III. Overview of Mariage and Divorce Laws in Egypt (2024)

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

Enteringinto 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 concludedby mutually consenting parties of marriageable age.59The minimum age of marriage is set at eighteen for males and sixteen forfemales.60 Uponentering into marriage, a groom must pay the bride an advance portion of thedowry (muqaddam) before the consummation of the marriage. The remainingportion of the dowry (the deferred dowry or mu’akhar) is payable upondivorce or death.61

The civil code, however, limits a woman’s ability to enterfreely into marriage by requiring that she have the permission of a maleguardian (wali).62Although the importance of this requirement has been limited by the fact that awalicannot prevent a marriage from taking place because the groom isnot of the right socio-economic status or did not pay a sufficient dowry, waliscontinue to exercise enormous influence in the marriage process. Human RightsWatch interviews revealed that women’s subordinate status in the family resultsin the exclusion of many women from the negotiation of their marriagecontracts. As a result, women rely on their walis to represent their interests.Demanding that they be present for these negotiations is not even contemplatedby most women because of the social stigma and awkwardness that such a demandwould generate. Iman Ahmad, twenty-seven, was married seven years ago, andrecalls:

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

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

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

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

The theoretical ability to include such conditions in themarriage contract does not adequately ensure the protection of women’s rights. Itis extremely rare for Egyptian women to demand the right to divorce during thenegotiation and signing of the marriage contract. Providing women with thesame 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 usuallyreluctant to demand such conditions in the contract out of fear that such anact may result in the man breaking off the engagement.

One expert on the interaction between Islamic marriages andwomen’s rights notes, “[I]n Egyptian society, for a woman at the outset of hermarriage to set conditions (some of which may entail divorce) is at best a badomen, and at worst simply not done.”65Generally, a woman’s equal right to obtain a divorce is viewed as a conditionthat would be reserved for marriage contracts among Egypt’s elite. Speaking ofsuch 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 whoare self-confident.”66

Many Egyptian women are also simply not informed of the factthat they have the ability to insist that certain conditions be included in themarriage contract. Ma’zuns whofall under the authority of the Ministryof Justice are required by new by-laws to inform the marrying parties of theirright to include conditions in the contract.67 However, many Ma’zunschoose not to inform the couple of their legal rights. Dr. Mustafa `Adlial-Gindi, a Ma’zunin the governorate of Qalubiyya, told Human RightsWatch that he does not mention the issue of conditions when drafting acontract. 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 ruiningthe marriage. If I tell them about the conditions, I’m opening up a door fortensions.68

Divorce Initiated by Men

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

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

Muslim Egyptian men have a unilateral and unconditionalright to divorce without resort to legal proceedings (talaq). Theysimply need to repudiate their wives, saying “you are divorced” three times,making the divorce irrevocable (ba’in), and register the divorce within30 days with a religious notary to make it official.69 A repudiatedwoman has to observe a waiting period (`idda) not exceeding one year,70 duringwhich she is not allowed to marry another man.71 A divorce uttered lessthan three times is revocable (raji`i),meaning that the husbandhas the right to return the divorcee to his household during the waiting periodagainst her will and without having to sign another marriage contract.

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

Divorce Initiated byWomen

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 bycourt action (tatliq). Regardless of which system they choose, a numberof government officials are involved in the process, including judges,attorneys for both parties, and arbitrators involved in compulsory mediationbetween the couple. Public prosecutors are also often present in divorce cases,exercising considerable influence on these proceedings and the outcome of thecase. For both types of divorce initiated by women (fault-based and no-fault)described below, public prosecutors provide the judge with an advisory opinionon whether the divorce should be granted. While these advisory opinions wererequested by judges on a case-by-case basis before the establishment of the newfamily court system in October 2004, they are now mandatory in all personalstatus 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 aspare tire.”

— Hamida Tariq, Qalubiyya, June 16, 2004

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

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

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

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

No-Fault Divorce (Khula)

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

— Marwa Majid, Cairo, June 13, 2004

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

The passage of the law was largely the result of thetireless efforts over a fifteen-year period of an informal coalition ofprominent Egyptian lawyers, NGO leaders, legislators, scholars, and governmentofficials.86 The successof this legislative initiative has also been attributed to the fact that thebasis of the law is found in the Qur’an.87 Given the constrainedenvironment in which advocates for changing discriminatory elements of thepersonal status law (derived from interpretations of Shari’a deemed untouchableby some) operate, the coalition made the strategic decision to use religion asa basis for these reforms.

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