Egypt, Arab Republic of


*Please note this is just a draft and all contents are still under revision.*


 

Legal Table
Legal Text

Legal System/History

Based on Islamic law and civil law (particularly French codes). Egypt attained independence from Ottoman Empire in matters of legal and judicial administration in 1874. Judicial reform began in 1875, leading to establishment of mukhtalatat (mixed) and ahli (national) courts. As Egypt increasingly came under foreign influence, legal system began resembling European systems to a greater extent.

From 1920 to early 1950s, Egyptian legislature enacted several laws effecting important changes to family law. Controversial emergency decree issued by Sadat in 1979 introduced extensive changes to the two Egyptian Laws of Personal Status of 1920 and 1929. In May 1985, the 1979 Law was struck down by High Constitutional Court on technical grounds and declared ultra vires the Egyptian Constitution. Several changes made by 1979 Law were reintroduced and some new provisions added in Personal Status (Amendment) Law (no. 100/1985) enacted a few months after verdict.  The Personal Status Law was again amended on 27th January 2000. 

School(s) of Fiqh

Hanafi majority; significant Coptic Christian minority.

Constitutional Status of Islam(ic Law)

Constitution adopted 11th September 1971; Article 2 affirms Islam as state religion; amended in 1980 to add recognition of the principles of Islamic jurisprudence as the principal source of legislation.

Court System

Shari’a courts integrated into national court system in 1956. Family law applied within National Courts by judges trained in shari’a (separate family chambers for Copts). Appeals go through regular courts, to Court of Appeals and then to Court of Cassation.

Relevant Legislation

Law concerning Maintenance and some provisions in Personal Status (no. 25/1920)

Law on Marriage Age (no. 56/1923)

Decree concerning provisions in Personal Status (no. 25/1929)

Law of Bequest (no. 71/1946)

Civil Code (no. 131/1948)

Personal Status (Amendment) Law (no. 100/1985), subsequently amended on 27 January 2000

also:

Law of Inheritance (no. 77/1943)

Shari’a Courts and Community Tribunals (Abolition) Law 1955

Law modifying some rulings on maintenance (no. 62/1976)

Notable Features

Marriage Age: 18 for males and 16 for females (lunar calendar)

Marriage Guardianship: governed by Civil Code; wali cannot prevent ward from marrying for reasons of status, amount of dower, etc.; judge may authorise marriage if wali refuses

Marriage Registration: obligatory registration a legal requirement though it does not determine validity of marriage, thus judges shall not hear cases in which parties have not reached minimum marriage age or in which matrimony is denied and parties have no documentation

Polygamy: notification of existing and intended wives required; existing wife can petition for divorce if she sustains such harm as makes cohabitation as husband and wife impossible (up to one year from date of her knowledge of the polygamous marriage)

Obedience/Maintenance: deviation from classical Hanafi law relating to arrears of maintenance which are deemed a debt against husband from the date he fails to maintain until debt is paid or excused; claims for maintenance not to be heard for past period exceeding one year from date of claim; wife’s leaving the home for lawful work not deemed disobedience so long as she does not abuse this right or it is not contrary to interests of her family, with proviso that husband has not asked her to refrain from exercising right to work

Talaq: talaq expressed indirectly, while intoxicated or under coercion, or conditionally with coercive intent is ineffective; repudiation to which a number is added verbally or by gesture effective only as single revocable talaq (except third of three); written and notarised certification of talaq must be obtained within 30 days of repudiation and notary must forward copy of certificate to wife; certain financial effects of talaq suspended on her knowledge thereof if husband is found to have concealed it

