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III. Overview of Mariage and Divorce Laws in Egypt

Discrimination in Egypt’s divorce system starts long before a woman files for divorce. In fact, it begins with marriage itself. Many women in Egypt are married without their consent, often before they become adults. While Egyptian marriage contracts may contain conditions providing for certain rights and a woman’s equal access to divorce, many women are not informed of their right to negotiate such conditions, and, in fact, are often not even present during the negotiation process. Women’s autonomy and choices continue to be restricted if they make the decision to terminate their marriages. While men seeking divorce never need to resort to the court, women need to navigate a complex, burdensome, time-consuming, and costly divorce system to end their marriages. Women ultimately must choose between a protracted fault-based divorce that allows them to retain their financial rights (when the authorities are able to enforce alimony and child-support payments) or a divorce predicated on the abandonment of their rights (khula).

Entering into Marriage

The Ma’zun didn’t ask if I wanted to put conditions [in the marriage contract]. I wasn’t sitting there. My father was.

— Magda Ahmad,⁵⁸ thirty-five, Cairo, June 13, 2004

By law, marriage in Egypt is considered a contract concluded by mutually consenting parties of marriageable age.⁵⁹ The minimum age of marriage is set at eighteen for males and sixteen for females.⁶⁰  Upon entering into marriage, a groom must pay the bride an advance portion of the dowry (muqaddam) before the consummation of the marriage. The remaining portion of the dowry (the deferred dowry or mu’akhar) is payable upon divorce or death.⁶¹

The civil code, however, limits a woman’s ability to enter freely into marriage by requiring that she have the permission of a male guardian (wali).⁶² Although the importance of this requirement has been limited by the fact that a walicannot prevent a marriage from taking place because the groom is not of the right socio-economic status or did not pay a sufficient dowry, walis continue to exercise enormous influence in the marriage process. Human Rights Watch interviews revealed that women’s subordinate status in the family results in the exclusion of many women from the negotiation of their marriage contracts. As a result, women rely on their walis to represent their interests. Demanding that they be present for these negotiations is not even contemplated by most women because of the social stigma and awkwardness that such a demand would generate. Iman Ahmad, twenty-seven, was married seven years ago, and recalls:

My father was my guardian. They [my father and husband to-be] agreed on everything. They called me from the other room to sign my name. I didn’t read the contract. The Ma’zun [religious notary] just told me to sign here.⁶³

The signing of a marriage contract (katb al-kitab) is a critical point in an Islamic marriage, representing the only juncture at which the parties can consensually define, enhance, or limit their rights in marriage.⁶⁴ Accordingly, this moment offers an opportunity for Egyptian women to prevent subsequent abuses of their rights, including the opportunity to condition the marriage on the equal right to divorce. 

During the stage in which the marriage contract is negotiated, women can insist that certain legal conditions be included in the contract, including a right to obtain a divorce if their future husbands were to prevent them from such endeavors as finishing their education or working. While women who have included such conditions in the marriage contract are still required to get a judicial divorce through Egypt’s courts, they can do so on grounds that otherwise would not automatically be recognized by the courts as sufficient. Men can also insist upon the inclusion of certain conditions in the marriage contract, including conditions that deny a woman her right to education and employment, or even specify a particular timeframe for the birth of the couple’s first child. 

The signing of the marriage contract is also often the only point in a couple’s marital life where they can contractually agree upon the woman’s equal right to divorce without resort to the courts.  Where women have the right to divorce (isma) under a marriage contract, they can divorce with the same ease as men, normally by going to a Ma’zun,who registers the divorce. In principle, all of the conditions and stipulations contained in the marriage contract should be the product of mutual agreement between the couple.  In practice, the process is typically far less equal.

The theoretical ability to include such conditions in the marriage contract does not adequately ensure the protection of women’s rights. It is extremely rare for Egyptian women to demand the right to divorce during the negotiation and signing of the marriage contract.  Providing women with the same right to divorce as men is seen as unacceptable to most Egyptian families. In this context, Egyptian women who are about to be married are usually reluctant to demand such conditions in the contract out of fear that such an act may result in the man breaking off the engagement.  

