Female Citizenship and Divorce Law Reform in Arab States: The Gradual Expansion of Women's Legal Capacity in North Africa
A Comparative Historical and Typological Approach to the Middle Eastern State System
ISBN: 978-1-83753-123-3, eISBN: 978-1-83753-122-6
ISSN: 0195-6310
Publication date: 19 April 2024
Abstract
This chapter discusses the extension of legal equality between male and female citizens in four states in North Africa – Tunisia, Egypt, Morocco and Algeria – through one specific lens: A married woman's legal capacity to initiate and obtain divorce without the husband's consent. Building on the works of Stein Rokkan and Reinhard Bendix on the expansion of citizenship to the ‘lower classes’, it is argued that amendments in divorce law by introducing in-court divorce for women, in addition to out-of-court divorce, is a significant institutional change that extends legal equality between men and women. The introduction of in-court divorce expands female citizenship by bolstering woman's juridical autonomy and capacity in state law. Changes in divorce laws are thus part of state centralization by means of standardizing rules that regulate family law through public administrative institutions rather than religious organizations. Two questions are addressed: First, how did amendments in divorce laws occur after independence? Second, in which ways did women's bolstered legal capacity in divorce have a spill over effect on reforms in other patriarchal state laws? Based on observations on sequences of change in four states in North Africa, it is argued that amendments that equalize between men and women in divorce should be seen as a key driver for reforms in other state laws, that reduce legal inequality between male and female citizens. In all four states, women's citizenship was extended in nationality law and criminal law after amendments in divorce law gave women unilateral legal power to exit a marital relationship.
Keywords
Citation
Maktabi, R. (2024), "Female Citizenship and Divorce Law Reform in Arab States: The Gradual Expansion of Women's Legal Capacity in North Africa", Mjøset, L., Butenschøn, N. and Harpviken, K.B. (Ed.) A Comparative Historical and Typological Approach to the Middle Eastern State System (Comparative Social Research, Vol. 36), Emerald Publishing Limited, Leeds, pp. 159-189. https://doi.org/10.1108/S0195-631020240000036005
Publisher
:Emerald Publishing Limited
Copyright © 2024 Rania Maktabi. Published under exclusive licence by Emerald Publishing Limited
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This work is published under the Creative Commons Attribution (CC BY 4.0) licence. Anyone may reproduce, distribute, translate and create derivative works of these works (for both commercial and non-commercial purposes), subject to full attribution to the original publication and authors. The full terms of this licence may be seen at http://creativecommons.org/licences/by/4.0/legalcode.
[T]he legal status of the citizens involves rights and duties which cannot voluntarily be changed without intervention by the State.
Stein Rokkan and Reinhard Bendix, Nation-Building and Citizenship (1977, p. 95).
The establishment of territorial states in the Middle East and North Africa (MENA) region 1 since 1920 reflects the slow, conflictual, but nonetheless, gradual extension of legal equality between men and women. After independence from foreign rule in the 1940s and 1950s, legislation through decrees and administrative policies initiated primarily by rulers strengthened women's position in family and society. In tandem with actions from above, societal pressures from below, through women's and human rights associations, have been part and parcel of broader political struggles to equalize women's and men's civil, political and economic rights. These pressures have expanded citizenship-based rule in the MENA region (Al-Mughni, 2001; Butenschøn & Meijer, 2018; Charrad, 2001; Joseph, 2000a, 2000b, pp. 15–19; Moghadam, 2007; Parolin, 2009; Sonbol, 2012; Thompson, 2000, 2013).
In general, state laws in Arab states have, since the early 1950s, circumscribed women's legal capacity and personhood in relation to men, rendering adult women under the guardianship of male kin (Maktabi, 2017, pp. 437–438). In the majority of MENA states, there are gaps between, on the one hand, the Constitution where the equality of male and female citizens is stated, and on the other hand, gendered state laws where male guardianship over women principles the distribution of rights and obligations within the family as kinship institution. Unequal civil rights between men and women in state laws are particularly visible in family law, citizenship law and criminal law. 2
Family law, also termed personal status law, regulates matters related to marriage, divorce, alimony, custody (wisaya) and guardianship (wilaya) over children, inheritance and adoption. 3 In all Arab states, family law is the main corpus of law that regulates women's civil and economic rights and is therefore key to studying change in women's citizenship in contemporary Arab states.
Women's confined and contracted personhood as legal minor under the trusteeship of men, along with her contained civil rights, is my point of departure for theorizing female citizenship through a comparison of amendments in divorce laws in four Arab states (Baldez, 2010; Hernes, 1982; Pateman, 1989, 1996; Phillips, 2002). In general, female citizenship implies here the set of civil, economic and political rights as defined by the constitution, family law, nationality law, criminal law, labour and social security laws which structure the legal capacity and autonomy of a female citizen. Widened legal capacity for women reflect expanded forms of female citizenship, while contracted and limited legal capacity reflect restricted and contained female citizenship.
Topic and Research Questions
This chapter seeks to contribute insights into the development of women's citizenship in contemporary Arab states since the mid-1950s with particular emphasis on reforms in divorce laws in four states in North Africa.
The chapter is divided in two parts. Part 1 introduces a woman's capability to obtain divorce as a civil right for women, followed by an elaboration on the codification process of family law and amendments in divorce laws in Tunisia in 1956, Egypt in 2000, Morocco in 2004, and in Algeria in 2005. Two questions are addressed: First, how did reform in divorce laws occur after independence in Tunisia, Egypt, Morocco and Algeria? Second, in which ways did bolstered legal capacity in divorce have a spill-over effect on reforms on other state laws?
The discussion in part 1 suggests that reforms in divorce law that expand women's legal capacity and juridical personhood unmediated by males is a catalyser for change in gendered state laws where women and men have unequal civil rights. Before amendments in divorce law, nationality was transferred only through fathers, not mothers (Maktabi, 2021). Women in Tunisia, Egypt and Morocco gained the right to pass their citizenship to their offspring in 1993, 2004 and 2007, some years after they gained the right to unilateral divorce in 1956, 2000 and 2004, respectively. In Algeria, amendments in divorce law and nationality law occurred conjunction with each other in 2005. Less than a decade later, in the aftermath of the 2011 Arab Spring, more precisely between 2014 and 2018, all four states legislated women-friendly first-time criminal laws, and amendments in existing penal codes that aimed at safeguarding women and children from domestic violence. 4
The discussion in part 2 analyses empirical observations presented in part 1. It offers a reading into the equalization of civil rights between men and women in Arab states inspired by the works of Stein Rokkan and Reinhard Bendix on the extension of citizenship to excluded groups in society (Bendix, 1977; Rokkan, 1975). I suggest that the concept of ‘the lower classes’ introduced by the two authors encompasses the category of women in contemporary Arab states as subjects excluded from legal equality with men in state law. A main observation concerning how reforms in divorce laws in the four North African states occurred relates to what Rokkan and Bendix described as ‘legislative actions and administrative decisions which have increased the equality of subjects from the different strata of the population in terms of their legal capacity and their legal status’ (Bendix, 1977, p. 95). In North Africa, amendments in divorce laws impacted women's de jure civil rights and strengthened female citizenship through a variety of ways: In Tunisia and Algeria, reforms in divorce laws occurred ‘from above’ by way of decrees and administrative decisions. In Egypt and Morocco, reforms in divorce laws came through legislative actions after parliamentary deliberations.
Whether change in divorce laws came through legislative actions or administrative decisions, I point out that reforms in divorce laws resulted in centralizing the state's power over the judicial sphere. Prior to amendments in divorce law, out-of-court procedures for divorce were a main venue for a woman seeking to obtain divorce on a unilateral basis, i.e. based on the wife's choice to end a marital relationship. In cases where the husband opposed divorce, an agreement was reached out-of-court, often on the condition that the wife relinquishes economic rights, paving the way for the husband's consent. Reforms in divorce laws in North Africa introduced paradigmatic institutional change: They ensured women's right to initiate and obtain judicial divorce through in-court procedures, i.e. through administrative measures under the auspices of courts that are subject to secular judicial, rather than clerical juridical authority, such as imams, sheikhs or notaries who handle shari'a-related family law matters, most notably inheritance. Also, divorce reforms abolished the wife's need for the husband's consent. Moreover, reforms in divorce laws did not only expand women's legal capacity and civil rights. The institutionalization of the state's administration and courts as main venues for gaining divorce strengthened – at least ideally – the state's power in standardizing divorce procedures between men and women, bolstering thereby state power over the internal affairs of citizens, as well as the family as basic social unit.
In conclusion, I point out that amendments in divorce laws in North Africa and the Middle East could well be seen as significantly constitutive elements of state formation through which rulers exercise classical forms of statecraft in the course of centralizing and consolidating their power over citizens within their territory (Anderson, 1979, 1991; Huntington, 1968; Rokkan, 1975; Tilly, 1975). I suggest that type of regime sheds light on the absolutist powers of monarchs after the turn of the millennium to enforce amendments in divorce laws in ways which rulers in republics have less political leverage to impose and implement.
