The Egyptian Women between the Hammer of the Personal Status Code and the Anvil of the Divorce Problems

(Cairo, December 8th, 2016) Daily newspapers have published that two sub-committees in the Parliament; The Constitutional and Legislative Affairs Committee and The Social Solidarity Committee are currently discussing the draft law for the amendment of the Personal Status Code (No. 25/ 1929) issued by Law (No 100/ 1985) submitted by one of the female parliamentarians. The draft law gives the non-custodial party the right to host his/her child for a day or two per week in his / her house in addition to a month from the annual school holiday. The custody of the child will be withdrawn from the mother in case of her marriage, and transferred to the father after his declaring his commitment to take care of his/her child either by his new wife or any female member in his family.

ECWR believes that this law that concerns millions on families and children in Egypt has been discussed without conducting a community dialogue and without consulting the specialized bodies/ experts. This comes in addition to the right that this draft law grants to the non-custodial party to host the child without providing any legal guarantees against kidnapping the child. Also the punishment prescribed by the law in the case of kidnapping the child is considered insignificant penalty for a significant crime.

The current Personal Status Code has many flaws that have to be amended so as to achieve the children’s best interest. With this regard, ECWR has worked on a draft law for the Personal Status Code helping to achieve a balance between the rights of the two parties involved in the marriage and the interests of the child. Divorce is one of the significant issues addressed by ECWR’s draft law. According to ECWR draft law divorce should be only conducted by the judge in order to:

  • Advice the husband to think carefully before filing divorce as the divorce decision has it own complicated implications as well
  • Combine all the cases filed in relevance to the divorce of the two parties, including the children custody case under the supervision of one judge.
  • In case of insisting on the divorce decision, the husband should deposit a certain amount of money in the court to be at the disposal of the wife to manage her family financial needs. The divorce should not be approved before depositing this amount. In the case of the husband can’t afford paying this amount, Bank Nasser should step in and pay it to the wife and the husband should repay this amount to the bank with zero interest over the period of finalizing the divorce proceedings.
  • The responsibility of proving the financial capacity of the husband should be a burden on the law itself and not the wife, unlike the case with the current law. Investigating the husband’s income through the police station opens the door for manipulations, therefore to the request for investigating the husband’s income should be one of the responsibilities of the Family Court judge who can officially address the following bodies: the husband’s workplace, banks, (the central bank) similar to the right granted to the Tax Authority, and for the financial movements to be tracked over the period of 6 months to be aware of action aiming at causing harm to the other party, business records, and the Administration of Real State for Publicity & Notarization to prove the acquisition of properties.

For children:

  • The responsibility has to be shared between the mother and the father.
  • The Guardianship hierarchy should be modified to start with the father then the mother.
  • The custody should be modified to start with the mother then the father

The reasons of these requested amendments are to protect children from the intransigence or arbitrariness of one of the parties, and protect them from abduction, and any decision relevant to the interest of the children’s’ medical care, traveling, education, and investment for them their money is a shared responsibility between the father and mother. In case any dispute or conflict between the two parties or the intransigence of any of the two parties, the final decision of the judge should serve the best interest of the child

Nehad Abul Komsan, ECWR’s chairwoman, emphasizes that the Personal Status Code is more comprehensive than just seeing the children and the custody and therefore it is not reasonable for the Code to only discuss only the self and monetary guardianship.

The self and monetary guardianship law deals with the mother as a stranger to the child as her sequence in the monetary guardianship of the children, comes after the father, the grandfather, and the uncle.  This means that in the case of divorce, the mother cannot provide an approval for a surgery that could save the life of the child without the consent of the father, and if the two parties are not in good terms, the child may die as a result of the intransigence of the father.

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