Judicial Divorce: wife may obtain judicial divorce on following grounds: serious or incurable defect of the husband (unless woman married in full knowledge of such defect or defect occurred after the contract and she implicitly/explicitly accepted it), harm making cohabitation as husband and wife impossible, if harm is proved and reconciliation efforts fail, material or moral harm if husband marries polygamously and such harm makes cohabitation as husband and wife impossible (up to one year from date of her knowledge of the polygamous union), husband’s absence for a year or more without reasonable justification; husband’s imprisonment for three years or more, after one year of sentence has passed, non-payment of maintenance; and discord if reconciliation efforts fail, with financial settlement proportionate to allocation of blame as determined by arbitrators; wife may also obtain a divorce on the grounds of incompatibility, but will not lose all financial claims against her husband; a divorce requested by wife on the grounds of incompatibility must be granted within six months

Post-Divorce Maintenance/Financial Arrangements: divorcée repudiated by husband without cause or consent on her part entitled to compensation (mut’a al-talaq) of at least two years’ maintenance (no maximum stipulated); maintenance claims for ‘idda not to be heard after one year from date of divorce; divorcing husband required to provide independent accommodation for former wife having custody of their minor children

Child Custody and Guardianship: divorced mother’s custody ends at 10 years for boys and 12 years for girls; judge may extend custody to 15 years for boys or until marriage for girls if ward’s interests so require

Succession: 1946 Law introduced ‘obligatory bequest’ (wasiyya wajiba) for descendants of predeceased sons (how low soever) and daughters, as well legalised bequests to heirs, and extended doctrine of radd (return) to allow spouse relict to share in residue of estate

Notable Cases

Case no. 29/1980 Badari Court of Summary Justice for Guardianship of the Person (Mahkama Juz’iyya li’l-Wilaya ‘ala’l-Nafs) precipitated 1985 decision of High Constitutional Court (al-Mahkama al-Dusturiyya al-‘Ulya) that implementing resolution of Law no. 44/1979 (‘Jihan’s Law’) was unconstitutional on technical grounds as initial emergency decree by which Sadat implemented the legislation was issued in absence of true state of emergency, and so was invalid.

Hisba suit against Professor Abu Zayd to divorce him from his wife on basis of his alleged apostasy, ultimately upheld by Supreme Court; led to passage of Law no. 3/1996 preventing claims by private individuals on basis of hisba.

Law/Case Reporting System

Law reporting in al-Jarida al-Rasmiyya. Case reports of Court of Cassation (mahkama al-naqd) decisions in civil and criminal cases published since 1949; six volumes issued annually. Practitioners’ and judges’ indexes of cases compiled less frequently. Supreme Constitutional Court decisions published since 1979. Practitioners’ collections of principles in court rulings on shari’a and personal status matters also compiled.

International Conventions (with Relevant Reservations)

ICCPR & ICESCR – signature 1967, ratification 1982 with general declaration relating to the provisions of the shari’a not conflicting with the text annexed to the instrument

CEDAW – signature 1980, ratification 1981 with reservations to Arts. 9(2), 16, 29(2) & 2

CRC – signature & ratification 1990 with reservations regarding any provisions relating to adoption, particularly Arts. 20 & 21

Legal History:

The legal system is based on Islamic law and civil law (particularly French codes). Egypt attained independence from the Ottoman Empire in matters of administration of law and the judiciary in 1874. A reformist movement developed in the late 19th century, led by such prominent thinkers and commentators as the Grand Mufti Muhammad ‘Abduh, Rashid Rida, and Qasim Amin. Changes in the interpretation and application of family law were an important part of the reformists’ agenda.

The reform of the judicial administration began in 1875, leading to the establishment of mukhtalatat (mixed) and ahli (national) courts. As Egypt increasingly came under foreign influence, the legal system began resembling European systems to a greater extent. New legislation relating to penal, commercial and maritime law also reflected the growing influence of Europe, but personal law remained unreformed until 1920. (The renowned jurist Qudri Pasha prepared an unofficial code of personal status law based on the rajih (majority, dominant) views of the Hanafi school, a source still referred to in the shari’a courts of some neighbouring states as a guide to Hanafi law.)

The shari’a courts were integrated into the National Courts in 1956. There are judges trained in shari’a presiding over family law cases within the National Courts. Appeals are heard by regular judges in the Court of Appeals and then the Court of Cassation.