Reforms in Divorce Laws in Arab States: Bolstering Women's Legal Capacity
Women's choices in deciding whether to remain or exit a marital relationship are perhaps most vividly dramatized by Russian novelist Leo Tolstoj in Anna Karenina (1877). A woman's struggle to terminate an unwanted marital relationship without losing custody over her children or risk being pauperized after divorce runs as a red thread throughout feminist legal scholarship (Hellum, 2012; Lindbekk, 2016; Mir-Hosseini, 1993/2000; Sonneveld, 2018, 2019; Stang Dahl, 1989, 1991, 1997; Tucker, 1998; Voorhoeve, 2012). Seen in analytical terms, a central marker of women's civil rights is the legal capacity to engage in, and terminate, a marital relationship (Auchmuty, 2012; Haskey, 2018; Htun, 2003; Stetson, 1982). By extension, a woman's legal capacity and civic autonomy unmediated by male kin is considered to be a key parameter for comparing variations in women's civil rights in particular and female citizenship in general (Hallward-Driemeier et al., 2013, pp. 5, 9–11; Htun & Weldon, 2011). Divorce rights for women remain sensitive in all states, including contemporary electoral democracies, as legal scholars Martha Fineman and Nancy Thomadsen pointed out in At the Boundaries of Law: Feminism and Legal Theory. Despite change in many legal fields, they argue that ‘[t]here is no consensus about the many issues involved in this area we call “family law.” Even an issue as whether divorce should be freely allowed continues to generate some, though muted, discussion’ (Fineman & Thomadsen, 1991, pp. 266–267).
In North Africa, reforms in divorce laws have taken place at an unprecedented pace since the turn of the millennium, as will be elaborated on in the four states discussed further below. In Egypt, Morocco and Algeria, amendments in divorce laws between 2000 and 2005 impacted change in two significant ways: First, a woman's juridical autonomy in terminating a marital contract was strengthened substantially, expanding thereby female legal capacity and juridical personhood in state law. Second, bolstered female civil rights in divorce triggered change in other patriarchal state laws such as nationality law and criminal law. Women's civil rights were strengthened by introducing matrilineal descent, along with patrilineal descent, as condition to gain nationality, and by legislating protection laws that criminalize domestic violence.
Amendments in Divorce Law: ‘Change Does Not Come Out of Nowhere’
Seen in historical perspective, societal change regarding the nuclear family, and in particular changed sexuality norms, shored up political pressures that eventually led to legal change in women's civil rights in divorce. In other words, reforms in divorce laws did ‘not come out of nowhere: attitudes do not change without prompting’, as law professor Rosemary Auchmuty commented in her study on parliamentary debates in England preceding amendments in divorce law (Auchmuty, 2022, p. 76). There, unilateral divorce, i.e. the capacity to exit a marital relationship without obtaining the consent of the spouse, was introduced for the first time in 1969 through the Divorce Reform Act (DRA) which did not come into effect before 1971. 5 A two-year period of parliamentary deliberations over the wife's economic rights after divorce was the main reason for the delay in effectuating the 1969 divorce law. 6 In 1970, the Matrimonial Proceedings and Property Act (MPPA) passed through parliament, taking into consideration grievances raised particularly by women.
Similar societal pressures to amend divorce laws can be discerned in Arab states at the turn of the millennium. Although form, content and political context differ, public debates among stakeholders and political deliberations in parliament pertaining to reforming divorce law, reveal recognizable and comparable tensions between proponents and opponents of reform (Engelcke, 2019; Maktabi, 2018; Mir-Hosseini, 2013; Moors, 1999, 2003; Vikør, 2005). A short introduction to the codification of family law which regulates matters related to marriage and divorce in Arab states is needed in order to draw a framework around reforms in divorce law.
Codifying Family Law in Arab States
Before the independence of each state, family law was adjudicated on the basis of Islamic jurisprudence and the Ottoman family law codified in 1869. Upon independence from colonial and protectorate rule, each Arab state codified its own family law. The process of codification varied in time, and entailed writing down explicitly the state's family law. In Tunisia, codification occurred upon independence in 1956. Algeria's family law was codified in 1984, more than two decades after independence in 1962. In several Arab states such as Egypt, Lebanon, Syria, Iraq, Palestine and Jordan, citizens belonging to Christian and Jewish minorities, along with some Muslim communities, such as the Druze, have autonomy in regulating their own family law. In Lebanon, for instance, there is no unitary family law; 15 family laws regulate the personal affairs of 18 religious groups (Maktabi, 2013, pp. 286–287).
In general, the state's family law is heavily coloured by religious law such as Islamic shari'a, Christian church laws, and Jewish halacha laws. These laws embody patriarchal ideals where males are perceived as heads of households (Buskens, 2003, p. 75).
After the downfall of the Ottoman Empire in 1918, Turkey pioneered in 1926 by codifying its family law based on the Swiss civil family law. Roughly three decades later, Syria was the first Arab state to codify its family law in 1953. At the time, the Syrian family law was perceived as innovative and progressive. It was the first attempt by state authorities in an independent Arab state at establishing a governmental commission consisting of Muslim religious scholars, civil lawyers and political representatives who explicitly wrote down Islamic jurisprudence (fiqh) and rulings in the form of a statutory family law for Syria. 7
In 1956, Tunisia was the second Arab state to codify its family law which differed substantially from the Syrian family law. Whereas the Syrian personal status code safeguarded clerical interpretations for marriage and divorce rules, the Tunisian personal status code was based on secular tenets and broke dramatically with Islamic jurisprudence. For instance, polygyny was banned, and men and women were granted equal access to divorce (Voorhoeve, 2014).
Until 2000, the 1956 Tunisian family law was alone in granting women unilateral right to divorce, i.e. the opportunity to exit a marital relationship without the consent of the husband.
Expanding Woman's Capacity in Divorce: From Out-of-Court to In-Court Procedures
Professor in Islamic Law Lynn Welchman distinguishes between four main types of divorce procedures based on Islamic jurisprudence. Two forms are in-court procedures, and two forms are out-of-court procedures. In-court divorce procedures include (1) judicial divorce (often referred to as tatliq or tafriq) whereby primarily, but not only, the wife can seek divorce on a number of grounds 8 and (2) judicial dissolution (faskh) whereby a marriage is terminated if and when it is deemed invalid. Out-of-court divorce procedures consist of (3) unilateral divorce (talaq). Often referred to as ‘repudiation’ of the wife by the husband where he utters ‘I divorce you’ three times; and (4) divorce by mutual consent (khul’) 9 where the husband pronounces talaq as part of a mutual agreement between husband and wife whereby the wife renounces economic rights, as well as possible further remaining rights such as custody and visitation rights to her children. In general, most interventions by MENA states after independence to amend divorce laws sought to constrain a husband's facility to obtain out-of-court divorce, and extend a wife's legal capability to obtain in-court judicial divorce (Welchman, 2007, p. 107).
Tunisia differed from other Arab states in that the Tunisian family law was alone in providing equal access to unconditional divorce for men and women through in-court procedures. In 2000, Egypt passed Law no. 1 – known as the khul’ law – which capacitated a wife to obtain in-court unilateral divorce on the condition that she waives economic rights such as maintenance, the return of dowry, gifts or property (Singermann, 2005, p. 162; Welchman, 2007, pp. 112–113).
The Egyptian khul’ law of 2000 was a legal innovation in two significant ways: First, khul’ divorce was transformed from an out-of-court divorce agreement into an administrative in-court procedure conducted under the auspices of state officials such as judges in court and bureaucrats in the state's administration who update personal registries (known as nufus in some Arabic dialects). 10 The transformation of out-of-court divorce to in-court divorce procedure meant that the state empowered the wife to obtain divorce without needing the husband's consent. As such, state power intervened in reorganizing the institutional framework that expanded and legitimized a woman's legal capacity in deciding to opt out of a marital relationship. Second, the wife's unilateral right to divorce came with a heavy price: Gaining wider civil rights in divorce by opting out of marriage for a woman was standardized in a way that required the woman to renounce economic rights. Importantly, reforms that introduced in-court judicial divorce for women were, at the time they were introduced, not accompanied by legislative steps or administrative decisions that deny the validity of out-of-court divorce for men in most Arab states (Welchman, 2007, p. 122).
By 2010, seven Arab states had followed Egypt's example by introducing in-court khul’ divorce, inferring thereby the principle of unmediated right to divorce for female citizens (see Table 5.1). These changes occurred in a variety of ways. In Jordan, Kuwait and Algeria, change came by means of administrative decisions and decrees in 2001, 2004 and 2005, respectively. In Qatar and the UAE, judicial khul’ divorce was introduced as part of an administrative reorganization of the legal system in 2005 and 2006, respectively (Engelcke, 2019, p. 165; Welchman, 2012). In Morocco in 2004, and in Bahrain in 2009, reforms were legislated through parliamentary deliberations. 11 In 2021, Saudi Arabia introduced khul’ divorce as part of the kingdom's Vision 2030 plan of action (Saudi Arabia's National Unified Portal for Government Services, 2023). 12
Amendments in Women's Capability in Initiating Unilateral Divorce 1956–2021 by Year of Reform and Subregion.
| North Africa | Levant 13 | Gulf |
|---|---|---|
| Tunisia 1956 | * Jordan 2001/2010 14 | * Kuwait 2004 15 |
| * Egypt 2000 | Iraq 16 | * UAE 2005 17 |
| Morocco 2004 | Syria | * Qatar 2006 18 |
| * Algeria 2005 | Lebanon | * Bahrain 2009 19 |
| Libya | Palestine | * Saudi Arabia 2021 20 |
| Sudan 21 | Oman | |
| Yemen 22 |
An asterisk (*) indicates in-court judicial khul’ divorce after Egypt passed Law no. 1 in 2000. States where year is not stated do not enable woman to obtain unilateral in-court judicial divorce.
