By Ishak Ibrahim – TIMEP
Recently in a rare ruling, an Egyptian court, in a case brought by a Christian woman demanding the equal distribution of inheritance between herself and her male siblings, ruled that Christians should be subjected to their own inheritance norms instead of Islamic Law.
This ruling has revived the debate on the need for a new personal status law for Christians. Many voices from inside and outside the church have demanded changing the current law, because it has created thousands of Christian families that have waited many years to obtain licenses for divorces and a new marriages. In addition to added stress for families, these difficulties can lead to or prolong issues including spousal abuse and other potential crimes between married couples.
The debate over this law has become even more important, now that this ruling has become the first test for the interpretation of Article 3 of Egypt’s Constitution, which stipulates that “the principles of the laws of Egyptian Christians and Jews are the main source of laws regulating their personal status, religious affairs, and selection of spiritual leaders.”
The interpretation of Article 3 in the courts will help define the nature of the relationship between Christian citizens and the state vis-à-vis their religious rights, as well as their relationship with the church, and the latter’s relationship with the state. Some questions are raised here: How will the interpretation of Article 3 affect the passing of a new personal status law? Will religious institutions monopolize the process of developing and passing a personal status law through the state’s institutions without serious societal dialogue among their congregations? Will Copts at large have the opportunity to participate in serious discussions surrounding the law’s articles and have their recommendations considered when the law is passed?
Laws and regulations codifying personal status tend to govern procedures for engagement, marriage, divorce, and inheritance. In Egypt, Christian marriage is currently contracted based on a religious system that requires certain conditions to be met. The most important of these is that marriage should be carried out between two persons within the same sect in accordance with religious rituals; marriages that do not meet these qualifications are considered void. There is no civil marriage in Egypt.
Divorce is carried out through Family Court in accordance with the different regulations specific to each Christian sect. In case of different religions or denominations, the provisions of Sharia are applied.
When it comes to inheritance, an heir’s agreement is theoretically required for Christian families to carry out equal distribution between males and females. However, over the years, official institutions have applied Islamic Law directly, even if heirs demand the distribution of inheritance according with Christian law.
A previous shift in personal status laws
Until 1971, the conditions applied by the Coptic Orthodox Church to accept divorce and subsequent second marriage licenses were much easier. Regulation 1938 listed nine accepted justifications for divorce including adultery, marital abandonment, and the imprisonment of one of the spouses (for a period lasting at least seven years). However, divorce became more difficult under Pope Shenouda III, who changed these conditions so that the only situations in which divorce was recognized were in cases of adultery. Such a strict change affected thousands of Egyptian Christians that fell into the following groups:
- Those wanting to obtain divorces from courts and were unable to do so because of the new stricter requirements.
- Those seeking licenses for second marriages from the church, which refused on the pretext of not recognizing their divorces, or because the applicant was deemed the guilty party (in the case of adultery).
In 2010, the crisis of divorce and second marriage licenses escalated, both politically and in media, after the issuance of rulings by the Administrative Court obliging the Coptic Orthodox Church to grant second marriage licenses to Christians, which the church rejected.
To protest against the reaction of the church, a number of movements and coalitions were established, among them Copts 38, Victims of Personal Status, and Right to Life. These movements had only one demand: facilitating the procedures of marriage and divorce. Members of these movements used certain mechanisms to pressure the church through the courts, organized conferences and workshops, and disseminated testimony of suffering of some Christian families. These groups also held several vigils and protests in front of the Ministry of Justice and inside Saint Mark’s Cathedral in Cairo.
After the death of Pope Shenouda III in 2012, the new leaders of the church tried to provide partial relief by expediting and decentralizing the process of considering the granting of second marriage licenses. However, there are still thousands of cases that have failed to obtain divorce judgments or divorce from civil courts. The Coptic Church’s Ecclesiastical Council refused to grant second marriage licenses for other cases without acknowledging the grounds for divorce.
Responsibility of State Institutions
State institutions have avoided responsibility and put the ball in the church’s court when it comes to personal status laws. Before 2010, the state ignored persistent demands from the Egyptian churches and Copts to establish a personal status law, which the churches had collectively presented in draft form in 1978. Decades later, when the church rejected the Administrative Court ruling that mandated it grant second marriage licenses, the Ministry of Justice formed a committee to review the draft personal status law. However, it was never issued and state institutions maintained the status quo.
After the drafting of the Constitution, which included Article 3 as mentioned earlier, the Ministry of Transitional Justice—before its dissolution—prepared a unified draft law on the personal status of Christians and sent it to the various churches for feedback in November 2014. The draft law included the legal parameters for divorce and included a chapter on civil marriage among Christians, the acceptable grounds for divorce, and the rights of spouses and children. However, various Egyptian churches ultimately refused the concept of the civil marriage. As a result, the Ministry of Justice withdrew its draft law and left the matter to the churches that formed a committee to formulate a different personal status law.
Church officials’ statements confirm that the Coptic Orthodox and Evangelical Churches have agreed upon a draft law but are awaiting the final response from Egypt’s Catholic Church, which is awaiting the review of the Vatican. The draft law includes articles confirming the binding nature of contracts and stipulating that the application of such agreements is mandatory, even in the case of conversion to another sect. This is intended to, once and for all, close the door on the application the Sharia in the case of any Christian marriage. Additionally, the law includes certain grounds for divorce, including spousal absence for a period of five years if there are children and three years if there are none.
The Coptic Orthodox Church also proposed a broader definition for adultery, expanding it to include its committal through electronic messages, phone calls, and absence from home. If this proposal is added to the draft law by the churches, the church will completely change the concept of adultery. The ways to prove it will be different from those stated in the Penal Code. If applied, it may contribute to significant social problems between spouses and have significant implications for the right to privacy and the right to equality among Egyptians.
The church has faced another internal debate concerning inheritance as included in the draft personal status law, which establishes Christian parameters rather than Sharia, the most important facet being equal distribution between men and women. The issuance of the recent judicial judgment increases the likelihood of the inclusion of this chapter.
Thus far, issues concerning marriage and divorce in Egypt have been treated as a purely religious issues outside of state control. Alternative approaches, such as civil marriages, have been rejected by the churches, which argue that such a concept contravenes the teachings of Christianity. Therefore, any steps taken to solve the problems surrounding marriage and divorce have remained at the mercy of the judgement of Christian clergy, without any real changes to its approach in dealing with the root causes of such problems.
Here, questions around the role of the state emerge. Will it be able to preserve the rights of its citizens, or will it take the side of the religious leaders’ vision? The state’s submission of the draft personal status law to parliament without presenting it for community discussion reinforces the belief that the state deals with Christian citizens as subjects who are addressed through their religious institutions. Despite the importance of the opinions and roles of church leaders, they cannot be a substitute for those held by citizens whom the law affects; all of this cannot occur at the expense of the state’s responsibility to guarantee the rights of its citizens.
Photo Credit: Saint Mark’s Cathedral in al-Abbaseya, Cairo. (Photo by Roland Unger, Wikimedia Commons)