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Khula: the last resort? - Daily News Egypt

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Khula: the last resort?

Daily News Egypt investigates women who depend on khula and those who are fighting for its existence


Women filing khula lawsuits are motivated by abuse
Women filing khula lawsuits are motivated by abuse

“He broke my arm hitting me with acoat hanger,” said M. Unable to find any help when injured, M went to a hospital alone, where she stayed for 15 days, undergoing several operations. M is a 30 year-old woman from a middle-class family, married at 20 to a 38 year-old man. The engagement lasted for only five months before their marriage, after which M found out the truth about her husband.

He turned out to be a drug addict; selling their furniture to buy drugs. M was shocked to find she was his third wife. Her husband had two daughters from the first wife and the second was demanding a divorce. M suffered humiliation and physical abuse throughout her marriage, before finally filing for khula. The M case is taken from a document about khula law, presented by the Association for Development and Enhancement of Woman (ADEW).

Khula is wife-initiated divorce under Islamic law, enshrined in Egyptian law by article 20 for law 1/2000 in the family statues laws. To receive khula, a woman must renounce any financial compensation and return her dowry. It can leave many women in financial dire straits, but given divorce through a civil court can take over seven years, it is the only option for many who are severely abused and just need to get out.

Recently khula has come under question, with members of the now dissolved people’s assembly wanting it banned. Daily News Egypt investigates khula, the women who depend on it and those who are fighting for its existence.

In 2011, Egypt witnessed 153,000 divorce proclamations as stated in the Statistical Year Book issued by the Central Agency for Public Mobilization and Statistics (CAPMUS) in September. Approximately 39 per cent of married couples getting divorced last year were from greater Cairo. Over a third of divorces occur in the first year of marriage, according to the Egypt Human Development Report, issued in 2010.

In the period between 2006 and 2011, divorce rates have increased from 0.9 per thousand up to 1.9. According to Dr Mohammed Al-Rakhawi, divorce rates were lower when families of the married couple embraced the relationship. “They empowered the couple to overcome all sorts of problems that they encountered”, said Al-Rakhawi. Along with lack of such familial support, Al-Rakhawi said one of the reasons why divorce rates have increased lately is due to the decline of mutual responsibilities shared between partners.

Control, drug addiction, infidelity, mistreatment of children, unchecked mental disorders, physical violence, desertion, and lack of affection or attention are some of the reasons given for filing for divorce.

However, women filing for khula in Egypt predominantly have only one reason: abuse, often in connection with drug abuse and poverty. Isis Mahmoud, head of the technical secretariat department of the standing committees at the National Council for Women (NCW), said most women only file for khula if compelled.“We all thought that the issuance of khula law would result in khula suits raining all over the Family Court, but that was not the case”, he said. If a woman files a khula suit, it clearly indicates that an unbearable situation is forcing her to do so.

Breaking down barriers

Khula is expensive and lawyers’ fees are out of the reach of many women in need of divorce. Many organizations and associations provide free-of-charge advocacy services, such as the ADEW and NCW. John Shenouda, an information systems official at the Ombudsman office at NCW, said the council received 258 khula complaints from 2011 to 2012.

“We assign volunteer lawyers who handle the khula and other personal status law related cases at the NCW”, said Shenouda. Montasser Ibrahim, director of the Legal Programme at ADEW, said that it is quite hard to track down the exact number of khula cases handled by the association. “However, out of the 32,000 cases we have handled during a quarter of century, an approximate number would be 30,000 divorce, khula and alimony cases”, Ibrahim said.

The last straw

“There are many reasons that pressure the wife towards either demanding khula or throwing herself into the Nile committing suicide”, Ibrahim said, referring to the psychological state many women reach by the time they file for khula. Ibrahim said often in Egypt women tolerate a lot in marriage. “If the husband has a significant amount of money and suddenly the account is empty, she patiently understands the situation”, said Ibrahim. He added women often become the breadwinner of the family if her husband cannot provide. The social stigma of divorce deters many, but abuse often gives women no other option.

Ibrahim gives the example of a case where the husband worked as a microbus driver, making EGP 75 to 150 per day, adding up to monthly income of more than EGP 4,000. The wife received EGP 5 per day as to handle the household expenditures, including the children’s expenses, “while the husband spent the rest of the money on drugs”, said Ibrahim. As this was not enough in order to provide for her children, the wife decided to work to cover her family’s expenses.

