With the Best of Intentions

Divorced Custodian Mothers Negotiating Access to Housing in Egypt

in Journal of Legal Anthropology
Author:
Mennatullah HendawyAin Shams University, Egypt mennatullah.hendawy@eng.asu.edu.eg

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Monika LindbekkPostdoctoral Research Fellow, The University of Southern Denmark, Denmark moli@sam.sdu.dk

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Abstract

This article contributes to a growing literature on the implementation of shariʿa-derived state legislation in Egypt by exploring how differently positioned divorced mothers navigate Egypt's highly gendered personal status codes under circumstances where many men are increasingly unable to discharge their part of the ‘patriarchal bargain’ due to a shortage in affordable housing. We highlight two discrepancies between legislative rules and social practice: The first is the divergence between state law and everyday norms, and the second looks at the limits of implementation and compliance in terms of actions taken by courts and other officials. We consider how and why Muslim personal status law reforms have sought to enhance divorced women's bargaining position in the family where the relevant laws often have unintended, unforeseen and contradictory consequences when it comes to divorced custodian mothers’ access to housing.

In recent decades, Egypt has witnessed several legislative reforms in the area of Muslim personal status law. A growing body of scholarship has investigated the implementation of personal status legislation in Egyptian courts and in everyday life (Ahmed Zaki 2012; Al-Sharmani 2017; Bernard-Maugiron and Dupret 2008; Dupret 2007; Lindbekk 2017, 2020; Sonneveld 2012). However, research on housing and legal studies has largely overlooked how divorced mothers negotiate access to housing, a key factor in post-divorce negotiations. Egypt is facing a shortage of affordable housing. According to Ahmed Abd El-Hameed and colleagues (2017), in 2010 the lack of affordable housing reached around 1.5 million units in Egypt. This was also accompanied by increased housing demand due to the country's large population with relatively low-income levels. A recent study by Yahia Shawkat (2020) reveals that half of the Egyptian population is currently unable to ‘afford a decent home’.1

Here, we consider processes of implementing shariʿa-derived state legislation in Egypt where differently positioned divorced custodian mothers navigate Egypt's highly gendered personal status codes in their negotiation for housing. In doing so, we collaborate as an urban planner and a legal scholar to build on recent scholarship regarding the so-called ‘gap problem’, which, classically, describes the discrepancy between the promises of law, the law's intentions, and its actual effects, the law's impact on social conditions (Banakar 2015; Nafstad 2017; Nelken 1981; Tamanaha 1995). In this research, we investigate the gaps in the Egyptian personal status law regarding the housing of divorced custodian mothers. Scholars have proposed multiple reasons for the existence of such gaps (Banakar 2015). Several studies start from the notion that there are some shortcomings in the state legal system, and they go on to argue that to close the gaps the living law and the law in the books must change so as to correspond with one another (Nafstad 2017). However, Reza Banakar points out that such a solution is problematic since the two sides of the gap constitute different fields with different logics and practices (2015: 54). We depart from the premise that the gap problem can be a beneficial way to illustrate the plurality of rules and social norms guiding divorced custodian mothers’ access to housing and to demonstrate that state law and the state's legal practices and institutions are fragmented and internally inconsistent.

First, we highlight how differently positioned women navigate a range of competing discourses articulated by state legislation, extended kin, neighbours and films. As a result of these processes, many women respondents bargained away their right to the custody house to facilitate the divorce process or ensure better short-term and long-term financial contributions from their former husbands. This bargaining occurs against the background of rampant unemployment and shortages of affordable housing, making many men unable to discharge their duties as providers, something which Deniz Kandiyoti (1988: 137) describes as being part of the ‘patriarchal bargain’. Second, we show that court officials, amongst others, are constrained in their effort to bring about compliance through implementing the law. Such a dual perspective seeks to bring out the nuances in the experiences and social realities of the women at the receiving end of personal status reforms. The discussion delves into how and why, although significant personal status reforms have sought to enhance divorced women's family bargaining position, the laws often have unintended, unforeseen, and contradictory consequences when it comes to divorced custodian mothers’ access to housing.

These issues are contextualised by a brief historical background that places the law in the broader socio-cultural context of the Egyptian legal system. This background further considers those features of the legal system and legislative provisions relevant to the actions of citizens and legal officials analysed in the subsequent section. Significant personal status reforms enacted during the twentieth and twenty-first centuries in the context of state formation offer a background to current practices. At the beginning of the twenty-first century, Egypt witnessed several controversial legislative reforms that challenged male authority in the family by widening women's access to court-ordered marriage dissolution and by granting women increased custody rights. Subsequently, we consider the types of cases lodged before Cairene family courts and how family court judges construe family and marital relationships, before addressing the gap problem's two dimensions. Our discussion draws on our collaborative roles and on our positioned presences in our research.

Note on positionality and methodology

Hendawy's insider positioning was the starting point of this research. She experienced being brought up at her maternal grandparents’ house, as her parents got divorced early on when she was around 2 years old. This is also a familiar story amongst many of her friends and acquaintances, some of whom participated in the study, something which led her to wonder why many divorced women with child custody ceded their right to the custody house even though they were entitled to it according to Article 18 of Law No. 100 from 1985. Hendawy's insider positioning brought a lot of situated knowledge to the research. It also enabled her to interview women respondents about their lived experiences while pondering the (re)construction of gender- and class-based hierarchy. She drew on considerable knowledge and understanding of the context of the research in connection with previous research on the entanglement of class, marriage and real estate in Egypt (Hendawy and Stollmann 2020). She then opted to collaborate with Lindbekk to explore the issue of the connection between housing shortage and divorce in Egypt from a socio-legal and urban lens. As a Norwegian scholar who grew up in Norway, Lindbekk could be readily seen as an outsider. Yet, recent scholarship (Dwyer and Buckle 2009) has argued that the role of the researcher is better conceptualised on a continuum rather than as an either/or dichotomy. Lindbekk lived in Egypt for many years and immersed herself in Muslim personal status law adjudicated by contemporary Egyptian family courts. This article draws on her long-term research.

