Underage divorcees let down by the law in Egypt

Aya Ihab

Sahar, who is one of five siblings, three brothers and one sister, had not reached the age of fourteen yet, when she moved out of her father’s house to her husband’s in 2013. It was not a change for the better. Her father is a day laborer, her mother a housekeeper. Sahar’s sister encountered the same fate.

The fruit of that cruel and undocumented marriage was a new born baby. Sahar relinquished her rights to her husband, whom she later discovered was a drug addict and a difficult person to live with, for the sake of having custody of her daughter. She was officially divorced after six years of marriage, yet, she could not sue her ex-husband, as she was under 21 years old, the minimum age for filing a lawsuit according to Egyptian law.

“My husband refused to recognise the marriage unless I waived my rights, and so I did.” Sahar recalls her last days before her divorce back in 2019, out of which she did not obtain any of her rights as stipulated in the law.

Sahar’s divorce reflects a crisis faced by thousands of girls who get divorced before the legal age of marriage, which is 18. In the latest statistics, which is collected every ten years, the number of these girls reached 1042 out of 110982 divorced men and women in Egypt, according to the latest data published by the Central Agency for Public Mobilization and Statistics in 2017.

This investigation documented 9 cases of underage girls from 5 different governorates in Egypt who got divorced without receiving their due entitlement, not even the right to access the health service.

Legal Flaws

Article 17 of Law No. 1 of 2000, of the Personal Status Law:

Legal claims arising from marriage contracts shall not be accepted if the wife is below the age of sixteen, or if the husband is below the age of eighteen at the time the lawsuit is filed. Claims shall not be accepted if the existence of such marriage is denied by one of the parties, unless there is documentary evidence of the marriage. Nevertheless, cases for divorce and annulment shall be accepted if the marriage is proven in writing.

Reda El-Danbouki, Executive Director of the Women’s Center for Guidance and Legal Awareness (WCGLA), a non-governmental organization working on promoting women’s rights speaks of complication related to the above article of the law. In his words the under age married girl is usually incapable of proving her un-documented marriage, as such marriages are considered illegal. So she resorts to making a legal claim to legitimise her marriage first.

Such a claim though is not easy to obtain, according to El-Danbouki, as the woman will need a confirmation from the husband through a statement made to the court, or a validation document by the marriage officer (commonly known as ‘Al-Maazoun’) who concluded the marriage. In the event that the husband denies the marriage, the court may deem it unlawful, especially if the underage wife does not present a marriage validation contract. The registration of such contract before the legal age is a violation according to Article 227 of the Penal Code.

The complications of getting an under age marriage acknowledged leads the victim to demand a divorce from the court regardless, according to El-Danbouki.

In the eyes of the law, a divorced woman who was underage upon marriage is treated like the divorced woman who entered into a customary form of marriage.

In accordance with Article 17 of the Personal Status Law. The woman is granted the right to file for divorce, and if she decides to get a divorce, she would be deprived of her rights, such as maintenance (Nafaqa), maintenance during the waiting period (Idda) and consolatory gift (Mut’ah), (which are forms of compensation for the pain that afflicted the woman as a result of the divorce).

Article 227 of the Penal Code:

A penalty of up to 2 years in prison, or a fine of no more than three hundred Egyptian pounds is the punishment for anyone who declares erroneously that someone reached the legal age to marry, or writes or submits to the court papers to that effect, once the marriage contract is concluded on the basis of these statements or papers. Imprisonment or a fine not exceeding 500 Egyptian pounds awaits anyone vested with the authority to conclude marriage contracts, who conclude such marriages, while knowing that one of its parties has not reached the legal age as set in the law.

Michael Raouf, lawyer at El Nadeem Center Against Violence and Torture, explains that girls resort to divorce through reaching a settlment with their husbands, due to the complications of marriage validation. He criticizes the Parliament for not fulfilling its role adequately in handling personal status issues.