Wiping the staircases of the city’s buildings is one of the jobs that mothers are willing to do to provide for her family. “But at the end of each day, it is unfair when the husband arrived home high on pills, wounding a different part of his wife’s body each night,” said Ibrahim. “This is when the relationship becomes excruciating for the wife, where she cannot bear any more abuse.”

Women rights organisations and associations reflect troubling reports of domestic violence. In a survey carried out by ADEW, two thirds of those demanding khula cited abuse as the primary factor. Upon announcing to their husbands that they wanted khula, 80 per cent of the surveyed women said they were physically abused. Physical abuse included being beaten with electric cords, washing machine hoses and sharp tools, according to the association’s legal department. S’s marriage provided one such example.

S was a 44-year-old woman from Old Cairo who worked as a hairdresser and furnished her matrimonial home from her own savings. Married to a security guard, they lived together in her house but she had to quit her job at her husband’s request. Her husband did not provide her with household expenditure, so out of fear and with the intention to provide a better livelihood for their three children, S started working surreptitiously.

Arguments with her husband usually ended up with her being humiliated and physically abused. When her husband forced her and her children to move to another governorate, S was upset. The children did not want to leave their schools and friends. “I was frustrated so I took the children and returned back to Cairo,” said S. The husband kicked her and the children out of the house. “I was kicked out of my own house, the one I bought from my own life savings, because I insisted on providing a good standard of education for my children”, said S. She wanted to file a khula suit, but people made her doubt the validity of khula.

S met with Sheikh Mohammed Jebril, who clarified to her that khula was legitimate based on Shari’a and there was no doubt about it whatsoever. With her children’s education as the primary motive, S filed a khula case and was awarded a divorce. “My ex-husband took over my house, married another woman and had a child from her,” S said. “However, I try to improve my children’s perception of their father.”

Divorce lawsuit

Ibrahim said that filing a standard divorce lawsuit procedure takes years until a final ruling is announced. From the initial litigation proceedings of filing the lawsuit, it can take up to two years before the court announces a ruling. If the judge’s ruling is in favour of divorce, the opponent may appeal, which can take another two years for the appeal to be announced.

After the case passes through the Court of Appeal, it passes to the Court of Cassation and the procedure could take up to seven years. Rasha Raslan, an official in the media department of ADEW, said a woman is supposed to wait 10 years until the divorce is legally announced by the final court’s ruling and should not marry anyone else until then.

Khula lawsuit

The legal procedures for khula, in contrast, take up to six months, or nine months if the couple has children. A woman willing to file a khula case needs to file for mediation first. The mediation offices, located at the Family Court, attempt to reconcile the married couple before referring the case to the court. The office assigns a psychological, social and a legal specialist to conduct these mediation sessions.

If the case is not settled at the mediation office, it is then referred to the court. The court’s procedures include the wife’s agreement to waive all her financial rights like the deferred dowry along with the alimony, while returning the advance dowry to the husband. After the court hearing period, the judge appoints another reconciliation session.

The second reconciliation may be done either by a relative from either of the disputers’ families or the court assigns the arbiters. “Usually no on shows up from the disputing families, so the case is just presented to Al-Azhar specialists,” Ibrahim said. Al-Azhar arbiters conduct the reconciliation, preaching Islamic teachings in the hope of reaching a settlement. If the disputers failed to settle, the case is referred once more to the court where the judge announces the final ruling.

If the disputers have children, the case is postponed after a third reconciliation session, appointed by the court. The reason behind the third session, before the final hearing, is to give the couple a final opportunity to reconcile for the sake of their children.

Search, seek and prolong

“There is a loophole in the khula procedures and the husband usually attempts to frustrate the plaintiff by prolonging the litigation procedures,” said Raslan. Ibrahim clarified that due to the economic situation and other financial obstacles that a would-be husband faces, husbands usually pay their wives an advance of the dowry, the rest becoming a debt.

Ibrahim clarified that if for instance the agreed upon dowry is EGP 5,001 then the groom gives the bride EGP 1 as advance dowry, and the EGP 5,000 is considered a deferred dowry. The husband signs a contract stating as much.

