Gendered Legal Process
“The legal process in the new court system is gendered in a number of ways: First, the substantive personal status laws that are implemented in family courts do not give husbands and wives equal rights: men have unconditional right to unilateral divorce and polygny; they are entitled to women’s obedience and sexual submission in exchange of financial support. Women’s right to divorce is conditioned by the fulfillment of numerous procedures and requirements, some of which can be very difficult such as the proof of ‘harm’ in the case of prejudicial divorce or waiting for a period of a year after the sentencing of an imprisoned husband in order to obtain divorce. Women are entitled to be the custodial parents of their children in the event of divorce until the children reach 15; however, they lose custody if they remarry. In addition, in the case of divorce, women lose claim to the conjugal home, and are instead entitled to housing allowance (often meager and inadequate) only if they are custodial parents. Fathers have full legal guardianship over their minor children; while mothers-even when they are the custodial parents- do not have that right. The point is that the differentiated and unequal legal standing and rights that men and women are granted by the substantive personal status laws do impact the work of family courts. The gendered content of the laws are mirrored in court documents and are at play in mediation sessions and court proceedings. Therefore, in so much as some of the substantive family laws are biased against women, the benefits that women can gain from the new court system are diminished.
Another gendered dimension of the legal process is court personnel’s views on female rationality, female sexuality, and gender roles in marriage. These views are frequently articulated in court proceedings and mediation sessions. One of these views, for instance, considers women as emotional and hasty, and therefore often incapable of making rational decisions about dissolving their marriage and obtaining divorce. Some of the mediation specialists and court experts pointed out how young women resort to khul hastily over petty reasons such as the husband’s refusal to buy them the kind of shampoo they prefer or because of a disagreement over the color of the upholstery for the furniture in the conjugal home. This skepticism about women’s rationality, particularly when it comes to decisions about divorce, was also accompanied by questionable strategies that some mediation specialists and judges used when they attempted to reconcile disputants.
A common strategy that was used was to warn the female disputant of the difficulties and stigma that awaited her if she became a divorced woman. One judge, for instance, tried to persuade a plaintiff to reconsider her divorce claim by warning her that her young daughter would probably have a difficult life with limited prospects for marriage and respectability if her mother became a divorcee.”