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V. Discriminatory Consequences of Unequal Divorce

Egypt’s profoundly discriminatory divorce system harms women at every stage of the divorce process. The pains and perils involved in initiating divorce in Egypt’s backlogged and inefficient courts compel many Egyptian women to push their husbands, for whom divorce is effortless, to divorce them. In return, women usually agree to sacrifice their financial rights. Additionally, discriminatory laws that condition a woman’s right to housing on her having physical custody of children serves to deter women from seeking divorce by instilling fear in them that they will be rendered homeless. The loss of physical custody of children, which is transferred to fathers when children reach a certain age or automatically if women choose to re-marry, is another discriminatory consequence of Egypt’s divorce system.

Women courageous enough to attempt to terminate their marriages in Egypt’s courts, a process that can take several years, are likely to find themselves destitute during the process because they are ineligible for any social assistance from the state while they are legally still married. These unfortunate consequences of divorce in Egypt serve to both deter woman from ever seeking to divorce their husbands or make their lives miserable post-divorce. 

The Hidden Consequence: Bargaining away Rights to Avoid the Fault-Based Divorce Process

We didn’t talk about the marital home. I have [young] children. I have a right to it. But we didn’t talk about it. I wanted to get it all over with and that’s all.

— Hania Karim, thirty-three, Cairo, June 21, 2004

One of the often hidden consequences of Egypt’s unequal divorce system, which positions men at a considerable advantage, is that many Egyptian women choose to bargain away their rights to avoid initiating divorce altogether. This type of bargaining typically involves a woman agreeing to give up all of her alimony rights, the marital home, custody, and often even paying the Ma’zun’sdivorce fees121 in order for her husband to divorce her. This type of divorce (taliq `ala ibra), initiated by a man whose spouse agrees to give up everything in order to terminate a marriage, is one of the quickest (but most costly) means for women to terminate their marriages. It is a by-product of Egypt’s highly discriminatory divorce system; a system that forces women to make seemingly impossible choices. Many Egyptian men, acutely aware of the difficulties women face in the courts, decide to take advantage of the situation.

In one such case, Marwa Isma`il, a twenty-four-year-old from Cairo, agreed to forfeit all of her financial rights for a divorce. Her husband took her to a Ma’zunthree years ago and told her to sign a document giving up her rights. “I didn’t take anything but my clothing when I left the house, he took everything,” she said. In the presence of the Ma’zun, he agreed to give her 100 Egyptian pounds (US$16) a month to support their three children. Despite this pledge, he has never paid this money and she has not seen him since. Her attorney filed a lawsuit seeking child support and housing over a year and a half ago. As a result of the lawsuit, the court awarded her 350 pounds (US$57) per month for child support and 180 pounds (US$29) for the rent of an apartment.  To date, they have not been able to enforce the ruling.122       

Another woman Human Rights Watch interviewed, Jihan Khulud, twenty-four, felt that she had to choose between living in a polygynous union or seeking a quick divorce from her husband by agreeing to forfeit all of her financial rights. Sheexplained:

He married another woman who was already married. He said “you can come back but she’s staying.” I refused. [Then] he told me “you can either come back or I’ll divorce you if you agree to give up everything.”123

Illiterate women are particularly susceptible to being taken advantage of in this manner.  One such woman told Human Rights Watch:

Before he came to divorce me – because I wanted to work – he came to me with a big piece of paper, with lots of words on it and said, “sign here.” So I did and I gave it all up.  Afterward he gave me only 50 pounds [US$8].  He said he would pay 50 pounds each month for the children. Sometimes he sends it, sometimes he doesn’t, and when I go to see him he shuts the door.  He is also a bad man, and if I go [to his home] he would probably to try to do some bad things [to me] that are forbidden because I am divorced.  To touch me.  So I cannot go.124

Precarious Housing and Custody Rights

Even when women succeed in overcoming the daunting legal and bureaucratic hurdles and manage to obtain a divorce, their situation remains precarious. Egyptian law limits a woman’s right to adequate housing post-divorce to the period during which she has physical custody of the children, rendering both childless women and those who no longer retain custody of their children perpetually at risk of homelessness. Under Egyptian law, women do not obtain a share of, or legal title to, the marital home.  Instead, the marital home is viewed as the exclusive property of the husband both in marriage and divorce.  Absent having custody of children, and thereby needing a home in which to raise the “husband’s children,” women have no entitlement to the marital home upon divorce.  Egyptian law provides that a divorced husband is only required to provide “adequate independent accommodation for his young children by his divorced wife and for the wife who has custody of the children.”125  Thus, divorced women who may have spent years or decades maintaining and contributing to the marital home are left with no ownership interest.