Our research approaches included a review of documents, amongst these 47 court judgements, from five Cairene family courts. This was supplemented by data from semi-structured interviews with divorced mothers who have custody rights: twenty-four interviews were conducted, including two surveys. Additionally, we conducted interviews with lawyers and women's rights organisations. Further, parliamentary debates surrounding divorced mothers’ access to housing were analysed to stay abreast of legal and political developments. The parliamentary debates showed that the issue of the custody house was a highly controversial one.

Egyptian personal status law

The nineteenth century witnessed the emergence of a modern state bureaucracy in Egypt in the context of extensive contact with French legal and political thought and institutions of higher learning. Legal rationalisation and codification involved a rethinking and reconfiguring of key Islamic symbols and interpretations by Islamic reformers to better accommodate the needs of modern state-building. As argued by Léon Buskens (2014), ‘the dichotomy between Westernization and local reception is misleading. Muslim scholars, civil servants, and politicians were active participants … in transforming sharia’. Today, most Muslim-majority countries have codified family laws (sometimes called ‘personal status laws’) to a greater or lesser extent. Whether they are scattered pieces of legislation or integrated codes, these laws stipulate matters relating to marriage, divorce and filiation. Most of these legislative texts claim to be the codified translations of the provisions of one of the many Islamic doctrinal schools (madhhab, pl. madhhab). However, they often combine these provisions through the technique of ‘pragmatic eclecticism’ (Ibrahim 2015). With this, Muslim marriage and divorce law became positivised. Codification of Muslim personal status law began with the promulgation of the Ottoman Law of Family Rights in 1917. This Ottoman law formed a precedent, first in Egypt in the 1920s and then, after the Second World War, in the newly independent states that emerged in Asia, Africa and the Middle East.

In Egypt, the process of codification extended to family law with the adoption of a series of legislative enactments starting in the 1920s. Substantive personal status law reforms were issued again in 1985 and 2000. The personal status codes put in place by the Egyptian state in the early twentieth century aimed at safeguarding ‘a purified shariʿa’ by disciplining citizens into forming modern nuclear families, which it conceived of as the fundamental social unit (Asad 1992; Hasso 2010, 2014; Kholoussy 2010). This marked a contrast to classical Islamic jurisprudence, which privileged the cohesiveness of the extended patrilineal kin group over the nuclear conjugal family in such areas as marital property and inheritance. Kenneth Cuno emphasises that this conception of the nuclear family as the basic social unit grew out of the global circulation of discourses that included nineteenth-century French social thought (Cuno 2015: 160; see also Stowasser and Aboul-Magd 2004). The new family ideal, consisting of a two-parent household, also had implications beyond the private sphere in state-sponsored programmes aimed at achieving national progress. By strengthening the nuclear family (‘usra) over extended kin relations (aʿila), the codes facilitated social engineering projects by decreasing the powers of the senior men of extended families. This reflected the intrinsic competition in loyalty between the extended kin and the nation-state (see Charrad 2001; Dahlgren and Lindbekk 2020; and Hasso 2010).

Being informed by a notion of the nuclear family as the cornerstone of society and marriage and a bond between two individuals, the law codes depart from notions of family and gender in classical Islamic jurisprudence. The implications of codification regarding women's rights were paradoxical and contradictory. By way of example, Muslim family law faithfully adheres to traditional constructs of masculinity and femininity, obliging the husband to provide for his wife in exchange for her obedience (ta'a). Another token of Muslim family law's hybrid and paradoxical nature is that the current personal status codes tend to re-affirm male domination even as they limit the traditional male prerogatives of repudiation and polygamy. This tendency is also evident in the legislation that protects women's rights by setting a minimum age of marriage, widening women's access to the court-ordered dissolution of marriage, and granting women increased rights to custody (Bernard-Maugiron and Dupret 2008; Cuno 2015; Lindbekk 2020; Sonneveld 2012). When there are gaps in legislation, personal status law refers judges to the predominant opinion of the Hanafi school.2 In 1955, the system of shariʿa courts was abolished, with family law applied in the civil courts of the nationally unified legal system. French-style hierarchical courts were introduced to ensure that judges applied the codified laws consistently. These courts were staffed by judges trained in Western-style law schools (Dupret et al. 2019). This tendency to valorise the nuclear family has been further consolidated by the creation of specialised state-run family courts tasked with adjudicating family issues3 and a family insurance fund run by Bank Nasr4 in 2004.

Family law reform is a contentious issue because of the intimate connection between Muslim family legislation and Islamic law. Furthermore, the rushed and top-down nature of the reform process, which failed to consider the reservations of various non-governmental organisations (NGOs), has resulted in gaps and contradictions (see Al-Sharmani 2017). Yet, from 2000 to 2005, a series of significant reforms was passed, all of which challenged male authority in the family. Arguably the most significant of these reforms was Article 20 of Law No. 1 from 2000, widely known as the ‘Khul‘. This legislative provision provided women with the right to judicial divorce to renounce their outstanding financial rights, restore the prompt dower to their husbands, and go through court-ordered reconciliation.