Because in a khula case the wife must repay her dowry, the husband often claims that he gave her a larger advance dowry than documented. “The husband files a lawsuit appealing that the amount of dowry documented in the marriage contract was just a pro forma, claiming that he had paid more than that”, said Raslan.

Counselor Tamer Muhammed Kamel, head of the Court of Appeal, clarified that whether the judge looks into the matter or not depends on the judge’s discretion, adding that there is no specific law that obliges or prevents the judge from doing so. “If there is doubt about the issue, investigations are carried out in order to verify the husband’s appeal,”said Kamel.

Place in Shari’a

Before the People’s Assembly was dissolved there was debate over the cancellation of khula. “One of the members of the dissolved People’s Assembly, belonging to a religious party, said that khula is not mentioned in Islamic Shari’a,” said Ibrahim. The people proposing the cancellation are alleged to be Azza El-Garf, a member of parliament belonging to the Freedom and Justice Party, and Muhammed El-Omda, an independent parliamentarian and former deputy head of the dissolved assembly’s constitutional and legislative affairs committee.

However, El-Garf denied calling for the repeal of khula law. In an interview, she said El-Omda was the one calling for the revisiting of the khula law. The idea of repealing the law is rejected by activists and religious scholars alike.

 

Dr Amna Nusayr, professor of theology and Islamic philosophy at Al-Azhar university, rejected the idea that khula may be not in accordance with Shari’a.“Yes, it is an Islamic law applied by the prophet Muhammed (PBUH).” Nusayr referred to verse 2:229 in the Quran, along with the Thabet Ibn Qays story in the hadith (a collection of prophet Muhammad’s sayings and actions), as the basis of khula law.

“No one could abolish the khula law because it is in the Shari’a,” said Mervat Abou Teeg, lawyer and women’s rights activist, adding, “whoever wants to abolish this article is violating Islamic legislation.”

The Supreme Constitutional Court has confirmed that the khula law is constitutional. Kamel said it is unfair for a woman to be forced to stay with the husband if she cannot tolerate him any longer. “She should practice her right to leave him,” said Kamel. He stressed the Quran and the Shari’a clearly support the khula law.

In response to the khula law being criticised as being a law issued by the former ousted regime and thereby illegitimate, Ibrahim said, “so were many other essential regulatory laws and rules.” He added, “should we delete thousands of regulatory laws issued throughout a regime that lasted for 30 years?”

Fighting to retain khula

ADEW, NCW and several local NGOs carried out initiatives to prevent the People’s Assembly from abolishing the khula law, which had a positive impact on the issue. “We’ve prepared a document on the khula law and carried out a campaign in response to the anti-khula attempts,” said Raslan.

The association’s document on khula contained the provisions of the khula law, the legal, constitutional and Islamic legislation’s verdict regarding the law, along with relevant responses to common criticisms. In addition, enclosed with the document were six cases about women who suffered in their marriages and sought khula.

ADEW conducted a discussion panel on 19 March to tackle and address the attempts to amend the personal status laws. Members of parliament were invited to attend the discussion panel, but unfortunately there parliament was in session at the time the panel was conducted. However, all the assembly’s members received copies of the documents that were distributed in the panel, as well as reports that covered the discussion panel itself.

“Television broadcasters recorded the panel,” said Raslan. Those who attended the panel included Dr Roushdy Shihata, a professor of Islamic law, General Ibrahim Nada, founder of the Divorced Egyptian Mothers group, and Dr Malak Zerar, an Islamic preacher who has worked on personal status law issues for 40 years.

In response to media coverage of the panel Raslan said, “all the local newspapers published what happened during the discussion panel on the next day.” To reach a wider range of people, the association uploaded the recorded videos to their YouTube channel and on other websites as well.

Woman filing khula suits suffer years of abuse, humiliation, desertion and violence. They have the right not to be violated. Such a right was granted by the legislative system of the state and Shari’a. On 23 May this year the Islamic Research Academy, the supreme authority for Islamic research, rejected the abrogation of the khula law. Given such a respected body has approved of khula, this vital law should be safe for the future.

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https://wwww.dailynewssegypt.com/2012/10/10/khula-the-last-resort/
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