Egypt’s custody laws do not reflect internationally acceptable standards nor do they take the best interests of the child into account.126  By law, physical custody of any children born of the marriage is automatically transferred to the father at the age of ten for boys and twelve for girls, unless the parents reach an alternative extra-judicial agreement or a judge orders an extension of the mother’s custody.127 The threat of losing custody of children leaves divorced women with the permanent risk of becoming homeless once children reach the age where custody may be transferred to an ex-husband. A divorced woman’s entitlement to either reside in the matrimonial home or to receive support for living elsewhere is entirely contingent upon her having custody of the children.  Should her custody be terminated at any point, her right to support for shelter would disappear.128

According to Egyptian law, a judge must offer divorced women with physical custody of children the choice of either living in the marital home or having alternative accommodations rented for them (until the end of the custody period, at which time the divorced husband is entitled to return to the marital home with the children).129  While most women desire to remain in the marital home, only one of the approximately fifty divorced women that Human Rights Watch interviewed was doing so. The vast majority, whose custody of small children entitled them to live in the marital home, were denied this right.  Most of these women now live with their parents after being evicted from their homes by their ex-husbands. Many women reported that they were not aware that they had legal rights to the marital home or alternative housing.  Others said that they simply could not bear the daunting burden of a continued legal battle.

Nada Sha`bayya, twenty-four, moved back to her father’s home with her two infant children after her husband took on a second wife. Her husband, a taxi driver, was physically and psychologically abusive. “I left the house immediately and went home… I lost all my belongings,” she said.130 Paradoxically, the one woman we interviewed who continued to live in the marital home, Heba `Osman, thirty-six, wishes she could live somewhere else. She lives with her three children in the marital home ― a one room apartment with a shared bathroom and no kitchen in the governorate of Qalubiyya.  Her ex-husband has stopped paying rent for the property and left the home in a state of filth and disrepair. While her husband did not evict her from the marital home, he refuses to pay the rent leaving her and her children at risk of homelessness.131 

Egypt’s poor and resource-starved public housing system provides little or no support for these women. Fayza Kamel, fifty-nine, was forcibly evicted from the marital home with her five children.  She has been staying at her mother’s house since the eviction, but will likely be asked to leave by her brother when he returns from work overseas. She has applied for public housing, but told Human Rights Watch:

Six years ago, I filed an application for housing in `Abdin [a neighborhood in Cairo]. They told me that I needed to pay 1008 Egyptian pounds [US$296 at the time] to them. Of course, I don’t have this. Where will I go with my children? Will my daughter sleep on the street?132

Some husbands simply deny custody rights to their wives without legal proceedings.  Many women do not have confidence that the police will be willing or able to protect their rights, and thus do not report these situations. Lina Munir, thirty-five, was married to a fruit vendor.  Her husband refused to let her leave the house at any time, and severely beat both her and their children on a regular basis.  Lina Munir told Human Rights Watch that she endured the physical abuse and torment for seventeen years because she did not want to leave her children unprotected. Recalling her breaking point, she recounted:

He was hitting me hard and I couldn’t take it anymore. I took the nursing girl [my daughter] and I went to my brother’s house. He ran after me and took her. He said, “My daughter won’t live with strangers.”

I didn’t tell the police. I know that they won’t do anything.  They write down the information and leave. It’s not as if I can go file charges and they’ll bring them [the children] back to me. It’s not that easy.133 

Even when women have been awarded custody, some are unable to adequately care for children unless they are simultaneously awarded appropriate alimony and child support payments. In many cases, the knowledge (or threat) that a husband will not make child support payments after a divorce forces some women to give up custody rights voluntarily.  One woman explained:

I want him [husband] to support them [the children]. If I asked for custody, how would I raise them? I don’t work… Even if I lived with them, I wouldn’t be able to give them anything.134

Inaccessible Social Assistance

The law of social insurance is based on the belief and assumption that the man is the head of the household and [financially] maintains the family… Life has changed; men and women now share in the household expenses and in [financially] maintaining the families, yet the law has not yet internalized that. 

— Dr. `Aisha Ratib, former minister of social affairs135

The public welfare programs of the Ministry of Insurance and Social Affairs, administered pursuant to the Social Insurance Law, are governed by restrictive and judgment-laden distribution rules that discriminate against divorced women and women with pending divorce cases.136 The Egyptian pension system is founded on the assumption that all families are financially supported by men. This assumption has resulted in a series of problematic practices that impoverishes many Egyptian women and their children.

