A divorced mother in Egypt has the right to custody of her children until the age of 15, but only so long as she remains unmarried.
Underlying this stipulation is the belief that once a woman remarries she may be unable to defend the rights of her children if they are abused by her new spouse, alongside anxiety around having a female child live with a man who is not a blood relative.
An amendment to the personal status law — which regulates all issues related to the family, notably marriage, divorce and child custody in particular — proposed earlier in December sought to change this provision, but not in the way that women’s rights advocates have long called for.
The amendment posed that rather than the chain of custody going from the mother to her mother, then her former mother-in-law, followed by the child’s aunts and finally the father, in situations when the mother remarries, custody would go straight to the father, so long as he can provide a female caretaker.
Proposed by member of Parliament Sohair al-Hady and supported by 60 other MPs, the amendment was met with severe criticism from the National Council for Women (NCW), women’s rights advocates and other women lawmakers, as well as outrage on social media.
Hady responded to the backlash saying that her proposal is not final and that she welcomes any suggestions to better improve the draft law which is still under discussion, although she has yet to announce any consultations. NCW, meanwhile, has said that it is working on its own draft. The outcry brought reform of personal status legislation into the spotlight.
Divorce is becoming more common in Egypt. Divorce rates increased in 2015 by 10.8 percent with almost 200,000 divorce cases compared to around 180,000 the previous year, according to a report released in July by the Central Agency for Public Mobilization and Statistics (CAPMAS).
Current law gives divorced mothers the right to custody until the child reaches 15 years of age, after which they may choose between living with their mother or moving in with their father provided that there is a female caretaker for the child.
Over 90 percent of divorced women surveyed by the Association for the Development and Enhancement of Women (ADEW) reported they had chosen not to remarry in order not to lose custody of their children.
Other aspects of the proposed amendment give fathers more rights than in the past. Current legislation grants the non-custodial parent — usually the father if the child is less than 15 years of age — a minimum of three hours of visitation a week. The suggested amendment gives them the right to spend weekends, one week of the midyear vacation and a month of the end of year vacation with their children. The proposal does not specify what the custodial parent’s visitation rights would be during this time, nor does it stipulate any safeguards to protect the child.
For director of Cairo Center for Development and Law (CCD), Intisar al-Saeed, the best interests of the child should be the top priority in any custody law. She laments that current legislation is often bad for mothers, fathers and children.
According to Saeed, “mothers losing the right to custody when they get remarried discriminates against women and violates the Constitution which ensures full equality between men and women.” The limited visitation time allocated to fathers also discriminates against them, she says.
An unfair law is then used as a tool for personal revenge. Saeed elaborates: “Fathers use loopholes to makes the lives of mothers harder by declining to pay for the expenses of their children, while mothers make it difficult for fathers to see their children frequently.”
When it comes to regulating the hosting of children by the non-custodial parent, women’s rights advocates believe that legislation should be sufficiently flexible and grant judges more leeway to facilitate the process according to the situation and the needs of the children.
Saeed calls particularly for protecting children whose fathers are involved in abuse, sexual assaults or drug use. ADEW’s survey of 10,000 divorcees found that a quarter said that sexual abuse by the father led to the divorce.
Although under current legislation mothers have custody until the child is 15 years old, there are other ways in which the field is skewed against them.
My son was kidnapped by his father. When I wanted to file a complaint that his father had taken him away from me, the policeman said, ‘A father does not kidnap his son.’
Incidents of fathers travelling with the child during custody conflicts are relatively common and the law does little to protect women in this regard. ADEW’s survey found that 9 percent of the women surveyed reported incidents of kidnapping by the father.
The Penal Code criminalizes taking children from their legal guardian, whether the person taking the child is a parent or not. However, the penalties — either a LE500 fine or a one year prison sentence — are not sufficiently harsh and are rarely implemented, according to a paper prepared by ADEW.
Saeed suggests that all children of divorced parents should be put on a travel ban list until they reach the age of 15, necessitating the agreement of both parents to allow them to travel, to prevent either parent escaping abroad with the children.
Mai Amer is the divorced mother of a three-year-old boy. When he was taken by his father last year and she didn’t know their whereabouts, Amer says that it was personal negotiations with her ex-husband that brought her child back, not the law.
“My son was kidnapped by his father. When I wanted to file a complaint that his father had taken him away from me, the policeman said, ‘A father does not kidnap his son.’ I was told that if I wanted to prevent him from traveling abroad I could accuse him of stealing my money or jewelry so that he would be put on a travel ban list,” she recounts.
Amer filed a complaint that both her ex-husband and son were missing and was able to find them after a week. She reached a deal with her son’s father allowing him to come to her house and visit the child anytime he wants.
But having her child spend the weekend with his father is a scary prospect for Amer, who recalls the experience of the kidnapping. “When drafting a law, there should be enough consideration given to the prevalence of the problems associated with it,” she asserts. “My ex-husband took away my son, and I have seen other similar cases where fathers take their children and flee the country — do we really want to see more of this?”