The custody house in Egyptian personal status law

The Khul‘ Law served as a springboard for other legal reforms that challenged fundamental aspects of male authority in the family. In the years that followed, children became the focus of much state intervention. In the early twentieth century, nationalist discourse extolled the mother as the primary parental authority. In the field of personal status law, however, matters were different and bore a close resemblance to Hanafi jurisprudence. In terms of parental authority, the husband, as head of the household, was accorded the right and duty to the guardianship of his children. This meant that he should supervise the children in financial affairs (wilayat al-mal) and matters such as school choice (wilayat al-tarbiyya. In these reforms, custody (wilayat al-hadana), meaning the day-to-day care of children, remained the right and duty of mothers (Article 20 of Law No. 25 of 1929). Hanan Kholoussy indeed notes that judges in the shariʿa courts in early twentieth-century Egypt consistently gave fathers the primary responsibility for raising children (2010: 102). She also notes that, under the influence of nationalist discourse, judges in the early decades of the twentieth century began to extend the custody rights of divorced women. This development would gain momentum towards the end of the twentieth century and reach its apex in the early 2000s. In 1985, custody rights were amended by Law No. 100, requiring boys to stay with their mothers until the age of 10 and girls until 12. The judge was empowered to extend the boy's custody until he reached 15 and the girl until she married (Article 18). Later, in 2005, a law provided that in the event of divorce (and death) children would stay with their mother until the age of 15 (Article 1 of Law No. 4 of 2005), while a 2008 amendment gave the mother educational guardianship over her children (see Sonneveld and Lindbekk 2015).5

Simultaneously, an increasing body of scholarship concerns how the masculine ideal of men as providers does not fit the reality of men's social practices (Hasso 2014; Lindbekk 2020; Sonneveld 2012; al-Sharman 2017). The relevance of this issue was evinced by arguments voiced in Parliament concerning another significant but less studied provision enacted in 1985. Article 18 bis 3 of Law No. 100 from 1985 requires that a divorcing husband provide appropriate accommodation to his former wife and their children for the duration of the period of custody. The divorcing husband's duty to provide housing for his minor children and their female custodian is an extension of his duties as breadwinner. According to Article 18 bis 1 of Law No. 100 from 1985, the father must provide for his minor children according to his means. The same principle applies when the parents are divorced, and the children are in the mother's custody. In addition, a divorced mother with custody of minor children may be awarded the conjugal home by the court unless her former husband provides another appropriate dwelling. If the conjugal home is not rented, the divorcing husband is entitled to live in it if he offers suitable accommodation until custody of the children ends, or the mother loses her right to child custody. Upon termination of the period of custody, the divorcing husband is entitled to return to the [former conjugal] house together with his children. In popular discourse, the law became widely known as the ‘Apartment Law’ (Qanun al-Shaqqa). A movie entitled The Apartment Is the Wife's Right was released the same year as the law – that is, in 1985.

This legislative provision elicited considerable controversy in Parliament. Some MPs used Parliament as a platform to address what they believed to be the underlying reasons for family disputes, namely unemployment and a crushing housing crisis. The draft law's supporters argued that it would enable divorced custodian mothers and their children to have adequate housing during the period of custody and thus also protect the family. Meanwhile, the detractors of the provision argued that the condition was unjust to financially disadvantaged men who were already hard-pressed to provide decent housing.6 According to Rania Salem (2015), the conjugal house represents around 40 per cent of the total marriage costs in Egypt, the most significant component, with some parents investing in the future conjugal house while their sons are still young (see Eum 2004). The strong entanglement between marriage and real estate is reflected in the visual culture of Egypt's urban planning. Real estate advertisements often use the marriage theme to attract buyers across different societal segments (Hendawy and Stollmann 2020). According to Shawkat (2020), Egypt has been in the grip of a housing crisis for almost eight decades. He estimates that half of Egypt's 100 million people cannot afford adequate housing, although housing production had outstripped population growth by the 1970s. He attributes this to a combination of several factors, including rural–urban migration, neo-liberal deregulation, crony capitalism and neglectful planning. As a result, Egypt is witnessing an increase in vacant residential units (see Al-Masry Al-Youm 2017; and Shawkat 2019).

In and out of court bargaining

Having traced the development of Egyptian personal status codes and showing the housing context within which they operate, we now proceed to examine the legal literacy of women and how they experience the legal process in their access to housing in the event of being custodians after divorce. Until 2004, decisions from the Family Chamber could be appealed before the Court of Appeal, with the final remedy lying with the Court of Cassation in accordance with the civil law court system (Lindbekk 2020). From 2004 onwards, however, family court decisions could no longer be appealed before the Court of Cassation. The aim behind the court reform was to provide litigants with a more accessible and efficient justice system, a goal supported by international donors (Al-Sharmani 2017; Hegel-Cantarella 2012). Family courts emerge as important institutional sites of power with discretion over personal and familial matters. This is a point that is reinforced by the fact that Egyptians from all class backgrounds frequently resort to courts to claim their rights regarding personal status matters, which range from establishing marriage, paternal filiation and alimony to divorce, child custody and visitation. Hence, court personnel and other legal professionals play an important role in defining religious sensibilities proper to the family.7

Women often frequent family courts, earning them the epithet ‘women's courts’ (Lindbekk Forthcoming). Most cases are brought by women against men who fail to discharge their duty of providing for their wives and children as dictated by classical Islamic law and modern personal status codes. Maintenance includes food, clothing, and lodging, including a conjugal house. At no point does the former wife (or other female custody-holder) obtain a share of or legal title to it. Instead, it is viewed as the exclusive property of the husband both in marriage and divorce (see Deif 2004). The divorcing husband's duty to provide accommodation for his minor children and their female custodian is an extension of his duties as breadwinner. According to Article 18 bis 1 of Law No. 100 from 1985, the father must provide for his minor children according to his means. The same principle applies when the parents are divorced and the children are in the mother's custody. In addition, we have seen that the court may award a divorced mother with custody of minor children the conjugal home unless her former husband provides another appropriate dwelling.