From 1920 to the early 1950s, on the basis of recommendations made by several committees, the Egyptian legislature enacted a number of laws effecting important changes in legal principles relating to family law and succession. These included the Law of Maintenance and Personal Status (Law no. 25/1920), a law regulating minimum marriage age (Law no. 56/1923), a Law of Personal Status (Law no. 25/1929) on the dissolution of marriage and family disputes, the Civil Code of 1931, the Law of Inheritance (Law no. 77/1943), and the Law of Bequest (Law no. 71/1946). In 1976, a new law established rules for the enforcement of court-orders for payment of maintenance to wives, ex-wives, children and parents.

Through the 1960s and 1970s, despite various reports and proposals relating to legal reform, political events time and again pre-empted the enactment of new laws in this area. Finally, in 1979, after failing to achieve any consensus on matters of family law, Sadat unilaterally issued an emergency decree passing one of the proposals into law in 1979. Law no. 44/1979 was popularly referred to as ‘Jihan’s Law’ or ‘Jiji’s Law’. This controversial amendment introduced extensive changes to the two Egyptian Laws of Personal Status of 1920 and 1929, drawing from the interpretations of scholars of all four Sunni schools of law.

In May 1985, the 1979 law was struck down by the High Constitutional Court of Egypt on technical grounds and declared ultra vires the Egyptian Constitution; the initial emergency decree issued by Sadat had been issued in the absence of a true state of emergency and so was deemed invalid. A few months after the verdict, a Personal Status (Amendment) Law (Law no. 100/1985) was enacted to revise the 1920 and 1929 Laws on Personal Status. A number of the changes made by the 1979 law were reintroduced as well as some new provisions added. One element that was conspicuous by its absence in the 1985 legislation was the wife’s automatic right to a divorce from her husband if he married polygamously.  As a concession to religious conservatives, the presumption of injury occasioned by a polygamous marriage was removed, requiring the wife to establish that she has suffered harm from her husband’s polygamous union if she wishes to divorce. Thus, the ground for divorce was no longer automatic but was left up to the discretion of the courts, as being the wife of a polygamous husband was no longer automatically equated with “harm” (constituting a return to the classical position).

The second compromise related to the requirement that the divorced wife in custody of minor children had exclusive rights to the rented marital home for as long as she retained custody (unless her former husband provided another dwelling). While the requirement to provide accommodation for the custodial mother was retained in the 1985 legislation, the former husband was given exclusive rights over his unrented dwelling.

The Law of Personal Status was again amended in January 2000, giving women more options for divorce.

Schools of Fiqh: The Hanafi school is the predominant school of fiqh. Earlier on, Egypt was the home of the Shafi’i school and under the Fatimids, the ruling classes were Isma’ili. There is also a significant Coptic Christian minority in Egypt.

Constitutional Status of Islam(ic Law): The Constitution was adopted on 11 September 1971 and amended by referendum in May 1980. The amendment made Islamic law ‘the principal source of legislation’ in Egypt. Article 2 of the Constitution reads in full: "Islam is the religion of the State and Arabic its official language. Islamic jurisprudence is the principal source of legislation."

Court System: Shari’a courts were integrated into the national court system in 1956. Family law is administered within the National Courts by judges trained in shari’a (with separate judges for and legislation applicable to cases involving Copts and Muslims). Appeals are heard by regular judges in the Courts of Appeal and, ultimately, the Court of Cassation.

Notable Features: There are a number of enactments relating to personal status, though the core of family law is formed by Laws no. 25/1920 and no. 25/1929 as amended by Law no. 100/1985. The Civil Code (no. 131/1948) drafted by Professor ‘Abd al-Razzaq al-Sanhuri, the renowned Egyptian jurist who played a role in the drafting of legislation in a number of Arab states during the 1940s and 1950s, does not cover family law or succession, but does govern majority and civil status; Article 280 of the Civil Code directs that recourse should be had to the most appropriate opinion from the Hanafi school in the absence of any textual provision in the legislation.

