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IV. The Pains and Perils of an Unequal Divorce System

When women initiate divorce in Egypt, it can take several years in the country’s backlogged, inefficient, and biased courts. While millions of Egyptians seek divorce every year, only a limited number of these cases are finalized. For example, only 62 out of the 5,252 divorce cases filed in a Cairo court in 2002 were resolved by January of the following year.⁸⁹ Egyptian women pay the heaviest price for these delays since only they need to resort to the courts for a divorce. While many government officials see these delays as a necessary by-product of a busy and overcrowded judicial system, the routine delays represent an endurance test for many women desperately seeking a way out of painful and potentially dangerous situations. The limbo that these women face, never knowing if a divorce will eventually be granted, also prevents them from moving on with their lives and charting a course for future safety and happiness.

The very nature of the antiquated and overburdened Egyptian court system fosters delay. Judges in Egypt, on average, hear sixty to seventy cases per day.⁹⁰ As a result, the postponement of court hearings and the slow progression of cases is the norm. For example, when Human Rights Watch visited the Zananiri Civil Court of Personal Status and Family Affairs in Shobra on June 17, 2004, there were over one hundred cases scheduled to be heard by a single judge that day.  Attorneys specializing in personal status matters told Human Rights Watch that the delays are compounded by the fact that judges rarely maintain regular business hours.⁹¹ Both women seeking divorce and their attorneys often spend days waiting in courtrooms for appearances, each time discovering that their case has once again been postponed due to a judge’s unavailability.  The multiple responsibilities of judges hearing divorce cases exacerbates the problem.  For example, judges play a significant role in monitoring elections to both the government-appointed consultative council (majlis al-shura) and parliament (majlis al-sha`b), tasks that have been known to result in further delays.

Delays are also caused by a variety of laws and procedures injected into the divorce process, which are rooted in sexist and misogynist notions about women. Compulsory reconciliation efforts employed only when women seek to end their marriages not only infantilizes women but also mandates delays. A number of laws, such as the one conditioning a woman’s alimony on her obedience to her husband, are also readily available to men facilitating the further delay of divorce proceedings. Husbands regularly file appeals contesting the grounds for divorce outlined by their wives. Prior to the passage of the 2004 law establishing a family court system,⁹² husbands could appeal the divorce up to the Court of Cassation. Judges admitted that the system has been prone to abuse by ill-intentioned husbands. For example, one judge who asked to remain anonymous laid out a typical timetable in this fashion:

Normal [fault-based divorce] cases take four to five months. But, if the husband is out of the country it takes longer. We give him three months [to respond to the notice]. If the husband wants to keep her [the wife] in limbo then he can go to the Court of Cassation [to appeal], which can take several years.⁹³

The fact that women seeking divorce confront such a biased legal system is particularly unfortunate given the fact that all the women Human Rights Watch interviewed had resorted to the courts only after they had exhausted all other options. According to one attorney, “The courts are used as a last resort. Women endure everything for years before they go to the courts.”⁹⁴

Compulsory Mediation

I reached a point where I couldn’t endure it anymore even if the world tried to reconcile us.

— Hoda Halim, thirty-seven,Cairo, June 27, 2004

Women who seek either fault-based divorce or khulaare required to submit to burdensome and time-consuming court-ordered mediation in the name of family preservation.⁹⁵ Men seeking divorce, on the other hand, are never required to make any efforts at reconciliation. Taken to its logical conclusion, the troubling implication of the court requirement that women, and only women, attempt to reconcile with their spouses is that only women are capable of destroying the family. A husband’s independent and unchallengeable decision to divorce his wife is never limited by the notion of family preservation.

For fault-based divorce, in the event that a request for divorce is rejected by the court and a woman re-enters a complaint and similarly fails to provide sufficient evidence of harm, a judge is required to send two arbitrators to try to reconcile the couple. If they fail to reconcile the couple, they must present a report to the court, outlining who they think is at fault in the relationship. Based on this report, the court grants a divorce and determines the amount of compensation to be given by the party deemed at fault to his or her spouse.⁹⁶ In this capacity, arbitrators wield an enormous amount of influence on the outcome of the case.