By petitioning for maintenance, female litigants contribute to what Judith Tucker calls a process of legal gendering by naturalising and reproducing gendered positions (2007: 9), or what Kandiyoti described as a ‘patriarchal bargain’ (1988: 275), where men provide shelter and other material goods in exchange for wifely obedience. The phrase ‘bargaining with patriarchy’ has been criticised for suggesting a simple bartering of power and personhood for material security and protection in a world where these are essential for survival. Such an approach is problematic, since it limits women's agency and restricts their ability to manoeuvre within existing material circumstances and established gender norms. As mentioned above, several scholars have drawn attention to the increased dissociation of Muslim men from classical gendered ideas of authority where men are obligated to provide, and women obey (Al-Sharmani 2017; Hasso 2014; Sonneveld and Lindbekk 2015). These changes initially mostly affected people in the lower socio-economic strata, but gradually they started affecting larger segments of the population (Abdalla 2014). As shown above, the relevance of this issue was also manifested by arguments voiced in Parliament concerning Article 18 bis 3 of Law No. 100 from 1985, which requires that a divorcing husband provide appropriate accommodation to his former wife and their children for the duration of the period of custody. In addition, many women work outside the house and contribute to the costs of marriage (Al-Sharmani 2017; Sonneveld and Lindbekk 2015). Furthermore, considerable attention in scholarship on ‘bargaining with patriarchy’ has been devoted to the conjugal dyad of husband and wife (Jackson 2007: 124–126). A focus on conjugal bargaining also neglects the significance of gendered bargaining with others within and beyond the extended kin group during and after marriage (Kawarazuka et al. 2019), a matter we return to in the subsequent discussion concerning the two dimensions of the discrepancy between law and social practice.

The second-largest category of cases were cases of judicial divorce, the majority of which were constituted by judicial divorce through khul‘. After the 2000 Khul’ Law went into effect, a brief rise in judicial divorce reflecting a pent-up demand was predictable before it stabilised in 2002. From 2008 to 2018, the number of female-initiated judicial divorces rose significantly. We are inclined to attribute this significant increase in petitions for judicial divorce to critical legislative reforms that followed in the wake of the Khul’ Law and to the more expedited handling of divorce cases by Egypt's family courts (see Lindbekk 2020).

After divorce, female litigants raise claims in family courts to validate a range of rights, including custody, maintenance for their children, custody house access, school fees and educational guardianship. Disputes regarding child custody make up a significant bulk of the family courts’ caseload. Egyptian legislation is marked by a strong validation of motherhood based on naturalised assumptions of gender where the mother is believed to be emotionally closer to her children than their father. While Egyptian personal status legislation awards custody to the mother in the aftermath of divorce and gives her the right to stay in the custody house, she loses this right as well as the custody house as soon as she remarries, according to the prevailing opinion of the Hanafi school.

As we stated above, the modern era law codes represent a departure from notions of marriage and family in classical Islamic jurisprudence. State legislators have focused on protecting the integrity of the nuclear family as the fundamental unit of society at the expense of other sorts of kinship bonds. An exception to this trend has to do with the rules governing custody and, by extension, access to the custody house. As testimony to the continued collective responsibility of extended family members for each other, custody over children is not limited to the child's parents but extends to the whole extended family. If the mother cannot perform her duty as custody-holder, the right passes to the person who is next in line for custody. It is established by Egyptian case law that if a mother is deemed unfit to have custody the child's female relatives should supervise the child, since he or she is believed to need women's naturally compassionate care until the age of 15 (Lindbekk 2017). According to Article 20 of Law No. 25 of 1929 as amended by Law No. 100 of 1985, in cases where the mother is deceased or loses custody over the child the maternal grandmother is awarded custody, followed in line by the paternal grandmother, then full sisters, then half-sisters, and so on. This list of female custodians is identical to the dominant order of the Hanafı school, where these female relatives had priority over the father and other male relatives during the tender years. Once the child has passed the legal age, or if there are no women in the family, custody passes on to the father and male agnates from the father's family following the rules of inheritance, and then to males from the mother's family.8 In recent years, many cases have been filed by fathers requesting court-ordered visitation, especially upon failure by the mother or other female custody-holder to grant them the right to see their children and develop an emotional bond with them.

Meanwhile, maintenance remains the man's primary obligation.Maintenance cases are part of the standard practices of the courts and are taken seriously by judges. Similarly, an analysis of a sample of judgements from three family courts from 2014 to 2015 reveals that forty-four of forty-seven cases concerning the custody house were adjudicated in the female custodian's favour. In a case from a low-income area where the husband sought to prevail upon the court that his wife had been divorced judicially by way of khul‘ and therefore should relinquish all her rights, the family court iterated that the defendant had no right to take away access to the custody house. Hence, the court responded to the female plaintiff's claims and awarded her the custody house.9 Notwithstanding the sympathetic attitude of most family court judges to requests for access to the custody residence and their awarding of a fee in cases where it was rented, many women relinquish this right for reasons we return to below.

Law No. 1 of 2000 and Law No. 10 of 2004 on the establishment of family courts aimed to facilitate the handling of personal status law disputes and help resolve conflicts amicably. Notwithstanding attempts to streamline court practice, bringing a case before a family court is often laborious and time-consuming due to complex bureaucratic procedures and substantive requirements (Al-Sharmani 2017; Bernard-Maugiron and Dupret 2008). According to NGOs working in the area of personal status, family courts are still witnessing many pending cases because of gaps in legislation and problems with enforcement. Many cases were delayed even further due to the social and political turmoil between the resignation of former president Hosni Mubarak in February 2011 and the forced removal of his successor Muhammad Morsi in July 2013. Partly out of disaffection with the promises of litigation, many cases brought before family courts end in reconciliation, especially in rural areas (Aboul-Magd 2018). Our analysis of court records and interviews with lawyers indicates that a large percentage of cases filed before the family courts are resolved through mediation. This appears to be the result of reconciliation attempts at the hands of family members, lawyers and other actors – which run in parallel with court proceedings – rather than the result of the court's work. Contracts of agreement are often registered at the family court for notarial purposes. Courts encourage such contracts if they do not contravene public order. While there is considerable interaction and interpenetration of state and society in Egypt, it is difficult to gauge with any certitude the extent to which people are knowledgeable about the various provisions of the personal status codes and apply them to their lives. Our research suggests that the personal status laws are often ineffective because many Egyptians are unaware of their provisions and circumvent, undermine or subvert them for other reasons, which we return to in the following sections.