The minimum marriage age is 18 for males and 16 for females (lunar calendar). Registration is compulsory but does not determine the validity of marriage. Courts may not hear cases where the parties have not attained the minimum marriage age, or where claim of marriage is disputed and there is no official documentation.

Guardianship is governed by the Civil Code but does not extend to the power of compulsion in marriage; a wali cannot prevent his ward from marrying for reasons relating to social status or the amount of dower, for example, as judges may authorise marriages if walis refuse.

Maintenance is due from the date of a valid marriage contract and valid retirement unless the wife apostasies, denies her husband conjugal rights without justification, or leaves the matrimonial home without his permission (except for circumstances permitted by rules of the shari’a). However, leaving the home for lawful work does not constitute disobedience so long as the wife does not abuse this right, it is not contrary to the interests of her family, and her husband has not explicitly asked her to refrain from working.  Maintenance is deemed to be a debt against the husband from the date that he fails to maintain until the debt is paid or excused, and claims for arrears of maintenance may not be heard for a period exceeding one year from the date of the claim.

Polygamy is permissible, with notification of the existing and intended wives. The existing wife of may obtain a judicial dissolution on grounds of material or moral harm up to one year from the date of her knowledge of her husband’s polygamous union if such harm makes cohabitation as husband and wife impossible.

Talaq expressed indirectly, while intoxicated or under coercion, or conditionally with the intent of forcing the taking of some action has no effect. A talaq to which a number is added verbally or by gesture is effective only as a single and revocable talaq, except for the third of three, talaq before consummation or in consideration of payment. A written and notarised certification of talaq must be produced within thirty days of repudiation and the notary must forward a copy of the certificate to the wife. Certain financial effects of talaq are suspended on the wife’s knowledge of the repudiation if the husband is found to have concealed it.

The wife may obtain an irrevocable judicial divorce on the following grounds: serious or incurable defect of the husband (unless the woman married in full knowledge of the defect or it occurred after the contract and she implicitly or explicitly accepted it); harm making cohabitation as husband and wife impossible (if the harm is proved and reconciliation efforts fail); material or moral harm if the husband marries polygamously (subject to the aforementioned conditions); non-payment of maintenance; the husband’s imprisonment for three years or more (after one year of the sentence has passed); and discord, if reconciliation efforts fail, with a financial settlement proportionate to the allocation of blame as determined by the arbitrators.  A woman can also seek a divorce on the grounds of incompatibility, but in such case she forfeits all financial claims against her husband.

A divorcée repudiated by her husband without cause or consent on her part is entitled to maintenance during her ‘idda and compensation (mut’a al-talaq) of at least two years’ maintenance (with consideration for the husband’s means, the circumstances of the divorce, and the length of the marriage); no upper limit for compensation is stipulated. Maintenance claims for the ‘idda period can be heard up to one year from the date of the divorce. A divorcing husband must provide independent accommodation for his former wife who has custody of their minor children.

The divorced mother is entitled to custody of boys until the age of 10 and girls until the age of 12. Custody may be extended till the age of 15 for boys and till marriage for girls if the judge deems such an extension to be in the best interests of the ward.

On succession, notable reforms introduced by legislation in 1946 legalised bequests to heirs, and also established ‘obligatory bequests’ to benefit descendants of predeceased sons (how low soever) and daughters. The doctrine of radd was also extended to allow the spouse relict to share in the residue of the deceased spouse’s estate.

Notable Cases: Case no. 29 of 1980 in the Badari Court of Summary Justice for Guardianship of the Person (Mahkama Juz’iyya li’l-Wilaya ‘ala’l-Nafs) precipitated the 4th May 1985 judgement of the High Constitutional Court (al-Mahkama al-Dusturiyya al-‘Ulya) that the implementing resolution of Law no. 44/1979 (‘Jihan’s Law’) was unconstitutional on technical grounds as the initial emergency decree by which Sadat implemented the legislation was issued in the absence of a true state of emergency.

