The Coptic divorce struggle in contemporary Egypt

Abstract

Since his accession in 2012, Coptic Orthodox Pope Tawadros II has initiated a number of reforms within the church, including a major overhaul of the church court system and the introduction of more liberal provisions concerning divorces. This article explores the historical development and current state of divorce and divorce law within the Coptic Orthodox Community in Egypt and the complex interactions between Coptic citizens, their church, and state courts. Scrutinising interviews and press statements by the new pope and senior clerics, it investigates their ideas of Coptic family law and their justification for changing the Church’s approach to the divorce issue. It also takes the perspective of divorced Copts and looks at the myriad paths people have been following in search of legal and administrative loopholes, and assesses the impact that the new regulations will have on their lives.

Introduction

One of the best-guarded taboos of the Coptic Orthodox Church in Egypt in the last decades used to be the issue of divorce. Legally, Coptic Orthodox and other Christians have been able to file for divorce before state courts on various grounds since 1956 (before that, the millī, or communal courts were in charge). However, acting on the biblical injunction ‘What God has joined, let no man put asunder’ (Matthew 16:9; Mark 10:9), the church leadership under Pope Shenouda III (1971–2012) steadfastly refused to recognise the dissolution of marriages and used its administrative prerogatives in registering marriages to prevent divorced people from getting married again. In the meantime, it was an open secret that individual Copts and their lawyers were exploiting the loopholes offered by the dual legal system to find solutions that suited them more than the rigid rules set by the divorce code and the church. The practice of switching between different legal codes and authorities and playing them off against each other, called ‘forum shopping’ by legal scholars, is much less exceptional as it might seem from a modern perspective (Shaham, 2010; Bernard-Maugiron, 2011). In fact, it continues a long tradition in Middle Eastern Christian communities (Al-Qattan, 1999; Jirjis, 1999; Sharkey, 2017: 94–95): on the one hand, Christian clergy were often claiming and sometimes able to assume far-reaching legal authority over their flock. On the other hand, there is also an ample historical record of Christians appearing before Muslim (i.e. ‘state’) courts in order to regulate all kinds of public and private affairs, including family matters that would have theoretically fallen under the exclusive jurisdiction of the clergy.

When criticised for the lack of more respectable and sound legal solutions to marital breakdown among Coptic Orthodox couples, Shenouda and other senior clerics would habitually claim that divorce was so rare among Orthodox Copts that the issue was hardly significant at all: ‘The cases that come to us can be counted in dozens, not hundreds - and certainly not thousands!’ ¹ However, divorce lawyers and civil rights activists estimated that the backlog of suspended divorce cases was actually somewhere between 40,000 and 160,000 as of 2008 (Bernard-Maugiron, 2011: 364).

As to the Coptic Orthodox Church’s stance on divorce, the arrival of Pope Tawadros II on the patriarchal throne in 2012 signalled a remarkable and relatively sudden turning point. Within only a few years, Tawadros initiated a major overhaul and expansion of the Clerical Council, the Church court system created under Shenouda, and brought the Holy Synod to agree on much more liberal provisions concerning the granting of divorces and annulments. The purpose of this article is to situate this development in the history of Coptic family law issues, and estimate its significance and possible consequences. Scrutinising interviews and press statements by the new pope and senior clerics, I will look into their ideas of Coptic family law and their justification for changing the Church’s approach to the divorce issue, seeking to reconstruct their motives and aims. I will also take the perspective of divorced Copts, look at the myriad paths people have been following in search of legal and administrative loopholes, and assess the impact that the new regulations will have on their lives.

The unchartered realm of Coptic divorces

Research about divorce among the Copts suffers from an acute lack of verifiable facts and figures. Together with the social and theological stigmatisation of divorce, the decades-long deadlock on the issue caused a situation in which most parties developed a staunch interest in mystifying the facts. The Church had no interest in revealing the true number of divorces and second marriage petitions, and it was reluctant to give practical information to divorced couples as to how to obtain a new marriage licence. Divorce lawyers – for obvious business reasons – had little interest in disclosing the complex legal (and sometimes illegal) strategies they were using in helping people to get divorced and married a second time. Finally, the people themselves were often shameful of their experience and afraid of possible sanctions if the Church, the State or their social environment found out about the details of their divorce and second marriage. As divorces often involved legal ‘forum shopping’ through tactical conversions, unwanted publicity could also draw the attention of religious extremists from both the Christian and Muslim camps and create further problems (Guirguis, 2008; Shaham, 2010). This article can only start to clear up the fog and provide a preliminary survey of the topic; much further research will be needed to determine how and why Copts were and are getting divorced, and how many of them have been attempting to get married again.