Another reason for the gap can be that citizens disagree with the personal status codes. Although women's rights activists have campaigned for personal status law reform since the 1980s, the former president's wife, Suzanne Mubarak, has been alternatively credited with or blamed for the promulgation of significant twenty-first-century legislative reforms due to the pivotal role she played in having them passed, despite intense discussions in Parliament. Following the 2011 uprising, Muslim family law emerged as an area of public controversy, with old and new actors and institutions competing over the right to interpret shariʿa authoritatively.

The discrepancy between official legislation and societal norms

Here, we consider further the discrepancy between declared legal rules, legal norms, and the social norms and regulations adhered to in society. First, case studies have brought out that female litigants have positioned themselves within a range of competing discourses articulated by kin, friends and neighbours, as well as films, such as the movie titled The Apartment Is the Right of the Wife, and state institutions. Hence, many women in this study mentioned to us that they resorted to giving up their custody rights, as they would not be able to live alone in Egypt anyway on account of social stigma, parental and neighbour pressure, as well as financial cost. In Egypt, young adults start living independently when married, as marriage is the only socially accepted context for residential independence (Assaad and Barsoum 2009; Hoodfar 1997; Rugh 1984; Salem 2016). As a result of marriage being cast as the only socially accepted context for residential independence, several divorced custodian mothers mentioned that they gave up their right to the custody house as they felt obliged to move back in with their parents, as in the following example. In one case study, a 33-year-old woman notes her experience. She had an amicable divorce in 2011 after four years of marriage:

I did not know much about the rules governing marriage and divorce, since I am illiterate. Still, I learnt through a movie called Al-shaqqa men haqq zawga (The Apartment Is the Wife's Right) that the wife has the right to the apartment in the event of divorce if she has children. After my husband repudiated me, I returned to live with my parents. However, they were not pleased to receive me back since they were poor and provided for another daughter as well. … I took up cleaning jobs and moved to an independent apartment consisting of a single room. However, my ex-husband entered it and beat me up. My parents then made me marry an old man, since they believed this was preferable to living alone.

Divergent understandings of the sometimes highly technical personal status codes were held amongst the respondents. Many of the women in these case studies evinced an uneven and shifting sense of legal literacy. Gradually, respondents illustrated that they came to experience ‘law as a game’ (see Silbey 2005: 339). This involves a bracketing of everyday life: different rules apply; different statuses and roles operate; different responses count. However, it is bracketing that can be abandoned if need be. The litigants and their lawyers wait, manoeuvre and bargain strategically within the framework of gender-differentiated rights as they pursue interests and values. The ‘rules of the legal game’ also include those required to achieve victory over the letter of the law. For example, litigants and their lawyers sometimes engage in tactical manoeuvres such as using fraudulent witnesses and colluding with corruptible court clerks to conveniently lose papers, fail to deliver them to the correct address, or change names in essential documents. Crucially, many people who threaten or even initiate litigation have no intention or hope of going to trial. Instead, much litigation is often commenced precisely to avoid trial and end a dispute informally, preferably with a favourable outcome. Thus, avoiding litigation can be a significant victory for either party or for both parties. Conversely, winning in court can often be costly with regard to money, time and personal pain, and the remedies afforded by legal victories are often not implemented. Our respondents revealed they that often bargained away their right to the custody house to facilitate the divorce process or ensure better short- and long-term financial contributions from the husband amidst a shortage of affordable housing. In this context, the statements by two of our female respondents are worthy of consideration. The first respondent divorced amicably in 2020. She was 33 years old when she contributed to this research. She has been married for four years and has one child:

Of course, I asked him [former husband] for the payment for the custody house with the alimony for my daughter. Yet, he decided to pay a minimal amount as child alimony and said that I could go to court if I did not like it. He said this because he lives outside Egypt and will not be affected if there is a court decision. Therefore, we had to accept the bargain.

The second respondent was 34 years old at the time of the interview and had divorced amicably in 2016 after six years of marriage. She has one child:

When I was getting a divorced, I went to a lawyer who said: ‘Take whatever he gives you’. He is a lawyer and my father's friend, and continued: ‘You are like my daughter, and I am telling you, what you will agree on a friendly basis is 100 times better than what we will take in court’. The papers are forged, and it is difficult to determine his real income because they get a frauded paper.

These and other similar stories highlight the strategies used by men and women to use, circumvent and counteract the highly gendered divorce and custody legislation to their advantage. These views show the challenges faced by women when seeking to obtain a divorce and ensuing economic rights such as the custody house. Similarly, another respondent mentioned that she had to accept taking a small amount in housing alimony instead of the custody house to win minimum rights for her children while avoiding a lengthy court process, especially because her divorced husband lives abroad. Further, another woman stated that she relinquished her right to the custody house to ensure the future payment of school fees for her children.

Another set of concerns pertained to the issue of remarriage: many feared losing custody of their children. Court records reveal that the most successful argument invoked by fathers and female relatives to drop the mother's right to custody was her marriage to a stranger, as we mentioned above. As further testimony to the continued importance of the extended family in current personal status law, a stranger is defined as someone who is not a relative (mahram) of the child. The rationale behind this definition is that relatives are believed to have a close relationship with and feelings of love for the child even before the marriage takes place (Lindbekk Forthcoming). These rules and conditions put several respondents under pressure to remarry by way of a customary marriage (zawaj ‘urfi) for fear of losing custody of their children. Customary marriage is a form of marriage that is not officially registered with the state. Although there are no exact data on how widespread undocumented marriage is, a considerable amount of scholarship has focused on the diverse motivations and implications of marriages (i.e. a notable lack of judicial remedy) conducted outside the state system, particularly in Egypt but also in other countries such as Indonesia, Jordan, Morocco, Syria and the UAE (Bedner and Van Huis 2010; Engelcke 2019; Hasso 2010; Sonneveld 2012). However, state legislation does not challenge the validity of a marriage contract when not registered by a notary. It leaves women married by way of customary marriage in legal limbo, since no rights arise from such marriages other than paternal filiation (nasab), and the right to judicial divorce can be enforced through courts. In light of this situation, two women respondents engaged in an informal marriage for fear of losing custody. Meanwhile, three other respondents did not see a need to circumvent the law through informal marriage since the child would, in any case, remain with her extended kin. One of our respondents (38 years old), who got divorced in 2017 and has one child, made the following point:

The custody (of children) will not be lost if I remarry. What happens is that the custody goes to my mother and after her, my sisters and then his sisters, so it takes too long before he [the former husband] can receive custody.