A 1993 hisba suit before the Giza Court of First Instance called for divorcing Professor Nasr Abu Zayd from his wife on grounds of his alleged apostasy. The Giza Court dismissed the suit and the petitioners appealed to the Cairo Court of Appeal (Department of Personal Status). The Appeals Court ruled in favour of the petitioners, and the case was brought before the Supreme Court in 1995. The Supreme Court ruled for divorcing Professor Abu Zayd from his wife. The case led to the passage of Law no. 3/1996 preventing claims by private individuals on the basis of hisba.

Law/Case Reporting System: Laws are published in al-Jarida al-Rasmiyya. Case reports of civil and criminal judgements of the Court of Cassation are published six times annually. Judges and practitioners’ indexes and summaries of the same are compiled less frequently. Practioners’ collections of principles in court rulings on shari’a and personal status matters are also compiled.

International Conventions (with Relevant Reservations): Egypt signed the ICCPR and ICESCR in 1967 and ratified them in 1982. Egypt submitted a general declaration relating to the provisions of the shari’a not conflicting with the text annexed to the instrument(s).

Egypt signed the CEDAW in 1980 and ratified it in 1981. One of the reservations submitted by Egypt relates to Article 9(2) on gender equality in nationality rights. "It is clear that the child’s acquisition of his father’s nationality is the procedure most suitable for the child and that this does not infringe upon the principle of equality between men and women, since it is customary for a woman to agree, upon marrying an alien, that her children shall be of the father’s nationality." The next reservation is to Article 16 relating to gender equality in family relations. The reservation relates to the status of the shari’a; Article 16 is accepted insofar as it does not prejudice shar’i provisions whereby women are granted rights "equivalent" to men’s rights in order to "ensure a just balance between them." The reservation is made "out of respect for the sacrosanct nature of the firm religious beliefs which govern marital relations in Egypt and which may not be called in question and in view of the fact that one of the most important bases of these relations is an equivalency of rights and duties so as to ensure complementarity which guarantees true equality between the spouses." The reservation to Article 2 states that, although "Egypt is willing to comply with the content of this article," it is with the proviso that "such compliance does not run counter to the Islamic shari’a".

            Egypt signed and ratified the CRC in 1990. Egypt submitted a general reservation concerning areas of conflict between the shari’a (as one of the fundamental sources of Egyptian positive legislation) and the CRC, particularly in relation to provisions on adoption in Articles 20 and 21.

Background and Sources: Brown, The Rule of Law in the Arab World: Courts in Egypt and the Gulf, Cambridge, 1997; El Alami, "Law no. 100 of 1985 Amending Certain Provisions of Egypt’s Personal Status Laws," Islamic Law and Society. vol. 1(1), 1994: 116-136; El Alami, The Marriage Contract and Islamic Law in the Shari’ah and Personal Status Laws of Egypt and Morocco, London, 1992; El Alami & Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World, London 1996; Hill, Mahkama! Studies in the Egyptian Legal System: Courts & Crimes, Law & Society, London, 1979; Mahmood, ‘Egypt’ in Statutes of Personal Law in Islamic Countries, 2nd ed., New Delhi, 1995; Najjar, "Egypt’s Laws of Personal Status," Arab Studies Quarterly, vol. 10, no. 3 (1988): 319-345; Nasir, The Islamic Law of Personal Status, 2nd ed., London, 1990; Pearl, A Textbook on Muslim Law, 2nd ed., London, 1987; Redden, ‘Egypt’ in Modern Legal Systems Cyclopedia, vol. 5, Buffalo, NY, 1990; Sfeir, "Basic Freedoms in a Fractures Legal Culture: Egypt and the Case of Nasr Hamid Abu Zayd," Middle East Journal, vol. 52, no. 3 (1998): 402-414.