The development and current state of family law regulations concerning Coptic Orthodox Christians in Egypt (< 6% of the population according to official statistics) has been analysed elsewhere (Manṣūr, 1999; Berger, 2001; Shaham, 2010; Bernard-Maugiron, 2011; Sezgin, 2013). In brief, since 1956 jurisdiction over the family law issues of Egyptian Christians pertains to the Egyptian National Courts (Law 462/1955). If both litigants are Coptic Orthodox, the courts apply the 1938 Personal Status Code of the Orthodox Copts (1938 Code), which allows judicial divorce on a number of grounds, including adultery, abandonment, imprisonment, misconduct and mistreatment, and incompatibility. ²

If one litigant in a divorce case is Muslim or belongs to a different Christian community (such as Greek Orthodox, Coptic Catholic or Protestant), the courts apply the general law, which is a codification of Islamic law mainly based on the opinions of the Hanafi school. One crucial difference between Muslim and Christian divorce law is that Muslim law allows unilateral divorce by both husband (ṭalāq) and – since the year 2000 – wife (khulʿ). Law 462/1955 was the culmination of a process of ‘nationalisation’ that started in the 1920s, and by which the Personal Status issues of non-Muslims, such as divorce, maintenance, and inheritance were gradually removed from the jurisdiction of clerical and communal courts and transferred to state courts. However, one major prerogative remained in the hands of the clergy: the right to conclude and register marriage contracts. The dichotomy of church marriage and civil divorce has placed Copts in an ambiguous position somewhat in between the authority of state laws and the authority of the Church (Fuʾād, 2016).

A decisive development came in 1971 with the arrival of Pope Shenouda III, whose opposition to divorce in the most general sense was steadfast. An al-Ahram Weekly portrait of Shenouda from 1999 gives a lively impression:

The Pope lashed out at ’those who have invented various justifications for divorce, who are just latching on to reasons that are not a part of religion and its teachings. Some people want to make religion subservient to their personal interests and do not want to submit themselves to the rules of religion.’ He also said that some people want to use religion to legitimise ’their lusts and desires, when religion is meant to restrain these lusts and desires. They want the church to approve a second marriage for them, but we consider this to be illegitimate. Some people think that a second marriage is the solution, but it is not,’ he said. ³

Only days after assuming office, Shenouda had issued two papal decrees (Suryāl, 2004: 144–148). Decree 7/1971 announces his rejection of the 1938 Code. It declares that the Church will henceforth abide by the biblical injunction that says: ‘Now I tell you that whoever divorces his wife, except for sexual immorality, and marries another woman, commits adultery.’ (Matthew 19:9; similar versions in Matthew 5:43; Mark 10:11; Luke 16:18). According to the interpretation forwarded by Shenouda, this means that the only legitimate reason for divorce is adultery or marital infidelity (zinā). ⁴ As all divorces granted on grounds other than zinā are invalid in the light of the Bible, the Church cannot recognise them. Decree 8/1971 clarifies the practical implications of this declaration: the Church will consider the man or woman divorced on grounds other than zinā as still married and will not allow them to marry a second time. As to the couples divorced for adultery, the church will allow only the innocent party to marry again. Before a legally divorced person can marry again, her or his case must be submitted to the newly established Clerical Council (al-majlis al-iklīrikī), which will have to ascertain the validity of the divorce and the innocence of the person seeking another marriage.

Shenouda thereby withdrew the church’s recognition from the divorce verdicts delivered by the Egyptian family courts on the basis of the 1938 Code, and created a parallel legal system inside the Church which was in charge of scrutinising the divorce cases afresh and issuing an independent ruling based on the legal norms set by the Church only. In theory, Coptic Orthodox people who were seeking a second marriage after a divorce now had to undergo a second divorce trial, in which they had to prove that their former spouse had been unfaithful to them. Because extramarital intercourse was often impossible to prove, the Clerical Council admitted circumstantial evidence of adultery such as love letters or pregnancy, as well as suspicion of homosexuality (al-shudhūdh al-jinsī) (Suryāl, 2004: 146). This wide interpretation of adultery, termed zinā ḥukmī, which has featured in all legal texts produced by the Church since the 1970s, has been subject to fierce criticism from Coptic lawyers, activists, and constitutionalists (below). In practice, the church courts were not designed to be highly accessible to Copts from all walks of life, on the contrary: a single council in Cairo was responsible for all cases in the whole of Egypt.

But how many cases were there, actually? According to figures published in an official church publication by Father Ṣalīb Suryāl (d. 1994), who was himself a member of the Clerical Council in the 1970s and 1980s, the council handled 374 cases in the years 1984 and 1985, and another 226 in the first ten months of the year 1986 (Suryāl, 2004: 149). The book also details how the council decided on these cases. Extrapolating from these data, we can estimate that the Clerical Council handled an average of about 200 cases each year and granted an average of 60 marriage licences (taṣrīḥ bi-l-zawāj). Its positive verdicts were mostly based on annulments (buṭlān) on the grounds of impotence and deceit or fraud, and divorces on the grounds of a change of religion (probably meaning Islam) and ‘deviation’ (inḥirāf), presumably adultery and/or homosexuality. Considering that the size and function of the council presumably did not change until the death of Pope Shenouda, this must have been the state of affairs until 2012.

It was hardly a secret that the Clerical Council was an instrument to obstruct, rather than facilitate divorces. When explaining his reforms, Pope Tawadros II mentioned that the Clerical Council had not been keeping track with the needs of a growing Coptic population for a while, and that people waited for years before even getting a hearing. ⁵ Divorce lawyers and activists had been criticising this problem since the 1990s, as well as the restrictive rulings of the Clerical Council – it seems that it rejected or delayed most cases that were not eligible for an annulment. Is there any way to corroborate the estimates forwarded by these activists as to the number of people harmed by this system? How many divorces were there among Egyptian Copts, and how high was the percentage of divorced people seeking a second marriage?