A separate mediation process exists for no-fault or khula divorces.⁹⁷ According to an official at the public prosecutors office, the process normally begins with a woman going to the court to ask for a no-fault divorce and offering to return her dowry and renounce all other financial claim. The court tries to reconcile the couple for a maximum period of three months.  If such efforts fail, the court appoints an arbiter from each side of the family.  If there are children, the court makes two attempts to reconcile the couple with a 30 day waiting period between attempts.⁹⁸ 

The arbitrators appointed by the court in mediation sessions are often viewed as biased against women. According to Azza Soliman, the director of the Center for Egyptian Women’s Legal Assistance, an NGO that provides free legal aid to women, “rather than trying to resolve issues between the couple, they try to put pressure on the woman to drop the case.”⁹⁹  Mona Zulficar, a member of the National Council for Women and an attorney who helped formulate the 2000 reforms to the personal status laws establishing the no-fault divorce system, admitted that there were problems in the implementation of the new procedures. “They [judges] confuse the difference between having arbitrators in cases of women who are applying for a regular divorce and the cases of those applying for khula,”she explained. “In the former, the arbitrators have to check that a woman deserves a divorce. In the latter, if the woman objects to going back, the case should not be postponed. The arbitration sessions should not take more than two months.”¹⁰⁰

The requirement that divorces initiated by women are automatically subject to reconciliation efforts is rooted in the biased notion that women are not capable of making rational decisions about important life choices. For the many social and legal reasons discussed in this report, women in Egypt generally resort to divorce as a last resort, when there is negligible hope of salvaging the marriage. As already noted above, compulsory mediation infantilizes women and takes adult decision making out of their hands. 

Human Rights Watch interviews revealed that many judges, government officials, and others in the legal system share the prevailing societal view of women as inherently irrational and child-like.  The perception that women are prone to impulsive behavior and the traditional characterization of women as naturally indecisive, fanciful, and in need of guidance and protection fuels this one-sided mandatory mediation program. According to one public prosecutor in Cairo, mediation was necessary because:

A woman may be hasty in filing for a divorce and may not have a strong keenness in keeping the family together. The court has to play this role and intervene. Men are more wise and rationale than women. A woman’s emotions can overcome her rationality.¹⁰¹

Reflecting on the delay caused by compulsory mediation, one woman told Human Rights Watch:

There should be legal changes.  Cases should not take four or five or six years. It should happen straight away.  Why do they have to insist on reconciliation?  It has to be easier for women. There is a very long period until there is a judgment.¹⁰²

Compulsory mediation also raises important issues for domestic violence victims attempting to end their marriages. Women in abusive relationships who seek divorce are not exempt from mediation. However, a number of experts agree that mediation is “[a] process that requires a balance of power between participants” and is thereby “[n]ot an appropriate method to resolve domestic violence disputes, a phenomenon that reflects profound disparities in power between the perpetrator and the victim.”¹⁰³ Under these circumstances, mediation may in fact reinforce the inequality and disempowerment of victims of domestic violence.

Discriminating between Women: Judicial Discretion and Socio-Economic Status

What is harm for some women isn’t harm for another. Some women accept beatings and insults as a joke, while others do not.

— Judge `Abd al-Rahman Muhammad, chief judicial inspector, Cairo, June 25, 2004

Despite women’s legal entitlement to divorce, judges still maintain a great deal of discretion in granting a fault-based divorce and often require substantial evidence of harm. Simply filing for divorce does not mean getting a divorce.  In fault-based divorce cases, the burden of proving harm is on the wife.  Since the law does not specifically define what constitutes a sufficient degree of harm required to mandate divorce, judges often grant divorces in a discriminatory fashion based on various subjective interpretations of harm, including linking a woman’s socio-economic background with her ability to tolerate and endure violence.