Another way in which mothers are ill-served by the personal status law is the extent to which the father is invested with the power to make decisions about affairs relating to his children’s education and finances, regardless of his level of involvement in their lives. In addition, many fathers do not pay the alimony agreed upon. ADEW’s survey found that 90 percent of the ex-husbands of the women interviewed do not pay the financial expenses of their children.
“I agreed with my ex-husband that he would pay a total of LE1,000 monthly for my son,” Amer complains. “Do you think that this is enough for his expenses? Let alone his education? I’m the one who is spending on my son’s education. I’m the one who is going to take out a loan to get him into a good school. But his father can interrupt this at any time and decide what school he will go to.”
“Custody laws in Egypt are very patriarchal, where divorced women are being punished for making the decision to divorce,” she says. “Children are regarded as the personal property of their fathers, where he is the sole person controlling every aspect of their lives. The philosophy of the law is far from considering the interests of the children.”
Toward a more equitable legislation
In Saeed’s assessment Egypt’s personal status law is archaic, and has been amended several times without addressing its root problems.
“The law was passed in 1929, and since then we have witnessed only some very cosmetic changes that have not addressed the real challenges of systematic discrimination against the rights of women embedded in this law,” she asserts.
She points to the “more progressive experiences” in Tunisia and Morocco, where the legislation is widely seen to be more woman-friendly.
Although the Tunisian Personal Status Law stipulates that a remarried mother cannot be in charge of her children’s custody, the law gives judges the power to grant them custody if it is deemed to be in the best interests of the child.
If a mother is the custodial parent, Tunisian law grants them the power to decide on issues related to their children’s education and financial assets. Both Muslim and non-Muslim mothers are afforded the same child custody rights. Tunisia added an article to the law on passports in November 2015 allowing either parent to authorize a minor’s travel. Previously, only fathers had this right. Although Human Rights Watch praised the changes as a step forward for women’s rights and asserted that the country has one of the most progressive personal status laws in the region, the New York-based organization cautioned that “the personal status code still contains discriminatory provisions.”
The Moroccan family law, known as the Moudawana, was amended in 2004 and 2007. It stipulates that a married mother can keep the custody of her children until they reach the age of seven, after which the judge has the discretion to extend custody up to the age of 15 if this is deemed to be in the child’s best interests.
A suggested draft of Egypt’s personal status law, prepared by the Center For Egyptian Women’s Legal Assistance (CEWLA) and sent to Mada Masr via email, presents some progressive changes in the direction of giving mothers more custody rights, while balancing the rights of fathers as well.
CEWLA has been working on the draft for the past 10 years, revising it several times in consultation with different stakeholders. The draft changes the order for the right of custody, placing the father after the mother and the two grandmothers. It also proposes that if the mother remarries she does not forfeit the right to custody of her children.
The draft also does away with the provision included in current legislation which stipulates that a non-Muslim mother divorced from a Muslim father loses the right to custody when her child reaches five years of age.
We have a collection of selective Sharia interpretations and colonial-era laws
Many articles of Egypt’s personal status law depend on the principles of Islamic Sharia. The oldest in the Arab region, many of the equivalent laws in other Middle Eastern states took Egypt’s legislation as a starting point.
Professor of Islamic law and gender, Amira Sonbol, however argues that personal status laws in the region are less a product of Islamic Sharia that they are of modern Arab states. Before the legislation was in place, she argues in a paper, personal status issues were considered by Sharia courts, where judges had extensive power to decide on issues related to marriage and divorce, allowing for greater flexibility. For example, women were able to get a divorce without having to state a reason.
“Current laws are a mix of some chosen principles in Islamic Fiqh, customs and traditions, and the philosophy of understanding gender roles in the 19th century,” Sonbol writes, explaining that this philosophy was greatly affected by the British Victorian principles of how relations between men and women should be organized.
According to researcher in Islamic feminism Fatma Emam, claims that personal status laws are derived from Sharia have been widely used as a pretext to suppress any calls for reform.
She argues that Sharia itself is flexible when it comes to issues of personal status and points out that no order of custody rights is specified.
Emam believes that the current laws are based on a selective and narrow interpretation of Sharia that reflects and serves a patriarchal understanding of women’s gender roles in society and also supports the state’s male-dominated vision towards women.
“We have a collection of selective Sharia interpretations and colonial-era laws,” she laments. “Look at this recent amendment, it supposes that a woman’s only role is to be a mother and a wife. If she gives up her role as a wife once, she should be a mother forever, she cannot enjoy her right to get married again.”
However Emam doubts that that the legislation will be reformed, despite the widespread dissatisfaction and anger. The women’s rights organizations who have long been at the forefront of campaigning against these laws are too weak to lead social action against personal status laws, she argues. She points to the inclusion of CEWLA, and Nazra, another leading feminist organization, among the NGOs whose assets have been frozen on accusations of receiving illegal foreign funding.
“Look at CEWLA, who has been working on this issue for years,” she says. “Now they are battling to survive.”