RELACIÓN DE NIVEL DE CONOCIMIENTO Y USO DEL

Egyptian personal status law is based on the Hanafi school of jurispru- dence. This law applies to all Egyptians, regardless of their religion. An exception applies to issues of marriage and divorce, where Christians and Jews may apply their own laws.13Application of these laws is deter- mined by the religious denomination of the litigants involved, providing that the couples are of the same religion (Islam, Christianity, Judaism), denomination (for the Christians: Catholic, Orthodox, and Protestant), and sect (for the Orthodox: Coptic, Greek, Syrian, Armenian). For mar- riages between individuals of different religions (e.g. the union between a Jew and a Christian) or between different denominations (e.g. the un- ion between a Catholic and an Orthodox) or between different sects (e.g. the union between a Greek Orthodox and a Coptic Orthodox), the Muslim law of marriage and divorce applies (Berger 2001).

Islamic personal status law, including marriage and divorce, has only been partially codified in Laws No. 25/1920 and No. 25/1929, both amended and augmented by Laws No. 100/1985 and No. 1/2000. Where the codified law is silent on a given matter, the judge must re- sort to the‘prevalent opinion within the Hanafi school of jurisprudence’ (Decree on the Organisation of the Shari’a Courts (1931), Art. 280). Marriage

A marriage concluded in accordance with the applicable religious law (Islamic, Christian, or Jewish) needs to be registered in order for it to be legally valid. For Muslims, registration must be undertaken with the civil registrar (ma’dhun). Non-Muslims and foreigners are required to register their marriage with the Ministry of Justice. Unregistered mar- riages – urfi marriages for Muslims, church/synagogue marriages for non-Muslims–are, in principle, in legal limbo. While they may be con- sidered socially valid, they are not recognised by the courts as per Article 99 on the Law on the Organisation of Sharia Courts. This is especially problematic for women who are, thus, prevented from peti- tioning the court for enforcement of their marital rights (e.g. mainte- nance or divorce). However, after the introduction of new procedural law on personal status in 2000, women inurfimarriages have been gi- ven the possibility to divorce, on the condition that they provide some form of documentation proving their marriage.

One of the formal conditions to an Islamic marriage is the offer and acceptance of the bride and the groom in the presence of two male Muslim witnesses. A religious ceremony or the presence of a cleric is common, but not required under the law. In August 2000, a new mar- riage contract was introduced which added the possibility of including 74 MAURITS BERGER AND NADIA SONNEVELD

certain conditions for marriage annulment. Another condition of an Islamic marriage is the dower (mahr or sadaq), a sum of money to be paid by the groom to the bride.14Usually, only a small part is paid upon conclusion of the marriage (muqaddam al-sadaq, or prompt dower) and the remaining part (mu’akhkhar al-sadaq, or deferred dower) upon di- vorce or decease of the husband. The dower must be registered in the marriage contract.

Divorce

Under Islamic law, men may end their marriages unilaterally without being required to produce a reason for the divorce. This form of di- vorce, or end to the marriage, is called repudiation (talaq). Under Egyptian law, this right is upheld but can only be enforced once the husband has registered the divorce with the civil registrar (ma’dhun) within thirty days after he has pronounced thetalaq. The registrar is, in turn, required to notify the wife of her divorce. Failure to register the re- pudiation does not render the divorce invalid, but is punishable by a jail sentence of up to six months and/or a penalty of up to two hundred Egyptian pounds (approximately 25 Euros).

A woman in Egypt can initiate divorce in various ways: in court by ju- dicial divorce (tatliq), by means of contractual stipulations, and by way of khul‘ (upon payment of financial compensation and renunciation of financial rights). The latter can also take place outside the court when the husband divorces his wife upon her request (which mostly is granted only upon payment of financial compensation).

In the first type of female-initiated divorce (tatliq), the wife may petition the court for divorce on one of the grounds identified in the law. These grounds include: a) the husband’s absence of more than one year with- out an acceptable excuse, or a three-year absence caused by a prison sentence; b) damage or harm caused to the wife, which is defined on the basis of the wife’s socio-economic position (and in certain cases in- cluding the husband marrying a second wife); c) failure by the husband to fulfil his legal obligation of maintaining his wife; and d) a severe ill- ness of the husband of which the wife was not aware at the time the marriage was concluded.

The second way for women to obtain divorce is through contractual stipulations. Since 2000, a woman has the possibility to include such stipulations in her marriage contract. For instance, she can stipulate that her husband will not marry another wife or that she is allowed to work outside the home. When the husband violates these stipulations, a woman has the right to dissolve the marital bond. Another kind of con- tractual agreement is that the man cedes his right of talaqto his wife,

so that she may unilaterally divorce herself (talaq al-tafwid). In actuality, however, women in Egypt seem reluctant to make use of this new right (Sonneveld 2009).