The data also indicate that the law is inscribed in a social hierarchy of a different order than gender, with high-income litigants with adequate representation being accorded more legal protection than women from modest social backgrounds, who often lack adequate legal representation and have a more limited range of formal and informal choices. This point underscored the multidimensionality of oppression experienced by women in navigating the gendered personal status law. Kimberlé Crenshaw argues for an approach known as ‘intersectionality’ (1989: 137) and maintains that women are oppressed not only by their sex but also by their race and other factors such as class, rather than by the more narrowly defined ‘patriarchal bargain’. Although the data revealed that all women respondents faced similar oppression in terms of access to divorce and custody, including access to the custody house, a woman's social position and economic leverage influenced her ability to negotiate with her former husband and his extended family kin. For instance, one respondent (34 years old) could not afford to file a lawsuit for judicial khul‘ and persuaded her husband to repudiate her in exchange for relinquishing all her rights, including the right to a custody house. She had been divorced amicably in 2010, after four years of marriage, and has one child. She elaborated:

I didn't request any alimony for housing as a bargain to get my divorce negotiated. I also did not want to resort to the official legal system, keeping my daughter's future and wellbeing in mind. If I involved the court, she [the daughter] will be notified via court letters and even her relationship with her father will be affected as a result of my issues with him. My father insisted that we should file lawsuit in the family court to harm my ex-husband and demand our rights, yet I chose to resolve things with peaceful communication till the end [for the sake of my daughter].

In addition to trauma and bad memories associated with the former conjugal house (now the custody house), the social stigma associated with being a divorcée in some neighbourhoods prevented several respondents from residing in the custody house. A recurring theme was that, upon returning to the conjugal house (now custody house), they faced challenges from local community members. These challenges are illustrated by the following statement of a 39-year-old respondent who was divorced in 2010 after four years of marriage, and who has one child:

I now face a challenge with landlords (also female landlords) when they know that I am divorced and that I will be living alone with my daughters; they start interfering in my life, like asking what my work is? Can we visit you (without respect for my privacy), etc.?

These challenges vary according to areas with different socio-economic statuses, as two respondents from middle-class and upper-class areas did not experience such difficulties. Thus, we glimpse how social hierarchies are constituted and reinstituted based on gender and class in these and similar narratives. These findings correspond with the findings of Lindbekk (Forthcoming), who found that, in addition to the social hierarchies of gender and class, religion (status as a Christian vs. status as a Muslim), a low degree of education or illiteracy, and advanced age are factors that (alone or intersecting) can negatively impact women's access to justice.

The limits of implementation and compliance in terms of courts and other officials

Here, we turn to the distinction between state law and its implementation. Frances Hasso (2014) argues that economic considerations are crucial to what she terms a ‘devil's bargain’ between states and women in their intimate lives, with states, often at the behest of regular women or their advocates, deploying their services in extractive and protective roles while reinforcing fundamentally conservative family forms. While, on the one hand, the family courts uphold the classical gender model, they attempt to remedy the discrepancy between the formal letter of the law and social practice. As mentioned above, judges take maintenance and custody house cases seriously in the five family courts that we analysed. Overall, the custody house was rented, not owned, by the husband or his family. In cases where the custody house was rented, the rent meted out by the courts differed according to class and social status in keeping with social hierarchy based on class. However, similar to a trend in alimony cases (Lindbekk Forthcoming), the average monthly custody house fees were quite low; the average amount meted out in all study areas was 250 Egyptian pounds (equivalent to 15 US dollars), the lowest sum being 80 Egyptian pounds and the highest 1,000 Egyptian pounds (equivalent to 63 US dollars). If a wife or former wife is unable to pressure the husband to pay maintenance amicably, she can use a ruling of maintenance rights to call for assistance from the state through two courses of action.

The first option is to request a monthly payment from Bank Nasr. Article 72 of Law No. 1 from 2000 instructs Bank Nasr to pay court-ordered judgements of maintenance and rent for the custody house from the husband to his wife, ex-wife and children. Yet, although payments from Bank Nasr are supposed to compensate for the lack of a breadwinner, they do not enable women and their children to maintain the standard of living they are accustomed to unless the alimony is equivalent to 500 Egyptian pounds or less. Thus, while courts are sympathetic to petitions by female litigants, such intervention is done in a piecemeal and unequal manner. One reason for the gap, as touched upon above, is that the living law is constantly evolving, while the law in the books is conservative and changes slowly. Further, precedence ties up judges and judgements, making it difficult to catch up with changes in society, making the former unreliable agents of social change.

The second option is to call upon the coercive authority of the state, since non-compliance with the duty to provide may result in a jail sentence of thirty days according to Article 76 of Law No. 1 of 2000. While the law affirms the right of wives and former wives to call upon the coercive powers of the state, the lawyers we interviewed criticised the family courts for having weak enforcement powers.10 According to these respondents, judgements of imprisonment for the non-provision of maintenance (including the custody house) are not consistently implemented by the courts and other state officials. This brings us to an important point of the gap problem: social practices on the one hand and legal practices and institutions on the other are fragmented, disconnected and internally inconsistent (Banakar 2015: 54). Aware of this issue, several respondents, especially those from modest backgrounds, expressed disbelief that a ruling granting them the custody house could be upheld against non-compliance and be backed by the threat of state coercion. Indeed, some of the narratives revealed that, despite obtaining a court ruling granting them access to the custody house, these women faced threats made by their ex-husbands to harm the children, and received counsel from their mothers to ‘choose’ not to live in the custody house. In the words of a woman who was divorced in 2016 after five years of marriage and who has one child:

Theoretically speaking, the law favours women, or let me rephrase it, the law sides with the female custodian, especially when the children are below 15. However, when you take legal action, there are many ‘gaps’ in implementation, and it is very [easy] for the men to argue that they have no income and escape their responsibilities.