Government statistics on marriage and divorce provide some interesting background, even though they feature a rather important drawback: they do not specify the religious affiliation of the people who got married or divorced. ⁶ The general picture is the following: Firstly, the statistics differentiate between divorce certificates and divorce rulings by courts, reflecting the fact that Muslim men have the right to register a ṭalāq divorce (unilateral divorce, repudiation) with a public notary. The 2016 yearbook reveals that the vast majority of divorces (93.6%) were effected through ṭalāq. Apart from the advantage it gives to men, the practical upside of ṭalāq is that is does not require any court proceedings, which makes it relatively fast and cheap. Consider that, at least since the 1990s, the Egyptian court system has been suffering from an insufficient number of judges as compared to the number of lawsuits filed, a situation leading to long waiting periods and ineffective mechanisms of enforcement (Bernard-Maugiron and Dupret, 2008). Some reforms were introduced between 2000 and 2005 with the intention of making the courts more female- and family-friendly, but efficiency remained a huge problem (Al-Sharmani, 2017: 25–46).

In 2016, only 6.4% of divorces were the consequence of court decisions. Among the divorce cases decided by courts the introduction of the khulʿ Law in 2000 triggered a shift from divorce on the grounds of harm towards this new legal mechanism of unilateral divorce by the wife (in exchange for returning the dower and renouncing alimony rights). By 2016, more than two thirds of divorces were on the grounds of khulʿ. ⁷ According to recent research, the reason for the relative popularity of this legal instrument was that women could expect to win khulʿ lawsuits within a year or less, while fault-based divorce suits were longer and more unpredictable (Al-Sharmani, 2017: 81–110).

The number of ṭalāq registrations indicates strongly rising divorce rates throughout the 1990s, 2000s and 2010s. Between 190,000 and 200,000 divorce certificates have been registered each year since 2015, up from around 140,000 in 2011 and around 70,000 in the late 1990s and early 2000s. ⁸ While the Egyptian population increased by 36% between 2001 and 2015, the yearly number of ṭalāq divorces increased by 184% in the same period.

Given the predominance of Islamic legal institutes in the statistics, and the fact that the statistics do not mention religious affiliation, it is difficult to know how they reflect the number of divorces among Egyptian Christians. In theory, Christian divorce cases should be a certain percentage of the court cases which were decided on grounds other than khulʿ. The 1938 Code allows judicial divorce on the strength of nine different grounds, many of which similar to those available in Muslim family law (Bernard-Maugiron, 2011: 363–364). It seems that the statistical agency has been lumping these cases together, presumably because the proceedings are similar, even if the courts must apply different legal codes.

However, can we be sure that no Coptic cases figure under the rubric of khulʿ and ṭalāq? As mentioned above, Coptic Orthodox personal status regulations only apply if both parties are members of the Coptic Orthodox Church. If they are from different Christian sects, Muslim personal status law applies (Berger, 2001; Bernard-Maugiron, 2011). Anecdotal evidence indicates that Coptic Orthodox Christians have long been using the legal loophole of formally converting to a different Christian denomination (taghyīr al-milla) in order to obtain a quicker and easier divorce by ṭalāq or khulʿ. Many observers have claimed indeed that this is the most common form of divorce among Coptic Orthodox Christians (Kamāl, 2012; Fuʾād, 2016). If they are right, the statistics silently include a much larger number of divorces involving Coptic Orthodox couples than the one suggested by a strictly formal reading, which would suggest a yearly figure significantly below 2000, the total number of divorce rulings issued by Egyptian family courts in 2016. On the contrary, a study conducted by the Center for Egyptian Women’s Legal Assistance (CEDAW) in 1999–2000 claimed that a large majority of Coptic divorces in the survey period were effected by ṭalāq or khulʿ, i.e. after one of the parties converted to a different Christian denomination. The study estimated that the total number of Coptic divorces in one year was 9570 in the Governorate of Cairo, 365 in Giza, 1057 in Asyut, 185 in Sohag, and 350 in Luxor (Kamāl, 2012: 31).

The handling of a yearly number of 10,000 divorce cases in Cairo alone was certainly far beyond the capacity of the Clerical Council, even if we assume that only a small share of the divorced persons would actually apply for a second marriage licence. Access to the Clerical Council must have become increasingly difficult in the course of time due to natural population growth alone, and there is reason to believe that the changing social circumstances that led to increasing divorce rates among Muslims in the 2000s were having a similar effect on Copts (Fuʾād, 2016; Kamāl, 2012). A frequently cited phenomenon among the urban middle and upper classes that seemed alien to the older generation were divorces within a short period of time after marriage. One observer commented that young people had higher expectations towards marriage than her generation, and at the same time, they were more selfish and less inclined to accept the values of dedication and sacrifice. Whatever the reasons, the presence of rising numbers of younger and socially more ambitious people on the ‘remarriage scene’, people who were still hoping to start over again and establish a normal family life, was certainly increasing pressure on the church to accommodate their interests.

If the formally correct way of getting divorced and married again – a divorce before a court, then the confirmation and marriage permission from the Clerical Council, then a second marriage in the Coptic Orthodox Church – was not the current one, which one was? Available sources mention a confusing variety of paths towards divorce and second marriage.