Table 5.1 renders an overview over reform year in 18 Arab states since independence. The table shows that amendments in divorce rules that strengthen women's legal capacity in obtaining divorce occurred in eight states after the turn of the millennium.
Table 5.1 shows that Tunisia and Morocco are the only Arab states that have equalized between women and men when it comes to in-court divorce without setting a condition that the wife waives her economic rights. 23 States with no date indicate that women (as well as men in Christian and women in Jewish denominations) are not able to obtain in-court divorce due to lack of consent by husband (Muslim communities), lack of civil marital codes and Church Laws that treat marriage as a sacrament (for Christian communities) and Halacha Laws (for Jewish communities).
The table indicates furthermore that all amendments to divorce laws after 2000 – with the notable exception of Morocco – legislated unilateral divorce for women by inferring in-court khul’ divorce on the condition that the wife waives economic rights. Legal and judicial praxis varies between these states with regards to the financial compensation the wife needs to negotiate and, in some cases sacrifice, in order to obtain divorce. The common ground, however, is that khul’ divorce abolishes the husband's consent in effectuating divorce.
Two decades after Egypt passed the khul’ law, scholars on family law reform in Egypt are unsure whether it has brought more or less justice to women. They point out that judges have been slow at distributing justice based on the new interpretation and the institutional innovation in turning out-of-court khul’ divorce into an in-court divorce procedure in Egypt. Similar constraints have been observed in Moroccan courts after the family law reform in 2004 which gave men and women equal rights in exiting a marital relationship (Sonneveld, 2018; Touaf et al., 2017; Žvan-Elliot, 2015).
With these reservations in mind, it is important to emphasize that strengthened civil rights in divorce are not necessarily accompanied by de facto strengthened civil rights for women. Nonetheless, as elaborated on further below, women's right to de jure unilateral divorce is significant for the expansion of female citizenship. Amendments in divorce law in four states in North Africa paved the way for reforms in other state laws that widened female citizenship. In Tunisia, Egypt, Morocco and Algeria, strengthened civil rights to initiate and obtain divorce among women led subsequently to reforms in others state laws that bolstered women's rights in nationality law and criminal law, as indicated in Table 5.2. As such, reforms that introduce unilateral divorce for women could well be seen as necessary but insufficient conditions to expand female citizenship in Arab states.
Amendments in Nationality Law and Criminal Law in North Africa After the Introduction of Judicial In-Court Divorce for Female Citizens.
|
Reform of Family Law
Introduction of unilateral judicial in-court divorce for women |
Reform of Nationality Law
Female legal capacity in transferring nationality to children |
Reform of Criminal Law
Protection against domestic violence |
|
|---|---|---|---|
| Tunisia | 1956 | 1993 | 2017 |
| Egypt | 2000 | 2004 | 2014 24 |
| Morocco | 2004 | 2007 | 2018 |
| Algeria | 2005 | 2005 | 2015 |
Reforms that introduced unilateral divorce in Tunisia, Egypt, Morocco and Algeria, as explained in separate paragraphs below, suggest that amendments in divorce law impacted in turn reform in other state laws that expanded women's citizenship. In nationality law, reforms allowed women to transfer nationality to their offspring. In criminal law, first-time legislation that protect women from domestic violence were promulgated. Women's legal capacity in divorce impacted thus other de jure civil rights which strengthened female citizenship.
Tunisia: Revolutionary Change in 1956
Tunisia's family law, known as the Code of Personal Status (CPS), was announced by decree in 1956 by the bey of Tunisia shortly before the monarchy was abolished. The CPS was not debated in parliament and was promulgated in August 1956, five months after independence from French rule. The law envisioned the development of a progressive Tunisian society along socialist principles under President Habib Bourghiba (1957–1987). Minister of Justice at the time, Ahmed Mestiri, recalled that Bourghiba saw women's emancipation as part of the general liberation of Tunisian society. The CPS was formed to bolster the nuclear family, equalizing mothers and fathers, and freeing both women and men from kin control. It remained so for more than four decades before Egypt amended its divorce law in 2000. Furthermore, the Tunisian CPS banned polygamy, introduced a legal minimum age for marriage, eliminated the husband's right to repudiate his wife, 25 enabled women to initiate divorce and increased women's custody rights (Charrad, 2001, pp. 219–222). Importantly, the CPS was the first family law in the Arab world that enabled a woman to end a marital relationship without the consent of the husband (Anderson, 1970, p. 46).
In 1993, the Tunisian nationality law was amended allowing women to pass over their nationality to their offspring. Almost two decades later, the Arab Spring which started in Tunisia in December 2010, led to substantial changes in women's civil and political rights. A new Constitution in 2014 promulgated the principle of equality between men and women. That same year, a new electoral law established parity between men and women in electoral lists, and equal inheritance between men and women (Rogne Eilertsen, 2021; Voorhoeve, 2014, 2015). In 2017, the Tunisian parliament passed ‘Law on Eliminating Violence Against Women’. Although hailed as yet another milestone in strengthening female citizenship in Tunisia (UN Women, 2017), women's associations and human rights' groups criticized the Tunisian police force and the judiciary for failing to implement the law in ways that protect women from abusive husbands (Amnesty International, 2021).
Egypt: The Battle for Divorce 1975–2000
Egypt was the second Arab state that reformed its personal status laws enabling women to initiate a divorce procedure without obliging women to raise a case in court in 2000. 26 More than four decades had passed after Tunisia's family law before amendments in an Arab state allowed women to initiate and obtain divorce.
Political pressures towards amending the divorce law in Egypt started in 1975 with the United Nations' International Women's year. That year, the Egyptian film ‘I want a solution’ (uridu hallan) was selected as Egypt's entry to the Oscars. The film created a widespread public debate around reforms in family law, and in particular divorce procedures (Sonneveld, 2018, pp. 336–337). It featured Egyptian film star Faten Hamama (1931–2015), the equivalent of divas known from Western cinema such as Sophia Loren and Elizabeth Taylor. Hamama played the role of a wife seeking divorce from her alcoholic and unfaithful husband who did not approve, obliging the wife to raise a case in court. The film screened the agony of juridical trials where Egyptian women had to wait between five to ten years to have their cases adjudicated. Notably, Faten Hamama co-wrote the film script with director Said Marzouk, and it was based on a true story: her own struggle to gain divorce from another Egyptian film star, Omar Sharif. 27
Four years after Hamama's real-life-turned-into-film was screened, the UN General Assembly passed the 1979 Women's Convention (CEDAW) as part of international law. 28 Egypt was the first Arab state to ratify CEDAW in 1981. Reservations were made to article 2 which obliges states to abolish laws that discriminate against women, article 9 on nationality law, article 16 which regulates marriage and divorce, article 15 on freedom of movement and article 29 concerning arbitration between states.
Roughly two decades passed after Egypt signed CEDAW before the khul’ divorce law passed in parliament in 2000. Since the late 1970s, Egyptian reformers had drafted laws that strengthened women's rights in divorce. 29 Female leaders of the ruling National Democratic Party (NDP) renewed their efforts at proposing amendments to divorce regulation in 1998. The draft law was presented to the Minister of Justice and the National Council of Women before it was deliberated over in parliament in six sessions (Fawzy, 2004, p. 59). 30 The draft law was strongly opposed in parliament. Whereas the khul’ provision passed, another article that allowed a woman freedom of movement without obtaining her husband's consent was discarded.
The khul’ divorce law reform established an individually-based right for all Egyptian women to access divorce. This change infringed the authority of the Coptic Church in matters concerning divorce and remarriage. 31 Until date, Copts who seek divorce encounter judicial obstacles in validating the annulment of their marriage in religious courts. Nonetheless, visible change could be traced in 2017 when newly divorced Coptic couples celebrated their divorce after 12 years and 14 court cases (Al-Masry Al-Yawm, 2017; Egypt Today, 2018).
By 2014, roughly 15 years after the divorce law passed through parliament, several reforms were legislated expanding Egyptian women's de jure civil rights further. In 2004, Law no. 154 which amended the patriarchal nationality law in 2004, enabling Egyptian women to transfer their citizenship to their children (the condition that excluded children of Palestinian fathers was abolished in 2011). 32 Another reform in 2004 sought to facilitate adjudication in family law cases, and established a government-run Family Fund which aimed at dispersing maintenance funds for divorced women. In 2008, the minimum marriage age was raised to 18 years, and in 2014 laws on sexual harassment were inferred in the new 2014 Egyptian Constitution (art. 11, 52, 60, 67, 71, 80 and 89) ensuring the protection of women against violence and mutilation.
