Women and personal status laws.. What heritage tells us about Islamic jurisprudence

History has always been a rich source for examining events from past eras and understanding the diverse interactions between political, economic, social, and religious contexts. Thus, relying solely on the writings of scholars wouldn't suffice if we wished to explore Islamic heritage concerning marriage, divorce, and more. Rather, we must also seek insights in practical customs and the lived experiences of people.

These introductory insights stem from Huda Al-Saadi, a faculty member at the Department of Arab and Islamic Civilization within the American University in Cairo. She brings to light the richness embedded in Islamic history, emphasizing that rulings regarding marriage and divorce were not exclusively extracted from jurisprudential texts but rather emerged through the interactions with an array of societal dynamics. This discourse is an excerpt from her chapter in the recently published book titled "Justice and Beauty in Muslim Marriage: Towards Egalitarian Ethics and Laws", published by Kotob Khan publishing.

She raises the questions: "What do the marriage customs practiced by Muslims reveal about the nature of the jurisprudential heritage? And what insights can these customs provide into the measures taken by women and the agency they wielded in navigating the realms of marriage and family life?"

When Jurisprudence responds to reality

Al-Saadi undertakes a journey through Egypt's historical marriage customs spanning from the 7th to the 16th century CE. Her exploration draws from a treasure trove of collected fatwas, waqf (endowment) documents, pre-Islamic marriage contracts in Egypt, court records, and more.

She highlights the flexibility and adaptability evident in Islamic heritage, particularly in the context of rules and perspective. She illustrates this flexibility by delving into the topic of the division of the mahr (dower) into immediate and deferred portions (more commonly known as muqaddam and mu'akhar), a common feature across all Islamic marriage contracts in Egypt during that era, not exclusive to Muslim marriages.

It's a well-established fact that Imam Malik bin Anas opposed the division of the mahr, considering it a bid'ah (an innovation that has no roots in religion) for it lacked mention in the Quran or Hadith. Nevertheless, the Maliki jurists in Egypt, led by Al-Layth ibn Sa'd, diverged from the practices of Medinah, opting to champion the idea of dividing the mahr into immediate and deferred portions, more commonly known as prompt mahr (muqaddam) and promised mahr (mu'akhar). This was an attempt to adapt to local customs, as deferring a part of the mahr was a common practice in Egyptian society over the years.

Moreover, Al-Saadi explains that the inclusion of conditions in marriage contracts in Egypt was commonplace, such as stipulating that they reside near the wife's family, the husband's abstinence from alcohol, or stipulating the woman's right to a divorce for any wife the husband might take or the sale of any slave girl he might purchase.

She states, "Despite the existence of patriarchal standards, the Islamic legal heritage was based on mechanisms and procedures that empowered women to assert their rights and engage in negotiations concerning matters of marriage and divorce in ways that guarantee them a more equitable approach, underscoring that this heritage was characterized by dynamism, flexibility, diversity, pluralism, and adaptability.."

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This flexibility evident in the past, however, has dissipated in contemporary times. Fatima Hafez, a scholar specializing in legal history and Sharia, laments that the insistence on adhering to a single school of thought and opinion has eroded the flexibility and diversity that once defined jurisprudence. This has subjected all women to a monolithic legal framework, disregarding nuances and distinctions.

Hafez cites an illustrative instance from the Hanafi school, which prohibits a woman from divorcing her absent husband unless he reaches the age of 90 or his demise is confirmed by his peers. In contrast, the Maliki school exhibits flexibility, allowing the dissolution of a marriage between a man and his wife after a year of his absence, provided that the wife is suffering.

She recounts a historical episode from Egypt during the late Ottoman period, involving the Rashid court. A woman approached the judge, lamenting her husband's prolonged absence and her need for financial support. The judge granted her the right to divorce her husband with a single pronouncement (talq), which she could employ if he returned wealthy.

Hence, it has become possible for this woman to opt for divorce, granting her the chance to marry someone else and secure her legal and financial rights. Furthermore, she retains the option to return to her first husband under her specified conditions (that he returns in a prosperous state), if she hasn't remarried or if she remarries and subsequently gets divorced.

Several paths for reform

Undoubtedly, current family laws still reflect patriarchal interpretations, making them incongruent with principles of equality between individuals. The concepts of "qawama" (male authority) and "wilaya" (guardianship) remain prominent points underpinning male authority in the law, both historically and in the present. As a result, achieving change is challenging and can only be realized through efforts at multiple levels and via parallel avenues. But how?