The most socially risky choice of ‘forum shopping’ was conversion to Islam. At the same time, it was the legally most effective instrument of all. If a Coptic woman converted to Islam, her marriage would become immediately null and void. In 2003, Wafāʾ Qusṭanṭīn, the wife of a Coptic Orthodox priest, converted to Islam, apparently in an attempt to escape her abusive husband (Tadros, 2010). Intensive media coverage of the event, which ended in Qusṭanṭīn’s return to the church and residence in a monastery, triggered a major sectarian crisis. When Coptic men converted to Islam and then divorced their wives by a simple declaration of ṭalāq, the issue often passed quietly. However, when the Civil Status Department of the Interior Ministry introduced a digital identity card in the early 2000s, dozens of Christians found out that they were registered as Muslims, apparently because their estranged fathers had converted to Islam at some point. An investigation on the issue conducted by an Egyptian civil rights initiative also revealed a record of quick conversions to Islam and then back to Christianity at the hands of willing Civil Status Department employees (EIRP and HRW, 2007). Interior Ministry policy on the issue had changed several times between the 1970s and 2000s, but digitalisation inevitably made conversions more ‘official’ and therefore more problematic, as Muslim radicals were ready to mobilise against any type of out-conversion from Islam. In reaction to difficulties in returning to their previous religious status, some Christian converts even took to suing the state for their right to return to Christianity – with mixed results (Elsässer, 2014: 91).

A less controversial way of forum-shopping involved ‘changing the milla’, i.e. the Christian denomination. It also opened the way for the application of Muslim family law, but did not involve the social stigma of conversion to Islam. People used it in different situations to facilitate both divorces and second marriages, though not without adverse consequences. One path mentioned in the sources involves conversion of one of the future spouses to a different Christian denomination, and then the conclusion of a civil marriage before the public notary (shahr ʿaqārī) in the Ministry of Justice, a procedure similar to the conclusion or registration of a marriage contract between an Egyptian citizen and a foreigner (Kamāl, 2012: 29; Bernard-Maugiron, 2011: 364). A slightly different procedure involves the drawing of a ‘customary marriage’ (zawāj ʿurfī) contract, and the subsequent attempt to have it recognised by the public notary (Bernard-Maugiron, 2011: 372–373; Kamāl, 2012: 51). A newspaper report in 2016 suggested that this procedure might even have worked in at least one case between people who were both Coptic Orthodox! ⁹

In other cases, people had already converted to a different Christian denomination to facilitate divorce proceedings. When a Christian couple was no longer part of the same denomination, both parties had access to the unilateral divorce options available to Muslims, ṭalāq for men and khulʿ for women. ¹⁰ As these were more effective and less time-consuming than any judicial divorce based on harm or other grounds, they were attractive both when couples were willing to cooperate in the divorce process, and when one party wanted to get a divorce against the will of the other party. To start with, this procedure required obtaining a conversion document from any Christian community recognised by the Egyptian authorities – usually in exchange for a sizeable amount of money. Reports suggest that the most common options were either some of the Protestant churches, which were generally welcoming towards converts, or the smaller independent Middle Eastern churches recognised in Egypt, such as the Syrian Orthodox Church.

An open question is whether it was possible to return to the fold of the Coptic Orthodox Church following a conversion to a different Christian denomination or even Islam. According to newspaper reports, a female Coptic actor called Hāla Ṣidqī went through a change of denomination, then divorced her husband by khulʿ, then returned to the Coptic Orthodox Church and obtained a re-marriage licence from the Clerical Council on the grounds of her husband’s adultery (Sezgin, 2013: 155). The case caused a big stir among Copts and triggered accusations of favouritism against the Clerical Council; many people were surprised that the Clerical Council would deal so leniently with a person who had used conversion as a means to facilitate her divorce. There were even reports that some people managed to get married again at the hands of Coptic Orthodox clerics without the necessary papers. Apparently, some bishops and priests discretely practised a more lenient approach, saw it within their personal authority to make exceptions to church rules in certain cases, or were simply ready to be bribed (Shaham, 2010: 414; Kamāl, 2012: 51).

Pope Shenouda knew that the possibilities of forum shopping undermined his campaign to restrict divorces. He launched several – unsuccessful – initiatives to persuade the other Christian churches and the Egyptian state to create a Unified Personal Status Code for all Christians. Within a Unified Code, changing the denomination would no longer lead to the application of Muslim law; the most common path to a quick divorce and a second marriage would be closed. The Unified Code drafts circulated in 1978 and 1998 would also have narrowed down the grounds of divorce to adultery and conversion to Islam. However, these initiatives failed to find the support of the state and – according to some observers – the Protestant Church, which was reluctant to close down paths of conversion. New negotiations started after the ʿĀṭif Kīrullus case in 2010 (below) and a legislative committee was formed (Bernard-Maugiron, 2011: 380–384).

Towards divorce reform

A string of events in the 2000s indicated the existence of a growing problem and questioned the sustainability of the Church’s stance on divorce and remarriage (Kamāl, 2012: 26). Many Copts – regardless of whether they agreed with the Pope’s conservative stance on divorce and second marriage or not – became concerned that mismanagement of the divorce issue was harming the Church’s status. A similar event of conversion in 2010, involving a woman called Kāmīlīā Shiḥāta, triggered a major Islamist mobilisation against the Coptic Orthodox Church (Tadros, 2010). Both cases threw a negative light on the way the clergy was treating the concerns of women in failed marriages. In 2006, journalist Karīma Kamāl published a book on Coptic divorce that highlights the plight of Coptic women in dysfunctional marriages and the failure of the Church to offer them support and a way out. Her account illustrates the enormous burden that the conservative gender ideology propagated within the Church places on the shoulders of Coptic wives: ‘Women – as protectors of a communal ethos – are often encouraged to tolerate emotional and physical violence for the sake of marital sanctity and family cohesiveness.’ (Armanios and Amstutz, 2013: 522; see also Armanios, 2002)