One expert on the interaction between Islamic marriages and women’s rights notes, “[I]n Egyptian society, for a woman at the outset of her marriage to set conditions (some of which may entail divorce) is at best a bad omen, and at worst simply not done.”⁶⁵  Generally, a woman’s equal right to obtain a divorce is viewed as a condition that would be reserved for marriage contracts among Egypt’s elite.  Speaking of such elite women, one woman of more modest means told Human Rights Watch: “People not like us put the ismain their hands.  They are the ones who are self-confident.”⁶⁶

Many Egyptian women are also simply not informed of the fact that they have the ability to insist that certain conditions be included in the marriage contract. Ma’zuns whofall under the authority of the Ministry of Justice are required by new by-laws to inform the marrying parties of their right to include conditions in the contract.⁶⁷ However, many Ma’zuns choose not to inform the couple of their legal rights. Dr. Mustafa `Adli al-Gindi, a Ma’zunin the governorate of Qalubiyya, told Human Rights Watch that he does not mention the issue of conditions when drafting a contract.  He said:

Those that put conditions are very few. In 100 contracts, maybe only one [adds any conditions]. There is a fear of tension and ruining the marriage.  If I tell them about the conditions, I’m opening up a door for tensions.⁶⁸

Divorce Initiated by Men

The question of settling divorce should be in the hands of the wiser party, and that is men.  Men are wise, which is why they do not have to go to court.  Islamic law would consider the wise wife an exception, and you cannot generalize an exception.

— Ayman Amin Shash, chief judge, technical bureau of the National Center for Judicial Studies, Cairo, July 7, 2004

Muslim Egyptian men have a unilateral and unconditional right to divorce without resort to legal proceedings (talaq). They simply need to repudiate their wives, saying “you are divorced” three times, making the divorce irrevocable (ba’in), and register the divorce within 30 days with a religious notary to make it official.⁶⁹ A repudiated woman has to observe a waiting period (`idda) not exceeding one year,<sup>70</sup> during which she is not allowed to marry another man.<sup>71</sup> A divorce uttered less than three times is revocable (raji`i),meaning that the husband has the right to return the divorcee to his household during the waiting period against her will and without having to sign another marriage contract.

An Egyptian woman who is repudiated by her husband is entitled to the deferred dowry, “maintenance” (nafaqa) during the waiting period, and compensation (mut`a) of at least two years maintenance (with consideration for the husband’s means, the circumstances of the divorce, and the length of marriage).⁷² However, many Egyptian women seeking divorce have been willing to forfeit these financial rights to avoid burdensome and uncertain court proceedings. These women ask their spouses to divorce them in return for forfeiting their rights.⁷³  

Divorce Initiated by Women

We fear that women are rash, they might divorce too quickly.

-Dr. Mustafa `Adli al-Gindi, religious notary, Qalubiyya, June 16, 2004

Women who seek divorce in Egypt have two options, fault-based or no-fault divorce (khula). Unlike men, women can only divorce by court action (tatliq). Regardless of which system they choose, a number of government officials are involved in the process, including judges, attorneys for both parties, and arbitrators involved in compulsory mediation between the couple. Public prosecutors are also often present in divorce cases, exercising considerable influence on these proceedings and the outcome of the case. For both types of divorce initiated by women (fault-based and no-fault) described below, public prosecutors provide the judge with an advisory opinion on whether the divorce should be granted. While these advisory opinions were requested by judges on a case-by-case basis before the establishment of the new family court system in October 2004, they are now mandatory in all personal status cases heard by the new courts.⁷⁴ 

Fault-Based Divorce 

I wanted a divorce but he refused. He left the house. He told me “You’re not getting a divorce. You’re staying just in case, like a spare tire.”