Several Egyptian attorneys told Human Rights Watch that judges tend to require a higher threshold of harm for poor or illiterate rural women, on the assumption that physical abuse or polygyny, for example, is a natural part of their existence and does not necessarily warrant a divorce. While lesser forms of physical abuse may not be sufficient to prove harm for poor women, a wealthier woman is often seen as more easily harmed because she is accustomed to better treatment. Implied in this subjective analysis of harm is that some forms of violence against women or other degrading practices are legally tolerable under certain circumstances. Egypt’s chief judicial inspector admitted:

The judge needs to decide if it is [legally cognizable] harm depending on [a woman’s] socialization, education, and economic status. In [the judge’s] ruling, he needs to specify the reasons that caused him to come to this judgment. The judge needs to know his community.¹⁰⁴

This exercise of judicial discretion is not without legal support. The law governing fault-based divorce explicitly notes “[h]arm is a situation which is impossible ‘for the likes of them’ (bain amthalihima).”¹⁰⁵ This gender-neutral law directly affects women seeking divorce since only they need to provide evidence of harm in order to terminate their marriages. Ultimately, the law allows judges to discriminate between women belonging to different socio-economic classes, and is a clear violation of the internationally protected right to equality before the law. 

In an insightful article detailing the legal obstacles to divorce faced by Muslim Egyptian women, Amina Chemais explains how differing judicial attitudes regarding what constitutes harm, and the variables that a judge may look to in assessing harm done to women of different classes not only undermine any notion of judicial fairness, but may also lead to contradictory legal rulings that undermine any sense of legal predictability.¹⁰⁶ The absence of legal predictability in proving harm serves as yet another deterrent for women seeking fault-based divorces. Reflecting on the inherently discriminatory and troubling nature of this law, Chemais comments:

This law, which has the result that low-status women may have to put up with more abuse than high-status women, is based on the logic that since violence is common, it must be just.  For instance, a judge can rule that moderate physical violence toward the wife may not be considered harm among the more traditional rural groups where the norm and ideology gives such a right to the husband.  However, the same amount of violence in a middle class home may be considered excessive.  The determination of the level of harm “normally” endured by individuals of a particular social group is particularly problematic in a socially mobile society, as Egypt is, where one’s current situation and one’s aspirations are not necessarily the same.¹⁰⁷

Obedience Laws

The existence of “obedience” laws in Egypt presents another impediment to the ability of women to access divorce equally.  In Egypt, as in much of the Middle East and North Africa, a husband may file an obedience(ta`a) complaint against his wife if she leaves the marital home without his permission.<sup>108</sup> If a woman refuses to go back to the “house of obedience” (bayt al-ta`a) and does not file an objection specifying the legal grounds for her failure to obey her husband within thirty days of receiving the notice, she is considered deviant (nashez) and is denied alimony upon divorce.¹⁰⁹ Accordingly, women contemplating filing for divorce have limited opportunity to leave the home  if they want to maintain their financial rights. Until 1967, police officers were allowed to use physical force to return women to the marital home into the custody of their husbands. While police can no longer use such force, husbands routinely use obedience laws as a means to deter women from seeking divorce.  

Obedience is construed as the quid pro quofor the husband’s provision of basic necessities, such as food and shelter. Obedience in return for maintenance finds its source in Islamic marriage contracts although this “exchange” is not explicitly stated in  marriage contracts used in Egypt today. According to this “exchange,” husbands are entitled to obedience and complete decision-making power at home in return for financially supporting the household.¹¹⁰ Obedience in exchange for financial support allows women to be treated as commodities with little more autonomy than children.  As one academic noted: 

Ta`a [obedience] is dangerous because it gives husbands nearly total control over their wives. Ta`a can mean not only that the wife must strictly obey all that her husband commands, it can also mean that the wife might need to guess what her husband wants, fulfilling his every whim, in order to avoid his legal, physical reprimand.¹¹¹

Obedience notices cannot in themselves prevent a woman from obtaining a divorce.  However, they are often used by men as a means to humiliate their spouses, to further delay divorce proceedings, and to avoid paying any alimony.¹¹²  Obedience laws serve to deter women from seeking divorce and exemplify the overarching authority that men exert over women in family matters.  An attorney, who did not wish to be named, told Human Rights Watch that he uses obedience notices as a harassment tactic when he defends men in divorce suits filed by their spouses. “I do it [file an obedience complaint] to disgust her and wear her down.”¹¹³

