FAMILY STATUS AMONG EGYPTIAN COPTS
Adel Guindy
Global Politician, NY
9/15/2007
The following article discusses the impact of the Egyptian Family
Status Law of 1955 (which is still in effect) on the country’s Coptic
population. It provides a concise overview of these laws, especially
in light of the dearth of resources in English on the topic. While the
Family Status Law is considered part of the "civil" code of law, it
still has religious elements, referring to the Shari’a as a basis for
Muslims, and to the corresponding religious principles or regulations
for each of the non-Muslim communities.
However, due to the general constitutional stipulation "Islam is
the religion of State and principles of Shari’a are the main source
of legislation," courts quite often ignore the law and rule based
on Shari’a.
Thus the situation is a reflection of the difficulties of being a
non-Muslim minority in an "Islamic" country and society.
INTRODUCTION
In 1955, a family status law was applied to all Egyptians. While
considered part of the "civil" code of law, it still has religious
elements, referring to the Shari’a as a basis for Muslims, and to the
corresponding religious principles or regulations for each of the
non-Muslim communities. However, due to the general constitutional
stipulation that "Islam is the religion of State and principles of
Shari’a are the main source of legislation," courts quite often ignore
the law and rule based on Shari’a.
The legal marriage age in Egypt is a somewhat confusing matter due,
in part, to contradictions between the age of majority according to
civil law and according to the Shari’a. This in particular represents
a serious loophole in the case of "forced conversions" of young
Coptic women. Moreover, the conditions set by the law for divorce
and remarriage are not always in line with the church’s teachings,
generating many problems. While the conditions of child custody in
the case of divorce are outlined in the law, if one spouse converts
to Islam, the children are forced to follow the converting parent. In
addition, Christians are barred from adopting children, since the
Shari’a does not permit adoption.
Thus due to the Family Status Law, and more so its application, the
Copts have become entangled in a number of problems. While a draft
unified personal status law for Christians of all denominations was
prepared in 1980 and further revised in 1998, it continues to collect
dust, as the government has been reluctant to deal with it.
Prior to 1955, family status issues were handled by the various
communities. In 1938, the Coptic Community (Melli) Council adopted an
ordinance that outlined nine reasons to be considered for divorce. In
1955, however, Family Status Law 462 was adopted and applied to all
Egyptians. Accordingly, the various community courts were abolished and
were replaced by civil courts (personal status courts). Article 7 of
the law stipulates the application of the religious basis for divorce
(Shari’a for Muslims, and the corresponding religious principles or
regulations for each of the non-Muslim communities), provided that
both spouses belong to the same denomination (as will be discussed
below). The non-Muslim communities include:
– Coptic Orthodox, who currently represent over 90 percent of
Christians in Egypt. "Official" estimates report that Christians make
up six percent of Egypt’s population, while the generally accepted,
"more realistic" estimates1 place the figures at 12 to 15 percent of
the country’s total population (or about 10 million).
– Coptic Evangelicals (Protestant), representing four to six percent
of Christians.
– Coptic Catholics, representing one to two percent of Christians.
– Other minorities belonging to churches with foreign origins,
including Orthodox (Greek, Assyrian, Armenian, etc.), Catholic
(Armenian, Caldian, Latin, Maronite, etc.), and Anglican. They
represent about one percent of Christians.
– Jews, with only a few hundred left.
MARRIAGE AND DIVORCE
Marriage
There is no strictly civil marriage law in Egypt.
Rather, "standard" marriage procedures are "religious" and "civilian"
at the same time. The authorized priest, for Christians, or the
ma’zoun, for Muslims (literally "the authorized" imam), performs a
religious ceremony and also acts as an agent for the state. The ma’zoun
or priest issues a formal Act of Marriage and also completes a state
register, which provides detailed information and lists witnesses. It
is this formal registration that is of importance to the state,
whereas the religious ceremony is considered a personal matter.
As state agents, it is the duty of the ma’zoun or priest to record
basic legal details such as identity, age, consent, value of the dowry,
etc. Certain conditions must also to be met. For example, in the case
of Muslims, the bride-to-be cannot be under a marriage contract with
another man. For Christians, however, neither party can be married
or engaged. For the ma’zoun, a Christian woman is permitted to marry
a Muslim man, but the reverse is forbidden. For the priest, both
candidates must be Christians of the same confession (denomination).