In the third form of divorce, a wife may ask her husband to divorce her in exchange for financial compensation. In practice, financial com- pensation in these cases has meant the waiving of alimony payments or of the remaining portion of the dower. This divorce, concluded by mu- tual consent, is referred to askhul‘ oribra’and falls under the purview of the civil registrar (ma’dhun). A non-consensual form of khul‘was in- corporated into Egyptian law for the first time in 2000, introducing a radical break with the khul‘ as commonly defined by classical Islamic jurisprudence. According to this jurisprudence, akhul‘divorce requires the husband’s consent. The woman’s wish for divorce could, therefore, easily be frustrated by the husband, either because he did not want to divorce her or because he found the financial compensation inadequate. Under the new law of 2000, the divorce has to be legally accepted by the judge–without the need for the husband’s consent–when the wife has met all of the following conditions: a) she forfeits her financial rights; b) she returns to her husband the prompt dower which her hus- band gave her when contracting the marriage; c) she goes through a period of reconciliation; and d) she explicitly proclaims in court that she hates living with her husband and, as a result of that, is afraid to cross the limits of God.

Another type of divorce that has gained notoriety is the invocation of nullity of a marriage based on the conversion or apostasy of one of the spouses. This is related to the rule that allows for mixed religious mar- riages if the husband is Muslim, but declares void a marriage between a Muslim woman and a non-Muslim man. If in a non-Muslim mar- riage, for instance, the woman converts to Islam, her marriage is ren- dered void. The same applies to a Muslim couple where one of the two – but especially the husband – renounces Islam or converts to another religion, hence becoming an apostate of Islam. These situations occur in non-Muslim marriages in order to obtain a divorce. Since the 1990s, however, it has also been used as a legal instrument to substantiate the accusation of un-Islamic behaviour: since apostasy as such is not pun- ishable under Egyptian law, a third party may call upon Egyptian mar- riage law in order to nullify a marriage of a person due to his or her al- leged apostasy. The most infamous case was that of the abovemen- tioned Nasr Abu Zayd, a university professor whose work was considered blasphemous, and who in 1996 was divorced from his wife on the basis of apostasy. Consequently, the legal basis upon which a third party could raise such a divorce case (hisba) has changed: from 2001 only the public prosecutor may raise divorce cases on the basis of the accusation of apostasy.

Since the establishment of a new Family court system in 2004, all mat- ters pertaining to divorce, such as alimony and custody, are treated by one and the same judge in one court. The new legislation also specifies that husbands in divorce cases initiated by their spouses can appeal only once against the court’s decision and this appeal cannot be to the Court of Cassation. In case of a divorce throughkhul‘, the husband can- not appeal at all.

Consequences of divorce

After divorce, children are entitled to alimony (nafaqa) to be paid by the father. Since 2000, men who do not fulfil their alimony obligations are punishable with jail sentences of up to thirty days.

Egyptian law allows for two kinds of financial compensation for the ex-wife, depending on the type of divorce. In the event of a regular re- pudiation or judicial divorce, men are required to continue maintaining their ex-wives for a period of three months (the so-called ‘iddah period during which the woman cannot marry another man in order to make sure that she is not pregnant by her ex-husband). In case of repudia- tion, the man is also obliged to pay financial compensation (muta‘), if the wife did not play a role in bringing about the repudiation and did not consent to it. This compensation may equal the maintenance for a period of up to at least two years. Women who initiated the divorce through khul‘or by invoking breach of the marital contract stipulations are not entitled to either‘iddahormuta‘compensation.

With regard to the children of divorced parents, a distinction must be made between guardianship (wilaya) and fosterage (hadana) of the chil- dren. Guardianship refers to the overall supervision of the children in financial affairs and matters such as the choice of school. Guardianship lies with the father and remains with him after divorce until the chil- dren reach maturity. Fosterage on the other hand is the day-to-day care of children and is the right and duty of divorced mothers. According to Egyptian law, this right applies to daughters until the age of twelve and to the sons until they reach ten years of age. Once the fosterage periods lapses, children are transferred to the care of their father unless a judge determines that it is in their best interest to remain with their mother. In case of the latter, the law allows fosterage of girls to be extended until they marry (or reach the majority age of 21 years before that time) and of boys until they reach the age of fifteen.