The ʿĀṭif Kīrullus case (2003–2008) (see Kamāl, 2012: 59–66) showed the amount of public damage that a single disgruntled Copt could cause, and that the Church could not rely on the judiciary to support its stance on the divorce issue. The outcome was a pyrrhic victory for Pope Shenouda: From 2003 to 2008 Kirollos had been suing the patriarchy through several instances to issue a marriage licence on the grounds that he had been divorced before a civil court in 2001. When, in 2008, the Supreme Administrative Court ruled in favour of the plaintiff, Pope Shenouda took a tough stance refusing to implement the verdict. Seeking a compromise, the government allowed the Church to publish – in the official gazette – an amended version of the 1938 Code which reflected the 1971 papal decrees and the practice of the Clerical Council. However, it remained uncertain whether judges would recognise and apply these 2008 amendments; many argued that they were unconstitutional because they had been imposed with no regard to due legislative process (Bernard-Maugiron, 2011: 371–372; Ibrahim, 2015; Fuʾād, 2016).

While awareness of the divorce issue and the visibility of alternative voices was growing, public support for Pope Shenouda’s uncompromising stance was still solid. Prominent laypeople continued to support the conservative position, such as lawyer Naǧīb Ǧubrāʾīl and journalist Yūsuf Sīdhum. ¹¹ However, the 2011 revolution served as a catalyst to bring about a much broader protest movement. Encouraged by the general climate of political freedom, a number of newly formed interest groups of divorced Copts started staging protests on the grounds of the Coptic Orthodox Cathedral in July 2011. Their most common demand was the return to the 1938 Code, while more radical voices called for the introduction of civil marriage outside the Church, or for the removal of Bishop Pola (Būlā), head of the Clerical Council since the 1970s.

The initiatives were loosely organised but capable of using small staged protests and the media to put pressure on the Church. There was no common list of demands or unified agenda: the statements reported in the press represent a broad spectrum between relatively moderate demands for reform and more provocative statements, such as the threat to leave the Coptic Orthodox Church altogether. Among the most active groups dating back to 2011 are ‘Copts 38’ (Aqbāṭ 38, spokesperson: Nādir aṣ-Ṣīrafī), ‘The Right to Life’ (al-Ḥaqq fī al-ḥayāh, Ashraf Anīs) ¹² , while others such as ‘The League of Personal Status Victims’ (Rābiṭat/Ittiḥād mankūbī al-aḥwāl ash-shakhṣiyya, Hānī ʿIzzat) did not become active until a later date. ¹³ The means of drawing attention to the cause also grew bolder in the course of time: for example, in 2017, a previously unknown initiative called ‘Second Chance’ (Furṣa thāniya) staged a symbolic ceremony celebrating divorce as ‘the end of pain and the beginning of hope’. ¹⁴

In reaction to the July 2011 protests, Pope Shenouda ordered the head of the Clerical Council, Bishop Pola to look into the demands of the protestors. ¹⁵ However, no new developments came about until Shenouda’s final illness and death in March 2012. The turning point came with the election of Pope Tawadros in late 2012. A pharmacist from Damanhur in Lower Egypt and monk of the Anba Bishoi monastery, Tawadros had acted as an aide to Metropolitan Pachomius (diocese of Buhayra in Lower Egypt) since 1997, and he was part of Pachomius’ team when the latter served as the acting patriarch in the politically challenging period between March and November 2012. Administrative reform, or ‘organising the house from within’ emerged as one of the key themes of his patriarchy from very early on. ¹⁶ Although Tawadros never openly criticised his predecessor, his actions revealed his awareness of institutional weaknesses and imbalances inside the Church and a strong determination to address them as swiftly as possible (Kāmil, 2019).

In 2013, Tawadros convened a seminar on the Christian family and invited representatives of divorced Copts to explain their demands. ¹⁷ His agenda was twofold. The first aspect was a classic case of administrative reform. Based on the realisation that the Clerical Council was not working properly as a system of church courts, Tawadros decided to expand and restructure it. His aim was the creation of a multi-tiered system for the adjudication of divorce cases with different instances on the level of the episcopates and at the centre, the patriarchy. The second aspect was much more daring. After the seminar, drafts were leaked implying the introduction of multiple grounds for divorce and/or annulment, some of which had been part of the 1938 Code or similar in effect to its provisions. ¹⁸

The first aspect – reorganisation inside the Church – was implemented swiftly. In June 2015, the Coptic weekly journal Watani reported the imminent overhaul of the church court system:

Pope Tawadros explained that […] the Church plans to take measures to facilitate the procedures for resolving family problems. The Central Coptic Orthodox Clerical Council in Cairo – the Church body hitherto exclusively concerned with resolving family cases – can no longer efficiently handle the escalating number of cases placed before it owing to the growing Coptic congregation inside and outside Egypt. Therefore, the Pope said, clerical councils will be attached to the various parishes to look into local family cases. Each of these councils will be headed by the parish bishop, and will include a priest, a legal expert, and a female doctor; together they should take decisions on the family problems placed before them. […] The Pope is confident that, once passed, the new family law which he describes as ’pragmatic’, and the newly structured clerical councils will put an end to the dissatisfaction of Copts regarding unresolved family problems. ¹⁹

