for the reform process is itself part of the discursive space where new laws take on their social meanings, and these meanings accordingly have their bearings on the implementation of the new courts system and women’s access to justice.
My second aim is to examine how female disputants use and experience the legal process in the new family courts. I provide an empirically-grounded, in-depth analysis of how the new courts system works for and against women, particularly with regard to the role of court mediation both as a compulsory pre-litigation mechanism of dispute resolution and as part of the litigation process itself. I investigate the following questions: Does the new courts system deliver speedy, inexpensive, and accessible means to justice, particularly in maintenance claims, which constitute the largest bulk of court cases in family courts? How do the premises of the new courts and their resources influence their work? How do the actors in the new courts system such as settlement specialists, court experts, and judges understand their respective roles and implement the philosophy and the functions of the new legal system? What kind of dialogues are enabled or hindered with the disputants during the legal process, particularly during mediation?
Perhaps one of the most important and highly publicized features of the new family courts is its incorporation of mediation into the legal process. Sonneveld found that mediation was useful for women in khul‘ cases because “judges and mediators in the family courts provide a dialogue between husbands and wives in divorce cases that often does not occur in their lives outside the court” (Sonneveld 2012: 7). Sonneveld’s research showed that this dialogue enabled khul‘ female plaintiffs to negotiate with their husbands for more favorable out-of-court divorce settlements (ibra’) as husbands were eager to avoid the stigma of divorce through khul‘ (Sonneveld 2012: 126). However, this study, which draws on a larger body of data and covers a more extended period of time, suggests that Sonneveld’s findings on this point may not be common and need to be revisited, particularly in light of the host of legislative, structural, and resource-based problems that plague the structure and functions of court mediation, which was a key finding in this research. This study, most of all, suggests that in order to better assess the significance of court mediation for women whether in khul‘ or other lawsuits, we need to examine how the different functions of the new courts system relate to one another and how this shapes the legal process. For example, it is important to examine the nature of the work undertaken by settlement specialists and court experts, and how they relate or not to one another. In Sonneveld’s analysis, these relevant aspects are unexamined. The mediation work of the settlement specialists is supposed to function as an alternative to litigation and yet often ends up, due to multiple factors, being merely the first step in the litigation process. The work of the court experts, on the other hand, is part and parcel of litigation and is not confined to mediation, but also includes assisting the judiciary panel with court procedures that entail gathering information from and about disputants. Furthermore, disputants do not have to be physically present in meetings with either settlement specialists or court experts, as their legal representatives can attend on their behalf. This was commonly true of male disputants in various lawsuits. These points have implications for the role and significance of court mediation whether in khul‘ or other types of cases, which will be elaborated on in this book.5
Sonneveld also sheds light on the gender discourses that were articulated by both judges and court mediators. She noted two kinds of discourses: one, which she calls “formal,” affirmed the legal rights of women, while an “informal” one, expressed in separate interactions with the researcher, reflected gender hierarchies and essentialized assumptions about the nature and roles of women and men. This study also found multiple (and contradictory) gender discourses in the researched family courts. But these discourses were not so much taking place in ‘formal’ versus ‘informal’ interactions. Rather, they were reflected in the interactions between various actors in mediation and court proceedings. In addition, these discourses were used in various ways not only by court personnel but also by lawyers and disputants, and with mixed outcomes for women.
As part of the second aim of this book, which tackles women’s use of the new laws and their courtroom experiences, this research also investigates women’s use of khul‘. My goal in this aspect is to investigate whether khul‘ as used by women and implemented in courts functions as a no-fault divorce, and how it compares to fault-based divorce, not only with regard to the legal process but also to the socioeconomic and familial backgrounds as well as the motivations of the female plaintiffs who petition for either type of divorce. With regard to courtroom practices, this study presents further data that corroborates the results of Halim et al.’s (2005) comparative study of khul‘ and fault-based divorce. Similar to Halim et al., this research found that khul‘ is a cheaper and more secure legal option for women, and hence particularly useful for poor women. But this study also found that there were other factors that shaped women’s opting for either khul‘ or fault-based divorce, namely how knowledgeable they were about either legal option as well as the role that their families and lawyers played in the decision-making about their legal options.
Likewise, the findings of this research corroborate Sonneveld’s main results. This study also found that it is poor women with weak family resources and social networks who tend to resort to khul‘. The research revealed the increasing prevalence of khul‘, particularly among women who were unprovided for by their husbands and needed to exit bad and unsustainable marriages—a finding that underscores the disconnect between the legal model of spousal roles and the lived realities of marriage. In addition, this study further builds on Sonneveld’s findings as it shows that some of the researched poor women’s pursuit of khul‘ was not only motivated by the goal of exiting bad marriages, but was also intertwined with their daily strategies to navigate urban poverty and access much-needed resources. That is, these women’s trajectory to khul‘ was situated in the context of their daily struggles to negotiate access to resources from state and non-state institutions such as the Ministry of Social Solidarity, nongovernmental community development organizations, and faith-based organizations. However, the policies of these various institutions which regulated the dispensation of their services were premised on the legal construction of spousal roles, that is, married women were assumed to be provided for by their husbands and were therefore perceived as less in need or deserving of the provisions provided by these organizations.6 Hence, when such women found themselves in bad marriages where they were abandoned or were not provided for by their husbands, khul‘ was the quickest and most guaranteed pathway to access resources and alleviate poverty.
To fully understand the relevance (and limits) of gender-sensitive legal reforms for women, we also need to bring into focus research on the lived realities of women and men outside courtroom practices. Sonneveld correctly highlights this point in her research and accordingly sheds light on her female interlocutors’ daily realities at home, in the workplace, and with their social networks. In particular, Sonneveld pays attention to her interlocutors’ life trajectories and choices after they secure khul‘ (Sonneveld 2012: 7, 133–85).
In this research, another important domain where we investigate the role and relevance of family law is the marriage norms and practices of ordinary women and men from different walks of life. Hence, the third aim of this book is to investigate the function and significance of family law in general, and the researched legal reforms in particular, for selected Egyptian women and men as they navigate marriage and negotiate the terms of their marital roles and rights. This research also shows the disconnect between the legal script of spousal roles and actual marriage practices on the ground. Husbands are often not the sole providers and in some cases do not even provide. In addition, women, whether single or married, often play vital economic roles in their families. Marriage remains a desired goal for many women and men for multifaceted reasons, but it is surrounded with a lot of anxieties. Tensions around marriage are shaped by the economic hardships of daily life and the high costs of marriage, on the one hand, and the incongruence between the legal construction of spousal roles and the shifting realities of marital roles
