According to the Glossary of The Marriage Contract in Islamic Law in the Shari'ah and Personal Status Laws of Egypt and Morocco, "zawaj urfi" is a customary marriage (1992, 165). In The Laws of Marriage in Islam the meaning of customary marriage is further explained:

Customary marriage means a marriage which is not officially registered. People often ask about the judgement concerning it and whether it is permitted and sound in the Shari'a or not. ... When a valid contract is made by the woman's guardian in the presence of two witnesses, the contract is sound according to the Shari'a. The recording of the contract by the hand of the official entrusted with recording marriage contracts is not one of the preconditions for the validity of the contract [under Shari'a] (Uthman 1995, 54-5).

According to Jamal J. Nasir's The Islamic Law of Personal Status, while the above statement is true with respect to the legitimacy of the marriage according to Shari'a, additional considerations obtain in Egypt:

The legislator has laid certain rules both to prove marriage and to hear matrimonial disputes before the courts. Under the Decree No. 78/1931 in respect of the regulation of the Sharia Courts, Article 99, paragraphs 4 and 5, lays two conditions for hearing a matrimonial case before the court: (i) that matrimony be proven by a formal marriage certificate; (ii) that the ages of the wife and the husband shall not be below 16 and 18 years of hijra respectively (1990, 70-71).

Nasir also emphasizes that the failure to formally register the marriage prevents courts from hearing cases involving matrimonial disputes arising from such marriages:

Some formalities must be complied with in the case of marriage of an Egyptian Muslim man and a non-Muslim or a foreign woman. Under Article 27 of the Mazun regulations of 1915, the Mazun (that is the public officer authorized to solemnize marriages) shall not conclude either the marriage of an orphan who has no guardian, nor contracts in which one party is a foreign citizen or is not a Muslim, as this will be left to the courts. Moreover, the Egyptian Ministry of Justice has prepared a special document in Arabic, English and French containing the most important terms, rights and duties of marriage under the Islamic Sharia; namely, that the husband may marry more than one wife, that he may divorce his wife, that his children by a Kitabi wife shall be Muslim like the father, and that there shall be no inheritance between the spouses if they differ in religion (ibid., 71).

According to the report Legal Rights of Egyptian Women in Theory and Practice by the Communication Group for the Enhancement of the Status of Women in Egypt, "orfy" marriages have the effective of limiting the rights of women in marriage and divorce:

For example, a "orfy" wife is not entitled to alimony in case of divorce or to her husband's pension on his death, and the marriage relationship does not enjoy judicial protection unless it is officially acknowledged by the husband. Moreover, the wife in an "orfy" marriage must institute legal proceedings to establish her children's parentage (1992, 21).

This assessment is corroborated in a Middle East Times article of 6 April 1997, which cites several lawyers and academics, emphasizing the effective loss of women's rights in "gawaz urfi" or "unofficial" marriages. In February 1999, leading Egyptian Imam Shaikh Mohammad Sayed Tantawi declared his opposition to "urfi" marriages because of their secrecy and failure to protect the rights of wives (Sun-Sentinel 11 Feb. 1999; Al-Ahram Weekly 18-24 Feb. 1999).

There is also evidence that the term "customary marriage" is used equivocally, referring in some cases to a Shari'a compliant, but non-registered marriage, and in others to a secret non-registered marriage that does not comply with Shari'a requirements (Al-Ahram Weekly 18-24 Feb. 1999).

In February 1999 it was reported that an amendment to the Personal Status Law of Egypt was proposed which would better protect the rights of women in "urfi" marriages (ibid.). However, in the same report, several jurists suggest that "urfi" marriages that do not comply with the Shari'a ought to be subject to the same penalties as adultery (ibid.).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.

References

Al-Ahram Weekly [Cairo]. 18-24 February 1999. Issue No. 417. Gihan Shahine. "Illegitimate or Just Ill-Advised?" [Internet] http://163.121.116.16/weekly/1999/li1.htm [Accessed 25 May 1999]

El Alami, Dawoud Sudqi. 1992. The Marriage Contract in Islamic Law in the Shari'ah and Personal Status Laws of Egypt and Morocco. London: Graham & Trotman.

Communication Group for the Enhancement of the Status of Women in Egypt, Cairo. 1992. Legal Rights of Egyptian Women in Theory and Practice.

Middle East Times. 6 April 1997. Roxanne Youssef. "Birds, Bees and Fifis Do It." [Internet] http://www.metimes.com/issue14/eg/8orfi.htm [Accessed 25 May 1999]

Nasir, Jamal J. 1990. The Islamic Law of Personal Status. London: Graham & Trotman.

Sun-Sentinel. 11 February 1999. "World Digest." (NEXIS)

Uthman, Sheikh Muhammad Rif'at. 1995. The Laws of Marriage in Islam. London: Dar Al Taqwa Ltd.

Additional Sources Consulted

Ahmed, Leila. 1992.

Women and Gender in Islam: Historical Roots of a Modern Debate.

Chemais, Amina. 1996. "Obstacles to Divorce for Muslim Women in Egypt." Women Living Under Muslim Laws. Shifting Boundaries in Marriage and Divorce in Muslim Communities.

Esposito, John L. 1982. Women in Muslim Family Law.

al-Hibri, Azizah Y. 1992. Marriage Laws in Muslim Countries: A Comparative Study of Certain Egyptian, Syrian, Moroccan, and Tunisian Marriage Laws.

Nasir, Jamal J. 1990. Status of Women Under Islamic Law and Under Modern Islamic Legislation.

Rafiq Khan, Muniza. 1993. Socio-Legal Status of Muslim Women.

Women Living Under Muslim Laws. Dossier. (1990-1999).