Married women, even those with pending divorce suits or whose husbands do not financially support them, are deemed automatically ineligible for all forms of government-sponsored financial assistance. Married women are even prohibited from accessing employment pensions of deceased parents.137 The assumption behind these provisions is that as long as a woman is married, she must be supported by her husband, and is thus not the responsibility of the state. Fayza Kamal, fifty-nine, told Human Rights Watch:

[My husband] never sends money. I don’t know what to tell you. What do I have left to ask for? I’m trying to get 50 Egyptian pounds [US$8] to spend on myself….I went to ask for a pension, but they said “since you have a man [a husband], you can’t get a pension, get a divorce and we’ll give you the pension.” Since he hasn’t divorced me, I can’t even get my mother’s pension. She used to give me some of it, but now that she’s dead and I’m still married. I don’t get anything.138

Amal Khalil, thirty-eight, mother of seven, was abandoned by her husband six years ago. She has never received any financial support from her former husband. She filed for a fault-based divorce two years ago in order to get a divorcee pension, but the sessions have been constantly delayed, leaving her with no source of income. She had to withdraw her three adolescent daughters from school so that they could financially support the family. She told Human Rights Watch:

I’m not asking for anything except a divorce so that I can get a pension, 70 pounds per month [US$11], to feed my children. I don’t get anything now because I don’t have divorce papers or a death certificate.139

The Ministry of Insurance and Social Affairs administers a pension for divorced indigent women. To be considered eligible for assistance, the divorcee must have no other source of income, own no property, and not receive any other form of welfare.140 Divorced women with children receive monthly payments of 70 Egyptian pounds (US$11), while women without children receive 50 Egyptian pounds (US$8) per month. If a divorced woman re-marries, social assistance is withdrawn since she is considered “the ‘responsibility’ of the new husband and not the state.”141

A representative of the Ministry of Insurance and Social Affairs told Human Rights Watch that divorced women were required to bring only the following documents to apply for social assistance: official marriage documents, a divorce contract, a state-issued identification card,142 and a mailing address.143 However, Human Rights Watch interviewed women who reported that they were denied social assistance because they did not have additional forms of documentation. Hamida Tariq, thirty-five, has five children to support and no income. She described her attempt to get social assistance: 

I can’t find anyone to give me [President] Mubarak’s pension.144 They don’t agree [to give it to me]. Everyone says get a copy of his [my husband’s] birth certificate. Where will I get it? I run around all day just to get 5 pounds [US$0.81] to feed my children….I just got the divorce certificate. But when I went to [social] affairs, they said they want his [my husband’s] birth certificate too.145 

Some women are denied social assistance based on arbitrary criteria such as not looking needy enough. Jihan Khulud, twenty-four, told Human Rights Watch:

My sister lives in Canada and sent me a leather jacket. I went to social affairs. She [an employee of the Ministry] said “you don’t look like you need it [divorcee pension]. Your jacket costs 500 pounds [US$81].” I got embarrassed and decided not to go back.146 

Women married to public servants usually have access to their husbands’ employment pensions upon death. While divorced women are also eligible for this form of assistance, those who initiate divorce forfeit their right to these pensions.  Under the Social Insurance Policy of Law 79 (1975), the following conditions apply to divorced women seeking to access government pensions of deceased ex-husbands:

1. That she was not the initiator of the divorce and that the divorce was against her will;

2. That she was married to the participant for at least 20 years;

3. The she has not remarried since the divorce; and

4. That she has no other source of income.147

Because women who are divorced by their husbands remain entitled to collect their ex-husbands’ pensions, this represents yet another reason many women are forced to plead with the husbands to divorce them or are resigned to remain in violent marriages. Ultimately, this law serves to penalize women who initiate divorce. Dr. Iman Bibars, director of the Association for the Development and Enhancement of Women, surveyed Egypt’s social insurance laws in a 2001 study of Egyptian women and welfare.148 She found that social welfare programs in Egypt “virtually dictate a particular family form and a particular form of acceptable family behavior by virtue of their conditions for access, as they exclude all those who do not conform to the socially constructed role of the ‘enduring housewife.’”149

[121] Ma’zouns require fees to register marriages and divorces determined by the financial means of the parties. Human Rights Watch interview with Dr. Mustafa `Adli al-Gindi, religious notary, Qalubiyya, June 16, 2004.

[122] Human Rights Watch interview with Marwa Isma`il, Cairo, June 8, 2004. See section on “Unenforceable Court Rulings” for more detailed information.

