Personal Status Law

PERSONAL STATUS LAW

The term “personal status” was adopted during the period of Egyptian legal reform in the last quarter of the nineteenth century, to categorize certain laws governing the personal, not property, matters of individuals in accordance with their own respective religions. This concept became an established part of Egyptian legislation.

Historical Background

The earliest official recognition by the state of the right of Christians to invoke the provisions of their faith was in 318, when Emperor Constantine promulgated a decree whereby Christians were allowed to resort to ecclesiastical courts to settle their personal disputes in accordance with canon law rather than Roman law.

Following the ARAB CONQUEST OF EGYPT in 641, the judicial powers of Christian authorities over their subjects were maintained in all personal matters except those related to inheritance. Hanafite Muslim theologians regarded marriage as a purely religious issue and left it to the jurisprudence of Dhimmis, the non-Muslim communities tolerated within Islam.

Similarly, with the Ottoman conquest of 1517, the religious aspect of personal status law was preserved. It further acquired universal recognition when Constantinople issued al-Khatt al- Hamayuni (the imperial decree) of 1856, which was appended to the Treaty of at the end of the Crimean War. Article 9 of this treaty confirmed the jurisdiction of patriarchs and spiritual leaders over their own subjects in all cases of personal status.

After World War I the status quo was maintained. When religious courts were abolished in 1955, religious relating to non-Muslim personal status was not affected. This official recognition was confirmed in 1980 when, in the course of amending Article 2 of the Egyptian Constitution on the stipulation that law should be the principal source of legislation, a National Assembly commission stressed that in certain matters of personal status, non-Muslims should abide by the provisions of their own religious affiliation’s jurisdiction.

However, the scope of personal status law suffered certain restrictions. Whereas it had formerly embraced all issues relevant to marriage, divorce, separation, alimony, inheritance, financial rights, guardianship, tutelage, and custody of children, it now became restricted to matters of betrothal, marriage, and the dissolution of marriage through divorce or separation. The provisions of personal status law became applicable only in cases where the litigants were of the same faith and denomination. Thus, in the event of either spouse being converted to Islam, Islamic law has to be enforced. This undermines the principle of the sanctity of Christian marriage, which is of supreme importance to the Coptic church.

Personal Status Courts

The concept of the participation of laymen with the clergy in conducting affairs is based upon the teachings of the apostles: “Wherefore, brethren, look ye out among you seven men of honest report, full of the Holy Ghost and wisdom, whom we may appoint over this business. But we will give ourselves continually to prayer, and to the ministry of the word” (Acts 6:3-4).

The Imperial Decree recommended that “the administration of community interests of Christians and other non-Muslim subjects be referred to councils formed of elected monks [i.e., clergy] and laymen.” The said decree also provided that private suits, such as those relating to inheritance, between Christians and other non- Muslim subjects be referred to the patriarch or prelates and the councils if the parties concerned so desired.

The first Coptic COMMUNITY was accordingly formed in February 1874 by khedivial decree and authorized to consider personal status cases. Its bylaws were amended in 1883 and in 1927. They were in force until its legal jurisdiction was abolished by law number 462 of 1955 and transferred to the civil courts. The bylaws provided for the establishment of one or two courts formed of the president (in this case, the patriarch) or the vice-president, and five members, no less than four of whom were to be elected. Each court had the appellate jurisdiction to decide divorce cases previously considered by the provincial councils, even if their judgments were not appealed, validation by the Community being essential for them to take force (Article 8 of the bylaws). The Imperial Decree stipulated the establishment of provincial community councils in every province, to be presided over by the metropolitan and to consist of five members.

The personal status courts were accordingly courts that issued judicial, not administrative, decisions. Enforcement of their judgments was carried out, as in the case of other courts, through official administrative channels.

As of January 1956, all personal status cases, of Muslims and non-Muslims, were referred to civil courts: summary, first-instance, and appellate courts. The Court of Cassation, also, has a division for personal status cases. In view of the fact that such cases affect the very core of society, approval by the attorney general has been made optional for summary courts, but mandatory for higher courts, before any judgment passed may become valid.

Coptic Family Law

The sources of Coptic family law are the Old and New Testaments, the writings of the fathers, and the resolutions agreed to by various ecumenical, regional, and local councils. The authority of the church rests upon Christ’s words to his apostles: “Verily I say unto you, whatsoever ye shall bind on earth shall be bound in heaven, and whatsoever ye shall loose on earth shall be loosed in heaven” (Mt. 18:18). Patriarch IBN LAQLAQ III (d. 1234) treated this verse as the basis of the laws he established for the church. He also entrusted a Coptic scholar, al-SAFI IBN AL-‘ASSAL, with the task of compiling a compendium of laws, texts, and edicts.