Beyond these "standard" procedures, other practices have become
increasingly common. The most widely talked about practice is the urfi
marriage2 (literally, "nominal" or "traditional"). While other marriage
procedures require both registration and for it to be a public act,
the urfi marriage only requires a single document (a "piece of paper")
be signed by the two partners in complete secrecy. Much debate has
been generated in the media regarding the legitimacy of this practice
(it is acceptable according to Islamic law, or Shari’a) and its
increasing prevalence (although there are no figures available, its
increasing popularity among youth and especially among university
students has been reported). It is interesting to note that the
media has repeatedly cited the existence of this phenomenon among
Copts–even if it is rare. In the eyes of the Church, such a practice
is considered adultery.
A restricted form of civil marriage, in the presence of a public
notary, would be possible in the following circumstances: 1) Both
partners are foreigners; 2) A foreigner marrying an Egyptian, though
an Egyptian Muslim woman cannot marry a non-Muslim; or 3) An Egyptian
Muslim man marrying a non-Muslim Egyptian woman.
The matter of legal marriage age in Egypt is somewhat
confusing. According to Article 44-2 of the Civil Law, the age of
majority is 21 years. Article 2 of Child’s Law #1996-12, however,
stipulates that a person is considered a child until the completion
of 18 years.
The Family Status Law sets the minimum marriage age at 18 for men and
16 for women. For those who have reached the minimum marriage age but
have not yet reached the majority age, marriage is allowed with consent
of the guardian. On the other hand, the Islamic religious authorities
(al-Azhar) consider the age of maturity to be 16 years (for both
sexes), and in some cases younger, since according to the Shari’a it
is the age of puberty that is of importance (and this varies3). While
this might not appear to be a major issue, indeed it is one of the most
serious loopholes in the case of "forced conversions" of young women.
"Untying" the Knot
The termination of a civil act of marriage must be authorized by
the state. The meaning of the term "divorce" differs for Muslims and
Christians. For Muslims, it is a man’s prerogative and is according
to his own will. The court will simply comply with the man’s will
after verification that his intentions to divorce are true. The man
can also revoke his divorce request and remain with his wife. Yet
after a three such revocations, the marriage must be dissolved. He
then cannot "remarry" his wife unless she goes through a consummated
marriage to another man and then divorces him. A woman can seek divorce
for a number of reasons, which are regulated by the Shari’a-based law.
The court’s main role, in any case, becomes one of attributing rights
to the separating spouses and their offspring.
A revision to the Family Status Law, promulgated as Law 2000-1 of
January 2000, improved the conditions of divorce for women4. For
example, it allowed women to resort to khul, a mechanism whereby she
can obtain a divorce in return for ceding the mahr (dowry, or bridal
gift), the mu’akhar (a sum usually paid if the husband initiates the
divorce), and alimony.
For Christians in general, marriage–from a religious
standpoint–cannot be broken by the single will of either spouse or by
their combined wills (mutual consent), since it is a sacrament. For
those interested in keeping communion with their own church,
its consent must be sought, according to certain conditions. This
consent becomes more critical if a divorcee (following a ruling by
a civil personal status court) wishes to remarry within his or her
church. If that church deems a divorce was not according to its
teaching, remarriage will not be authorized. Thus, the individual
is left with the option of remarrying in another church (usually
Protestant, which is more lenient in that regard), after "converting"
to the new denomination.
Generally speaking, according to Church doctrine, a marriage can be
terminated through "annulment" or "dissolution."5 The term "divorce"
is used in the courts and also in the Church when resulting from
"adultery" (to be discussed in detail below).
For the Coptic Orthodox, Articles 50 to 58 of Law 462 stipulate
the same nine points in the 1938 guidelines referred to above. The
plaintiff may be granted divorce if his or her spouse commits or
falls under one of the following categories6:
– Adultery – Conversion to another religion.
– Absence for a period of five consecutive years with no news of
whereabouts.
– Being judged and sentenced to seven years imprisonment.
– Mental illness, a contagious illness, or impotence–with no recovery
for at least three years.
– Serious domestic violence.
– Debauchery or immoral behavior.
– Separation for at least three years as a result of untenable
marital life.
– Joining a monastic order.
Death would naturally liberate the surviving spouse to remarry without
need for a court ruling. If the legitimacy of parenthood is called
into question, the courts will deal this matter.
