Muslim communities in Australia have been quietly practising sharia law divorce, disadvantaging women in custody and property arrangements. Muslim women agree to the sharia agreements so that they can then initiate a religious divorce before Islamic imams, and avoid being stuck in a restrictive “limping marriage’’.
Muslim women often agree to an unequal distribution of assets and rights in the legal divorce so that it satisfies sharia law divorce principles and can be used to help persuade reluctant imams to grant them a religious divorce. In some cases the women have given up custody of children and significant property and paid their ex-husbands their dowry and other money, which may extend from tens to several hundred thousand dollars — all aspects of sharia law — to get their divorces recognised civilly and religiously.
They usually come about in situations where the husband has refused to agree to end the marriage — a simple process in Islamic law, where he only has to utter three times that he wants a divorce. In those circumstances the wife, who has no such simple solution, has to plead before an imam for a religious divorce, citing one of a range of reasons, including failing to provide for her financially, cruelty, or disparity of his treatment compared with his other wives.
However, the Australian Family Law Court has recently rejected a bid by a Muslim man to leave his wife just 10% of his assets. The husband, Mr Ahmed had offered his ex-wife, Ms Basra just $100,000 as a financial settlement, despite having more than $1 million in assets.
He told the court that the couple had an Islamic divorce in 2009 on his porch. He claimed this was witnessed by several men including a sheik, who asked the wife if she understood that she had fewer entitlements under Islamic law than she would under Australian civil law. In Islamic law, a man may divorce his wife either verbally or in writing. In both cases, it is recommended for there to be two witnesses present on the occasion of the pronouncement of such a divorce. Mr Ahmed claimed a Sheikh and other men had witnessed him say ‘I divorce you’ to Ms Basra on his porch.
While the husband insisted the wife had agreed to this, she denied that the divorce ceremony had even taken place.
Ms Basra and Mr Ahmed married when she was 18 in an Islamic ceremony in Australia in 1997. They married again in Lebanon, a marriage recognised by Australian law, and had three children together. She had obtained three Apprehended Violence Orders (AVO) against Mr Ahmed and she and the three children had been forced to live in a refuge over a period of three months and then again for one year. She told the court she estimated she had done 95 per cent of the housework and parenting, while he estimated he had done 100 per cent of the financial contributions.
The couple separated in November, 2008, the court heard.
The judge who heard their case ruled that the ceremony which took place on the man’s porch was “not a divorce that would be recognised under Australian law”. He then ordered a financial settlement which divided the couple’s assets 70-30 in the wife’s favour. The judge said this decision was partly motivated by his belief that the husband had access to more assets and funds than he had declared to the Court.
Does Sharia Law Divorce Have a Place in Australia?
University of Sydney academic Ghena Krayem, in her book Family Law and the Muslim Community in Australia, argues that sharia law isn’t required in Australia because Muslim women have worked out how to juggle both Islamic and Australian law.
“The issue of sharia has received a lot of public attention, with various politicians and media commentators stating that we are bound by one law in Australia and that our liberal democratic state has no place for sharia,’’ she writes.
“In direct contradiction of that my research shows that Australian Muslims are regularly and successfully interacting with the mainstream legal system to resolve issues of family law and are committed to abiding by both Australian law and Islamic principles in this area.”
She says Islamic community and religious leaders undertook Islamic dispute resolution throughout the country that had similar principles of conciliation and mediation to the family dispute resolution in the Family Law Act. Other legal practitioners agree that sharia law divorce had been playing out since the mediation aspect of the Family Court was introduced in 2005 and claimed the application of sharia at the mediation level avoided expensive litigation.
“Existing legislative instruments such as prenuptial agreements or binding financial agreements, already provided for in the Family Law Act, are among the legal mechanisms which allow sharia to be practised within the Australian legal system,” she writes.
Is Sharia Law Divorce Fair For Women?
Yet many Muslim women who are facing a sharia law divorce say they felt intimidated into the divorce and fear for their future. An issue of increasing concern is where a Muslim man refuses to give his wife a religious divorce, even though the couple may be civilly divorced, and she is unable to remarry or travel to many Islamic countries and can be ostracised in her community.
Because the Family Court require a couple to go to mediation before litigation, the Family Court registers an agreement between a couple believing it has been jointly agreed, and there is little scrutiny of the cultural pressure Muslim women face in coming to make the deal.
Muslim single mother and asylum-seeker Tahira Sajid fears being sent back to Pakistan after her husband divorced her under the sharia process and then later under Australian law. Ms Sajid said unmarried women faced a higher risk of violence and persecution in Pakistan but she was caught in a cultural bind because, if she remarried, her ex-husband could take away her eight-year-old daughter, Malaika.
“I felt intimidated into a divorce,” Ms Sajid said. “And now if I remarry, under sharia law he can take Malaika away.”
Ms Sajid said she worried about going back to Pakistan where she would have no legal protection against her ex-husband.
The good news is that the Family Court has shown an apetite for overturning unfair sharia law divorce agreements where the woman receives an unfair settlement.
If you need help with separation or divorce, please contact our friendly family lawyers today. We offer a free, 10-minute phone consultation.