Nahla Eldaba, Chairwoman of ‘Sabiyya’ Association for Women and Children, an organization dedicated to supporting women and children, explains that despite the criminalization of underage marriage documentation, according to the Penal Code, there must be a legislative mechanism to ensure that a divorced woman obtains her rights.

Eldaba suggests activating the role of household dispute resolution bureaus, or making settlements through offices of the National Council for Women. She also emphasizes the need to amend Article 17 in order to guarantee the rights of a divorced underage woman.

Settlement offices:

Settlement bureaus are offices that operate under the umbrella of the Ministry of Justice, established according to the Family Court’s Act no.10, in 2004. It’s key objective is to amicably resolve family disputes rather than resort to the courts.

The Obstacle of the Marriage Registrar or ‘Al-MAazoun’

Sahar completed her divorce after she gave up on the litigation procedures and decided to waive all her rights for the sake of the husband’s recognition and registration of the marriage, and then the recognition of her newborn.

She also waived her right of obtaining a ‘nafaqa’ of 500 Egyptian pounds (approximately $32) for her child per month, out of fear that her husband might take her child.

In a shaky voice, Sahar recalls, “My ex-husband was a drug addict and a difficult person. He told me he would let me keep the child, provided he does not pay me a single dime. Despite my objection, my daughter is in contact with him up until now, for I did not want to deprive her of a father, although she started to have nightmares and has developed a bad temper”.

The marriage registrar or ‘Al-Maazoun’ was the main obstacle facing the girl from Giza when she tried to validate her marriage, as she explains, “I did not know where he was based in Al- Sharqiya province in Egypt.. He was also related to my husband, which made it difficult for him to take my side and help me in obtaining papers or completing the registration process. That’s when I gave up on trying to claim my right.”

The penal code considers marriage registrar known as ‘Al-Maazoun’ a culprit for issuing the marriage contract of an underage person.

Michael Raouf, lawyer at El Nadeem against Violence and Torture, indicates that the contradiction between Article 17 of the Personal Status Law and Article 227 of the Penal Code regarding the underage marriage registration, is a legal defect that needs addressed.

Raouf says with regards to the legal text not being implemented: “This is what I have noted in a case I filed before the Alexandria Criminal Court concerning a married underage girl. We submitted the customary marriage contract, yet neither the marriage registrar or ‘Al-Maazoun’ nor the parents were punished.”

He adds that the law does not prevent underage marriage, and in some cases this result in a divorce that causes women to lose (all) their rights.

Disappointing parents:

Another issue that divorced girls are exposed to is the legal liability of parents for their marriage, which makes parents hesitate about providing the required legal support for their daughters.

Sahar talks about an issue she has faced, where the lawyer asked her to appoint her father as her legal representative since she was below the age of 21 when the litigation procedures began. “It was hard for me to go to another governorate to get all the legal requirements. My father only followed up on the case when he showed up to complete the power of attorney procedures. Then, we appointed a lawyer to complete the procedures and my father left the rest for me to to.”

Sahar’s mother believes that she and her husband were responsible for the fate of their daughter.

“It was not easy enough to delay the marriage as we were poor. They could have remained married, but she was the one who insisted on getting a divorce.”

Sahar’s lawyer, Esraa Ayman, says that most parents appear only to sign the power of attorney, then they disappear, and the girl carries on with the rest of the procedures alone.

Esraa believes that the requirement to assign a parent as legal representative complicates the legal status of girls whose parents have died or refrain from attending the procedures with them, so they are forced to wait longer until they reach the age of 21 to start litigation procedures on their own.

The death of the father was the main obstacle for Laila, who was also married while a young girl, and had to file for divorce without any support from her family to validate her marriage.

Laila recalls, “After my father’s death, no one from my family helped me. In addition to the lack of financial support, my father’s death led to the delay in getting the case’s papers, other official documents, and the issuance of a birth certificate that prove the existence of the child.”

Leila hopes only to find an affordable lawyer. Despite this, the twenty-year-old girl has not lost hope in regaining her right, saying in a defiant tone: “I have resorted to a civil society organization to support me in order to go through the litigation procedures.”