Inheritance

Islamic inheritance law has a strong religious foundation due to the many inheritance rules laid down in the Quran and Sunna. Egyptian

intestate and testamentary inheritance laws (Law of 1946 and 1943, re- spectively) are based on the Hanafi school of law, although selective use has been made of rules of the other schools of law (takhayyur). In some instances rules have been inserted that have no basis in sharia at all, like the possibility to testate to legal heirs.

Intestate law adheres to the complicated system of fractions and por- tions of the estate to be divided in a certain order among the heirs speci- fied in the Quran and the male heirs on father’s side. By testament, a maximum of one third of the estate may be bequeathed. These laws ap- ply to all Egyptians, regardless of their religion. This means, among other things, that according to intestate inheritance law women are en- titled to half the amount men are entitled to if they both occupy the same testamentary inheritance positions (e.g. when they are brother and sister). It also means that Muslims and non-Muslims may not legally in- herit from each other; these rules, however, do not apply to testamentary bequests. Therefore, in the case of a marriage between a Muslim man and a non-Muslim woman, the spouses may not inherit from each other; neither may the children in such a marriage, who are legally con- sidered Muslims, inherit from their non-Muslim mother. However, this religious impediment does not apply to the testamentary inheritance, so that Muslims may freely– but up to a maximum of one third of the es- tate–testate to non-Muslims and vice versa.

2.7

Criminal law

The Egyptian Criminal Penal Code, adopted in 1937, was influenced by the Italian Criminal Code, but does mention in Article 7 that its applica- tion should not ‘violate a right established by the Sharia’, a restriction that was rarely applied (Najjar 1992). Egyptian criminal legislation ap- plies many fundamental rule of law concepts such as the principle of legality of crime and penalty, a presumption of innocence, equality of arms, and the right to a defence (Akida 2002: 39-40).

Under Egyptian criminal law it is possible to criminally prosecute missionary activities conducted by non-Muslims on the basis of Article 98f of the Criminal Code, while missionary activities conducted by Muslims are allowed. Such cases have thus far never led to actual legal prosecution by the public prosecutor. It must be noted, however, that this provision is related to public order rather than to sharia. This is probably due to both a colonial past with strong Christian missionary activities and a pan-Arab past with an emphasis on Arab unity as op- posed to religious disunity: this has led up to the general notion that re- ligious disharmony, whether created by incitement or missionary activ- ities, is detrimental to national security.

Overriding the Criminal Code, however, is the Emergency Law, which has been in effect since it was enacted in 1956 (although it actually dates back to the monarchy), with the exception of two short breaks in the peri- ods between 1964-1967 and 1980-1981. The required parliamentary per- mission for extending the state of emergency is duly given every three years. The main justification for this extension is the fight against terror- ism and Islamic extremism. This law authorises the president to enforce measures that are contrary to national laws, such as restricting the free- dom of association, assembly, and expression; the searching of people and places; and the arbitrary arrest and extended detention of persons suspected of posing a threat to national security. Presidents Sadat and Mubarak repeatedly used their unbridled rights under the Emergency Law in their alleged fight against terrorism and Islamic extremism.

2.8

Other legal areas, especially economic law

Pursuant to the economic liberalisation policies (infitah) started by President Sadat in the 1970s, only in 1996 did Egypt seriously began a process of implementing extensive economic reforms. To this end, leg- islative changes and legal amendments have been introduced that posed drastic changes of the otherwise socialist-oriented legal structure. For example, in 1999 a new commercial code was promulgated that incor- porated the latest legal developments in modern commercial law. Remarkably, this, and other legislation on matters of investment, private enterprise, and the stock market, has until now been found to be in ac- cordance with sharia (as is required by Article 2 of the constitution).

Due to the liberalisation of the economy and its regulations, private commercial and financial initiatives have picked up considerably since the 1980s (Amin 1995; Moore 1997; Oweiss 1990). A special branch that gained popularity within this development was the financial busi- ness based on Islamic principles, commonly referred to as ‘Islamic banking’ or ‘Islamic finance’. These principles include the avoidance of usury and the prohibition of interest, and have resulted in the crea- tion of legal constructs for financial contracts that meet the standards of modern financial transactions as well as the tenets of sharia. Contracts for mortgage and insurance, while technically not permitted, are now possible in an alternative form of contract that meets the re- quirements of sharia. The significance of these Islamic financial in- struments is widely debated. While some argue that the newly con- strued Islamic contracts are not essentially different from common modern contracts, others point at the fact that Islamic finance only covers a limited part of the field of finance and investment (el-Gamal 2003; Kuran 2004).

2.9

International treaty obligations and human rights