[123] Human Rights Watch interview with Jihan Khulud, Cairo, June 13, 2004.

[124] Human Rights Watch interview with Buthaina Sha`ban, Qalubiyya, June 21, 2004.

[125] Law No. 25 (1929), article 18 bis 3.

[126] Article 3 of the Convention on the Rights of the Child states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”  In Egypt, although a judge can extend custody if deemed necessary, the law transfers custody at certain ages for boys and girls not necessarily determined by the best interest of the child.  In that sense, it violates article 3 which demands that the best interests of the child be a primary consideration in determining custody issues.

[127] The law allows judges to extend custody of boys until the age of 15 and until marriage for girls if the judge deems such an extension to be in the best interest of the family. Abdullahi An-Na’im, Islamic Family Law in a Changing World: A Global Resource Book (New York: Zed Books, 2002), chapter on Egypt, p.172.

[128] Egyptian women are also denied physical custody rights if they re-marry or leave the country, while men are never denied custody under such circumstances.  Ron Shaham, Family and the Courts in Modern Egypt: A Study Based on Decisions by the Shari’a Courts 1900-1955 (Leiden: Brill, 1997), p. 187.

[129] Law No. 25 (1929), article 18 bis 3.

[130] Human Rights Watch interview with Nada Sha`bayya, Cairo, June 14, 2004.

[131] Human Rights Watch interview with Heba `Osman, Qalubiyya, June 21, 2004.

[132] Human Rights Watch interview with Fayza Kamal, Cairo, June 21, 2004.

[133] Human Rights Watch interview with Lina Munir, Sohag, June 24, 2004.

[134] Human Rights Watch interview with Hoda Halim, Cairo, June 27, 2004.

[135] Iman Bibars, Victims and Heroines: Women, Welfare and the Egyptian State(New York: Zed Books, 2001), p. 92.

[136] The Ministry of Insurance and Social Affairs plays a leading role in running Egypt’s social aid programs. The ministry provides social aid and cash transfers directly though its social unit offices throughout the country. Social assistance administered by the ministry can be divided into two key programs: the social insurance contributory system, which targets the individual and is tied to active participation in the workforce (either public or private); and the social aid and assistance non-contributory system (al daman al ijtimai’i), which targets the household or family and is tied to the lack of an adequate household income and to the absence or disability of a male breadwinner. In Egypt, the majority of the beneficiaries of the contributory system are men who are considered rights-bearers and customers who have paid for their services. The heirs of these recipients are also entitled to a portion of this pension in case of death.  Pensions for the unemployed, the disabled, widows, divorcees, and abandoned women fall under the non-contributory system. According to one expert, “the beneficiaries of these non-contributory programmes are described  by officials as beneficiaries of the state’s largess. They are not considered rights-bearers but are viewed as charity-receivers.”  Iman Bibars, Victims and Heroines: Women, Welfare and the Egyptian State(New York: Zed Books, 2001), p. 84.     

[137] Iman Bibars, Victims and Heroines: Women, Welfare and the Egyptian State(New York: Zed Books, 2001), p. 61.

[138] Human Rights Watch interview with Fayza Kamal, Cairo, June 21, 2004.

[139] Human Rights Watch interview with Amal Khalil, Cairo, June 21, 2004.

[140] Iman Bibars, Victims and Heroines: Women, Welfare and the Egyptian State(New York: Zed Books, 2001), p. 95.

[141] Ibid. , p. 96.

[142] The lack of a state-issued identification card (ID cards) denies many Egyptian women the right to a host of social services every year. Egypt, like many countries in the region, does not encourage women to acquire this documentation in the same way as they do men. Men are required to obtain an ID card by the age of 16 while women are never required to since they are often included on their husband’s and father’s ID cards. The bureaucratic procedures for obtaining these cards later in life are extremely burdensome and intimidating for many women.

[143] Human Rights Watch interview with Layla `Abd al-Raziq Farag, under secretary to the Minister of Social Insurance and Social Affairs, Cairo, June 28, 2004.

[144] Social assistance plans are popularly known by the name of the president who initiated them. 

[145] Human Rights Watch interview with Hamida Tariq, Qalubiyya, June 16, 2004.

[146] Human Rights Watch interview with Jihan Khulud, Cairo, June 13, 2004.

[147] Iman Bibars, Victims and Heroines: Women, Welfare and the Egyptian State(New York: Zed Books, 2001), p. 90.

[148] Ibid.  

[149] Ibid. p. 89.

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