— Hamida Tariq, Qalubiyya, June 16, 2004

In order to begin traditional fault-based divorce proceedings, women are required to obtain legal counsel, provide evidence of harm often through eyewitness testimony, and submit to compulsory mediation. A woman must prove to the court that it is impossible for her to continue living with her husband. The following four grounds for fault-based divorce are accepted by the court: (1) illness, including mental illness, venereal disease, and impotence; (2) non-provision of maintenance or financial support; (3) absence or imprisonment; and (4) “injury” (darar) which includes a variety of forms of physical and mental harm.⁷⁵  

The last form of judicial divorce on the grounds of injury is formulated in general terms and could include such reasons as: physical or verbal violence, attempts to take control of the wife’s private property, damage to the “honor” of a wife or her family, polygyny,⁷⁶ or deprivation of marital intercourse. By not explicitly stating the degree of harm sufficient for the granting of a fault-based divorce, the law has given judges considerable discretion and, reflecting prevailing prejudices, judges have applied their discretion to discriminate between women of different economic classes based on stereotypes of what women of different backgrounds can tolerate.⁷⁷ 

According to the law, if a woman was aware of any of these grounds for divorce prior to marriage or tolerated it for several years during the course of the marriage, her divorce request is inadmissible.⁷⁸ For example, a wife who has learned that her husband married a second wife has only one year to file for divorce on the grounds of polygyny.⁷⁹ Men are also given considerable leeway to rectify the harm. When women file divorce suits for impotence, for example, judges will often wait for one year before granting the divorce in order to see if the condition has improved.⁸⁰ If a man decides to spend some money on the household after a woman filed a suit for harm based on failures to financially support her, the case can be dismissed.⁸¹

The substantial burden of providing evidence of “injury” rests on a woman’s shoulders. In order to file for divorce on grounds of physical violence, woman will often need to provide the court with a medical certificate from a government hospital outlining her condition and two witnesses (preferably not related to her) who saw the abuse occur.⁸² As in all other court cases in Egypt, a woman’s testimony is worth half that of a man.⁸³ Therefore a battered woman would need testimonies from either two men, four women, or one man and two women. The need for witnesses is a huge barrier to getting a divorce on the basis of physical abuse. An attorney for the Egyptian Organization for Women’s Rights told Human Rights Watch “most cases fail because of a lack of witnesses.”⁸⁴

No-Fault Divorce (Khula)

I do not want khula.  You lose so much in khula… I have endured so much already.

— Marwa Majid, Cairo, June 13, 2004

On January 29, 2000, President Mubarak signed a new law granting Egyptian women the right to file for a divorce on the basis of “incompatibility,” without providing evidence of harm.⁸⁵ In order to file for a “no-fault” divorce (khula), a woman need not provide grounds for filing the divorce request, but must agree to forfeit her rights to alimony and her deferred dowry (mu’akhar) as well as repay her advanced dowry (muqaddam). For some women, khula has proved to be faster than the fault-based divorce process, since they are not required to demonstrate evidence of harm or find witnesses, and men do not have the right to appeal the no-fault divorce to a higher court.

The passage of the law was largely the result of the tireless efforts over a fifteen-year period of an informal coalition of prominent Egyptian lawyers, NGO leaders, legislators, scholars, and government officials.⁸⁶ The success of this legislative initiative has also been attributed to the fact that the basis of the law is found in the Qur’an.⁸⁷ Given the constrained environment in which advocates for changing discriminatory elements of the personal status law (derived from interpretations of Shari’a deemed untouchable by some) operate, the coalition made the strategic decision to use religion as a basis for these reforms.  

While khulahas clearly helped some women have easier access to divorce, it has not adequately remedied the fundamental inequality of the divorce process. Human Rights Watch interviews reveal that because of the need to forfeit both the right to any marital assets and the right to any future support, this option is limited to women with significant financial resources or those who are desperate for a divorce.⁸⁸