Religious personal status laws, FORB and discrimination against women in Egypt 

Background

Personal status laws (PSL), also called family laws, are a complex matter and regulate rights and responsibilities within the family, like marriage, divorce, inheritance, and child custody. In many parts of the world these laws are based on religion, cultural practices and traditional values. The different religious communities, sometimes including the various denominations within the same religious group, have their own legal systems and courts administrating these laws. The impact of personal status laws extends well beyond the private sphere, and they have often considerable influence over matters concerning for instance women’s economic empowerment, such as their ability to open a bank account as well as land and property rights. PSL are often problematic both from a gender equality perspective and a FORB perspective.
These laws reinforce discrimination based on religion or belief, since they grant women different rights and degrees of legal protection depending on their religious affiliation.

• Women outside recognized religious groups fall outside any legal system in these matters.
• PSL often pose restrictions on women’s right to marry freely and raise their children in accordance with their religion or belief.
• PSL can coerce women to convert, e.g., in order to obtain a divorce more easily, or to refrain from conversion, in order to not loose custody over their children.
• PSL often reinforce discrimination against women by giving men more rights in family related issues.

Personal status laws in Egypt

In Egypt, Baha’is are not an official recognised and do not have an own personal status law. Their marriages are therefore not legally recognised, causing a lot of obstacles for Baha’i couples as well as their children. There is no civil marriage in the country and most religious authorities are strongly opposed to the concept. Thus, Egyptian citizens are treated differently depending on their perceived religious identity regarding key aspects of their lives – which often fails to guarantee equality in family issues and personal matters.

Laws that govern matters relating to marriage and family relations of the majority Muslims population provide a marital framework based on ‘reciprocal’ or ‘complementary’ rights rather than equal rights between spouses. The Muslim family laws are a key domain of law where women face inequalities. Yet, as these laws govern majority of the population in Egypt, they have received more public attention than family laws providing for religious minorities in the country – whose laws are often based on colonial rulings from the 19th century.

A Muslim woman is not allowed to marry a non-Muslim man. In an interreligious marriage, where the man is Muslim and the wife is a Christian or a Jew, Muslim family law governs the relationship. Personal status laws for Christians only apply to Christian couples if they both belong to the same denomination. If spouses belong to different Christian denominations, they are subject to the personal status law for Muslims. For instance, if a Catholic woman marries a Coptic Orthodox Christian man, Islamic personal status law automatically applies to their marriage unless she converts to the Coptic Orthodox Christian denomination.

Divorce

Religious family laws in Egypt contain various very different regulations and restrictions when it comes to divorce. Under Muslim family laws, men have the unilateral right to divorce without legal proceedings. Muslim women have to seek for divorce through court action. If she does not provide evidence for harm or the incapability of the husband to provide for her, she will have to return her dowry and won’t receive any alimony.  Each Christian denomination has different regulations for divorce. Catholic Churches in Egypt forbids the divorce entirely whilst the Protestant and Coptic Orthodox churches only allows divorce on certain grounds, like adultery or conversion of a spouse to another religion. In 2012 the Coptic Orthodox Christian churches added physical abuse and absence as acceptable grounds. Yet, due to lengthy legal proceedings and high fees, Christian women may be trapped in abusive marriages.  As the process of seeking a divorce can take several years, it has often deterred women from seeking divorce and sometimes women convert to Islam, to obtain divorce more easily – but then face problems to re-convert back to Christianity.

Custody

The legal provisions for custody in personal status laws are problematic and do not take into consideration the best interest of the child. For instance, in Muslim family law, physical custody of children is automatically transferred to the father at the age of 10 for boys and 12 for girls. For Coptic Orthodox Christians, the spouse responsible for the divorce cannot get custody over the children. Also, if a divorced Coptic mother gets remarried, she is deprived of the custody of her children. A divorced woman’s entitlement to reside in matrimonial home or receive support to live elsewhere is solely dependent on her custody of the children and the current Coptic law can render divorced women homeless.

Reforming personal status laws

Reforming these personal status laws in Egypt has been challenging as they reflect customs and beliefs in society that are reinforced by traditional and religious authorities. Given a discriminatory wider context in which Sharia is seen as the main source of law (including civic law), the Coptic Orthodox church considers personal status laws to be a crucial part of the Church’s right to institutional autonomy, guaranteeing minority rights. None the less the State always has a duty to ensure that any legislation enforced on its territory respects human rights, meaning this autonomy cannot be total.

The Coptic Orthodox, Evangelical and Catholic churches have recently worked together to draft a new unified personal status law for all Christians. The draft new personal status law would for instance create gender-equal inheritance rules and extend the justified grounds for divorce. It is currently (2022) pending approval at the Cabinet.

Legal framework in Egypt

The Constitution of Egypt includes numerous articles protecting the rights of women, preventing discrimination and providing equal opportunities. For instance, Article 53 of the Constitution states that all citizens are equal before the law and prohibits discrimination on the basis of sex (amongst other factors). Egypt has also ratified CEDAW but maintains reservations to Article 16 (equality in marriage and family life) based on the provisions of Islamic and Egyptian law under which husband and wife have different rights and duties.

Scenario

Your team works for the UN Office of the High Commissioner for Human Rights based at the regional office in Beirut and you are on an official visit to Cairo. You have recently met women’s rights activists who raised concerns about the discriminatory nature of religious personal status laws in Egypt. One of the activists, Miriam, told her own story to highlight the multiple challenges with the personal status law. Both Miriam and her husband are Coptic Orthodox Christians. They have been married for 10 years and have two daughters. Miriam’s husband is abusive and after years of enduring in a difficult marriage, she feels like the only safe option for her is to seek divorce. Yet, she is facing a challenging situation. As a spouse seeking for a divorce, she would likely lose the custody of her daughters. Also, if she lost the custody of her children, she would also lose her entitlement to stay in the family home or receive support to live elsewhere – which would add a real risk of rendering her homeless as she has been financially dependent on her husband. Seeking to remarry would also not be an option as this would deprive her of the custody of her children as well. She could convert to Islam since it is slightly easier to gain divorce under Islam but is hesitant to do so since she knows it is really difficult to reconvert back to her Christian faith. Furthermore, the legal process for divorce is lengthy, often expensive as well which is also making Miriam unsure about the feasibility of this option. Yet, she fears to stay in the marriage which is draining her emotionally and physically.

You are aware of the current reform process to create a unified personal status law for Christians and after meeting Miriam and other activists, your team wants to take action. You have approached your contacts at the Ministry for Foreign Affairs of Egypt and a meeting between your delegation and their team has been secured for next week to discuss the religious personal status laws in the country.

SOURCE

FORB and gender equality: Enemies or Allies