As pointed out previously, de jure legal change does not necessarily lead to de facto change in women's well-being. Economic issues, such as distribution of marital assets after divorce, questions related to joint matrimonial assets, rights to the marital home are important socio-economic and financial features of a woman's right to divorce. 33 In other words, legal de jure rights are often seen as paper rights because they do not secure women de facto wider citizenship. However, legal reforms that strengthen women's civil rights should nevertheless be seen as necessary, though insufficient measures for expanding the content and depth of women's citizenship.
Importantly, the 2011 Arab revolts heralded demands by Islamist groups, including statements by Muslim Brotherhood delegates at the UN Commission on the Status of Women (CSW) meeting in New York in March 2013, for rolling back some of the women-friendly reforms that had occurred after 2000. There were calls for abrogating the khul‘-divorce law, demands to reduce the minimum age of marriage for girls to under 18 years, and changing women's child custody and visitation rights which Egyptian women had gained after reforms between 2000 and 2004. Post-revolutionary Egypt reflects thus the frailty of women's civil rights which become subject to change in times of turmoil (Kingsley, 2013; Lindbekk, 2014, pp. 100–102).
Morocco: Paradigmatic Mudawwana Reform in 2004
Morocco codified its family law – known as the Mudawwana – in 1957. For more than four decades, the Mudawwana maintained the principle of male guardianship over women in marriage and divorce, despite demands for reforms in line with the Tunisian family law (Charrad, 2001, pp. 109–113, 234–238; Evrard, 2014, pp. 102–137).
By 1998, societal pressures to reform the Mudawwana were rejuvenated when a new government came to power ushering the way for the first representation of the Islamist Party of Justice and Development (PJD). The government introduced a plan that aimed at integrating women in development by means of addressing illiteracy, reproductive health and women's participation in economic life. In March 1999, shortly after King Mohammed VI succeeded the crown the plan was presented. It sought to strengthen women's civil rights through reforms in criminal law, nationality law and family law.
Minister of Islamic Affairs and the League of the Ulama of Morocco opposed the plan arguing that it embodied secular and corrupting Western ideas on gender equality (Buskens, 2003, p. 91). Liberal politicians, journalists and members of the women's movement and human rights groups pointed out that the clergy should not be sole interpretors of family law.
Polarization between the two factions sharpened. By March 2000, proponents and opponents of reform organized marches and counter-marches that gathered between 100,000 and 200,000 persons. The majority protested against what they perceived as anti-Islamic influences (Buskens, 2003, p. 108). A year later, in April 2001, the king appointed 16 members to a Mudawwana commission. They were requested to interpret religious texts of Islamic shari'a by applying ijtihad.
By May 2003, what came to be known as the ‘Casablanca bombings’ sharpened popular opposition against religious extremism: Moroccans grew more in favour of change. 34 The women's movement intensified its pressure for reform of the Mudawwana and was supported by roughly a million persons who marched under anti-terrorism slogans (Clark & Young, 2008, p. 340). Six months later, in January 2004, parliament approved unanimously the new Mudawwana where 110 amendments were made to the 400 proposed articles (Mir-Hosseini, 2007). The Mudawwana fused gender equality norms with Islamic jurisprudence and human rights principles, reflecting an innovative formation of a legislative text.
Importantly, the Moroccan king is endowed with clerical status as ‘Commander of the Faithful’ in art. 41 of the Constitution and extracts religious legitimacy through articles 42 and 43. The monarch held thus both religious and political authority when the family law reform passed, a double role which eased the legitimation of legislative reform (Morocco's Constitution of 2011, pp. 13–14).
The 2004 Mudawwana reform raised the minimum marital age for women from 15 to 18, and established a woman's unilateral right to divorce. Art. 115 states that the legislator considers khul’ to be a divorce based on consensual agreement between a couple, and that art. 114, which regulates divorce based on consent (al-talaq bil-ittifaq), applies to divorce based on khul’ (al-talaq bilkhul’) (Al-Azhar, 2020, pp. 221–223). The Mudawwana tightened regulation of polygyny and repudiation. It set standards for protecting children, equalized responsibility in the family between a married couple, abolished a wife's obligation to obey her husband’, and eliminated male guardianship (wali) over women in marriage (Engelcke, 2019, pp. 180–195). Despite paradigmatic changes in the 2004 family law reform, juridical obstacles pertaining to its implementation remain (Žvan-Elliot, 2015), including the civil status of single mothers and children born of wedlock (Majbar, 2013). Three years later after the 2004 Mudawwana reform, the government passed a nationality bill in 2007 enabling Moroccan women to give Moroccan citizenship to their children (The UN Refugee Agency, 2015, p. 4). More women-friendly reforms surfaced following the 2011 Arab revolts. On 8 April 2011, the government announced that Morocco's reservations to CEDAW were to be removed. Three months later, women's civil rights were addressed in the new Constitution issued in July 2011. There, art. 16 pledged to protect the rights of female and male citizens outside Morocco; art. 19 enshrined the principle of equality between men and women; and art. 115 specified that female judges be appointed in the High Judicial Council.
In the wake of the Arab Uprisings in 2011, the Moroccan criminal code was debated. A particular event mobilized women for change: 16-year-old Amina Filali committed suicide in 2012 after her rapist had married her, evading thereby prosecution according to Article 475 of the penal code. Massive protests against that article led to its abrogation in January 2014, and demands for drafting a new law on domestic violence. Four years later, in 2018, after extended pressures, a first-time criminal law on domestic violence was legislated (Afkhami et al., 2019, pp. 234–237; Al-Jazeera, 2018).
Algeria: Women's Civil Rights Hostage to Ideological Battleground
Algeria codified its family law in 1984, fairly late compared to Tunisia and Morocco where family laws were formed in the 1950s. Two decades later, in 2005, the Algerian family law was reformed by introducing khul’ divorce which enabled a woman to divorce without the consent of her husband.
After independence from French colonial rule in 1962, the codification process of the Algerian family law was held hostage to political divisions among different political parties. They did not agree on a legal text that satisfied competing interests concerning the imprint of Islamic shari'a on the law and the position of the woman in the family. This tension lasted until 1984, when the family law was eventually issued (Charrad, 2001, pp. 183–187; Engelcke, 2018, p. 308). A bloody decade of violent upheaval and civil war followed after attempts at liberalizing the political system in 1991. A second round of democratic elections was annulled by the governing National Liberation Front (FLN), backed by the army, in anticipation of losing their position to the opponent Islamic Salvation Front (FIS). At the turn of the millennium, political order was re-established in the form of a stalemate followed by an uneasy stability monitored by the military regime (Zoubir, 2019, pp. 198–201).
The khul’ amendment in the Algerian family law inferred in 2005 came one year after Morocco passed its 2004 Mudawwana reform. This parallel move signals a regional spill-over effect when it comes to transnational pressures that sought to strengthen women's citizenship in the Maghreb (Moghadam, 2020). Other women-friendly amendments included the abolition of the obedience obligation for women (stated in art. 39 of the 1984 family law), and strengthening a mother's rights to custody and guardianship over her children upon divorce. The 2005 family law retained however conditions to a woman's capacity to enter a marital relationship. For instance, art. 11 obliges that a woman's legal guardian (wali) be present when she concludes a marriage (Engelcke, 2018, pp. 323–324).
The introduction of khul’ divorce in Algeria in 2005 came by way of a presidential decree issued by President Bouteflika (ibid., p. 321). By contrast, in Egypt and Morocco, legislation of reform came after parliamentary deliberations in 2000 and 2004 respectively. The top-down process of amending family law in Algeria reflects the enduring impact of domestic dissent concerning women's position in society, and the deep clerical – secular divide in Algerian politics over the past six decades (Tripp, 2019a, pp. 227–229; 2019b).
The Algerian family law reform of 2005 has been seen in the light of a wider political context. Political scientist Aili Mari Tripp perceives it as a women-friendly reform through which autocratic rulers seek to win positive international acclaim while human rights are violated (Tripp, 2019b, p. 6). Sociologist Valentine Moghadam focuses on the impact of feminist organizations. She argues that the 2005 family law reform in Algeria could be seen as a reward to the women who sided with the state in its fight against Islamist extremists during the violent 1990s (Moghadam, 2017, pp. 3–4). Sociology of law scholar Dörthe Engelcke emphasizes long-term transnational factors such as Algeria's ratification of CEDAW in 1996 and the influence of timing in neighbouring countries. A case in point is the amendment of the patriarchal nationality law in Algeria in 2005 which passed the same year as the khul’ decree was enacted. According to Engelcke, the nationality amendment came as a surprise because women's organizations did not lobby for the issue at the time. Intra-regional rivalries influenced the nationality reform in Algeria in 2005, she points out, arguing that President Boutflika may have decreed reform of the patriarchal nationality law out of ‘fear of being isolated as the only country in the Maghreb that did not reform its family law’ (Engelcke, 2018, p. 321). A combination of these arguments shed light on the co-operation between and among women's associations in North Africa, despite political animosity between some of the states, most notably between Morocco and Algeria over Western Sahara territorial claims.