In August 2015, the Holy Synod pronounced the ‘Charter of the Clerical Council’ (Lāʾiḥat al-majlis al-iklīrikī), which provides for the establishment of a personal status affairs council in each diocese. ²⁰ These councils are to entertain conciliation efforts and look into the cases of legally divorced people to determine which person will get permission to marry again. The single central clerical council is replaced with six councils responsible for different regions of Egypt and the world, which review the decisions taken by the diocesan councils under their jurisdiction. Appeals may be taken to the six regional councils and to the patriarchy, which is the highest authority and reviews the decisions taken by the regional councils. The Charter links the authority of the Clerical Council and its implementation of Coptic personal status law firmly to the Bible, church law, and the decisions of the Holy Synod; Egyptian state law and human rights are passed over as a legal reference. The charter explicitly stresses that the permission to marry again is the sole responsibility of the Church and that the decisions of the Clerical Council in this regard cannot be appealed before state courts.

This reveals the spirit of the reforms: the Synod hoped that a more accessible, more transparent and more rational system of clerical courts will increase clerical influence over Coptic family decisions and dissuade people from divorcing outside clerical guidance. In a similar vein, the Holy Synod recommended that marriage preparation courses should become compulsory for all engaged couples, and that dioceses should prepare suitable curricula and course materials within a year. ²¹ While the Charter of the Clerical Council itself kept silent on the details of Coptic Personal Status Law, Pope Tawadros was already rhetorically preparing the ground for a more lenient re-interpretation of divorce rules. While stressing that the Church must hold on to the teachings of the Bible, he also insisted that the Church must act with compassion and in consideration of the ‘realities of modern life and communal and family needs’. ²²

Tawadros’ first line of re-interpretation was easier access to annulments in cases of marital fraud, meaning that one of the spouses had failed to disclose important information about herself or himself, such as a chronic disease or an addiction. Theologically, Tawadros argued that annulments were distinct from divorces, because fraud invalidated the marital bond in the first place. As the Clerical Council had always been practising annulments, this was a safe way of making divorces easier, but certainly still not applicable to many cases. In addition, Tawadros started insinuating in his talks that the Church might consider separation as a sign that people had effectively terminated their marriage. The Church could recognise this fact without actively ‘divorcing’ the couple at its own initiative: ‘If there is a long and continuous separation, this breaks the initial condition of marriage (yiksar sharṭ az-zīga al-aṣlī), [i.e. cohabitation].’ ²³

Although Tawadros went at great lengths stressing the continuity of the Church’s teachings on divorce, he sometimes could not deny that his approach did mean changing the Church’s understanding of divorce: ‘The only reasons for divorce in our Church used to be sin (al-khaṭīya) or spiritual sin (al-khaṭīya al-ruḥiyya) i.e. leaving the Church; but sometimes people grow apart and abandon each other; so we say to the judge: if you get a case of separation – more than five years – rule for divorce; then we will study [the cases] in the light of church teachings [and determine] who can be allowed to marry again.’ ²⁴ Asked provocatively by journalists whether this thinking was not in contradiction with the Church’s previous insistence that there should be ‘no divorce except on the grounds of adultery’, he once quipped: ‘This is not piece of revelation, it’s just a saying by Pope Shenouda’. ²⁵ Convincing the majority of the bishops, many of whom were loyal disciples and spiritual sons of Shenouda, seemed like a difficult task. However, the prospect of putting into effect Shenouda’s long-held project of the Unified Code probably helped Tawadros bring around the more conservative bishops, many of whom were considered enemies of a more lenient divorce regulation.

The 2016 draft law: Reactions and analysis

The latest round of official negotiations concerning a Unified Code was launched at the initiative of President Sisi himself, who asked the ‘Commission for Legal Reform’ (Lajnat al-iṣlāḥ al-tashrīʿī), newly formed in late 2014, to look into a Unified Personal Status Code for Christians. As mentioned above, the issue had been pending since 2010. The commission subsequently asked the Egyptian churches to make new proposals concerning the law. Through 2015 and 2016, talks were held between representatives of the Coptic Orthodox Church, the Coptic Catholic Church, and the Synod of the Nile, the umbrella organisation for the Egyptian Protestants. In this context, Tawadros pressed ahead within his own church and asked the bishops to determine the position of the Coptic Orthodox Church on marriage and divorce. He convened a closed seminar of the Holy Synod from 28 February to 2 March 2016, which adopted a draft law including a new set of divorce regulations much broader than the 2008 amendments, building on the results of the 2013 seminar and the promises he had been giving in public statements. ²⁶ The draft was never published officially until the completion of the research for this article, arguably due to ongoing negotiations, but details of the adopted regulations and copies of the draft were quickly leaked to the public. ²⁷

The Unified Code consultations between the churches and the Commission for Legal Reform, however, were discontinued in February 2017, ostensibly in reaction to a string of terrorist attacks against Egyptian Christians, notably the bombing of the Buṭrusiyya Church adjacent to the Cathedral precinct in Cairo (11 December 2016) and the Palm Sunday attacks in Tanta and Alexandria (9 April 2017). Egyptian observers did not believe that this was the real reason for the apparent breakdown of the Unified Code initiative. They argued that disagreement between the churches, especially the Coptic Orthodox Church and the Protestants, on the one hand, and a loss of interest in the project on the part of the President and his advisors, on the other hand, were more likely causes.

