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VII. Inadequate Government Response

The Egyptian government has recently taken a number of steps to try to improve women’s access to divorce. However, its efforts have, by and large, focused on procedural and not substantive reform. That is, the government has sought to make the process easier for women without tackling sex discrimination head-on.  The government has tried to address some of the consequences of unequal access to divorce, such as unenforceable court rulings and the delays caused by separate court cases for alimony, child support, and divorce. But the core problem—the parallel and unequal divorce system informed by discriminatory attitudes justified by culture and religion—has been completely ignored. The Egyptian government has made no attempt to address discriminatory laws and interpretations that condone violence against women; condition post-divorce alimony on obedience; deny women custody of their children and leave them perpetually at risk of homelessness; force women, including victims of violence, to attempt to reconcile with their spouses; and, in considering fault-based divorce cases, require more evidence of harm when the applicant is poor than when she is not.

The Limits of Khula

The Egyptian government’s decision to create no-fault (khula) divorce in 2000 has improved the range of options for some women, but it has done nothing to end discrimination in Egyptian divorce law. 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. In this sense, the khula system does nothing more than add yet another dismal option for women seeking divorce.

Human Rights Watch interviews revealed that many women who suffered significant harm in their marriages, sufficient to warrant a fault-based divorce entitling them to financial support, are opting for a khula divorce because of concerns over the considerable time, effort, and uncertainty involved in seeking a fault-based divorce. Moreover, many women are driven to use khulabecause there is no guarantee that court rulings for alimony or child support will ever be enforced.¹⁶⁸ Given these problems, many Egyptian women feel that khula divorce is the lesser of two evils. May Ibrahim, forty, is married to an alcoholic and drug-addict who has been imprisoned regularly. She told Human Rights Watch that he is abusive when intoxicated. She described the reasons for opting for khuladivorce: 

I’m asking for khula because although I could get everything [in fault-based divorce], it takes too long. I know that I won’t be able to get anything [in the end] anyway.¹⁶⁹     

No-fault divorce was intended to accelerate the divorce process, but it often takes considerably longer than the intended six-month period. Khula was thought to be faster than fault-based divorce in part because it eliminated the right of a husband to appeal the divorce to higher courts.¹⁷⁰ However, this intended timeframe has neither been observed nor proven realistic for many women. Disputes about the amount of dowry given and repaid as well as the reluctance of some judges to grant khuladivorces has rendered the six-month time limit meaningless. Muntasir Ibrahim, an attorney at the Association for the Development and Enhancement of Women, an NGO that provides legal and financial assistance to low-income female-headed households, explained:  

They said it [khula] would take six months maximum. Some cases we’ve seen have taken as long as three years even though the law itself was intended to shorten the process.…The problem is that the husband says that the dowry is more than what it is, what they agreed upon. The majority of people in Egypt of all classes put a token 1 Egyptian pound [$US 0.16] dowry [in the marriage contract]. The husband contests this amount and says that he paid more. The judge gives him time to get witnesses. But [then the judge is told that] the witnesses are sick. Other men say that the ayma [list of wife-owned household furniture signed by the husband before marriage] was actually the dowry. The process just keeps getting delayed.¹⁷¹

The Center for Egyptian Women’s Legal Assistance conducted a one-year survey on khulafrom March 2000-March 2001, comparing the number of khula appeals made with those that actually received a court ruling in six (out of 26) governorates in Egypt.¹⁷² It found that only a small proportion of the appeals were ruled on in the space of one year. In the governorate of Qina in southern Egypt, for example, out of 85 appeals made for khula, not a single case was ruled on. In Sohag, out of 223 appeals for khula, only 2.3 percent received a ruling. In Fayoum, a governorate in the center of the country, only 1.5 percent of the 131 appeals made received a ruling. In Giza, out of 1,199 appeals for khula, only 6.9 percent received a ruling. As for Cairo, which received the largest number ofappeals (a total of 2695), fewer than 14 percent received a ruling within the one-year period.

The Family Insurance System Fund

The enforcement [of court rulings for alimony and child support] is solved by Bank Nasser. This problem is now considered solved.

— Counselor Sari Siyyam, Deputy Minister of Justice, Cairo, June 30, 2004

Non-payment of alimony and child support continues to be an acute problem in Egypt, despite a law passed in 1985 that calls for the imprisonment of men who do not pay child support within thirty days of a court ruling.¹⁷³ The government’s inability to enforce court rulings for alimony and child support was the catalyst behind its decision to outsource the responsibility of collecting these payments. In the past, Nasser Social Bank, a government entity, distributed alimony and child support to women who were unable to have judgments enforced, and later collected it from ex-husbands. The bank eventually stopped distributing these funds to women because it was having too much trouble collecting the necessary funds from husbands, particularly those who work in the private or informal sector.¹⁷⁴

In 2004, the Family Insurance System Fund law was passed.  This law created a specialized fund (attached to Nasser Social Bank) to ensure that alimony and child support payment orders are enforced.  Like the new family courts, the Fund is scheduled to be operational by October 2004. The Fund’s resources will be generated by administrative fees levied for the registration of births, marriages, and divorces.¹⁷⁵ Twenty Egyptian pounds (US$3.25) will be charged for birth registrations, while fifty Egyptian pounds (US$8.13) will be charged for registering marriages and divorces.¹⁷⁶ The government will also contribute to the fund although the exact amount of its planned contribution is unknown.