A decade after the khul’ divorce law and the nationality law were reformed in 2005, the Algerian parliament passed Law no. 15–19 in 2015. The law criminalized domestic violence, but was criticized for containing loopholes which allowed convictions to be dropped or sentences to be reduced if victims pardon their abusers (Begum, 2017).
Women's Access to Divorce in North Africa: Pathways to Expanding Female Citizenship
Roughly a decade after Egypt amended its divorce law in 2000, seven Arab states passed similar amendments that introduced in-court khul’ judicial divorce (see Table 5.1). Amendments in divorce law that capacitated women in exiting a marital relationship had not been passed since 1956 when Tunisia codified its family law.
The impact of the introduction of in-court khul’ divorce on women's citizenship in states in North Africa, particularly related to amendments in the gendered nationality law, is observable at the national and regional levels: At the national level, khul’ divorce paved the way for reform in other state laws, such as criminal law, social security law and nationality law. In other words, expanding woman's legal capacity in obtaining divorce bolstered female autonomy, and in turn women's citizenship, paving the way for eliminating the male-centred principle of the gendered nationality law. Also, the concept of violence in the private and public spheres was re-conceptualized by legislating new criminal laws, and amending existing penal codes, to include penalizing harm inflicted on women and children at home, in the workplace and on the streets.
At the regional level, Egypt's khul’ law in 2000 inspired decision-makers and women's associations in other Arab states to rejuvenate pressures to amend existing family laws that had not been reformed since independence. A fruitful way of understanding the spread of legislative amendments that introduced khul’ divorce among Arab states over a relatively short period of time is through the phenomenon of ‘bandwagoning’. Egypt's introduction of khul’ divorce as an in-court rather than an out-of-court divorce procedure could well be seen as a wedge that set in motion what American scholar in international relations John Ikenberry labelled a ‘bandwagoning effect’ (Ikenberry, 1990). According to him, policymakers and elites in an international context learn from, emulate, and take as a model policy, innovations developed in other states. Egypt's jurisprudential innovation constituted, seen through Ikenberry's analytical frame, the «lead wagon» pulling other states' policies on the same track in a bandwagoning process. 35
Another expression of regional pressures for reform is the political fruits of transnational women's associations in the Maghreb and Southern European states. Since the 1990s, they have collaborated in order to amend the gendered nationality laws of North African states which limited the civil and economic rights of migrant mothers. They were unable to pass their nationality to their offspring if the father was a non-national. Euro-Mediterranean co-operation, supported by the EU-initiated Barcelona process since 1995, have been powerful external drivers for change at the executive and administrative levels in Tunisia, Morocco and Algeria (Council of Europe, 2006; European Parliament, 1995, p. 473; Maktabi, 2021, pp. 325–327; Moghadam, 2020).
Extending Citizenship by Increasing the Equality of Subjects: Women as the ‘Lower Classes’ in Arab States?
How can Rokkanian analytical and theoretical insights regarding processes that increase the legal capacity and equality of subjects from different strata of the population tell us something about the development of citizenship in contemporary Arab states?
Stein Rokkan and Reinhardt Bendix laid out a wide array of theoretical approaches towards studying the expansion of citizenship as part of state formation in Western states. They co-authored a chapter entitled ‘The extension of citizenship to the lower classes’ (Bendix, 1977, pp. 89–96) which provides a fruitful analytical approach into the development of women's citizenship in Arab states as a two-way process. One delineating state formation as a historical process through which power became centralized in political, economic, judicial and cultural-linguistic institutions. 36 A second, elaborated on theoretically in the co-authored chapter by Bendix and Rokkan provides the springboard of my analysis below. In that chapter, the two authors reflect on dimensions that widen the basis of citizenship, including aspects that equalize rights among men and women within a polity.
In which ways can reforms that widen women's legal capacity in divorce, as presented in the four empirical case studies above, shed light on processes that extend legal equality among women and men in Arab states?
Notably, Bendix and Rokkan did not study conditions related to equalizing citizenship between men and women per se, nor were they particularly occupied with the dynamics that involved the extension of civil rights to women. Nonetheless, ‘woman’ as category is specified, albeit shortly, and in conjunction with other societal groups excluded from what the two authors termed ‘legal equality’. They wrote:
Legal equality advances at the expense of legal protection of inherited privileges. Each man now possesses the right to act as an individual unit; however, the law only defines his legal capacity, but is silent on his ability to use it. In addition, civil rights are extended to illegitimate children, foreigners and Jews; the principle of legal equality helps eliminate hereditary servitude, equalize the status of husband and wife, circumscribe the extent of parental power, facilitate divorce, and legalize civil marriage. Accordingly, the extension of civil rights benefits the inarticulate sections of the population, giving a positive libertarian meaning to the legal recognition of individuality.
(Bendix, 1977, pp. 92–93, my emphasis)
Bendix and Rokkan noted that the extension of citizenship emerges with the establishment of equal rights under the law. With reference to children born out of wedlock, foreigners and Jews, they pointed out that these categories of persons expand their citizenship by gaining wider civil rights on an individual basis through the establishment of the principle of legal equality. The two authors specified explicitly seven groups and societal relations which, according to them, have been subject to processes of legal equality:
those living under hereditary servitude;
foreigners and Jews;
illegitimate children (*);
equalizing the status of husband and wife (*);
circumscribing parental power (*);
facilitating divorce (*);
legalizing civil marriage (*).
This itemized inventory is short, but significant, seen from a family law perspective. The inferred asterisk (*) emphasizes that five out of seven components pinpointed by Rokkan and Bendix lie at the heart of personal status laws in Arab states (and other states as well). Matters related to marriage, divorce, parental power, the regulation of rights to children born to single mothers, show that the two authors had an eye for demos-formative groups and human relations which they outlined explicitly. 37 As such, they addressed theoretically the gendered dimension of citizenship where women did not enjoy legal equality with men in marriage and divorce (the status of husband and wife), as well as reproduction (illegitimate children).
Bendix and Rokkan labelled the itemized individuals listed above invariably as ‘inarticulate sections of the population’ (p. 93), those ‘excluded from any direct and indirect participation in the political decision-making process of the community’, and ‘the lower classes’ (p. 90). Although the main focus group in their study was working class men during the first phase of industrialization of Western European states, Bendix and Rokkan used the term ‘the lower classes’ in a clearly classificatory sense. This term merits closer scrutiny, and is discussed further in the following section with reference to ‘women’ as generic category in Arab polities.
Women as ‘the Lower Classes’ in Arab States: Increasing the Equality of Subjects
In their discussion on ‘the lower classes’, Bendix and Rokkan pointed out that this term encompasses those with a particular status who did not share legal equality, applying the term in a generic way to denote a wide range of variously excluded groups: the extension of citizenship occurred with reference to broadly and abstractly defined groups such as all adults over 21, or women or adults having specified property holdings, fulfilling certain residence requirements, etc. Such groups encompass many people other than those who have few possessions, low income, little prestige and who because of these disabilities are understood to ‘belong’ to the lower classes. The reference here is to the larger, classificatory group of all those (including the ‘lower classes’) who were excluded from any direct and indirect participation in the political decision-making process of the community (Bendix, 1977, p. 90, my emphasis).
According to the two authors, the ‘lower classes’ comprised groups excluded from citizenship. The term covered abstractly defined groups, including persons over 21 years, women, adults who hold property and those who fulfill conditions for residence. In short, the category of women as subjects excluded from legal equality is explicitly identified in their analysis of the ‘lower classes’.
Having specified some of the groups excluded from citizenship, Bendix and Rokkan were clear on the means necessary to extend legal equality among the lower classes, i.e. excluded demos groups in the population. 38 By doing so, the authors distinguished clearly between two basic entities related to citizenship: First, dimensions pertaining to membership that cover individuals to be included as full members of the state, on the condition that these fulfil specifications pertaining to age (all adults over 21), gender (women), wealth (adults having specified property holdings) or domicile (residence requirements). Secondly, dimensions related to political participation in decision-making that encompass those included as full members of the state, i.e. members who fulfil above-mentioned specifications.
Citizenship was, following this line of reasoning, not extended to the lower classes because these segments of the population did not constitute part of the demos – Greek for ‘people’, implying here legitimate and full members of the polity. Once not included as member of the political community, the lower classes were excluded from kratos – Greek for partaking in governance and the act of ruling – and the lower classes were therefore not eligible to decision-making in the affairs of the polity. As such, Rokkan and Bendix emphasized the implicit, but nonetheless marked, distinction between members and non-members in the polity (categories of demos) by differentiating between those included and those excluded from political participation (forms of kratos).
