Women living in the shadow of Sharia law

Muslim women are disadvantaged by sharia’s parallel justice system.

In the shadow of the law

Sharia law — the Islamic legal system rejected by Australian politicians — has been operating in the shadows of the Australian justice system for a decade, as desperate Muslim women seek a religious divorce and escape “marital captivity” or “limping marriages”.

Despite community concern about sharia law and fears it could be introduced in a parallel way to the Australian legal system, it appears that some aspects of sharia law have been operating at the very heart of the law in one of the most sensitive aspects of Australian life and under the noses of the legal establishment.

Liberal senator Cory Bernardi fuelled debate on the issue four years ago with his comments: “We should not entertain any thought of introducing any aspect of sharia law into Australia. Sharia law is wholly incompatible with the Australian way of life.”

But all the while Australian Muslim women have turned to sharia law principles — some of which are heavily weighted in favour of men — in many custodial and financial arrangements in the dispute resolution and mediation processes of the Australian family law courts.

Muslim women often agree to an unequal distribution of assets and rights in the legal divorce so that it satisfies sharia law principles and can be used to help persuade reluctant imams — who usually have no legal training — to grant them a religious divorce.

A former adviser to the Lakemba mosque in NSW, solicitor Haisam Farache is one of several Muslims being trained by Legal Aid to facilitate culturally specific consent orders for the Family Court and he has admitted to applying sharia law principles to his arbitrations.

He says sharia has been playing out in the Australian family court since the mediation aspect of the Family court was introduced in 2005 and has claimed the application of sharia law at the mediation level avoids expensive litigation.

“The mother gets legal aid, usually gets a female lawyer, and tells her lawyer a story who writes a big affidavit,’’ he told government-funded magazine The Point.

“After the father’s spent $70-$80k on lawyers, the court decides he’s a good dad — and that’s money down the drain. That money would’ve been better spent on the child.”

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.

The sharia-inspired agreements are registered with the Family Law Court of Australia and are not scrutinised beyond the court being satisfied both parties negotiated the agreement.

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.

Legal insiders have told The Australian that Muslim solicitors and legal advisers have been encouraging Muslim women to obtain a legal divorce first, then use their settlements to help make the case for the religious divorce.

Sydney mother Mahassen Issa discovered the problems of not obtaining a religious divorce when she was charged with adultery and bigamy and detained for nearly three months in Lebanon after holidaying with a new partner last year. Other Islamic countries such as Iran or Pakistan can sentence a woman to death in such circumstances if they do not have a religious divorce.

A senior NSW lawyer, Jamila Hussain, says the Muslim community is not using sharia tribunals, as none exist in Australia, but instead are relying on a pragmatic application of sharia principles to circumvent the awkward situation where women who are civilly divorced but not religiously divorced are stuck in what is euphemistically called “limping marriages”.

“We are not using sharia tribunals but we rely on trained Muslim mediators who are legally qualified people we can go to and who advise what to do under Australian law and to get an Islamic divorce,” she says. Hussain agrees it is a pragmatic approach, “but it works because it overcomes the problem women would otherwise face when obtaining a divorce in the Family Court”.

In Britain, case studies of religious divorces have uncovered a heavy imbalance in favour of the husband, even in examples of established severe domestic violence. Britain is now introducing a new law to stop these overweighted agreements.

It could be that Australia’s more moderate and integrated Muslim communities do not have the same issues, but given the undercover application of sharia law, often within mosques, there is little scrutiny of the process and the fairness of the adjudications.

Sharia law requires a woman to have two witnesses to back up her evidence, while the man’s word is accepted as truthful.

Property is usually weighted towards the man, and any inheritance issues favour sons to receive twice as much as any daughters. The husband also has guardianship of school-aged children.

Muslim men, under sharia law, can take up to four wives and don’t face any penalty if any of the subsequent “marriages” are not registered, thus avoiding legal complications of bigamy.

But Farache told a community gathering of Muslim women in Berala, Sydney, last month that from his experience at the Lakemba mosque any obfuscation by “deadbeat” husbands — a common tactic that often results in limping marriages — would result in them being personally served on the third attempt.

