Men in Charge? by Ziba Mir-Hosseini

Author:Ziba Mir-Hosseini
Language: eng
Format: epub
ISBN: 9781780747170
Publisher: Oneworld Publications

JUDICIAL DIVORCE

Reforms in Muslim divorce laws in Arab states have widened the grounds on which a wife can seek judicial divorce and expanded her rights on divorce. At the same time, the laws have, to different degrees, sought to constrain a husband’s facility of unilateral talaq. But it is in the vigorous debates on judicial khul‘, in which a woman can divorce at her own initiative and without showing fault on the part of her husband, that the qiwamah postulate has been invoked as under threat.

The abiding connection of qiwamah with divorce rights was illustrated in the public debates in Egypt that surrounded the promulgation of Personal Status Law No. 1 (Egypt Law No. 1/2000) in the year 2000 (Arabi, 2001). The law deals with a number of procedural issues in family law, but the single provision on khul‘ was hotly debated in public, press and parliament, such that the law as a whole was dubbed the ‘law of khul‘’. The relevant provision provides that where a woman’s husband refuses to consent to a divorce by mutual agreement she may ask the court to rule for the divorce instead, without proving particular grounds but provided that she incorporate in her petition formal statements (drawing on particular Qur’anic phrases) as to the impossibility of the marriage continuing, return the dower that she received from her husband and waive any remaining financial rights. Senior scholars at al-Azhar articulated ‘total rejection’ of this provision when it appeared in draft form, inter alia because ‘the right of qiwamah…was ignored in the provision’ (Fawzy, 2004, pp. 61–2). An opinion survey of elite professionals found that one of the reasons for objection by a ‘substantial minority’ (forty percent) of respondents was that ‘[t]he new law casts doubt on the concept of qiwamah in the relationship between the man and the woman’ (Fawzy, 2004, p. 74). Cartoons in the press showed ‘women with moustaches, women flirting with other men, men in shackles and men pushing prams’ (Sonneveld, 2006, p. 51), which seem to suggest the end of the husband’s qiwamah over his wife, linking this with a transfer of gender roles. Interviews with litigants in 2009 showed that the link between the notion of qiwamah, obedience and the husband’s power of unilateral divorce (compared with restrictions on the wife’s access to divorce) was clearly perceived by the Egyptian public, including those using the new law (Al-Sharmani, 2013).

The Egyptian National Council for Women described the 2000 provision (Egypt Law No. 1/2000, art. 20) to the CEDAW Committee as giving ‘women the equal right of divorce through “khul‘”, or repudiation, which is the indigenous Islamic formulation of women’s right to divorce for incompatibility without need to prove damage’ (Egypt Response to CEDAW Committee List of Issues and Questions, 2000, p. 4). The Committee (along with some women’s rights activists) appeared unimpressed with the equality arguments. In its 2010 comments to Egypt, the Committee reiterated ‘its concern that women who seek divorce by unilateral termination of their marriage contract (khula) under Law No.

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