Nahla ElDaba, founder of the ‘Sabiyya’ Center, which followed Leila’s case, indicates that the center has already contacted several lawyers to help Leila, but the inability to obtain some papers keep delaying the settlement of her case.

Laila’s family refused to communicate with the Center or with the investigator to comment on their role in her underage marriage and divorce.

Based on a study that included 42 cases of underage marriages, May Jammal, a project coordinator at Tadwein Gender Studies Center, explains that “there are no civil society institutions that take care of and or follow up on those girls, especially after their divorce, they provide neither financial nor psychological support, except in some cases they make available a lawyer to help.”

We asked the ‘National Council for Women’ about its role in addressing the phenomenon of divorce of underage girls, but the Media Office responded that it did not have data on this matter at that moment.

Children of victims:

Souad, who lives in the Fayoum governorate, tasted the bitterness of marriage before reaching the legal age, like her mother and older sister. Today, she is a mother of a child trying hard to prove his parentage, but before that, she has to validate her marriage, which lasted a year with an unofficial divorce.

Souad was preoccupied with feeding her infant when we met her, leaving her mother to explain her situation, “The husband got all the household possessions and the gold, and she was beaten by him. The husband did not pay any money to support the child so far, he has been asking her to relinquish custody in return for supporting the baby”

Souad’s mother justifies her consent to the underage marriage by claiming that “this age of marriage in our village is not unusual,” adding, “I only recently learned that I had caused her trouble as it was difficult to get her rights after she was divorced.”

Souad’s lawyer, Ahmed Abdullah, explains that she is in a good legal position. She is in possession of all the necessary documents to validate her marriage, she can get a divorce and prove the child’s parentage. He notes that, “the real problem now lies in the delay in litigation procedures, which affects the child as he has no access to health cover since the baby is not yet officially registered”.

According to Souad’s mother, the child got the appropriate vaccinations in an informal way, but his mother failed to get her baby registered and get him issued with a birth certificate as that requires the presence of the father. The investigator has found this to be a common problem in many other similar cases.

The National Council for Childhood and Motherhood has refused to answer our questions on how it was handling this problem.

Despite that, the Children’s Act stipulate how to register a child whose father decline to recognise him, ensuring the new born baby’s right to be registered even if they were the result of officially undocumented marriages on condition that the child would bare his mother’s name. But this law has not been applied.

Article 15 of the Child Law:

The mother shall have the right to report the birth of her new born, and register him or her at the birth registry, and apply for a birth certificate in which her name as mother is recorded. This birth certificate is to be used only as a proof of the birth and for no other purposes.

Hani Helal, Secretary General of the Egyptian Coalition for Children’s Rights, an independent entity whose membership so far includes 126 private associations representing 22 Egyptian governorates, points out that the new born child could be legally registered by the mother, but the health bureaus are not instructed to use this as proof of official registration granting the child access to health care, which leave this legal article inactive.

The Secretary General of the Egyptian Coalition for Children's Rights adds that, in 2009, he raised this matter with the Minister of Family and Population, Moushira Khattab, in order for her to ask the Minister of Health and Justice to issue direct instructions to health bureaus to accept and apply this article, which she did at the time but no follow up or change happened since.

This investigation has recorded the inability to register new born children in the different governorates unless the father/husband of under age married girls is present.

The Secretary General of the Egyptian Coalition for Children’s Rights also states that the major crisis lies in the lack of specialized judges for children matters issues, similar to those in other Arab countries’ courts, such as Jordan, Yemen, Sudan, Algeria, and Morocco.

Nonetheless, according to Souad’s lawyer, the registration of her child depends on her marriage validation, which should precede requesting her divorce. Sahar though was not willing to take this path until her husband recognizes the new born, even if it meant that she has to waive all her legal rights that are guaranteed by law.

* Cases of divorced women were published under pseudonyms based upon their request.