Rights of citizenship emerge, the authors clarify in their four-page analysis, with the establishment of equal rights under the law. Illegitimate children, foreigners and Jews, they pointed out, are among the categories of persons who expand their citizenship by gaining wider civil rights on an individual basis. Another example of the equalization of rights is bringing into line similar rights for husband and wife within the family, particularly in relation to common children. Implicitly, ‘equalization of marital rights’ involves, I would add, strengthening a woman's legal capacity within marriage by altering and limiting the authority of a husband over his wife in matters related to kin, family and/or household. In as far as the authors address religion in relation to the equalization of rights, they approach it by pointing out the significance of legalizing civil marriage. Presumably, the authors understood ‘civil marriage’ in terms of enabling citizens to establish and conclude a marital relationship under the auspices of state authorities, limiting thereby the influence of clerical forces and religious institutions.
The State: Governing Through ‘Legislative Actions and Administrative Decisions’
Rokkan and Bendix furthermore pointed out that European states ‘can look back on longer or shorter histories of legislative actions and administrative decisions which have increased the equality of subjects from the different strata of the population in terms of their legal capacity and their legal status’ (Bendix, 1977, p. 95). They referred to R. H. Graveson's Status in the Common Law who distinguished conceptually between status as ‘the legal state of being’ and capacity as ‘the legal power of doing’ (Grodecki, 1954, pp. 55–57). In conjunction with this reference, they pointed out that ‘the legal status of the citizens involves rights and duties which cannot be voluntarily changed without the intervention of the State’ (Bendix, 1977, p. 95, footnote 37). 39 The two authors theorized furthermore methodologically on the various ways through which the legal equality expanded in different European states:
For each nation-state and for each set of institutions we can pinpoint chronologies of the public measures taken and trace the sequences of pressures and counterpressures, bargains, and manoeuvres, behind each extension of rights beyond the strata of the traditionally privileged. The extension of various rights to the lower classes constitutes a development characteristic of each country.
(Bendix, 1977, p. 95)
The exploration in part 1 of four states in North Africa presented various paths through which family law reform involved amendments in divorce law that expanded women's civil rights in divorce. These reforms reflect that change occurred through the intervention of legislative and adjudicating powers which represent and legitimize the authority of the state apparatus. Legislative actions and administrative decisions were decisive in expanding women's legal capacity in initiating and obtaining unilateral divorce. In Egypt in 2000 and in Morocco in 2004, women's legal capacity was extended through parliamentary legislative actions. In Tunisia and Algeria, change in divorce laws occurred through administrative decisions in 1956 and 2005, respectively. Both measures increased the equality of ‘subjects’, who in my analysis are female citizens.
The elaboration of amendments in divorce laws, and other patriarchal state laws in Tunisia, Egypt, Morocco and Algeria can well be understood as different paths towards legal equality between men and women through ‘sequences of pressures and counterpressures, bargains and manoeuvres’ among societal groups. This was the case in Egypt in 2000 when parliamentary deliberations shed light on pressures for reform of divorce law in order to allow women the right to unilateral divorce, while MPs with Islamist and conservative leanings opposed change.
Similar polarization between supporters and opponents of reform occurred in Morocco between 2000 and 2003 when women's associations opted for reform in family law while conservative parties and religious forces joined efforts in maintaining status quo. By contrast, in Tunisia in 1956 and in Algeria in 2005, reform of divorce law, as well as reform of the nationality law, came through ‘top down’ administrative decisions. Importantly, transnational adversary groups were involved in shoring up support for amendments in nationality law that removed the condition of patrilineal descent in Tunisia (2003), Egypt (2004), Algeria (2005) and Morocco (2007).
Change in divorce law and nationality law in North African states indicates that legislative reforms impact the legal capacity and juridical autonomy of women belonging to all societal classes, and not only working-class women. For Bendix and Rokkan, the labouring poor constituted the bulk of those perceived as ‘the lower classes’. In my study of four states in North Africa, the expansion of women's legal capacity for unilateral in-court divorce, as well as women's legal capacity to transfer nationality to their children strengthen de jure female citizenship of all women. Women, irrespective of class, were affected by the structural legal changes that expanded their legal capacity and juridical autonomy. As such, women as category may well be understood as belonging to the lower classes, and whose legal equality with men was extended through, in Bendix and Rokkan's words, legislative actions and administrative decisions. In principle, it makes a difference that widened legal equality was relevant for women belonging to all social classes, and not only working-class women.
Centralization of State Power: In-Court and Out-of-Court Divorce
Seen from a Rokkanian analytical perspective, the distinction between in-court and out-of-court divorce represents a politico-legal division that sheds light on the degree of centralized state power. In-court adjudication reflects that the state as organization is sovereign in the administration and regulation of judicial deliberations through its state-employed judges. Out-of-court adjudication render religious judges (whether these belong to Muslim, Christian or Jewish communities) more or less sovereign in interpreting and issuing rulings in family law, including matters related to marriage and divorce.
As such, the distinction between in-court and out-of-court divorce is a structural-organizational feature of centralized state power. This point reflects the importance of an institutional set-up that sheds light on the balance of power between mundane and clerical forces. To the extent that state rulers are willing to, and capable of, enforcing legislation in matters related to family law, the representatives of religious authority – be they sheikhs, imams, bishops or rabbis who maintain various degrees of autonomy in adjudicating family law – see their authority circumscribed and diminished.
Two factors indicated explicitly by Rokkan and Bendix in the itemized inventory rendered above as (vi) and (vii) are the processes of facilitating divorce, and legalizing civil marriage. These factors were emphasized as significant steps in extending legal equality among the demos. As such, attempts made by state power in North Africa to standardize rules that regulate family law, and equalize between men and women in marriage and divorce through public administrative institutions rather than religious organizations, could well be seen as markers of centralized state power over a core human institution: the family.
Political Regime and Divorce Law Reforms: Variation Between Monarchies and Republics
A closer look at regime type and reform of divorce laws after 2000 reveal systematic variation between republics and monarchies when it comes to reform. Table 5.3 exposes two factors: First, with the exception of Saudi Arabia where khul’ divorce was introduced in 2021, all amendments in divorce law were enacted during the first decade after Egypt passed Law no. 1, more precisely between 2000 and 2009. These reforms occurred in other words before the 2011 Arab revolts.
Reforms in Divorce Law That Expand Women's Capacity to Unilateral Divorce in 18 Arab States According to Political Regime.
| North Africa | Levant | Gulf | |
|---|---|---|---|
| Republic | ** Tunisia 1956 * Egypt 2000 * Algeria 2005 Libya Sudan |
Iraq Palestine Syria Lebanon |
Yemen |
| Monarchy 40 | ** Morocco 2004 | * Jordan 2001/2010 | * Kuwait 2004 * UAE 2005 * Qatar 2006 * Bahrain 2009 * Saudi Arabia 2021 Oman |
Two asterisks (**) signal equalization between men and women in unconditional unilateral divorce. One asterisk (*) signals in-court khul’ divorce where various conditions apply. States where year is not stated do not have laws or regulations that capacitate women to obtain in-court divorce. Confer with Table 5.1 for details on each state.
Second, with the exception of Oman, all monarchies in MENA have enacted reforms in divorce laws that expand women's civil right to initiate and obtain in-court divorce, albeit with conditions often related to economic rights, or provisions regarding unequal custody and guardianship over children between mothers and fathers.
An immediate question arises: Why have monarchies been more progressive in initiating amendments in divorce laws compared to republics after the turn of the millennium? To rephrase the question: Why have monarchies, such as Jordan, Morocco, Kuwait and the UAE, been able to initiate and enforce amendments in divorce laws after 2000, while similar reforms in republics either remain absent, as in Libya and Sudan, or are stalled, as in Iraq and Yemen?
The multi-religious character of Levantine republics, such as Lebanon, Palestine, Syria and Iraq, provides one plausible explanation to challenges with regards to reforming family law. Legal pluralism and dual court systems in these states enable religious communities to exercise autonomy in regulating their own family law in religious courts that are independent of the state's civil courts (Berger et al., 1999; Maktabi, 2013).
Political scientist Lisa Anderson offers another explanation that provides leverage to why monarchies introduced and implemented change in divorce laws. She reminds us that ‘certain characteristics of absolutist monarchy appear to be very useful in nation building and state formation’ (Anderson, 1991, p. 3). Centralization of authority – a centrepiece of state formation – is particularly well suited for monarchs, she argues, for «the monarch, unlike his republican counterparts, has not admitted any ideological rationale for challenging his centralized authoritarian rule» (ibid., p. 14). In other words, the standardization of divorce law through the equalization of women's and men's rights in matters related to divorce, appear to be an endeavour more easily attainable by a monarch rather than decision-makers in republics. 41
As such, the establishment of in-court unilateral divorce for women goes hand in hand with the centralization of state power in the judicial sphere. Engelcke emphasizes that the 2004 family law reform in Morocco ‘considerably increased the state's oversight over divorce procedures’ (Engelcke, 2019, p. 188). This is observable also in the other states, particularly those with financial capability in building up a digitalized and internet-based personal status registry, such as the Gulf monarchies. In Qatar, the UAE and Saudi Arabia, citizens are able to contact the state bureaucracy through internet-based public services which have been considerably upgraded after 2015. 42 In other states, such as Morocco, Egypt and Kuwait, public services have not undergone similar digital upgrading. There, citizens still need to conduct their personal affairs in court by providing physical documents (Boutkhil, 2017; Lindbekk, 2016; Maktabi, 2020).