According to the same law, other matters such as alimony, custody,
inheritance (or even the recently introduced possibility of khul)
are dictated by the Shari’a and apply to everybody, irrespective of
their religion or confession. Furthermore, if one spouse "converts"
to another denomination (e.g. from Coptic Orthodox to Protestant),
the Shari’a is applied in the case of divorce. The relevant article
of the Law 2000-1 reads:
Court rulings are made according to the Personal Status and Endowment
laws in application. When there is no specific text in these laws, the
most agreed-upon opinions (jurisprudence) according to Imam Abu Hanifa
are to be used. However, in family status disputes between non-Muslim
Egyptians, united in denomination and confession, who had organized
community courts up until 31 Dec. 1955, rulings are made according
to their respective (religious) Law, without disturbing public order7.
While not specifically mentioned in that article, Shari’a is applied by
the courts in the case that the couple was not united in denomination
or when one (usually the party seeking the divorce) "converted" to
another confession. This absurdity and more so its application by
the courts creates a serious loophole.
THE REALITY
By the 1960s, it became clear that the civil courts had "liberally"
applied the rules set in the 1955 law regarding Christian
marriages–contrary to the spirit of trying to salvage the marriages
as much as possible. Another important factor, which comes into play
both directly and indirectly, was (and still is) the fact that some 98
percent of Egypt’s judges are Muslim8. Despite attempts to apply the
law diligently, the predominant (Islamic) cultural concept regarding
divorce inevitably leads to a tendency to grant divorce rather easily.
Then-Pope Kirollos (Cyril) VI of the Coptic Orthodox Church asked some
of his bishops to examine the situation. Among these bishops was the
current Pope Shenouda III. In 1971, shortly after ascending to St.
Mark’s seat as the 117th successor, Pope Shenouda III issued Papal
Decree No. 7. The decree ordered the Clerical Council for Family
Affairs (CCFA) to make the rules stricter and to only grant permission
to remarry in cases in which a court’s divorce ruling was essentially
based on adultery.
It must be noted here that the Catholic Church does not approve divorce
for any reason, even adultery. The Protestants, who are now relatively
the most lenient about divorce, had until the early twentieth century
prohibited divorce except in cases of adultery.
In practice, the Coptic Orthodox Church’s CCFA still reviewed the
cases presented for divorce with a broader scope of discretion9. First,
marriages could be "annulled" in cases of a major "fraud" discovered
early on that would hinder normal marital life and thus expose the
innocent spouse to the temptation of adultery. Examples of such cases
would include if the husband were impotent, homosexual, or had a
serious illness that his wife was not previously aware of.
"Dissolution," allowed in cases of "death" or "adultery," would not be
limited to the literal meaning of the latter two terms. For example,
the case of a spouse joining a monastic order (in reality almost
unheard of) would "technically" be categorized under "death," since a
symbolic death prayer is recited upon becoming a monk or nun. Most of
the nine points of the 1955 Law would still be directly or indirectly
valid, with the emphasis instead on saving the marriage rather than
facilitating divorce.
Nevertheless, problems arose after the rules were made stricter in
1971. It is estimated that thousands of spouses who were divorced by
the civil courts are attempting to obtain permission to remarry within
the Coptic Orthodox Church. Media sources have reported some 50,000
cases of civil divorce, while a knowledgeable family status lawyer10
has estimated that there are approximately 12,000 cases pending of
those seeking permission from the CCFA to remarry. In addition, he
criticizes the bureaucratic, inefficient, and insensitive attitude of
the Council, which has led to frustration among the concerned persons
and families unable to reach reconciliation.
SITUATION OF CHILDREN
In Egypt, children are considered to be the father’s legitimate
offspring, even if they are the product of "adultery." In cases
where the paternity is questionable or unclear, medical examinations
(as of recently, including DNA tests) are performed. In the eyes of
the Church, children are innocent and have the right to be baptized,
even if they are born out of wedlock.
The conditions of child custody in the case of divorce are outlined
in the Family Status Law, with the mother typically retaining custody
until the child has reached 12 years of age, after which boys may join
the father. However, if one spouse converts to Islam, this general rule
is ignored11. In this case, the court usually rules that the children
are obliged to follow the parent with the "more noble religion"
(i.e., Islam). Thus, the child is forced to convert as well.