Human Rights Watch interviewed several women who had received obedience notices from their spouses, further delaying the divorce process.  In such circumstances, women are required to provide information about why they left the marital home without their husbands’ permission. Nada Sha`ban, twenty-four, moved back into her family’s home after her husband brought his second wife to live with them. Her husband then filed an obedience notice against her. She explained: 

He started a ta`a suit on June 13 [2004]. This is the fourth time my [divorce] case has been postponed. Now, I also need to bring witnesses to prove that he brought another woman into the house to reject the ta`a case.¹¹⁴ 

Mona Hanan, thirty-one, was served with an obedience notice after she left her house without her husband’s permission. She went to her father’s home with her eight- year-old-son because her husband (who had married a second wife) did not financially support them. “He gave us 1 pound [US$0.16] a day for household expenses,” she said. Despite the lack of financial support (the supposed quid pro quo for a woman’s obedience), Mona Hanan’s objection to the obedience notice was rejected by the court, making her ineligible for alimony.¹¹⁵    

Unenforceable Court Rulings

If they [court rulings] are not enforced, the whole judicial process is “gone with the wind” [in English], including the efforts of the judges and the parties that have been struggling for years for this decision. 

— Hossam Abu-Yusif, state council deputy, Cairo, June 25, 2004

Divorced women in Egypt know that obtaining a divorce is only half the ordeal.  The legal and bureaucratic nightmare of obtaining a divorce is often followed by the frustrating process of enforcing court rulings for alimony and child support. Many divorced women find themselves destitute because of the government’s failure to enforce these rulings. Fayza Kamal, fifty-nine, a victim of such poor enforcement standards, explained her situation to Human Rights Watch:

I can’t work. I have rheumatism. My daughter was three when we first went to the court to ask for maintenance. She’s seven now. The final [accumulated] maintenance totaled 4800 Egyptian pounds [US$780], but he won’t pay it. He’s supposed to go to jail, but he hasn’t. I had to withdraw the youngest girl from school because I can’t pay the fees…. It’s been a month since I’ve been able to buy my medicine. I can either buy medicine or spend money on my daughter. So I spend on her.¹¹⁶

Women can spend several years trying to track down their ex-husbands in order to enforce court rulings.  Once an ex-husband is deemed missing, they are provided with little assistance from the police or any other government authority.  If a woman does not know her husband’s exact address to forward to the bailiff (the court official responsible for announcing and implementing court orders relating to a case), she is simply denied the money she was awarded in the court ruling. 

Attorneys repeatedly told Human Rights Watch that bailiffs assigned to notify a husband of a court session or an alimony ruling often take bribes in return for neglecting these duties.  In return for a bribe, a bailiff will inform the court that he could not locate the person. “It is easy for a husband to run away and it is easy for a husband to pay bribes. The government does not prioritize the implementation of court rulings. It prioritizes national security and not civil security,” said attorney Yasir `Abd al-Gawad.¹¹⁷ One judge Human Rights Watch interviewed, who requested that he not be named, told us that bailiffs were a “cancer” that undermined the whole judicial process.¹¹⁸ The problem is so acute that another attorney told Human Rights Watch:

Some people are told “make sure you go to an enforcement attorney.” They ask “who’s that?”  They’re told “that’s the type of attorney who is able to enforce [court] rulings.”¹¹⁹

The Egyptian government has made little effort to ensure that bailiffs are not susceptible to corruption. The head of judicial supervision, who also oversees the bailiff’s office, refused to provide any information about the measures his office has taken to monitor the work of bailiffs and to penalize those who are found to be corrupt.  Despite being challenged with the many accounts Human Rights Watch had received, he insisted to Human Rights Watch:   

We pick the right people [bailiffs] from good backgrounds. They are educated.  There is a serious appointment of people. There is no answer except to get good people and give them good salaries.¹²⁰