Together, these accounts conveyed a picture of state law, which, despite seeming omnipotent in appearance and in its coercive capacity, remains distant from the mundane affairs of Egyptian citizens. Other authorities such as religious charities, NGOs and extended kin step in when the state fails to provide. This leads us to another critical issue: bargaining, which, in this area, extends beyond the husband and wife and includes relations with the extended family.

Although the idea of the couple-centred nuclear family is increasingly widespread amongst Egypt's middle- and upper-class families and the urban poor, the extended family continues to exert influence in many areas of the country, including urban areas. As testimony to the continued collective responsibility of extended family members for each other is the fact that although the urban upper and middle classes no longer reside in joint family households, related families tend to prefer to live in adjacent or nearby apartments, often within the same building they own (Cuno 2008: 208). Although the 1985 law is known as the ‘Apartment Law’ in popular discourse, it is noteworthy that Article 18 of Law No. 100 from 1985 does not use the word ‘apartment’ (shaqqa) or ‘building’ (manzil) but ‘house’ (maskan). According to the drafters of the 1985 law, the conjugal house could potentially constitute a room or two in an apartment or house that the extended family occupies. Therefore, the notion of the conjugal house (maskan zawjiya) does not necessarily entail an entire house or apartment, but the space occupied by the nuclear family unit (wife, husband, child) amongst the husband's extended kin.11 Therefore, the potential bride's parents often require the groom to own the conjugal house, refusing to grant their consent to the marriage if the conjugal house is rented or belongs to his extended kin. The following extract from a 34-year-old divorcée who was divorced in 2020 after four years of marriage and has one child illustrates how the presence or absence of a marital/custody house is central in negotiations leading up to marriage and divorce in a context of a housing shortage: ‘The groom brought a copy of his apartment's contract in his first proposal visit to my parents and me’. Further, a woman (31 years old) who was divorced by way of judicial khul‘ in 2019 after three years of marriage and has one child provided the following account when asked about the nature of the conjugal house:

My dad insisted that the contract of the conjugal house had to be written in the name of the groom, not his father. However, the groom and his parents made a fictitious contract, and we discovered during the process of divorce that the contract was not registered [with the state].

These contradictions between the formal letter of the law and social practice have also resulted in tensions and efforts to develop legal ways to remedy the situation. In recent years, women's rights NGOs and other participants in the public debate suggested casting marital relational commitments as shared by proposing joint custody and shared assets in the event of divorce as a way of moving away from the gender-differentiated roles imposed by custody law in Egypt.12 These normative shifts must be seen in the light of the above-discussed renegotiation of gender relations. Other interlocutors in these settings suggested to us that the mother should retain custody in the event of her marriage, arguing that this is in the best interest of mother and child (NWRO 2018). Yet other interlocutors suggested that the rushed and top-down nature of personal status reform, which failed to consider the reservations of various NGOs, have resulted in gaps and contradictions.13 This was thrown into relief in February 2021, when Egypt's House of Representatives referred a new personal status bill to the Constitutional and Legislative Affairs Committee for review. The new bill would create one unified personal status law for Muslims. The draft of the bill was published in the newspaper Youm7 but was shortly brought down from the website after it caused instant controversy; the cabinet version of the bill duplicated existing personal status legislation in many ways. It remains to be seen whether the Egyptian Parliament will pursue bold departures from classical Islamic thought and previous political compromises. A detailed discussion of ongoing reform efforts falls outside the scope of this article. Yet, while it is impossible to see which route personal status reform will take in the future, our discussion has indicated that for the time being the dynamics of family law reform and especially the top-down and rushed way in which shariʿa is being redefined have not significantly changed matters of the ground since the first personal status code was enacted in 1920.

Conclusion

During recent decades, Egypt has witnessed several controversial legislative reforms that challenged male authority in the family by widening women's access to the court-ordered dissolution of marriage and granting mothers increased custody rights. This article examined the implementation of a legislative reform that sought to benefit divorced custodian mothers and their children by obliging a man to provide adequate housing for his minor children and their female custodian after divorce. In practice, these efforts were not always effective. We approached two dimensions of the discrepancy between law and social practice in terms of everyday practices and differing approaches between state law and legal institutions. Notwithstanding the sympathetic attitude of most family court judges to requests for access to the custody house, many women relinquish this right. The accounts highlighted that the women respondents positioned themselves within a range of competing discourses articulated by extended kin, neighbours, movies and state legislation. Generally, women displayed a shifting sense of legal literacy, becoming more aware of the laws’ constraints and possibilities. They came to view the law as ‘a game’ where they bargained away their right to the custody house to facilitate the divorce process or ensure better long-term financial contributions from their former husbands. The case studies also revealed how a woman's social position and economic leverage influenced her ability to claim her rights under the personal status codes. These negotiations took place amidst rampant unemployment and a shortage of affordable housing, making many men unable to discharge their duties as providers. Thus, although significant personal status reforms have sought to protect children and enhance divorced women's bargaining position in the family, the laws often have unintended, unforeseen, and contradictory consequences when it comes to divorced custodian mothers’ access to housing.

Acknowledgements

Parts of the research on which this article is based were funded by the CanCode Project at the University of Bergen. We want to thank Geoffrey Hughes and Bruce Whitehouse and the series editor for their invaluable comments on earlier drafts of this article. We also would like to thank all those who supported the development of the previous version of this article, which we used to develop this study.

Notes

1

For more information on the housing demand in Egypt, see Tadamun (2017).

2

Article 3 of Law No. 1 from 2000. The Hanafi school is one of the four main classical Sunni schools of Islamic jurisprudence.

3

Law No. 10 from 2004.

4

Law No. 11 from 2004.