The failure of the Unified Code negotiations, however, did not have any adverse effect on Tawadros’ drive to change the marriage and divorce regulations in the internal judicial system of the Coptic Orthodox Church, the Clerical Council and its subdivisions. In June 2018, Pope Tawadros exchanged the members of all six Clerical Councils after three years in office. According to the statements given by Coptic Orthodox bishops and priests in this context, he instructed the new appointees to adopt a ‘compassionate’ approach towards people seeking divorce and remarriage by making use of the new and more lenient divorce regulations adopted by the Holy Synod in 2016. ²⁸ In several television interviews since 2016, he stressed that the Church would henceforth accept separation – for a period of 5 years for couples with children and 3 years without children – as a sufficient ground for divorce and that the church courts would consider granting a second marriage certificate to one or both parties divorced on this ground. ²⁹

Reports about the draft law are not without contradictions, possibly indicating the existence of several drafts or of further changes after the March 2016 meeting. ³⁰ However, the following points can be considered relatively well documented. The draft law is very adamant in denying Christians citizens a right to divorce: Art. 111 of one draft published online states that ‘divorce between Christians by the independent will of one of them or their mutual agreement is not permitted.’ (Nājī, 2017) It follows that only a judge and a Christian cleric – one after the other – can divorce a Christian couple. On the surface, the three main divorce grounds are change of religion, adultery, and separation (iftirāq). The article on separation follows the formula announced by Tawadros (Art. 114): three years for couples without children, five years for couples with children, and the Church decides on the permission to marry again. Some observers interpret this as a de facto re-introduction of some of the divorce grounds from the 1938 Code, such as imprisonment (Art. 110), repugnance (nufūr) and abandonment (hajr) (Art. 113–114), although in a different shape. Notably missing from the divorce grounds according to the 1938 Code is harm or mistreatment.

Both change of religion and adultery are awarded an expansive interpretation. Change of religion covers conversion to any religious community, whether or not officially recognised in Egypt, including atheism. The provisions concerning adultery follow the zinā ḥukmī concept of the Clerical Council and of the 2008 amendments: Circumstantial evidence of adultery can be elopement with a stranger or the presence of a stranger in the marital home, letters and messages that reveal a sinful relationship, pregnancy that cannot have been caused by marital intercourse, incitement to debauchery, abnormal sexual practices and homosexuality.

Finally, the draft includes a plan to expand clerical guidance to Egyptian state courts. According to Art. 124–130, the family courts are to establish committees for dealing with Christian family struggles. These committees are to hear all cases first and attempt to achieve conciliation within two months. If the attempt at conciliation fails, the cases are to be transferred to the family court proper. The committees are to be composed of clerics, lawyers, social workers, and psychologists and to be headed and appointed by the head of the respective religious community, i.e. the local bishop in the case of the Coptic Orthodox Church.

Many observers, including the interest groups and representatives of divorced Copts, believed that the new system of Clerical Councils together with the new directives communicated by Pope Tawadros were a big improvement. Nādir aṣ-Ṣīrafī, spokesperson for the ‘Copts 38’ group, even stated in September 2018 that the Church had implemented all the demands of the group. ³¹ Others remained more cautious or kept insisting on further changes. While it seemed imaginable that the Church might resolve many old cases on the basis of recognising long-lasting separation as a fait accompli, it still remained uncertain how generously the councils were going to be handling the issuing of marriage permits. Pope Tawadros claimed in a television interview in March 2017 that the new regional councils had already solved up to 3,000 cases in less than two years since they were established in the summer of 2015, with the Cairo Council headed by Tawadros’ close associate Bishop Daniel alone handling 1,200 cases. ³² It is likely that this great increase in capacity and effectiveness had a positive effect on many of the people concerned.

The reaction of the conservatives was relatively muted, especially if compared to the almost open rebellion Tawadros faced on other reform fronts, such as his attempt to improve ecumenical relations with the Catholic Church. ³³ However, posts on the well-known conservative Facebook account ‘Protectors of the Faith’ (Ḥumāt al-īmān) reveal deep disagreement about the issue of divorce. ³⁴ The people running the account identify themselves as Coptic laypeople, but some observers believe that conservative bishops are using the account to make their opinion known indirectly. On 20 May 2018, a certain Majdī Nāshid attacked Tawadros’ cited attempt to downgrade the dogmatic status of the phrase ‘no divorce except on the grounds of adultery’. It is not ‘just Pope Shenouda’s own statement’, he argues, it is the belief of all the church fathers and of Shenouda’s venerated predecessor, Pope Kirollos VI. Another post on May 21 rejects the argument that some church fathers accepted abandonment (hajr) as a ground of divorce: the correct opinion is that a marriage remains valid as long as the husband is alive. On the background of such statements, it appears unlikely that all bishops were implementing the new divorce regulations in the diocesan councils controlled by them.

At the opposite end of the Coptic opinion spectrum, reactions within the civil rights community were also mostly negative. Several reports and statements pointed out flaws and inconsistencies in the draft law. This was not surprising, given that Egyptian civil rights activists are generally favourable to the idea of civil marriage and often advocate a single progressive family code for all Egyptians that could replace all the existing codes. Much of the criticism zeroed in on the concept of zinā ḥukmī (Thābit, 2016; Ibrahim, 2015; Fuʾād, 2016). The argument went that, as zinā meant actual extramarital intercourse in the established Egyptian legal understanding, the Church’s attempt to introduce its own idiosyncratic definition of the same legal term would cause legal confusion and chaos. In addition, zina ḥukmi, as defined by the Church and its lawyers, was indeterminate and hard to prove, leading to misunderstandings and false accusations. According to the critics, the admission of text messages as incriminating evidence was a dangerous invasion into personal privacy, and an invitation for people to spy on each other.

