CAIRO — Egypt is witnessing a debate these days following a jurisprudential dispute between the Egyptian government and Al-Azhar over the issue of notarizing divorce.
Egyptian legal experts and clerics say that the government's insistence on passing the "Divorce Documentation" law reflects an attempt to impose President Abdel Fattah al-Sisi's vision "even in matters that contradict Sharia and the constitution and silence every voice that contradicts it," while others believe that "the issue is nothing more than an attempt to protect the Egyptian family."
Although the Council of Senior Religious Scholars rejected the idea of disregarding oral divorce, put forward by Sisi in 2017, and asserted that it was contrary to consensus, the Egyptian president recently confirmed that the government continues to work on approving the documentation of divorce "even if this matter will anger some."
Egypt has already witnessed controversy because the Council of Senior Scholars, headed by the Sheikh of Al-Azhar, Dr. Ahmed Al-Tayeb, confronted the idea that Sisi continues to push the government and parliament to legalize, on the grounds that it stems from his concern for the safety and stability of the family and the interests of children.
During the Egyptian Women's Day celebration, Sisi said that the government was drafting the law to be presented to parliament "because it is a realistic necessity to remove what is more harmful," but also indicated that the draft law will be subject to societal dialogue to ensure that it is prepared objectively and balanced.
Very important words you will hear from President Sisi about documenting the divorce #TeNTV pic.twitter.com/Y4RnyHYBeF
— TeN TV (@TeNTVEG) March 20, 2023
Al-Azhar did not respond
When the controversy arose regarding the non-occurrence of oral divorce, the origin of the dispute was that it was an idea contrary to what was settled by the consensus of scholars, but rather what was in force during the era of the Holy Prophet, may God bless him and grant him peace, as the Council of Senior Scholars explained in its statement at the time.
No official position was issued by the commission after Sisi's recent statement on working to complete the law, but it confirmed in the past that it had finally settled on the occurrence of oral divorce by consensus of all sects, and said that all official figures on which the president relies are originally documented cases and not verbal.
The importance of "divorce characterization"
Dr. Hamada Shaaban, a faculty member at Al-Azhar University, said that determining the legal position of this law is up to the Council of Senior Scholars, being authorized to deal with these matters, but he saw - in his interview with Al Jazeera Net - that the matter from the government's point of view may involve an attempt to solve some family problems.
Shaaban believed that the characterization of divorce is very important, because oral divorce without documentation prevents women from marrying and makes them hostage to proving that they are divorced, in addition to other issues related to the man's right to return them during the period of 'iddah, or their right to marry another, which may sometimes lead them to the law.
He pointed out that the modern era requires documenting everything in order to preserve rights and the family, considering that the talk of the Grand Mufti of the country about receiving about 300,<> questions about the occurrence of divorce confirms that uttering the word is often unintentional or serious desire at the time.
Grand Mufti Shawki Allam revealed that Dar al-Ifta has received 300,<> fatwa requests on divorce cases in the last five years, of which only two cases have been decided, calling for the need to document the divorce.
Egyptian president says the government continues to work on approving divorce documentation "even if this will anger some" (French)
Codifying what the president wants
Lawyer specializing in family issues Mohamed Salah said that the whole thing "is due to the government's desire to legalize what the president wants, even if it is contrary to Sharia," adding – in an interview with Al Jazeera Net – that "the lack of documentation of divorce does not mean that it does not occur, and the origin of these matters to be the last word of Al-Azhar."
This law "will open the door to manipulating the legitimacy of married life, because God, who legislated oral divorce, is more aware of the family's interest than the president of the country, who insists on clashing with Sharia for incomprehensible reasons", Salah said.
"Even challenging the law before the Constitutional Court will not be accepted, because the court has often approved what the president wanted and rejected what he rejected, while the issue will remain legitimate in the first place and its reference is supposed to be Al-Azhar," he said.
Salah asked: "What is the attitude of the wife whose husband divorced her without documentation and wants to ask her to the marital bed? Where is her right to assert that he has no right to touch her, in compliance with Sharia if the law treats her as his wife?"
The lawyer concluded that "the issuance of the law in its final form will settle the debate about whether it violates Sharia or not, because it may address the concerns raised by current conversations about the form of the law."
The Sheikh of Al-Azhar is the target
On the other hand, Dr. Mohamed Saghir, a member of the Board of Trustees of the International Union of Muslim Scholars and advisor to the former Minister of Awqaf, said that "breaking the Sheikh of Al-Azhar is the basis of the government's commitment to passing this law, which is equivalent to what Tunisian President Habib Bourguiba did when he banned fasting in order to increase production in 1962."
He added small – in his speech to Al Jazeera Net – that "Sisi is trying to show that he renewed in everything, and rejects the idea that addresses Al-Azhar to see put forward is, so it is specifically about his desire to break the thorn of Dr. Ahmed Tayeb, who does not tweet against the president, but he also does not tweet with him, especially when it comes to true religion."
Al-Saghir said that the law will lead to countless problems, especially with regard to the legality of cohabitation between spouses after the divorce has been cured without documentation, as well as with regard to inheritance, which is a well-established legal issue, and it is known that divorce takes the husband and wife out of the heirs in one word.
Supporters of the bill argue that divorce without documentation prevents women from marrying and makes them hostage to proving that they are divorced (Shutterstock)
President-sponsored law
The Egyptian government has been preparing a family code that includes, inter alia, the establishment of a family welfare fund and an insurance policy to support it financially in the event of a dispute between husband and wife. The government says the new law will replace six old laws.
A member of the Constitutional and Legislative Affairs Committee of the Egyptian House of Representatives, Ihab Ramzy, told CNN that the aim of the new personal status law is to achieve a balance in the relationship between men and women, reduce divorce cases by documenting it, and disregard oral divorce, stressing that it is in line with Islamic law.
The committee tasked with drafting the new law added a clause related to documenting a divorce, similar to marriage documentation, in response to the president's request, which exempts the wife from any arrangements resulting from the divorce before officially informing her of it.
In February 2021, the government withdrew the draft family law because the Sheikh of Al-Azhar addressed many of its articles, especially with regard to the organization of engagement, the marriage contract and its effects and provisions, divorce, alimony, and custody.
Egypt's constitution states that Islamic law is the main source of legislation, and grants Al-Azhar the right to oversee all aspects of legislation as the primary reference for religious sciences and Islamic affairs in Egypt and the world.