due to the following:
  • According to a field study on 1000 divorce cases from 1 972 to 1982 by Dr. Amina Shmeis, 46,9% of the divorce judgements were granted for absence of the husband and 14,9% were granted for desertion. This is due to the relatively easier procedures to evidence such absence or desertion.
  • The cost and length of legal proceedings is beyond the capability of the majority of married unemployed women.
  • Evidence of prejudice or incompatibility or even sexual defects is difficult to procure and the procedures applicable are quite strict. Even in cases where the woman has witnesses, it often happens that the husband is able to procure witnesses to the contrary. This has induced many wives to base their cases on absence or desertion rather than the other more real causes in order to avoid the stricter rules of evidence, as shown from the above mentioned study.
The above difficulties have resulted in two phenomena:
  • Oppressed wives who continue with their marriages because divorce is not a possible alternative, particularly in the case of poor unemployed wives.
  • Wives who bail themselves out of marriage, i.e., in case of working or relatively rich women, divorce is obtained by making financial concessions, such as waiving all the wife's financial rights including the alimony, the use of the conjugal home during custody of children, etc., and/or additional payments to the husband.
3 Inheritance
The Prophet Mohammed called divorce "the most hated of 'hallal' (legitimate) acts before God".
3.1 Inheritance is governed by Law 77 for 1 943 which is based on texts of the Quran together with additional applications developed thereafter and endorsed by Islamic doctrine. The rules of inheritance apply to all Egyptian Moslems and non-Moslems.
Islam gave the woman the right to inherit, which at that time was not the case. However, the share of a female is one-half of the share of the male when both have the same relationship to the deceased. This is a case where Shari'a law has provided "relative equality" or equity rather than absolute" equality between men and women. This relative equality is explained on two grounds:
  1. that under Shari'a law, it is the man who is responsible for supporting the woman financially whether as a father or a husband, or a brother or a relative. It is the man who carries all the economic responsibilities for his extended family and hence it is only fair that he gets a larger share of the estate. This is intended as a protective measure to women, assuming that women will never be required to support themselves or their families and that the man is capable of generating sufficient revenues to satisfy all the needs of his extended family, without the help of his wife.
  2. that such a sharing provision would help maintain the majority of the estate within the family of the deceased. This is based on the fact that the female when married becomes a member of her husband's family and that her heirs will probably be her children who carry the name of their father.
3.2 The following is a summary of the female's share in any estate, depending on her relationship to the deceased:
  1. A wife inherits one-eighth of her husband's estate if they have children and one-quarter if they are childless.
  2. A daughter inherits one-half of either parent's estate if she is an only child. if there is more than one daughter, they inherit two-thirds of the estate.
  3. A mother inherits one-third of her child's estate if the deceased has no children and not more than one sibling, and one-sixth if the deceased has children or more than two siblings.
  4. A sister of the whole blood does not inherit if the deceased has a son or grandson, even if the father is alive. She inherits half the estate if she is the only sister and does not have a brother of the whole blood and if the deceased has no living father or son. If there is more than one sister and if there is no brother of the whole blood among the heirs, then the sisters inherit two-thirds divided equally among them. Should there be one or more brothers of the whole blood, the share of the male is double that of the female.
  5. A grandmother inherits one-sixth of her grandchild's estate.
4 Future Reform
There are two parallel courses of action which must be pursued in order to eliminate discrimination against woman in this very sensitive field: one is to change the law and the other is to develop the prevailing customs and traditions which adversely affect the woman's capability to contribute effectively to social and economic development of her family and her society.
4.1 It is necessary to issue a new comprehensive family law. The present law has been drafted in 1920 amended in 1925 and in 1985. It does not cover all the legal issues relating to family relations in the modern life of today. Moreover, experience has been gained during the period of application of the present law since 1920. The benefit of such experience should be codified and incorporated in the new law. The following are some suggestions for the proposed legislative reform:
  1. Experience has shown that women who invoke prejudice in general and psychological prejudice in particular as ground for divorce are rarely successful in proving their case to the satisfaction of the court. This leads to protracted litigation and aggravation of the then already existing tensions between the spouses which inevitably spill over to adversely affect all family members. Experience has also shown that the unilateral right of divorce given to the husband is often abused. Such abuse may occur in cases where the husband divorces his wife without any justified cause and without proper compensation. Alternatively, such abuse may occur in cases where the husband imposes a price in order to give the wife a divorce and save her the cost of lengthy court proceedings that may end up without any satisfactory result. This dis-equilibrium in the relationship between the husband and the wife can be eliminated in two ways: either the contract of marriage provides for the wife's right to divorce herself or the new law makes divorce in all cases other than mutual consent to divorce subject to a court judgement, irrespective whether it is requested by the husband or the wife. This will not violate the principles of Shari'a and would eliminate discrimination against women. It would also guarantee that the husband will not abuse his unilateral right of divorce to the detriment of all the members of his family.
  2. It is suggested that the minimum age of marriage should be increased to at least 18 for females and 20 for males. This would help solve the population problem and would also assist in decreasing cases of divorce resulting from early marriage. It should be noted that according to a survey conducted in 1986, 14.1 % of the total females were either widows or divorced as compared to 2% of the total males. Moreover, according to survey conducted by CAPMAS in 1991, more than 25% of the total number of females aged 35 years and above have been married at an age below 15 (Abdel Kader, F. 1993). Marriage at such an early age would definitely have adverse effects on the women's opportunities of education and their contribution to economic development, in addition to the higher risk of divorce.
  3. experience before the courts has shown that the age of custody for children should also be increased to 12 years for boys and 15 for girls as this is more suitable for the children's needs for their mothers' care. Such an amendment would eliminate the great number of litigation presently before the courts on the custody of children which is definitely not in the interest of such children.
  4. Another suggestion would be to establish specialised courts that would apply exceptional procedures tailored to cater to the special nature of family disputes. This would help protect the children in cases of divorce and would enable resolution of cases relatively quicker than the ordinary courts. Moreover specialisation in the field of family law may provide better quality of service at lesser cost in the handling of such disputes.
  5. A further suggestion would be to develop the applicable procedures to family disputes in order to provide simpler procedures that would be accessible and less costly and exceptionally quick. In particular, an amendment must be introduced to resolve the issue of the "orfi" marriage contract, at least to allow hearing the wife's case for divorce and recognise the wife's basic human rights. After all such a contract is legitimate, is entered into by both parties, and hence the wife should not be the only party to be penalised.
4.2 The other course of action that is necessary for any serious plan of reform is to change the negative behavioural patterns and traditions that either through misinterpretation or prejudice impede the effective implementation of any laws and regulations. This bring us back to our proposal for a new model of a marriage contract as a way of enhancing consciousness of the law and the civil nature of the contract of marriage. This approach has been adopted in Iran and Pakistan, where special conditions are incorporated and a specific provision on the wife's right to divorce herself is included as an option. Such a contract would also help avoid many of the problems encountered by the couples at the time of divorce, such as alimony, habitation, custody, etc. Indeed, more than that, the inclusion of specific provisions relating to substance in a marriage contract could, by laying down a clear framework for the respective rights and obligations of both parties, inspire in them a feeling of confidence and security that could help cement their marriage. Meanwhile, it should be remembered that family guidance and counselling bureaus play an important role in resolving family disputes, reducing divorce rates and in helping women obtain alimony and child support. It is hoped that these bureaus will expand their range of services in general and will include legal counselling in particular in order to acquaint family members with. their legal rights and help them exercise these rights in the best interests of both family and society.