5

For a fuller discussion, see Sonneveld (2012) and Lindbekk (2017).

6

Parliamentary debate on Article 18 of Law No. 100 from 1985.

7

See also Moussa (2011).

8

For more, see Esposito (2001: 35–36).

9

Case No. 287, 21 May 2015, Family Court E.

10

Interviews with women rights’ lawyers on 1 July 2021 and 15 August 2019.

11

Parliamentary debate on Article 18 of Law No. 100 from 1985.

12

Webinar on personal status law convened by the Centre for Egyptian Women Legal Assistance, 23 June 2021. See also Sonneveld and Lindbekk (2015).

13

Interviews with women's rights lawyers, 1 July 2021 and 15 August 2019.

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Contributor Notes

Mennatullah Hendawy is an Interdisciplinary Urban Planner working on the intersection of cities and technology towards equity and sustainability. She is affiliated with the department of urban planning and design, Ain Shams University in Cairo. Additionally, she is leading the research team at Impact Circles Berlin. E-mail: mennatullah.hendawy@eng.asu.edu.eg

Monika Lindbekk works as a Postdoctoral Research Fellow at the University of Southern Denmark in the Department of Law. A common thread running through her research is the focus on religion, gender and law in Muslim-minority and Muslim-majority contexts. E-mail: moli@sam.sdu.dk

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  • Abdalla, M. (2014), ‘Masculinity on shifting grounds: Emasculation and the rise of the Islamist political scene in post-Mubarak Egypt’, in H. Rizzo (ed.), Masculinities in Egypt and the Arab World: Historical, Literary, and Social Science Perspectives (Cairo: American University in Cairo Press), 5373.

    • Search Google Scholar
    • Export Citation
  • Abd El-Hameed, A., Y. Mansour and A. A. Faggal (2017), ‘Challenges and issues for affordable housing in Egypt: A review’, Engineering Research Journal, October. https://www.researchgate.net/publication/320183965_Challenges_and_Issues_for_Affordable_Housing_in_Egypt_A_Review.

    • Search Google Scholar
    • Export Citation
  • Aboul-Magd, A. (2018), Qira'at fi ihsayiyat qadayya al-ahwal al-shakhsiyya [Translation: Readings of legal statistics concerning personal sttaus] (Cairo: CEWLA).

    • Search Google Scholar
    • Export Citation
  • Ahmed Zaki, H. (2012), Law as a Tool for Empowering Women within Marital Relations: A Case Study of Paternity Lawsuits in Egypt (Cairo: American University in Cairo Press).

    • Search Google Scholar
    • Export Citation
  • Al-Masry Al-Youm (2017), ‘Total number of vacant housing units in Egypt 12.8 mn: CAPMAS’, Egypt Independent, 2 October. https://egyptindependent.com/total-number-vacant-housing-units-egypt-12-8-mn-capmas/.

    • Search Google Scholar
    • Export Citation
  • Al-Sharmani, M. (2017), Gender Justice and Legal Reform in Egypt: Negotiating Muslim Family Law (Cairo: American University in Cairo Press).

    • Search Google Scholar
    • Export Citation
  • Asad, .T (1992), ‘Conscripts of Western civilization’, in C. Gailey (ed.), Dialectical Anthropology: Essays in Honour of Stanley Diamond, Vol. 1: Civilization in Crisis (Gainesville: University Press of Florida), 333351.

    • Search Google Scholar
    • Export Citation
  • Assaad, R. and G. Barsoum (2009), ‘Opportunities for Egypt's youth’, in N. Dhillon and T. Yousef (eds), Generation in Waiting: The Unfulfilled Promise of Young People in the Middle East (Washington, DC: Brookings Institution Press).

    • Search Google Scholar
    • Export Citation
  • Banakar, R. (2015), Normativity in Legal Sociology: Methodological Reflections on Law and Regulation in Late Modernity (London: Springer).

    • Search Google Scholar
    • Export Citation
  • Bedner, A. and S. van Huis (2010), ‘Plurality of marriage law and marriage registration for Muslims in Indonesia: A plea for pragmatism’, Utrecht Law Review 6, no. 2: 175190. doi:10.18352/ulr.130.

    • Search Google Scholar
    • Export Citation
  • Bernard-Maugiron, N. and B. Dupret (2008), ‘Breaking up the family: Divorce in Egyptian Law and Practice’, Hawwa 6: 5274. https://halshs.archives-ouvertes.fr/halshs-00339503/document.

    • Search Google Scholar
    • Export Citation
  • Buskens, L.. (2014), ‘Sharia and the colonial state’, in P. Bearman and R. Peters (eds), The Ashgate Research Companion to Islamic Law (Farnham, UK: Ashgate), 209221.

    • Search Google Scholar
    • Export Citation
  • Crenshaw, K. (1989), ‘Demarginalizing the intersection of race and sex: A Black feminist critique of antidiscrimination doctrine, feminist theory and antiracist policies’, University of Chicago Legal Forum 1: 139167. http://chicagounbound.uchicago.edu/uclf/vol1989/iss1/8.

    • Search Google Scholar
    • Export Citation
  • Charrad, M. (2001), States and Women's Rights: The Making of Postcolonial Tunisia, Algeria and Morocco (Berkeley: University of California Press).

    • Search Google Scholar
    • Export Citation
  • Cuno, K.. (2008), ‘Divorce and the fate of the family in modern Egypt’, in K. Yount and H. Rashad (eds), Family in the Middle East: Ideational Change in Egypt, Iran, and Tunisia (New York: Routledge), 196216.

    • Search Google Scholar
    • Export Citation
  • Cuno, K. (2015), Modernizing Marriage: Family, Ideology, and Law in Nineteenth- and Early Twentieth-Century Egypt (Syracuse, NY: Syracuse University Press).

    • Search Google Scholar
    • Export Citation
  • Dahlgren, S. and M. Lindbekk (2020), ‘Introduction’, Hawwa 18, no. 2–3: 117142. doi:10.1163/15692086-12341374.

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