Under Islamic law, adoption in the usual sense of the word is not
permitted. "Adopted" children must carry the name of their biological
parents if known. If the biological parents are unknown, the Ministry
of Social Affairs must choose a family name different from that of the
adoptive parents. Adopted children12 are also forbidden from inheriting
their adoptive parents’ estates unlike biological children. On the
other hand, the draft Family Status Law for Christians (see below)
allows couples who adopt to give the child the adoptive parents’
family name.
LEGAL INTIMIDATION
The Copts in Egypt are subject to various societal pressures, including
in the areas of family status.
There has been increasing intimidation from the judiciary
system–supposedly the society’s guardians of justice. The examples
previously cited relating to children caught up in cases of religious
conversion are not unique.
It has often been said that the second article of the Egyptian
Constitution, which states that the principles of Shari’a are the
main source of legislation, is directed to the legislators. Yet the
judiciary does not seem to take this stand.
A recent example serves to shed some light on the implications of
this constitutional stipulation13. On February 23, 2007, the High
Administrative Court, presided by Justice Muhammad al-Husayni, and
including five other member judges (all Muslims), ruled in the case
no. 13719/59 that following a divorce ruling by a civil family status
court, the Coptic Orthodox Church14 was required to issue permission to
remarry in the Church. Beyond the paradox of the seeming interference
in the Church’s teachings and rituals, the ruling stated that it was
"based on Shari’a–considering that it was the general and public
legal order whose application is obligatory."
Many still remember the 1987 case in which an Egyptian judge ruled that
polygamy was permissible for Christians. This highlights how the Coptic
community finds itself forced to submit to Islamic Shari’a regulations.
LOOKING FOR A WAY OUT
In order to address the various family issues, work on a unified
personal status law began in 1978, when the Coptic Church formulated a
draft law for the Family Status of Christians to replace the relevant
parts in the 1955 law. The draft was prepared by a committee of eight
jurists: two from each of the Catholic and the Evangelical Churches,
and four from the Coptic Orthodox Church. It was signed by the heads of
all the churches in Egypt. In 1980, the draft was sent to the Ministry
of Justice and the People’s Assembly (Parliament) for consideration. It
collected dust for two decades until the issue resurfaced.
When the People’s Assembly announced in 1998 that it planned to
discuss a new personal status law, Pope Shenouda III called upon the
representatives of Egypt’s various churches to revive the project and
update it with the necessary amendments. The (revised) draft consists
of 146 items divided into five sections. The first section is devoted
to issues such as engagement, the basis for and procedures of marriage,
the nullification of the marriage contract, and the rights and duties
of both spouses. The second explains financial commitments towards
parents, children, and relatives.
The third section of the draft discusses the limits of parental
responsibility and authority over children.
The fourth deals with legitimate and illegitimate offspring. The
fifth section discusses divorce, separation, and adoption issues.
In the chapter on divorce, the definition of adultery (as stated
in draft Article 115) was expanded to include any act that would
confidently indicate extramarital relations15:
– The wife running off with a stranger or spending the night(s)
away from home; – Letters sent to a third party indicating marital
infidelity; – The "suspicious" presence of a stranger inside the family
home; – A husband inciting his wife to commit adultery or debauchery;
– Pregnancy that could not be attributed to the husband due to absence
or illness; – Homosexuality.
For some, the draft could be described as a more restrictive substitute
to the current legislation, which allows divorce in several cases in
addition to adultery–the only cause mentioned in the Gospel.
However, the churches differ on this matter, arguing that married
couples must commit to the marriage contract. Family is considered
priority and the fundamental component of society. Thus, its collapse
would lead to the downfall of the entire community.
As aforementioned, according to the current Personal Status Law,
Christian couples who belong to different churches (denominations) are
subject to Shari’a if they take a personal status dispute to court. It
is commonly believed that this has provided a way out for those seeking
divorce, since they can simply convert to obtain a favorable ruling.
The proposed law adopts the principle of "the spouses are bound by
the terms of the original contract." If one spouse, for example,
were to convert to another denomination or religion, he/she would
still honor the other spouse’s rights according to the original rules.
In other words, the Shari’a based rules would not apply.
The draft, hence, does not recognize conversion to another church
as a reason for divorce if there is suspicion that it was used to
facilitate divorce. If the two spouses are from the same church,
then the new legislation will apply to them, even if one of them
converts to another denomination.
In any case, the revised draft law has joined its predecessor in
collecting dust as the authorities are still reluctant to legislate it.
