Al-Azhar bans common-law marriages
CAIRO - With its decision to consider common-law marriages a form of fornication, Al-Azhar Foundation opened societal debate in Egypt about how to deal with such unions.
Mahmoud Mohanna, a member of the Council of Senior Scholars at al-Azhar, said a draft version of the law pertaining to personal status measures reflects a consensus among council members that common-law or temporary marriages for pleasure and convenience fall under the religious rubric related to fornication and adultery and the religious dispute regarding common-law marriages is over, should the Egyptian parliament approve the measure.
Al-Azhar’s view represents a turning point in the position of the scholars who, ten years ago, recognised the legitimacy of common-law marriages, provided they are made public and witnessed by two adults.
The stigmatisation of common-law marriages as adultery in a conservative society such as Egypt means that al-Azhar has issued its judgment on couples in common-law relations making them liable to be charged with a crime.
Legal experts said common-law marriages should not be dealt with through legal means while neglecting intellectual and cultural dimensions. Trying to quickly fix the problem through religious fatwa exacerbates the crisis and does not help find a convergence of various views or convince young people likely to enter secret, illegitimate relations.
The experts pointed out that addressing common-law relations through intimidation is counterproductive because social rebellion and overthrowing old customs and traditions are growing.
Many families are no longer able to control their children or address feelings of neglect experienced by many girls, which push them to seek emotional security outside the family home.
Souhir Latif, a professor of sociology at Helwan University, said fighting common-law marriages without involving family members would not solve the crisis. She said reducing the issue to its religious dimension was a mistake and would not find an attentive audience among younger generations already accustomed to living freely, making their own decisions, deciding their future and caring less about social norms and traditions.
It would, however, resonate profoundly with parents who hold religious opinions and decisions sacred, she said.
Latif explained that many common-law couples consider themselves to have committed a crime. They said society pushed them to seek secret relations and they should not be prosecuted.
The “guilty” society includes religious scholars and experts who forbid contact between males and females, government institutions that failed to rein in economic inflation that has made it impossible for young people to provide the minimum requirements of official marriages, and the parents and families who place exorbitant demands on any man seeking to marry their daughter.
Secret marriages are often justified by appealing to strong emotional ties between young couples even though they are not financially ready for an official marriage. This is often the case among university students.
Many couples enter common-law relations to force their families to approve their union. Some common-law wives keep that status for fear of losing custody of their children or social security benefits.
“If society wishes to find radical solutions to the phenomenon of common-law marriages,” said Latif, “it must first choose the appropriate discourse to address the class of young people who believe in the legitimacy of this type of relation because it is not useful to use the language of ‘halal’ and ‘haram’ with a generation eager to follow freedom and to get rid of social traditions and rites; usually, a rebel will not give in to a policy of intimidation.”
An Egyptian journalist, who said he did not want his real name used, said he resorted to common-law marriage because his wife’s family refused to consent to their marriage because he was not able to afford housing in Cairo.
“When conditions allow it, we will make our marriage public despite the expected losses then,” he said.
He insisted there is a difference between a common-law union for pleasure and marrying for love. Some do it because of the tyranny of their parents. These types of unions should not be stuffed into the same mould and labelled “adulterous relations” because society has forced the situation on young people.
What makes the religious opinion about the illegitimacy of common-law marriages less important to some communities, or at least to female partners in the marriage, is that civil authorities accept secret marriage contracts as legal documents when registering new births.
In April 2017, the Administrative Court of the State Council of Egypt ruled that a common-law marriage contract is sufficient to issue a birth certificate bearing the family name of the baby’s father. The court reasoned that denying the mother her right to use her common-law marriage contract for official procedures represented psychological and physical abuse. Denying the child his right to use his father’s name would infringe on the child’s humanity and would be a derogatory act.
Egyptian courts constantly deal with requests regarding legal determination of the paternity of children born in common-law marriages. Statistics published by the national Census Bureau in 2017 indicated that there are more than 400,000 such marriages a year in Egypt and that there are 41,000 children born into the marriages each year. Approximately 14,000 paternity suits a year are filed in Egyptian courts.
Jihan Allam, a women’s rights activist, said confronting the phenomenon of common-law marriages must begin by having society recognise that it is a key cause of the dysfunction that has plagued people’s thinking and ethics and led them to rebel against formal marriages.
She said the second channel through which to confront the issue is to have women’s institutions institute awareness campaigns warning women of the dangers of common-law marriages because females are the weakest link in the relationship.