In 1896, in reply to an inquiry by the Egyptian Ministry of Justice, Hegumenos JIRJIS PHILUTAWUS ‘AWAD of the of Saint Mark in Cairo produced Al-Khulasah al-Qanuniyyah fi al- Ahwal al-Shakhsiyyah (the Legal Compendium of Personal Status), which was adopted by the Community committee.

In 1938 the Community approved a codification of personal status. When personal status courts were abolished in 1955, the Community Council and the Holy approved a draft law, but it was not officially adopted. In 1962, Pope VI submitted to the minister of justice a memorandum incorporating the views on the subject. He demanded a stipulation in the personal status law for Christian Egyptians that no Christian marriage shall be attested by the notary public without prior compliance with religious requirements. More recently Pope published Shari‘at al-Zawjah al-Wahidah (The Religious Law of Monogamy).

The Catholic Coptic Community follows the provisions of the encyclical issued by Pope Pius XII in 1949 under the name The Marriage Sacrament in the Eastern .

As to the Evangelical community, it applies the law of personal status approved in 1902.

A unified draft law for personal status applying to all Christian Egyptians has been approved by the of each community. But it is still under consideration by the Egyptian authorities.

Marriage

Article 3 of law number 629 of the year 1955 gives Coptic clergymen the official capacity of mandatory notaries where the married people are of the same faith and denomination (i.e., Coptic Orthodox). Otherwise, marriages must be registered at the Public Notary Office.

A husband is required to provide a place of dwelling where he and his wife can live together. Coptic canon law does not allow a husband to force his wife to live with him. In Islamic marriages, too, a wife can no longer be coerced to live with her husband (law number 44 of 1979).

The marriage partners are instructed to live together in love, fidelity, and mutual respect. A husband is responsible for the maintenance and upkeep of his wife, and while financial independence of both husband and wife of sufficient means is safeguarded, a wife may be enjoined to maintain an impoverished husband if she can afford to do so.

Marriage confers legal rights upon the offspring, even those born illegitimately but who become legitimate upon the marriage of their parents. Adoption, contrary to Islamic legal practices, is recognized by Coptic canon law.

According to the nineteenth-century personal status compendium of Philutawus ‘Awad, a Coptic marriage can be dissolved for one of two reasons: adultery, and actual or virtual death. By virtual death was meant conversion to another religion (not to another denomination), exile for life, life imprisonment, a death sentence, or willful insubordination.

The 1938 and 1955 codes allowed the following as justification for divorce: adultery; relinquishment of the Christian religion; unaccountable five-year absence of either spouse; a sentence of no less than seven years’ imprisonment or hard labor; a husband’s impotence or a spouse’s insanity; and a criminal attempt of either spouse.

The 1938 code adds incorrigible behavior of either spouse, incompatibility, a three-year period of separation, and the embracing of monastic vows by either spouse. In 1945, Pope MACARIUS III denounced this liberal attitude on the part of the Community in matters of divorce, and then the Holy restricted divorce for adultery only “in accordance with the Gospels.” This attitude of the was confirmed by Pope VI in 1962 and by Pope on 18 November 1971, five days after his enthronement. A month later he issued a papal decree prohibiting the remarriage of a woman who had been divorced for adultery. The Unified Draft Law of Egyptian Christian Communities (Articles 128-130) adopted this view.

BIBLIOGRAPHY

  • Fattal, A. Le Statut légal des non-musulmans en pays de l’islam. Beirut, 1958.
  • Freig, E. S. Statut personnel et autonomie des chrétiens en Egypte. Jerusalem, 1974.
  • Hilmi Butrus. Ah al-Ahwal al-Shakhsiyyah lil-Misriyyin Ghayr al-Muslimin. Cairo, 1957.
  • Jirjis Philutawus ‘Awad. Al-Khulasah al-Qanuniyyah fi al-Ahwal al- Shakhsiyyah li-Kutub al-Aqbat al-Urthudhuksiyyin. Cairo, n.d. . Al-Majmu al-Safawi. Cairo, 1908.
  • Meinardus, O. F. A. Christian Egypt, Faith and Life. Cairo, 1970. Pope Shenouda III. Shari‘at al-Zawjah al-Wahidah, 3rd. ed. Cairo, 1978.
  • Tariq al-Bishri. Al-Muslimun wa al-Aqbat fi Itar al-Jama‘ah al-Wataniyyah. Cairo, 1980.
  • Zananiri, G. Catholicisme oriental. Paris, 1966.

ISKANDAR GHATTAS