“No mucking around, that’s then a (religious) divorce,” he reassured the women.

Yet such understanding is not widespread, and convincing imams to grant a religious divorce has become one of the most pressing women’s causes in the Muslim communities.

Silma Ihram from Diversity Skills Training says senior imams in Australia are helping to spread the word and educate local imams about women’s rights to deal with the problem.

‘’Women have the right of divorce in Islam and this is acknow­ledged by all scholars,” she says.

“However, sometimes the local imam may be pressured by the husband or other family, so there are a group of more senior imams who are ensuring that justice is done.

“We are trying to organise for additional skills training for all those mentoring the Muslim community so that everyone understands both the rights that are included under traditional Islamic law and what is available in Australia. This program is under way and hopefully will be realised during 2016.”

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.

“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.

Sharia law has been highly divisive in Canada — which has specifically banned it — and Britain, which has about 85 sharia law tribunals operating within the mediation aspect of that country’s family law system.

A Dutch academic, Machteld Zee, from Leiden University, had rare access to two British sharia law tribunals and witnessed a qadi (imam) at the London Sharia Council reinforcing the sharia court’s authority. “A secular judge does not do religious divorces,” Zee reported him saying. “We have Islam. Secular courts do not have Islamic laws. Can a kaffir (non-Muslim) come in and judge Islamic matters?”

Zee, who has written a scathing book on her experiences, Choosing Sharia? Multiculturalism, Islamic Fundamentalism and Sharia Councils, says one of the most experienced sharia council elders even scoffed at a woman seeking a religious intervention to control her violent husband, who she claimed treated her like a dog and abused her physically.

Zee says the cleric then told the woman: “Why did you marry such a person?”

In other examples women were financially penalised, having to pay large sums of money to their husbands, many of whom were abusive, to get out of their marriage. Zee uncovered evidence that sharia councils in Britain discouraged abused women from seeking help, and there were instances where she believed the judge wanted the woman to accept a poly­gamous marriage rather than terminating their religious marriage.

Zee says: “Generally, it is not uncommon for a man to refuse co-operation regarding the divorce until he feels enough money has been paid by his wife, nor is it uncommon for women to plead before the qadi that she is a victim of domestic abuse, hoping that he will agree with her divorce request.

“I have witnessed these hearings. Women testify there has been emotional and-or physical abuse, that huge loans are taken out in her name which she will need to pay for, that the husband hasn’t been seen for years or that he has other wives besides her. No qadi appeared surprised when a woman told him or her about abuse, and the police are never mentioned.”

So many British Muslim women are unaware of their legal rights and often face enormous cultural pressure to submit to sharia law — nearly always to their detriment — that a new law, the Arbitration and Mediation Ser­vices (Equality) Bill has gone through its second reading in the House of Lords. When passed it will force sharia tribunals to comply with British anti-discrimination laws.

A report on the issue commissioned by British House of Lords crossbencher Caroline Cox noted “the emergence of a rapidly developing alternative quasi-legal system, which not only promotes systematic gender discrimination but also undermines the fundamental principle of one law for all”.

Zee says Australia could learn from the European experience and take note of countries such as Malaysia and Indonesia, where secularists are coming under increasing pressure from Islamists.

“Their aim of spreading sharia is not limited to the United Kingdom,” she says. Zee points out that wherever Islamists gain political power, family law is also pushed to the top of the agenda.

“When the Muslim Brotherhood was voted into parliament in Egypt after (Hosni) Mubarak’s downfall,” she says, “the first thing the Islamists did was roll back women’s rights by means of legislating sharia-based family law.”

But Australia’s appetite to lobby for any specific sharia tribunal is waning, Hussein believes, in part because of the public backlash and ignorance of what sharia is.

“You mention the word sharia and there is an uproar and it’s like bashing your head against a brick wall,” she says.

“People don’t understand the issues, like cutting off a hand, form a very minute part of sharia, and they don’t realise sharia is very much like a common-law system.”