reforms such as women’s rights to automatic judicial divorce on the grounds of their husbands’ second marriage, and the wife’s right to the conjugal home in the case of divorce if she has custody of the children. PSL No. 44 also legislated post-divorce compensation maintenance (mut‘a) for women who are divorced by their husbands without their desire or fault (Fawzy 2004). However, the law was later annulled by the Supreme Constitutional Court in 1985.11
When PSL No. 44 was struck down, it was replaced in May of the same year by PSL No. 100. The reforms that were introduced in the previous law were either crossed out or watered down in the new law. For instance, PSL No. 100 does not give a woman the right to file for divorce simply on the grounds of her husband entering into a new marriage. However, the woman in such a situation will be granted divorce only if she proves to the court that she is ‘harmed’ by her husband’s new marriage. In addition, what constitutes ‘harm’ is very loosely defined in the law, which gives judges a lot of leeway in the interpretation process, a practice that has often worked against women in judicial divorce cases (Fawzy 2004). Moreover, a woman who is filing for judicial divorce on the grounds of her husband’s second marriage can only do so within one year of her knowledge about the new marriage. Also, PSL No. 100 of 1985, unlike the annulled PSL No. 44, does not give divorced women possession of the conjugal home during the period of their custody of their children. Instead, the new law obligates husbands in such cases to pay housing costs. The implementation of the law, however, showed that in most cases the court ordered husbands to pay very little money for housing costs (Fawzy 2004).
For the legal scholar Lama Abu-Odeh (2004), Egyptian legislators’ attempts to introduce gender-sensitive reforms in family law in different eras since the codification have always been constrained by its piecemeal approach of “splitting the difference” between conservative religious establishment and scholars, on the one hand, and Egyptian feminists who were seeking more rights for women, on the other. For example, the various reforms that were introduced since codification tried to curtail some of the husband’s unchecked power and rights (such as expounding on the content of spousal maintenance or granting wives the right to financial compensation when unilaterally repudiated by husbands for no fault on their part). Still, these reforms remained partial and never displaced the hierarchies in spousal and parental rights that privilege husbands and fathers, and which are grounded in the fiqh construction of marriage.
Hence, one main and constant challenge for Egyptian women’s rights advocates who have been lobbying for gender-sensitive reforms in different eras has been to negotiate the boundaries of what is possible in terms of legal changes that would substantively change gender rights in the family, and to determine the most viable strategies toward realizing these reforms. Kholoussy, for instance, notes that the early generation of Egyptian feminists never challenged the hierarchical and complementary notion of spousal roles that were transplanted from Islamic jurisprudence into the first codified personal status law. Rather, they focused on seeking gradual and piecemeal reforms (Kholoussy 2010: 12). And in later eras, for example under the rule of presidents Sadat and Hosni Mubarak, the challenge of lobbying for gender-sensitive reforms that did not collide with dominant religious discourses was compounded by two additional challenges. One new challenge had to do with the rise of Islamist groups since the 1970s, and the Egyptian state’s concern to claim religious legitimacy in its struggle against Islamist groups. This concern impacted the scope and nature of gender-sensitive reforms that the state was willing to support and introduce. Another challenge was the increasing unpopularity of the regime, especially under the rule of Mubarak, due to its undemocratic and corrupt governance. This latter challenge created a dilemma for women’s rights groups who, on the one hand, needed the support of the state to lobby for gender-sensitive reforms, and on the other hand, either wanted to maintain their independence from the regime or were frustrated and hindered by the state’s top-down approach toward reform.
These challenges were also pertinent to the reforms of 2000–2005 and had their implications for the outcomes in legislated codes and their implementation, as will be elaborated on in the course of the book.
Background of the Study and Research Data
This book draws on a research project that I undertook in the Social Research Center (SRC) at the American University in Cairo from 2007 to 2010, under the title Reforming Egyptian Family Laws: A Study of Legal Changes, Court Room Practices, and Gender Justice. The study was part of a multidisciplinary research program titled Pathways of Women’s Empowerment, which began in 2006 as a consortium of researchers convened through regional hubs in Africa, Asia, Latin America, and the Middle East. This consortium, in the words of its coordinator Andrea Cornwall, “set about a multi-stranded enquiry into the processes of change in women’s lives, exploring not only efforts to instigate change through laws, policies, and programs, but also ‘hidden pathways,’ made possible through more diffuse economic, political and cultural changes” (Cornwall quoted in Al-Sharmani 2013b: x).
The field research for this study was carried out by a team consisting of myself (the principal investigator) and my colleagues, Sawsan Sharif and Fayrouz Gamal, research assistants at the SRC. Since our study was a multidimensional inquiry into an unfolding reform story about family law, we conducted the fieldwork in two phases. In the first phase (January 2007 to March 2008) the research focus was on two issues: investigating the process of lobbying for and promulgating the new family courts law as well as studying the implementation of the law, and in particular women’s use of the new courts system and their experiences and challenges in the legal process.
The second phase of the research (April 2008 to July 2010) focused on women’s use of khul‘ in comparison to fault-based divorce both in the courtroom and in the larger socioeconomic and familial contexts in which these women’s lives were situated. The research also explored the empowering and disempowering effects of khul‘, investigating what this contested yet increasingly useful legal option for women revealed about the disconnect between the lived realities of Egyptian marriages and the legal construction of marriage, as the latter is based, in Sonneveld’s words, on a “maintenance–obedience” relationship (2012: 123).
In this second phase of the study, marriage norms and practices of selected women and men were also researched to investigate how family law and the studied legal reforms may impact women’s and men’s views, aspirations, and choices regarding marriage. In addition, state and non-state initiatives, which were being formulated at the time to propose and advocate for new and comprehensive gender-sensitive substantive family laws, were also investigated.
I conducted interviews with different key actors who were involved in lobbying for the new family courts law, as well as with relevant stakeholders who were debating/contesting this new courts system. In addition, I conducted interviews with key actors who were spearheading initiatives to lobby for a comprehensive, gender-sensitive, substantive family law in the second phase of the study, and took part in workshops that were organized by a number of key women’s rights groups around this issue.
For the research on the implementation of the new family courts and the khul‘ law, my colleagues and I conducted interviews with a total of 194 disputants. These disputants were predominantly women (with the exception of eleven male disputants) since our focus was to investigate women’s use and experiences of the researched new laws and given the constraints on our research resources. These interviews were carried out in women’s rights organizations, near court premises, and some in our office premises. The disputants were based in the governorates of Cairo, Giza, Gharbiya, and Qalyubiya.
We also interviewed a total of thirty-three individuals who were working in the new family courts in Cairo, Giza, Alexandria, Banha, and Munufiya. They were settlement specialists, court experts, and judges. My colleagues and I interviewed twelve settlement specialists who were based in Cairo and Giza. We also observed some of the mediation sessions that these specialists and their other colleagues conducted over a period of several months. Furthermore, we conducted four
