Last week, Egypt President Abdel Fattah al-Sisi called on al-Azhar Grand Imam Ahmed Al-Atayeb to approve the issuance of a new law tightening divorce procedures for Muslims — including the annullment of verbal divorce. He suggested that divorce should only be legal if done in the presence of a “maazoun”, a cleric authorised by the government to administer marriage and divorce.
"The divorce percentage is high; 40 percent of the 900,000 marriages unions every year end up in divorce within five years," Sisi said during a speech he gave at a ceremony marking National Police Day.
According to the Central Agency for Public Mobilization and Statistics (CAPMAS) statistics, Egypt saw about 200,000 divorce cases during 2015, which marks a 10.8 percent increase in divorces from the previous year, as the total number of divorces in 2015 reached 199,867 compared to 180,244 cases in 2014.
Controversy among Muslim scholars
A few hours after al-Sisi’s statement, a wave of controversy was sparked among Muslim scholars; some supported the bill believing that it will reduce the divorce rate among young married couples, while others considered the bill to be a violation of Islamic Sharia law.
According to Shaira law, the husband may end the marriage by saying “I hereby divorce you”. However, after this the husband can cancel the divorce within "iddah" (a period of waiting). The iddah for a divorced woman is approximately three months unless she is pregnant in which case the iddah lasts until she gives birth. Once the period of iddah has passed, the husband can no longer cancel the divorce but the couple may remarry if they wish. If the couple divorces three times in this way, the divorce is irrevocable unless the wife has remarried.
A woman may not initiate divorce unless her husband agrees to it or a "qadi" (Sharia court judge) approves the divorce.
The professor of comparative jurisprudence at al-Azhar University Saad al-Din al-Hilali, told CNN that Egypt is late in passing this law to limit verbal divorce. The issuance of Law No. 78 Article 17 in 1931 marked a turning point as it states that marriage must be documented to be considered valid under Egyptian law, as previously these proceedings were not documented in Egypt.
Hilali recently released a book entitled “With Official Documents: the Jurisprudence of Egyptians to Repeal Verbal Divorce for Married Couples” in which he details evidence from Islamic schools and scholars, and mentions Article 5 of Law No. 100/1985 which states: "the one who is intending to divorce must document the divorce within 30 days of [its proclamation]."
The author said: “Husbands can verbally divorce their wives multiple times and then seek a fatwa (a ruling on a point of Islamic law given by a recognized authority) from al-Azhar advisers. This new bill aims to cancel the chaos of fatwas in the divorce proceedings so that women will not be hostage to the adviser’s opinion and so the legitimacy of her relationship with her husband is not doubted.”
He stressed that Egypt should have prevented verbal divorce directly after the official recognition of marriage in 1931, which guarantees women their rights and enables them to remarry without any difficulties.
Speaking to al-Arabeya newspaper, preacher Mazhar Shahin said there are several cases of women being unable to prove the verbal divorce proceedings and therefore they cannot remarry. “All these women remain in limbo for they are neither married nor divorced and have no right to remarry because no document proves they were divorced,” he said.
The Muslim preacher and TV presenter Khaled Al-Gendy, along with Shahin and Hilali, were the first to provoke the wave of criticism against verbal divorce in 2015 when they complained to court, calling for legislation to annul the practice of verbal divorce. The case will be considered by the court on February 2.
Contrary to this, professor of Comparative Jurisprudence and Islamic law at al-Azhar University, Ahmed Karima, said this bill violates Islamic law as well as the decisions of the Supreme Constitutional Court.
He explained that in Sharia law financial transactions and marriage contracts are originally verbal and documentation of these has only been allowed recently in order to record the information. “The Quran and the prophet's teachings address divorce as a verbal action, the documentation is simply an official paper in the country’s records to preserve the rights of the parties involved,” Karima told Egypt Independent.
Karima added that verbal divorce has been valid since the establishment of the Islamic nation and is agreed by the four Islamic schools and by the majority of Muslim scholars.
He then cited Law No. 1 Article 21, issued in 2000, which states that divorce will not be considered unless it has been certified and documented — essentially cancelling verbal divorce.
Karima pointed out that the Supreme Constitutional Court issued a decree in 2006 stating that the 2000 law is unconsitutional. “According to Egyptian law, no new decree may cancel an older decree issued by the Supreme Constitutional Court, so the upcoming bill would also be unconstitutional,” Karima said.
When Karima asked if the new bill may reduce the divorce rates he said “no, it’s illusion and deception”. He explained that from 2000 until 2006, when verbal divorce was officially suspended, the divorce rate did not decrease.
In 2002, media reports cited Naser al-Barbary, a lawyer in the Personal Status Court, as saying the number of divorce cases jumped from 2,115 in 2000 to more than 8,000 in 2002. CAPMAS said the 2015 figure is the highest divorce rate in two decades. The rate reached 2.2 cases per 1,000 people in 2015, which represents an 83 percent rise compared to the beginning of the period from 1996-2015, according to the agency.
Karima further pointed to a misunderstanding about the difference between the decision to divorce and the proclamation of divorce — the latter could happen if a man divorces his wife verbally while he was angry but then regrets his words. He may seek advice from al-Azhar which can find a way out for him, since divorce in Islam must be based on a firm intention to end the marriage.
According to Quran Surah al-Baqra, verse 226: “Those who forswear their wives must wait for four months. If [in this time] they change their mind then God is all forgiving and all merciful. And if they are determined to divorce then God is all knowing and wise.”
Karima commented: “This bill is an attempt by the country to secularize Islamic provisions and change divorce to a civil procedure like foreign countries."
He suggested that instead Egypt should raise awareness about the consequences of divorce through education, media, and religious institutions, and also to shed light on the "bid'ah" (heresy) of proclaiming divorce several times as some young men threaten their wives with divorce in this way, which may eventually lead to actually divorcing and ripping apart families.
MP Omar Hamroush, member of the parliamentary Religious Committee, told Egypt Independent that they are waiting on the final decision of al-Azhar'a senior scholars and for the bill to be passed on to the parliament.
“The senior scholars are expected to meet next week so we are awaiting their decision so as not to cause a clash between the Egyptian institutions. I’m collecting signatures of parliamentarians for the bill,” Amroush said.