Recent news that the Holy Synod of the Coptic Orthodox Church has unanimously approved a draft for new family bylaws for Christians in Egypt has stirred heightened interest among the Christian community. The draft still has to be approved by the other Churches in Egypt and by parliament before it can have the force of law. However, given that the Coptic Orthodox community forms the majority of Christians in Egypt, and that a unified family law for Christians is expected to include a framework for the legislation that governs all Christian sects in addition to separate chapters that apply to each individual sect, the new draft bylaws earned the predictable public stir.
It is no secret that marriage and divorce come top of the list of controversial topics where Christian family regulations are concerned. No surprise then that the chapters tackling these topics in the draft bylaws earned the most controversy. The draft includes chapters on engagement for marriage, marriage conditions and contracts, divorce, breakup of a marriage contract, and marriage annulment.
Christians in Egypt have long awaited a family law that would cater to their faith and also to their needs.
Current legislation governing family matters of Egyptians, both Muslim and Christian, is based on religious doctrines, and marriage and divorce can only be conducted by religious authorities. The law does not allow civil marriage or divorce unless one partner, or both, is non-Egyptian.
Muslims have no problem with the current family law since, being the majority religion, legislation is based on Sunni Islam. But it is different with Christians, since their family affairs are governed by both the Church and the State. Self-evidently, there ought to exist a congruency between the regulations used by each in order to avoid non-solvable situations. Marriage is conducted in the Church, then the contract is ratified by the Civil Register, so no problem can arise on that score. Not so in the case of termination of a marriage. Divorce is determined separately by the Church and the court of law, and can only go into force if both rulings are in agreement. A couple divorced by court ruling but not by the Church are still man-and-wife in the eyes of the Church, meaning neither can remarry. And again, if divorced by the Church but not in court, they cannot remarry since that would be bigamy which is not allowed in case of Christians.
Some couples have found a breakthrough by resorting to changing their sect, upon which the court considers them to be of different religions and automatically rules according to Islamic sharia, thus granting them a divorce. The person who moved into a different sect may then marry again according to the new sect. In extreme cases, a partner may convert to Islam to end a marriage and remarry.
Law long overdue
As matters stand today, the Church allows divorce only in cases of adultery, and allows marriage annulment in cases where the union was based on any sort of deception. The court rules according to what is famously known as the 1938 Bylaws, a set of rules for the termination of Christian marriages drawn up in 1938 by the Coptic Orthodox lay Community Council (al-Maglis al-Melli) at a time when the Council was in constant dispute with the Church leadership. The bylaws violated the Church principle that only the Holy Synod is charged with legislation, and stipulated lenient measures for divorce whereas the Church insisted that adultery was the only valid reason for divorce. Subsequent popes since 1938 have sent legal memorandums to the government protesting against the situation and requiring a new family law, but governments never responded. In 1971, all the Church leaders in Egypt gathered together and jointly drew up a draft for a unified family law which they presented more than once to subsequent justice ministers, but the draft was constantly shelved and the problems associated with Christian families remained unresolved.
To sum up the matter, Christians in Egypt need a family law sympathetic to the needs of couples seeking to end their marriages, and that will be fully recognised and endorsed by the Church and the courts of law so that the two would not issue contradictory rulings.
In an interview with Watani in November 2015, published by Watani International on 4 January 2015, Pope Tawadros gave readers a briefing on the new family bylaws which were then under review. “The draft unified family law,” Pope Tawadros said, “adheres to the principle that divorce can only be granted in case of adultery, but it broadens the scope of ‘adultery’ to be in line with modern-day conditions. Adultery is taken to mean the physical or spiritual breakup of a relation; this constitutes a breach of the original contract or pledge. Spiritually, this occurs when one of the partners relinquishes his or her faith; since the marriage was contracted based on the Christian faith, it is worthless if this faith is denied. As to physical adultery, it is no longer determined by the testimony of witnesses as had been stipulated before, but may be proved by letters, messages, images or videos of a discriminating nature.
“Drug addiction has been added as a reason for divorce. This requires that drug tests be included in the physical check-up which is now a prerequisite for marriage. And, of course, impotence is one of the reasons for annulling a marriage. In addition, the new bylaws stipulate abandonment or desertion as grounds for divorce; in case of couples with children a five-year desertion leads to divorce, for couples who have no children this period is three years.
Once divorce or marriage annulment takes place, the Church grants remarriage permits to only the wronged partner, based on a view that the guilty partner cannot be trusted to establish a new, sound family with problems that do not lead to a second divorce and broken home The draft bylaws do not make this a blanket decision, and permits for remarriage are granted on basis of case-by-case assessment.
Father Boulos Halim, spokesperson for the Coptic Orthodox Church, stresses that the draft bylaws have been very carefully set so as to honour the teachings of the Bible and at the same time ease the agony of many partners in failed marriages. “The item that specifies desertion as a basis for divorce contributes especially to that end,” he says.
