MP Mohamed Fouad, member of the parliament’s local administration committee, along with others, drafted a new personal status draft law after President Abdel Fattah Al-Sisi’s call to consider amending family laws to ensure stability of Egyptian families and reduce divorce rates.
The proposed law included some articles that raised wide objection and debate among those interested in women’s issues as well as family and personal status.
The highlights of those articles included the reduction of child custody age from 15 years in the current law to 9 years, the other party can host the child for a period of one or two days with a pledge to return them to the custody holder, allowing appeals in khula – a form of divorce initiated by the wife in Islamic Sharia Law – cases, and adding movables like furniture and household appliances to the wife’s dowry.
Other controversial articles proposed limiting responsibility of educational expenses to the father in divorce cases, imposing penalties on the husband who fails to document divorce to competent authorities, and the establishment of a specialised family police.
In order to reflect both views of the new draft law, Daily News Egypt interviewed MP Mohamed Fouad and Nermeen Abu Salem, founder of the Egyptian Single Mothers Group, that won an award from Facebook as one of the most influential pages in its community.
There are no alternatives to proposed law, Al-Azhar’s opinion is advisory: Fouad
Why was the discussion over the draft law delayed?
I do not know. A few days ago, I sent a letter to the head of the legislative and constitutional affairs parliamentary committee to speed up the discussion process of the draft law.
According to the conclusion of the committee on 13 January 2019, concerning the discussion of the new draft law, the committee will resume discussion on it during its first meeting in February and send letters to concerned bodies whose recommendations were delayed until the session in order to seek their opinions for the last time. They were informed that if no recommendations were made during this period, the committee will proceed with the law discussion.
The agreed time within the committee has passed. The committee should have resumed the discussion sessions of the draft law, but this has not happened so far.
This is why I call for a meeting to resume the discussion of the draft personal status law in the committee, in view of the president’s interest concerning the situation of the Egyptian family and the current Personal Status Law, especially his remarks in the 6th Youth Forum at Cairo University.
What are the concerned parties?
Al-Azhar, the National Council for Women (NCW), the National Council for Childhood and Motherhood, and the Supreme Council of the Judiciary.
But Al-Azhar announced it is preparing another draft law?
Al-Azhar’s role is to provide its opinion about draft laws, not to make laws. In over 1,000 years of its history, Al-Azhar has never drafted laws. The Constitution specifies that the government, the presidency, and the parliament are entitled to propose bills. I have no objection to holding discussion on the current draft law and amending it, but they must first read it before making decisions, especially since their role is advisory.
What about the NCW and other specialised councils?
National councils, such as the NCW and the National Council for Childhood and Motherhood, have not responded to our letters concerning the draft law. They said they are drafting another law, which is incorrect. They know that the proposed law serves the interests of children and families. But the NCW has turned into an entity that does not care about women in general, and has changed into a council for divorced women only.
There are electronic platforms trying to distort the submitted bill without reading or hearing the discussions held over the law.
The national councils were supposed to respond to the draft articles in a written letter, but they pushed electronic platforms to reject the bill without a real reason for this, and spread rumours that the bill will facilitate the abduction of children by any of the family members, which is completely contrary to the truth, because the current penal code does not criminalise the kidnapping of children by parents, while the new draft law imposes deterrent penalties on those who refrain from returning minors to the custody holders.
We met with a large number of people with family issues. We formed a special committee to listen to them and conduct more than 25 community talks in several governorates, in the presence of family issues victims, lawyers, judges, scientists from the Islamic Research Centre, and some public figures.
What is the primary purpose of introducing this new law?
It aims to achieve justice and balance between the parties of the Egyptian family, protect the rights of children and achieve their interests, and provide an appropriate environment for the parents to establish a better Egyptian family. This was stressed by the president in several occasions, especially during the Youth Forum held in the Cairo University.
Have you read similar laws of other countries prior to the preparation of this law?
We have read many similar laws and we have not found any country with a law like ours that deprives children of one of their parents on the grounds of not holding custody. The current law turns children into monkeys, where a parent will meet them at a park for three hours. All Arab countries apply the principle of joint custody. I have been in Morocco recently and I read their Personal Status Law and I hope that can be adopted in Egypt.
Why do you insist on replacing the current system with a joint custody?
The current law has been in place for 100 years and has not been developed, despite all the societal changes. The current system limit contact between the child and his non-custodial parent as if they are punishing them for the divorce. We proposed that the non-custodial parent hosts his child for one or two days to maintain the psychological integrity and balanced relationship between the child and his parents.
But there are fears that extending the hosting period would lead to child abduction?
The law addressed this fear by stipulating that the child must be returned after the period specified by the new legislation, whether it is a day or two days. This will prevent abductions. According to the current law, non-custodial parents do not have to return their children to the custodial parent.
What is the proposed penalty for not returning the child after temporary hosting?
The proposed legislation imposes a six-month prison sentence, based on a court ruling, and in order to ensure that the custodian does not abduct the child, a travel ban is issued in case of failure to commit to the hosting rules on time.
What about reducing the age of custody?
The current law sets the age of custody at 15, while the proposal law will reduce it to nine years old.
What prompted you to present this proposal?
Because most of the concerning studies and real cases we saw in a daily basis showed that the child needs his father before the age of 15. The argument of the father’s work was defeated because women now work like men.