Three authors endeavor to answer this question in another chapter of the same mentioned book. Lynn Welchman, a professor of law at the School of Oriental and African Studies at the University of London, Zohra Jaiet, a professor of Islamic and comparative religious studies at Manouba University in Tunisia, and Marwa Sharaf El-Din, an Egyptian academic and activist with a doctoral degree in law from the University of Oxford, propose three methods for achieving change: substantive changes in the laws themselves, procedural or administrative reform, and the adoption of laws outside the realm of family laws but relevant to family practices, such as violence against women.

"Islamic legal heritage was based on mechanisms that empowered women to assert their rights and negotiate matters of marriage and divorce in ways that guarantee them more equal arrangements, which reveals that this heritage was flexible, pluralistic and diverse”

As an example of the first approach, the authors present reforms that have already been implemented. These include the comprehensive reforms achieved in the Moroccan Family Code in 2004, which introduced concepts of equality between spouses, altered the provisions related to child marriage by raising the legal marriage age to 18 for both girls and boys, and granted legal adults the right to conclude marriage contracts without a guardian. Additionally, they cite the Egyptian Khul' law passed in 2000, which allowed women to initiate a divorce, and the reforms that mandate gender equality in inheritance in a draft law proposed by the President of Tunisia in 2018 and approved by the government, awaiting parliamentary approval.

These reforms in Morocco, Egypt, and Tunisia illustrate that substantial changes in family laws, aimed at achieving gender equality, can be realized by adopting a combination of strategies that blend religious, social, economic, historical, and legal considerations, involving all relevant stakeholders.

Solutions or a back door to problems?

The second method of changing family laws involves procedural and institutional steps, including the requirements for marriage registration and notifications (such as notifying the fiancée if the prospective groom is already married to others).

Sahar Ali, the Director of Women's Programs at the Egyptian Center for Women's Rights, prefers to work through the paths of substantive and procedural changes. She explains to Raseef22 that in the first path, existing laws may contain provisions that offer protection for women. However, these provisions often lack effective mechanisms and procedures for optimal implementation. This situation is evident in laws criminalizing female genital mutilation (FGM) and laws against sexual harassment. Many women find it challenging to prosecute offenders due to procedural complexities, the burden of proof, as well as cultural and traditional barriers that deter victims from reporting such crimes.

"The reforms achieved in Morocco, Egypt, and Tunisia indicate that significant changes in family laws, with the aim of achieving gender equality, are attainable."

This perspective is in alignment with Mariam Al-Ruwaih, the founder and director of the Excellence Consultancy Center for Development in Bahrain. She explains to Raseef22 that efforts on these two aforementioned paths have led to the issuance of a domestic violence protection law in Bahrain in 2015. The women's movement is actively working to introduce amendments to address issues not covered by the law, such as specifying penalties for perpetrators and including threats of harm as a form of violence punishable by law. Furthermore, the Bahraini women's movement successfully lobbied in 2023 for the repeal of Article 353 of the Bahraini Penal Code, which had previously exempted rapists from punishment if they subsequently married the victim.

Regarding the situation in Jordan, Amal Haddadin, a legal advisor to the National Committee for Women's Affairs in Jordan, tells Raseef22 that Jordanian law incorporates several measures to prevent manipulation in cases of polygamy. These measures include the requirement for a judge, before concluding a marriage contract, to verify the financial capacity of the groom to pay the dowry and provide financial support to dependents. Additionally, the bride-to-be must be informed if her fiancé is already married to another woman. Moreover, the court may impose a fine of no more than twenty dinars on the court clerk (the official delegated by the court to deliver the notification) if the husband fails to provide his wife or wives with a copy of the marriage contract after proving that they have been notified of his multiple marriages.

The researchers advise advocates of reform to make use of the available avenues and choose the most suitable ones, taking into consideration the surrounding context. This consideration encompasses the required forms of reform, as well as the challenges and opportunities that may arise.

While historical evidence helps challenge assumptions about the alleged rigidity of jurisprudential heritage and its one-dimensional nature, a complete picture only emerges when viewed in the context of lived reality. This entails examining the available paths of reform, ultimately leading to an expanding scope of change.