Another line of argument would more generally question the theological and ethical wisdom of making adultery the key to divorce. As an unnamed lawyer in Karīma Kamāl’s book argues: If marital breakdown and cruelty within a marriage are a fact of life, is it fair to make divorce available only to those people who can prove the infidelity of their spouse? What about people suffering from equally grave forms of misconduct, such as maltreatment, abandonment, or the failure to pay alimony? (Kamāl, 2012: 41) When speaking out under conditions of privacy, Coptic observers would readily argue that the absurdity of divorce rules was a direct result of the fact that, since the time of Shenouda, family laws in the Coptic Orthodox Church were being made by unmarried monks, and with only minimal advice from subservient legal advisors.

Indeed, the clergy had produced the 2016 draft law and some invited guests behind closed doors without any public discussion and consultation with Coptic laypeople. As Karoline Kāmil, a journalist writing on Coptic issues for the independent web journal Mada Masr pointed out, even the token involvement of laypeople in church decisions once guaranteed by the Community Council was now defunct: the mandate of the last elected Community Council had expired in 2011, and the church had not held a new election since, citing ‘instability’ as a reason. ³⁵ Such a line of argument raises much larger questions concerning the entitlement of Coptic citizens to determine their own rights and duties.

Conclusion

My investigation has revealed that any inquiry focusing on the most visible aspects of the divorce issue among Coptic Orthodox Christians, i.e. the interaction and conflict between Egyptian state law and rules and norms set by the Coptic Orthodox Church, misses a very important dimension: the lived reality of family life and its reconfigurations and crises. Separations, divorces, and new relationships or marriages have been happening all along, but there is reason to believe that, in the last two decades, divorces and attempts by divorced women and men to establish a new family have gradually become a much more mainstream phenomenon. As a corollary divorced Copts have become increasingly unwilling to accept confinement to an inferior legal and social status. Even though our knowledge of this development is still limited, we know that it has been pervasive enough to lead to a change of mind within the Coptic Orthodox clergy, which is probably the most conservative group within Coptic society.

Will the reforms initiated by the Church have the effect of cutting back on tactical conversions and other semi-legal and informal divorce practises? Are they likely to stabilise the situation and reduce discontent within the Coptic community or will they only encourage further demands within the near future? To begin with, Copts have been resorting to forum-shopping for a clear reason: through a simple change of religious affiliation they can acquire a right that they do not hold according to the 1938 Code, and even less so before the Clerical Council: the right to unilateral or consensual divorce. This right exists in general Egyptian (i.e. Muslim) law through the legal instruments of ṭalāq and khulʿ (with a strong bias in favour of men). The most important advantage of these legal instruments is that their outcome is predictable and that people do not need to disclose possibly shameful details about their marriage. As long as no similar legal options become available to Coptic Orthodox Christians without changing their religion, conversions are likely to continue, with all the ensuing secondary legal issues.

Whether the alternative to conversion becomes more feasible and attractive depends on the family courts on the one hand, and the church councils, on the other hand. Many questions remain open at the current juncture: provided that the Unified Code project fails, which legal code are family judges going to apply to Coptic Christians? Will it be the 1938 Code, which the Church still officially rejects, or will it be the 2008 amendments, which have been replaced within the Church by Tawadros’ more lenient directives? Both options sound undesirable for Copts seeking a quick and acceptable divorce. As to the Clerical Council, will there be an official pronouncement of the new rules and guidelines produced in 2016? How exactly are the councils going to interpret and implement the principle of separation? How generous will they be with the granting of second marriage licences? Will the disagreements within the clergy find a reflection in divergent rulings, possibly leading to an avalanche of appeal cases?

Regardless of many open questions, it seems safe to predict that the new system in itself will do little to improve the situation of women and children. The inclusion of female representatives in the Clerical Councils may be considered a step forward towards gender justice, but men in general and clerics in particular still dominate. Even if the clerical councils will be determined to safeguard the rights of women and children against irresponsible or abusive husbands and fathers, recourse to them remains voluntary and does not replace the necessity of opening a divorce case at a state court. As long as the Egyptian legislator does not move to improve the position of women and children in general Egyptian family law, Coptic men will find plenty of opportunities to impose their own interest (cf. Fuʾād, 2016). It is likely that pressure for further reforms will increasingly come from women aspiring to a more respectful and equal treatment, both before the State and the Church.

In the long run, the Egyptian State and the Muslim majority population remain crucial factors of influence. As long as the State remains indifferent to Christian family issues, the situation is likely to remain unchanged: with the Church and its institutions being firmly in control of the predominantly conservative clergy, it is unlikely that laypeople calling for more gender justice and individual rights will gain the upper hand inside the Coptic community soon. At the same time, the Church is unlikely to gain more ground from the state judiciary, as the repeated failure of the Unified Code project shows. Loopholes will remain. Only if women’s and civil rights activists should one day be successful in pressuring the state to improve the rights of women and children in general family law, this might break the current deadlock between reformers and conservatives within the Church, as well as between the Church and state judiciary, and lead to a more fundamental process of reform than the current one.