The Fund will only be able to distribute between 100-300 Egyptian pounds (US$16 – $49) per month to each eligible woman.¹⁷⁷ Although these payments will assist a vast number of Egyptian women, assuming the fund commences distributing money as planned, the payments will not be sufficient for many middle class women and will do nothing to help women in debt because of years of accumulated unpaid support. It is a stop-gap measure that should not substitute for more aggressive enforcement of court rulings.¹⁷⁸

The Establishment of New Family Courts

Three years after the passage of the khulalaw, another law was passed in 2004 establishing a family court system to adjudicate all family disputes.¹⁷⁹ The physical location of the new family court will be in New Cairo, on the outskirts of the capital, with other jurisdictions throughout the country being served by summary (gozi) courts. These specialized courts, which at this writing were scheduled to start hearing cases in October 2004, will also provide counseling and other services to families. The consolidation of divorce-related cases in one court will save women seeking divorce and their attorneys some time and money currently spent on traveling to different courts for each dispute. However, these new family courts are not intended to substantively reform the divorce system. Ultimately, the same discriminatory legal and procedural obstacles will continue to deny women equal access to divorce.  

The aim of these family courts, according to government officials, is to end the clogging of the court system by cases involving family disputes and to prevent children from being exposed to criminals in courtrooms that also hear criminal matters. The undersecretary of social affairs remarked:

The main purpose [of the new family courts] is to protect the family. It has been misunderstood as something for the protection of women alone.  It is not.  That’s why they’re called family courts.  The purpose is to enable all the members of the family to live in the best possible circumstances.¹⁸⁰

Human Rights Watch met with nine judges who were undergoing training in the family courts on June 30, 2004 to discuss the new family courts. Several judges admitted that they did not feel adequately prepared to implement the new law consolidating all family matters into one court. One judge told Human Rights Watch: “We only learnt of the details [of the new family court] one week ago and now we’re supposed to implement it [the law] in a few months.”¹⁸¹  The judges held differing views about whether the new courts would remedy the problems faced in civil courts. One judge remarked: “The new court’s procedures are more problematic and complicated for people to understand. It will take longer.”¹⁸² Another judge felt that little would change since the courts would rely on the “same prosecutors and the same judges.” Others felt that it was impossible to judge the outcome of this change until its operation, because: 

We are discussing the implementation of the law. [The outcome] will only be seen after the process [is underway]. We first thought [the application of] khula would be a problem. We cannot judge a law before its implementation. ¹⁸³

It will not be clear for some time whether divorce proceedings are actually accelerated by these specialized courts. In fact, new procedures were introduced by the law that could delay the process.  Family Dispute Settlement Offices (makatib taswayat monazi`at al-usra) will be established within each family court.¹⁸⁴ This office will attempt to mediate between the couple in family matters. Again, in divorce cases, such mediation will be undertaken only when a woman initiates a divorce. Under the new family court law, a woman will not be able even to file an action concerning a personal status matter without first submitting a request for settlement at this office,¹⁸⁵ and judges will not hear cases unless social workers and psychiatrists attempt and fail to reconcile the couple within 15 days (unless the litigants mutually agree to extend the period for attempted reconciliation).¹⁸⁶  Egypt’s Deputy Minister of Justice Sari Siyyam explained this requirement: 

We created a stage before going to the courts. This was among the changes introduced. The disputants need to go to the dispute settlement office [first]. All families pass through it. The door to the court is closed before going through mediation [at this office].¹⁸⁷

Under the new law, a social worker and psychiatrist will be assigned to each family dispute. They will offer counseling and mediation free of charge to families, potentially avoiding extensive legal procedures for some couples, especially those engaged in custody disputes. At least one of these employees must be a woman. According to the Undersecretary of Social Affairs Layla Farag:

This is the first time that the law says that women have to be an essential and mandatory part of the court. Without the presence of a female in the court, it will not run.¹⁸⁸

The participation of a female social worker or psychiatrist is a positive step toward increasing the representation of women in Egypt’s courts. However, women will likely be denied the opportunity to be judges in these newly established courts.¹⁸⁹ Although some thought that the new family court would provide “a much awaited window of opportunity for women to become judges,”¹⁹⁰ this hope has not materialized. There are currently no plans for female judges to preside in these courts. Judges for the new courts will be selected from current sitting judges all of whom are male except for Tahany al-Gebali who, as noted above, sits on Egypt’s High Constitutional Court.¹⁹¹