According to Judge Monsif Soliman a member of the Coptic Orthodox Melli Council, the bylaws are currently under legal review by a committee of law professors and Melli Council members, after which they will be referred to the other Churches in Egypt for approval. A draft unified family law for Christians in Egypt, he says, will then be handed to the Justice Ministry to be placed before parliament in order for it to pass the law.
Lawyer Ramsis al-Naggar applauds the draft bylaws for adhering to the basic teachings of Christ. “No power on earth can make the Church go against its basic faith,” he says, “because at the end of the day, the Church is the defender of faith.” His son Peter al-Naggar, also a lawyer, agrees but is wary that courts of law might not accept the indicators defined by the bylaws as proof of adultery. “If this occurs,” he says, “couples may find themselves again suspended between the courts of law and the Church.”
The younger Mr Naggar poses the question of what would happen to couples who already have their cases in the courts? He suggests that there would be provisions for a transition period in order for matters to move smoothly from the current law to the new one once it is passed.
The issue of civil marriage has been a thorny one so far. There are no provisions in the Egyptian law for civil marriage for Egyptians and hence for Christian Egyptians. There have been vocal calls for a law to allow civil marriage; Mr Naggar believes it would fundamentally solve many problems for couples who would otherwise never be able to end failed marriages. He insists it is the responsibility of the State to secure civil rights of all its citizens, in this case to pass legislation that would allow civil marriage for those who do not wish to have Church marriage.
The Church has insisted that, given that marriage is a holy sacrament, it does not recognise anything but marriage in Church. Christians wishing to have a civil marriage or divorce may do so since this is a civil right, but the Church cannot be forced to recognise it. In other words, Church and civil marriages are two parallel paths; each is legitimate, but they do not cross. Article 18 of Chapter 2 of the draft bylaws stipulates that the official marriage contract is based on the Church contract; without it the married partners follow the general law and order of the State.
Particularity of each sect
Lawyer Bassem Zaher sees that once a unified family law for Christians is passed by parliament, it would put an end to the practice of conversion to another sect or to Islam in order to obtain a divorce. “This is not to say that no one may convert,” he says, “conversion is a purely personal freedom guaranteed by the Constitution. But regardless of conversion, a married couple falls under the jurisdiction by which their marriage was contracted. So conversion with the aim of obtaining a divorce would be pointless.” He draws attention to the many cases of Christians who converted to Islam and obtained their aspired divorce, but found out later that it was a practical impossibility to go back to their original Christian religion since this invariably caused some wide sectarian problem in the community. “In all cases,” Mr Zaher says, “all talk about this issue is premature until the new law is passed. It may not pass, after all.”
Mr Zaher stresses the need for a unified family law for Christians in Egypt. “About 90 per cent of the bylaws have been approved by all the Churches, but each Church has its own particularity that has to be provided for. This is why there is a separate chapter that concerns every Church; the Catholic Church, for instance, fully bans divorce and only allows separation.”
Anba Antonius Aziz, the Coptic Catholic Bishop of Giza, Fayoum, and Beni Sweif, confirms that no unified family law for Christians exists yet. “What we have,” he says, “is a framework of articles agreed upon by all the Churches, but each separate Church should set the part which particularly concerns it. We did put ours, but were told it was rather long. Nothing more has been done since.”
The Episcopal Church of Egypt, North Africa, and the Horn of Africa is, according to its Bishop Mounir Hanna, in total agreement with the new draft bylaws. “The articles are the same as those we have always applied in all our 22 Middle East parishes. So we have absolutely no problem.”
For his part, Rev. Rifaat Fikry of the Evangelical Church says the Synod has not yet met to give an official opinion, but sees the draft bylaws in a positive light and says they would go a long way to resolve family problems. The real answer, according to Rev. Fikry, is in legislation that stipulates civil marriage in addition to Church marriage.
Not everyone is happy, however. Hany Ezzat, an activist who speaks for those who see themselves as victims of the harsh divorce provisions in the current Church law, is cautiously hopeful vis-à-vis the draft family bylaws. He demands that the matter should be offered for societal dialogue. Another activist, Ashraf Anis, criticises the draft bylaws for being too harsh. “After five years of desertion, a couple has to await a court ruling that would take another year or two to be issued. This is way too long,” he says. “Besides, it is unconstitutional for those who have children to wait for five years while those with no children wait only three years. This makes them unequal before the law.” However Nader al-Sirafy, who heads the movement Copts 38 that calls for lenient divorce for Christians, is content with the draft bylaws on grounds that they stand to solve a lot of problems. He sees civil marriage as the best answer to the predicament of those who need prompt divorce.
Perhaps more significant than making divorce an option is the attempt to avoid it in the first place. As many Copts see it, it should be the duty of the Church to make sure that, as far as possible, Christian families do not reach the point where divorce is the only answer to their problems. Pope Tawadros says: “The most important and significant step the Church is taking is that it is attempting preventive measures for failed marriages. We have set up counselling centres to prepare couples for marriage and to help them solve problems that may come up once they marry. Participation in these courses is now a pre-condition for marriage.”
23 March 2016