Conclusion
In Arab states, an adult woman's juridical autonomy as defined and regulated in state laws differs substantially from the juridical autonomy of adult males. Until 2000, Tunisia was the only diverging case among the other 21 member states of the Arab League where women and men had more or less equal civil rights in marriage and divorce. In all the other states, patriarchal family laws privileged male kin and limited a woman's autonomy in decisions related to whom she can marry, whether, and on what term she can divorce, and under which conditions she may retain custody over her children after divorce.
Building on the works of Bendix and Rokkan on the extension of legal equality to excluded social groups in society, this chapter looked at women's civil rights through the lens of reform in divorce laws. I have argued that the analytical relevance and comparative methodological approach – which the two authors elaborated in their work on the increase of legal equality – is a fruitful approach in fleshing out the parallel political development of female citizenship and the centralization of state power in Arab states a centennial after the establishment of territorial states in 1920. Through legislative actions and administrative decisions, women's legal capacity in exiting a marital relationship in four states in North Africa has widened, expanding thereby women's civil rights in other state laws. By extension, state power over the adjudication of family law has been strengthened.
The exploration on the expansion of women's legal capacity in family law in Tunisia, Egypt, Morocco and Algeria was limited to two interrelated aspects: amendments in divorce law, and establishing in-court judicial procedures as means to adjudicate unilateral divorce for women.
Tunisia's codification of a civil family law in 1956 was a revolutionary step at the time. The Tunisian family law was the first family law in an Arab state to equalize between men's and women's civil rights in marriage and divorce. Furthermore, matters related to marriage and divorce in Tunisia – previously adjudicated by religious authorities and institutions – became administered through public institutions such as personal registries and civil courts. More than four decades later, Egypt became a frontrunner in introducing unilateral judicial khul’ divorce for women in 2000. By 2021, eight Arab states had amended their divorce law. With the exception of Morocco, seven Arab states have adopted variations of Egypt's khul’ law (year of reform in parentheses): Jordan (2001), Morocco and Kuwait (2004), Algeria and the UAE (2005), Qatar (2006), Bahrain (2009) and Saudi Arabia (2021).
The review of reforms in divorce laws in four states in North Africa leads to three propositions: First, amendments in divorce laws after the turn of the millennium constitute significant political junctures in the development of women's civil rights in Arab states. Divorce law reforms widened woman's legal capacity and juridical autonomy in other state laws, such as nationality law and criminal law.
Second, the introduction of khul’ divorce as an in-court judicial procedure in Egypt had a spill-over effect on amendments in divorce laws on neighbouring states in North Africa, such as Morocco and Algeria, and in other MENA sub-regions as well, particularly the Gulf, where five of the six oil-rich monarchies introduced in-court khul’ divorce procedures.
Third, the equalization of female citizens' legal equality with male citizens in contemporary Arab states is an ongoing process through which woman's legal capacity and juridical autonomy within state laws has been gradually strengthened since independence. The exploration of reform in divorce law in four states in North Africa indicates that strengthening women's juridical capacity in obtaining unilateral divorce expanded woman's legal personhood. Reform in divorce law in North Africa appears to bring about change that bolstered female citizenship in other patriarchal state laws.
A contribution to theory-building on women's citizenship in MENA is that, in North Africa, the expansion of women's civil and political rights since independence have come primarily through amendments in women's unilateral right to divorce. Whether similar trajectories of change in divorce law fosters change in other patriarchal state laws – particularly nationality laws – remains an area for future research.
Notes
The analysis here covers 18 of the 22 members of The Arab League (excluding the four non-Arab speaking states of Comoros, Djibouti, Somalia and Mauritania). A regional subdivision in MENA comprises of a western part, often referred to as Maghreb (‘maghrib’ is ‘west’ in Arabic), that includes the North African states of Morocco, Algeria, Tunisia and Libya. Geographically located in North Africa, Egypt shares characteristics of being a North African state, although it is not commonly perceived as a Maghrebi state. The second sub-region in MENA is referred to as Mashreq (‘mashriq’ is ‘east’ in Arabic), also known as ‘the Levant’ which includes Jordan, Syria, Lebanon, Palestine and Iraq. The Gulf, usually referred to as the Khalij (‘khalij’ means ‘gulf’ in Arabic), is the third MENA sub-region. It includes Yemen and the six carbon-rich member states of the Gulf Co-Operation Council (GCC): Saudi Arabia, Kuwait, Oman, Qatar, the United Arab Emirates (UAE) and Bahrain.
The civic status of a Kuwaiti woman within state laws serves as a typical example of how women's legal capacity is invalidated by the principle of male guardianship over women. While the Constitution proclaims equality and human dignity for all persons in art. 29, other state laws trump that principle: art. 2 of the nationality law states that Kuwaiti citizenship is transmitted through a male citizen. In criminal law and family law, a Kuwaiti woman does not have an autonomous legal personhood because marriage, divorce, custody of children, sexual harassment, domestic violence, rape and the right to independent abortion are matters conditioned by the consent, mediation or abrogation of male kin. Also, social security laws premise that a Kuwaiti family is constituted of a male head of household who is perceived as primal provider (mu‘īl) (Al-Awadhi, 2006).
The terms ‘personal status code’ and ‘family law’ are used interchangeably in this chapter.
Table 5.2 provides an overview over reforms years in patriarchal state laws in the four North African states.
In the United Kingdom, a lengthy period of societal pressures and legislative proposals over roughly two decades since 1951 preceded the 1969 divorce law (Auchmuty, 2022). In Norway, men and women had equal access to divorce through the divorce law of 1909, amended in 1918. Norway's divorce law remained unchanged until 1993 when amendments safeguarded custody rights and financial responsibilities of unmarried parents who cohabitated (Sarromaa, 2019; Stang Dahl, 1987).
At the time, English women in general did not earn their own money. Husbands and wives had thus disparate financial positions as a result of gendered roles in the family. Husbands were wage-earners and breadwinners while wives were overtly unpaid home-makers. This is the case in many Arab states where female labour participation is less than 25% in most Arab countries (Moghadam, 2018).
The codification of religious law into civil law in the Syrian family law of 1953 was based on five sources: (1) the 1917 Ottoman family law; (2) the unofficial code prepared by the Egyptian jurist Qudri Pasha; (3) various Egyptian laws enacted between 1920 and 1946; (4) a treatise on personal status law drafted by the Damascene judge Ali al-Tantawi, based on his choices among different law schools according to principles most suitable to changing conditions and (5) the choice of the committee members of various Islamic jurisprudence regulations in accordance with the Hanafi school (Maktabi, 2010, pp. 560–561).
Divorce through talaq was a preferred option for a wife to end a marital relationship, but this option was perceived as both costly and time-consuming because the wife was obliged to raise a case against the husband in court. By contrast, a husband was capable of obtaining divorce out-of-court without raising a case against the wife.
Semantically, khul’ in Arabic refers to something being taken off or erased. For instance, khul’ thuwb means to undress, or take off clothing. Within Islamic jurisprudence, khul’ refers to a woman's legal capacity to initiate out-of-court divorce settlement by offering the husband a sum of money which he may accept (Al-Azhar, 2020, p. 222).
I am indebted to Monika Lindbekk who clarified on the point regarding the institutional transformation of khul’ within Islamic jurisprudence from an out-of-court divorce procedure to an in-court divorce procedure. Prior to 2000, khul’ divorce was administered judicially as an out-of-court divorce by mutual consent, as indicated above in Welchman's fourth categorization.
The institutionalization of in-court khul’ in Kuwait and Bahrain does not encompass the sizeable Shi'a community in each state, numbering approximately 60% in Bahrain, and around 30% in Kuwait (Maktabi, 2020, pp. 377–380).
Saudi Arabian women faced obstacles in obtaining divorce before the introduction of khul’ divorce in 2021 (Al Arabiyya News, 2015; Hawari, 2009).
Muslim, Christian, Jewish and other religious laws regulate personal status in the multireligious Levantine states. Christian citizens are unable to obtain divorce, known as ‘annulment of marriage’, because marriage is perceived as sacred. Since divorce rules are more favorable to men within Islam, conversion to Islam is often used as strategy to end a marriage.
In 2001, the government issued a decree opening for khul’ divorce among Sunni Muslims. The khul’ law proposal was debated in parliament but did not gather the necessary majority. A «Temporary law» divorce decree was introduced by the government, but it was disapproved twice by the Lower House (Welchman, 2007, pp. 116–119). In 2010, a law passed that retained judicial in-court divorce, and khul’ as term was replaced by the term iftida’. Jordan continued to allow a husband to divorce his wife out-of-court, in contrast to the 2004 Moroccan family law which invalidated out-of-court divorce (Engelcke, 2019, pp. 164–167, 186).
Kuwait's family law was codified in 1984 and applies to the Sunni and Shi'a communities. An amendment to article 127 enabled Kuwaiti women to obtain khul’ divorce in 2004 making it easier for Sunni women to obtain divorce. Shi'a Kuwaiti women continue to be regulated by judicial procedures under the clerical authority (Maktabi, 2020, pp. 376–380).