Why does the draft law propose changing the father’s position in custody?
Because the father’s turn in the order of custodians is 16th in the current law, while they come second in all countries after the mother. This is not realistic and would not produce healthy children or youth.
What about the proposal to establish a specialised family police?
This department will follow the Ministry of Interior and will be tasked with implementing the rulings of family courts and conducting inquiries about the father’s income and other matters concerning personal status issues. The proposed police sector will be trained to deal with such cases because they are different from other criminal offenses.
The draft law also obligates registering a divorce. Does the article face any opposition?
There has been a call for setting a period of time to document the verbal divorce to reduce divorce rates. The president has alerted us of the terrible divorce rates and those children living without parents. I do not understand the objection, especially from clerics, as we only recognise documented marriages. Why would we accept that in marriages and reject it in divorces?
Allowing appeals in Khula cases defeats women: Abu Salem
Why do you object the personal status draft law?
We do not object the amendment of the current Personal Status Law, but we have some reservations on the proposed amendments such as khula, custody conditions, educational guardianship, and others.
What are your concerns regarding the Khula?
The draft law propose allowing appeals in khula cases, which is an abuse of women’s rights and a violation of their dignity and legitimate right to continue or end the relation. If women choose to drop all their legitimate rights, this indicates they have suffered from serious harm in marriage.
The proposed law leads to unnecessary prolongation of litigation, causing further harm and abuse of women’s rights.
In Khula, the wife waives all of her rights, such as her dowry, while the husband loses nothing.
But some believe that allowing appeals in khula gives a chance for fixing the relation?
In order to give spouses an opportunity to reconsider prior separation, during the course of the khula proceedings, the reconciliation was already presented to both parties by the court at least twice during the case.
Consequently, there is no legal or humanitarian justification for this step, but it does expose women to more oppression and injustice, and deprives her from her human right.
The new draft law proposes reducing the custody age, why do you reject it?
The Sharia law admitted that the custody age is the age at which the child can give up the mother’s care psychological needs. We do not see this is possible at the age of 7 or 9 years old. Al-Azhar agrees with us. And what law deprived the mother of her children, when she is unmarried, in favour of the father and step mother at that age?
According to the World Health Organisation, the child is generally legally defined as a person under the age of 18 and he does not complete his mental and physical maturity.
The Egyptian Child Law stipulates that at the age of 18, a child remains with his mother until adulthood. I do not only ask to keep the custody age at 15, but to increase it to 18 years old.
There is a lot of confusion about the educational guardianship, what is its problem?
In March 2018, the Supreme Constitutional Court acknowledged the right of the custodian in the educational guardianship. There is no doubt that this ruling was correct. It makes sense to keep the educational guardianship in the hands of the custodian since they best know the child and his abilities, in addition to supervising them all the time.
Do you agree with the part of the wife’s dowry?
We will agree only in one case, if it was agreed in advance, and frankly that the list of movables includes furniture, household appliances, and others as part of the wife’s dowry, but otherwise there is no legal text. The Sharia obligates the husband to prepare the marital home from A to Z. If the woman partakes in that, she is only contributing to facilitate the marriage, but this does not give the man the right to claim what the woman has contributed in case of divorce or Khula.
Why do you object the non-custodial parent’s hosting of child without the consent of the custodian?
We do object the father’s right to participate in raising his children. The current law and the constitution gave the full custody to mothers. This means that it is not permissible in any way to divide the week between the mother and the father leading to the child’s instability. The Court of Cassation came to uphold the ruling on 9 March 2010.
As for the religious side, there is no disagreement on it. Islamic law did not mention hosting in the Quran or Sunna. Some, however, indicate that the child belongs to the mother.
The fatwa of the Islamic Research Complex No. 445 for 2012 stated that hosting the child should be in accordance to the custodian’s consent.
The Islamic Research Academy also confirmed in April 2017 that the hosting must be approved by the custodian and the child after reaching 10 years old.
The term ‘host’ was not mentioned in Quran, Sunnah, or any of the Islamic doctrines. It is an imported term from the European society, which is characterised by strict disciplines, rules, and acts as an immediate deterrent with penalties toward the interests of the young. The hosting system in Egyptian society without the controls of the European community will create countless problems and courts will accumulate more issues we need.
But the law proposal says that this is necessary for the child’s psychological health?
This is not true. Hosting by a judicial decision and without the consent of the custodian and the child negatively affects the psychological health of children, as it forces children to move from a place to another every week against their will. We all know the extent to which a child is attached to their home and toys. They have their own world, which may not be found in the other parent’s house. Even if the stepmother loves the child, she will never become their mother. Also, what if hosting takes place in a different governorate from the one where the child originally lives?
But there are guarantees in the proposal to return the child to his custodian?
Those calling for the application of hosting said that there is no problem of hosting as long as there are guarantees for the return of the children. We believe that the guarantee of imprisonment is not genuine. What about mothers who received rulings to return their children and were unable to force the father to do so? If we stop children from travelling abroad, what about traveling within Egypt? There are so many cases in courts with unfulfilled rulings.
The previous rulings must be implemented before offering future guarantees. What would a mother do if she sues the father and the court gives him a prison sentence but she could not reach her child?