Why has this law been shelved for so long? There is no clear answer. In
Egypt, matters concerning the Copts are usually considered extremely
sensitive. Hence, such issues are often ignored or handled with
extreme care, because, as is often said, "the atmosphere does not
allow it." Some advance, as more concrete points, such issues as
addressing adoption and the removal of Shari’a as a reference–as is
the case currently–for spouses of differing denominations. However,
such stipulations are not accepted by the religious majority.
Whether this proposed law is the right solution or not, most agree
that ignoring the issue is unacceptable. Some argue for a purely civil
marriage law, as in the West; but this is not expected to come any
time soon due to public resistance, as this would allow inter-religious
marriages and would grant equal rights to both men and women.
CONCLUSIONS
When it comes to family status issues, the Copts appear to be entangled
in a number of problems. The current law, and more so its application;
the stand of the traditional churches regarding divorce–considered
by some to be too strict in principle as well as insensitive and
inefficient in practice; and the apparent refusal of the government to
issue a new draft law on family status for Christians all pose serious
problems. A new law that would authorize purely civil marriages is not
on the horizon for now or for the near future. However, some consider
such a law–or some variation of it–a necessary and timely step.
——————————————- ————————————-
REFERENCES
1.Numerous articles and reports refer to the more realistic
figure. Refer, for example, to: U.S.
Department of State, Egypt: Country Report on
Human Rights Practices – 2006, March 6, 2007,
851.htm.
2.Iman al-Qasir, "Urfi Marriage" (in
Arabic), BBC Arabic.com, June 23, 2005,
t/newsid_4123000/4123258.stm.
3.Faraj Ismail, "Opening the File of Accusations on Kidnapping and
Islamization of Coptic Women" (in Arabic), al-Arabiya.net, December
26, 2005, .htm.
4.Amira Ibrahim, "Hope on the Horizon?," al-Ahram Weekly, No. 420
(March 11-18, 1999),
5.Im ad Thomas, "Divorce of Christians between the ’38 Ordinance,
the Unified Law and Civil Marriage" (in Arabic), Alhbar Saarah
[Good News] (magazine of the Evangelical Church), March 2006,
6.Ezzat Andrawos, "The Second Article of the Constitution
is Behind the Persecution of Copts" (in Arabic),
.htm.
7.Egypt’s State Portal, "Text of the New Law No.
1/2000 on Family Status" (in Arabic), Article 3,
troduction.asp.
8.No official statistics exist, but the records of judiciary personnel
published in the papers have supported such an assumption. See, for
example: Youssef Sidhom, "A New Collection of Racial (Discriminative)
Presidential Decrees" (in Arabic), Middle East Transparent, November
6, 2005, youssef
_sidhom_reading_in_unsaid_things_109.htm.
9.Bishop Grigorios, "Divorce in Christianity," (in Arabic),
December 4, 2006,
?t=1 752&view=previous&sid=0554c9587c3719444754 14b0b3c8357e.
10.Me. Naguib Gobrael, a Cairo-based lawyer. See Me.
Naguib Gobrael, "Why Christians Convert" (in Arabic), El-Fagr,
px?NewsId=2453§ion_related=956.
11.Report by Watani, (Arabic) March 11, 2007, p. 11.
12.Ibrahim, "Hope on the Horizon?"
13.Adel Guindy, "The Most Common Denominator, Not
Submission" (in Arabic), Elaph, March 17, 2007,
07/3/219341.htm.
14.Text of ruling was reported by Sout al-Ummah newspaper, May 3, 2007.
15.Andrawos, "The Second Article of the Constitution is Behind the
Persecution of Copts."
Adel Guindy is a political writer on Middle East affairs and a senior
editor of the (Coptic) Egyptian weekly Watani
–Boundary_(ID_/MDNp060NsXanxa/OuTkvg)–
http://www.state.gov/g/drl/rls/hrrpt/2006/78
http://news.bbc.co.uk/hi/arabic/talking_poin
http://www.alarabiya.net/Articles/2005/12/26/19832
http://weekly.ahram.org.eg/1999/420/fe1.htm.
http://www.akhbarsarra.com/news.php?Id=1051.
http://www.coptichistory.org/new_page_965
http://www.egypt.gov.eg/arabic/laws/personal/in
http://www.metransparent.com/texts/youssef_sidhom/
http://www.stgeorgecz.org/Forum/viewtopic.php
http://www.elfagr.org/Elfagr_L_Details.as
http://www.elaph.com/ElaphWeb/ElaphWriter/20