It took Gaber al-Nekhiely five years in courts to finalize his divorce.
While the sentence “you are divorced” is sufficient to allow a Muslim couple in Egypt to separate, the issue is far more complicated for Christians whose affairs are dealt with by the church.
Due to restrictions on divorce and remarriage, many Christians resort to conversion or fabricating claims of adultery, which is the only basis for divorce recognized by the Coptic Orthodox Church. While some are able to obtain a divorce in court, the church does not recognize these rulings, and, as civil marriage is only an option in Egypt for those who marry foreign nationals, many Christians remain unable to remarry. Those who have divorced but are unable to secure remarriage permits from the church have, in some cases, resorted to urfi, unofficial marriage contracts.
Due to restrictions on divorce and remarriage, many Christians resort to conversion or fabricating claims of adultery, which is the only basis for divorce recognized by the Coptic Orthodox Church.
Nekhiely, who is a Protestant, married an Orthodox woman in the Coptic Orthodox Church, as the church objects to inter-denominational marriages, unless they happen under its auspices.
As a result of mounting tension in his marriage, Nekhiely decided to file for divorce in 2007.
As a Protestant married to a Copt, there was a way for Nekhiely to do this: An article in the personal status law enables Christian couples from different denominations to resort to Islamic Sharia in divorce.
“It should have been easy,” Nekhiely says. “But I had to bring a document from the Orthodox Church proving that my wife is Orthodox, and the church declined to provide us with that document.”
Nekhiely thinks the refusal is a way for the church to punish him for vocally criticizing the church’s policies concerning personal status issues. A year after the death of Pope Shenouda III in 2012, he managed to secure the necessary document to finalize his divorce.
“I’m an Egyptian citizen who resorted to the legislation of Islamic law to get a divorce. Why should the church be my guardian and control whom I marry and put me in such a situation?”
Christians whose divorces are unrecognized by church authorities and those wanting out of their marriages — faced with the stark choice of fabricating an adultery claim, conversion or remaining in an unhappy marriage — are bracing for a new law to organize issues of personal status.
Drafted by the Coptic Orthodox Church, Egypt’s largest Christian church, and featuring amendments presented by Protestant representatives, the legislation will be disappointing to those like Nekhiely who hoped that religious authorities would play less of a role in personal affairs of marriage and divorce.
In the draft law, the Orthodox church proposes that the “impossibility of continuing married life” can serve as a basis for divorce, a condition which would apply to a couple that has been separated for five years, if they have children, and for three years, if they don’t. In all cases, the church would reserve the authority to issue permits in the manner it sees fit for second marriages for those divorced on the basis of this condition.
Ashraf Anis, the founder of a group called Right to Life that campaigns for the reform of divorce and marriage laws for Coptic Christians, says that the period of separation imposed by the draft law is too long. He also thinks it is discriminatory, as it gives greater privileges to those that do not have children who, after a shorter period of separation, can qualify for divorce.
Anis says several of the draft law’s articles would violate the Constitution if passed. He points specifically to the church’s exclusive right to issue permits for second marriages, as the church can refuse to give second marriage permits to anyone, violating the right to form a family.
But the Constitution also shores up religious authority. Article 2 designates Sharia to be the main source of the country’s legislation, while the following article stipulates that the principles of citizens’ religions will be the main source of legislation governing their personal affairs.
Further cementing the role of the church in personal affairs, the draft law proposes the establishment of semi-judicial committees at different courts to deal with issues of personal status for Christians. Falling directly under the authority of the church, these committees would be headed by bishops and include clergymen, legal, psychological and social advisors. The Justice Ministry would handle the approval of the formation of these committees.
Any lawsuits pertaining to personal status issues for Christians would have to first pass through this committee in order to be accepted by courts.
Further cementing the role of the church in personal affairs, the draft law proposes the establishment of semi-judicial committees at different courts to deal with issues of personal status for Christians.
“Why would we form semi-judicial committees inside courts that are headed by clergymen?” Anis says. “It seems we are back to the old religious courts.” In his view, these committees fundamentally violate Christians’ right to a fair trial.