The now dissolved Governing Council passed Resolution 137 in 2003. Though not enacted, it abrogated the unified 1959 Iraqi family law where Muslim women had an unconditional right to divorce. At the time of writing, article 41 of the Constitution contemplates a new personal status law that safeguards norms shared by clerical authorities.
The UAE introduced khul’ divorce in 2005 (Welchman, 2007, p. 119).
Qatar introduced khul’ divorce in 2006. A wife can obtain judicial divorce through courts that can dissolve a marriage despite the husband's refusal to consent to divorce (Welchman, 2007, p. 119).
Khul’ divorce in Bahrain encompasses Sunni women whose family law was codified in 2009 while family law among the Shi'a community remains uncodified (Al-Awadhi et al., 2009; Hamada, 2009). Musawah (2017) reports that ‘[w]omen tend to choose khul’ as the preferred form of divorce because it is faster and slightly more accessible than other forms of divorce. […] women nevertheless face difficulties in exercising their right to a khul’ divorce. Men often take the opportunity to take advantage of a khul’ divorce [demanding] that women pay them large sums of money, sometimes, the approximate amount spent during the entirety of the marriage.’
During the revolutionary government of South Yemen (1967–1990), women obtained equal civil status with men in marriage and divorce through Law of the Family (Law no. 1, 1974). This law was abolished when North and South Yemen unified in 1990. Law no. 20 of 1992 abrogated women's unilateral right to divorce (Dahlgren, 2013).
Engelcke points out that the 2004 family law reform in Morocco «expanded women's access to divorce, but it did not put men and women on an equal footing: divorce is still gendered». She emphasizes nonetheless, that the Moroccan family law of 2004 law brought divorce under tighter state control, in contrast to the Jordanian family law of 2010 which continues to allow the husband to divorce his wife outside court (Engelcke, 2019, p. 188).
In Egypt, amendments in criminal law came by way of a new Constitution in 2014 where art. 11, 52, 60, 67, 71, 80 and 89 sought to ensure the protection women against violence and genital mutilation (Reda, 2019). A report on women's gains after the 2011 Arab Spring noted that, in Egypt, ‘the Penal Code of 1937 provides for reduced sentences for men convicted of “honour killings” (art. 237). The crime of adultery is defined differently depending on the sex of the perpetrator: a man is guilty only if he commits the act in the marital home, punishable with imprisonment up to 6 months (art. 277); a woman is guilty regardless of where the act takes place, punishable with imprisonment up to 2 years (art. 274). There are no specific laws criminalising sexual harassment or domestic violence’ (Fédération Internationale des Ligues des Droits de l'Homme, 2012).
Repudiation is the capacity of a husband to divorce his wife out-of-court by uttering «I divorce you» three times.
According to regulations for the personal status of Muslims formed in 1920, a husband was able to divorce his wife administratively without engaging in a juridical process by raising a case in court. The family law that regulated the personal affairs for members of the Orthodox Coptic Church was formed in 1938. The Coptic family law had strict procedures for the annulment of marriage which were rarely, if ever, granted for men or women (Kaiser, 2010).
Hamama and Sharif met in 1954 while filming The Blazing Sun (صراع في الوادي) directed by Youssef Chahine. At the time, their love story created a ballyhoo in Egyptian society after Hamama divorced her first husband (who did not oppose the divorce). Another reason for the buzz was that Omar Sharif (whose pre-stardom name was Michel Demitri Shalhoub) converted from Melchite Catholicism to Islam in order to marry Hamama. He converted to Islam because a Muslim woman, according to Islamic jurisprudence, is prohibited from marrying outside her faith.
‘The Women's Convention’ refers to The Convention on the Elimination of All forms of Discrimination Against Women (CEDAW). The two terms are here used interchangeably.
President Sadat issued two decrees in 1979 that strengthened women's rights in family law, including divorced mother's right to live in the marital home until her children reached 18 years. In 1985, President Mubarak withdrew the decrees to appease opposition by the Muslim Brotherhood (Singermann, 2005).
Some religious scholars, such as Hassan Duh, Gamal al-Banna, Shaykh Mohammad al-Ghazali and former head of the Fatwa committee at al-Azhar University, Shaykh Gamal Qutb, backed the khul’ divorce proposal (Fawzy, 2004, pp. 62–63).
The 2000 khul’ law empowers both Muslim and Christian Egyptians of both sexes to obtain divorce through civil courts in Egypt. However, she was wary of the tensions that would rise when Copts opted for divorce in civil courts. Tensions pertaining to divorce within the Coptic Church rose after 2008 when Pope Shenouda, the Egyptian Coptic Church's highest clerical authority, declared that divorce could only be obtained on the grounds of adultery (Kaiser, 2010).
Economic issues are especially important in a regional context where female labour force participation is the lowest in the world, though high among highly-educated women, whose unemployment rates also are very high (Moghadam, 2006). Unequal matrimonial financial and inheritance rights, and marital property regimes were defined as areas of future research in a World Bank study on 50 years of women's rights (Hallward-Driemeier et al., 2013, pp. 6–11).
The ‘Casablanca bombings’ were a series of bombings where 33 civilians were killed by 14 suicide bombers (Maghraoui, 2008).
Ikenberry studied how privatization programmes in the public sector became widespread in developed and developing countries after the downfall of the Soviet Union. He argued that there are three ways to understanding international dimensions of spill over effects of privatization programmes: (1) perceive these as spurious correlations and deny the existence of international connections; (2) point out common underlying economic and technological changes; and (3) emphasize international interactions across states through which economic and political considerations interrelate.
Elaborated in more detail and in depth in separate works (Bendix, 1978; Rokkan, 1975).
Demos is a Greek word which generally denotes ‘people’. More specifically, the demos of a state include those categorized as decision-makers and holders of sovereign power and supreme authority «to engage in legislative and judicial functions» (Held, 2006, p. 14). For more on methodological approaches and political dilemmas regarding the delineation and formation of the demos in a state, see (Butenschøn, 2000; Maktabi, 2012, pp. 39–61). By ‘human relations’, I mean more specifically the organization, regulation and legitimization of kinship relations, sexuality and reproduction which often, though not always, involve matters related to property and ownership of material assets such as housing.
I am indebted to Lars Mjøset for clarifying important lines of thinking related to the equalization of rights through the perspective of «legislative actions and administrative decisions», as elaborated on by Bendix and Rokkan, and to Nils Butenschøn who carefully re-read various versions of this article and advised me not to delete «the demos parts of your last version».
On «the interaction of the state», see the brilliant work of Htun and Weldon where they compare change of state laws in 70 states between 1995 and 2005 with regards to gender justice through factors that shape areas of ‘government action’ and ‘state action’. Their analytical approach on actions and legislative decisions, politics and policy outfalls, carried out in the name of the state, parallels Bendix and Rokkan's «legislative actions and administrative decisions» that shape inclusionary or exclusionary forms of citizenship in the development of Western industrialized democracies (Htun & Weldon, 2018, pp. 22–27).
The term ‘monarchy’ is used as a generic term to denote Morocco, Jordan, and the six carbon-rich Gulf states who share a hereditary form of dynastic political order. The term ‘kingdom’ applies more precisely to the kingdoms of Saudi Arabia and Bahrain (since 2002). Kuwait, Qatar and the UAE are emirates (meaning ‘princedom’ in Arabic), while Oman is a sultanate.
Jordan provides an interesting case of a multi-religious state where counter pressure from religious authorities and their political supporters in parliament have been strong in opposing the Jordanian government's preferred policy of amendments in divorce law. Although the divorce decree did not gather support in parliament, the government's will, which to a large extent expresses monarchical policy preferences, trumped the non-complying parliamentary majority and enforced khul’. See the note on Jordan in Table 5.1.
The introduction of the Absher-app in Saudi Arabia in 2016 caused controversy. Those who opposed the use of the app criticized the women's in-built dependency on male approval. However, critics failed to recognize the digitalized programme's practical use for women who were able to contact the state's administration more easily (Arab News, 2019; Feminist architecture collaborative, 2020; Human Rights Watch, 2016).
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- Prelims
- Chapter 1 A Family of Models for European Comparative History: Paris Lecture 4th December 1976
- Chapter 2 Rokkan and the ‘Variable’
- Chapter 3 What Is a Country? History and the Creation of the Maghreb
- Chapter 4 A Conceptual Map for Comparison of State Formation and Nation-Building in the Middle East 1870–1918
- Chapter 5 Female Citizenship and Divorce Law Reform in Arab States: The Gradual Expansion of Women's Legal Capacity in North Africa
- Chapter 6 External Intervention and Domestic Instrumentalization: A Structured, Focused Comparison of Iran and Saudi Arabia's Role in Yemen
- Book Symposium
- Chapter 7 The Authoritarian State in the Muslim World: Comparative Insights From Ibn Khaldun and Stein Rokkan
- Chapter 8 What Has Islam Got to Do With It?
- Chapter 9 Citizenship and the Issue of Islam, Authoritarianism and Underdevelopment
- Chapter 10 A Rejoinder