Gamil Haleem, the Orthodox church’s legal advisor, says that the Egyptian churches will meet in the coming period to agree on the final draft of the legislation that will be presented to the government, which would then pass it to Parliament.
The amendments introduced by Protestant representatives suggest that disagreements may arise, as they propose that all churches acknowledge the marriage of other Christian groups and enable marriages of couples from different denominations. Currently, the Orthodox church only allows members of the same denomination to marry, unless the union happens within the Orthodox church.
Another area of contention is the question of divorce and second marriage, as every church has different procedures. While the Orthodox church allows for divorce in the case of adultery, the Catholic church does not acknowledge divorce at all and names it instead “bodily separation.” The Greek Orthodox Church allows for divorce with more flexible conditions. Protestant churches in Egypt also do not allow divorce.
And while the Orthodox church proposes a minimum of five years of separation for those with children and three for childless couples, Protestant churches propose that the condition only be applied for those without children and after five years have elapsed. Protestant representatives also state that they would be committed to issuing permits of second marriage for any side wishing to marry again after five years, while the Orthodox church maintains the right to refuse to issue remarriage permits.
One thing the churches are united on, however, is their opposition to civil marriage. Pope Tawadros II of the Orthodox church previously told Mada Masr that civil marriages contradict the Christian faith.
In the political space that opened in the immediate aftermath of 2011, a number of Christian groups sprang up calling for civil marriage, or at least the reform of divorce and marriage rights and questioning the clerical hierarchy’s control of these issues.
The issue of divorce, in particular, was a lightening rod, with public protests against the church staged by groups like Copts 38 and Right to Life. On one occasion, Pope Tawadros II canceled his weekly sermon at St. Mark’s Coptic Orthodox Cathedral when it was disrupted by protesters calling for the right to divorce.
The name of Copts 38 refers to a period when restrictions on the right to divorce were far less rigid. Bylaws adopted in 1938 and drafted by the church allowed for nine grounds for divorce, including adultery, impotence, contagious disease, imprisonment and abuse.
But the late Pope Shenouda III judged these conditions to contradict the teachings of Christianity and, in 1971, announced that divorce was permissible only in cases of adultery.
Mina Thabet, a researcher in minorities issues at the Egyptian Commission for Rights and Freedom, explains that Shenouda’s decision prompted legal confusion in Coptic communities, as courts continued to divorce Copts according to 1938 bylaws, which Shenouda did not legally amend.
“This meant that Copts would be divorced before the courts, but, when they go to the church to issue a permit for a second marriage, the church refuses, because it does not acknowledge the validity of the divorce,” Thabet explains.
The issue came to a head in 2006 when a final ruling by the Supreme Administrative Court obliged Pope Shenouda III to issue a permit for a second marriage to a Coptic man had been divorced in court.
The pope, however, refused to apply the ruling. “The church cannot be committed to something that contradicts the conscience and the teachings of the Bible. We know our religion better, and we will refuse to give a permit for second marriage if the divorce is not based on such teachings,” Shenouda said at the time.
The incident propelled Shenouda to amend the bylaws to allow divorce only in cases of adultery, which was approved by the Egyptian government in 2008.
Thabet believes that the new draft law is a version of Shenouda’s 2008 bylaws, with minor changes. A policy paper he wrote for ECRF earlier this year recommends that the 1938 bylaws be reinstated, thereby granting Copts more flexible conditions for divorce.
Ishaq Ibrahim, a religious freedoms researcher at the Egyptian Initiative for Personal Rights (EIPR), explains that adding a new condition to offer a more flexible divorce law is a partial solution to the problem, but it will not resolve the issue completely.
“There could be partial facilitation to the issue of divorce, but waiting for three or five years is too much,” he said. “The church still holds the right to exclusively issue second marriage permits. The philosophy behind the draft law remains very restrictive to the right to marry and divorce and forming a family.”
The current draft law stipulates that only the church’s clerical council is entitled to issue second marriage permits to Christians and asserts that the refusal to do so cannot be appealed through the state judiciary, as it is “a religious ecclesiastical decision.”
For Ibrahim, the solution rests in the hands of the state, which should “carry its own responsibilities to open the door for civil marriage,” saying such a move is the only lasting solution to personal status issues for Egypt’s Christians.