6 Mar 2020
men and women are allowed to divorce in the Islamic tradition. But community
interpretations of Islamic laws mean that men are able to divorce their wives
unilaterally, while women must secure their husband’s consent.
Australia, there are instances where couples divorce under the civil process
but the husband refuses to grant his wife access to a religious divorce by withholding
his consent, effectively trapping her in a “limping” marriage situation. This
means she is divorced under civil laws but still considered by her husband and
community to be religiously married and unable to enter a new relationship.
faith communities in Australia, Muslims are able to have a combined religious
and civil marriage through a religious leader if they are also an authorised
celebrant. When it comes to divorce, however, the civil and religious
proceedings must be done separately — civil divorce through the Family Court,
and religious divorce through community processes. Although the civil divorce
is acknowledged by Muslims as the only legally recognised form of divorce in
Australia, the religious divorce is important for its communal and symbolic
significance, to ensure that the relationship entered into “in the eyes of God”
is now dissolved according to Islamic laws.
just Muslim women who face difficulties in gaining a religious divorce
alongside a civil divorce. Since 1992, there have been numerous submissions and
recommendations from both Muslim and Jewish communities seeking solutions for
women in “limping” marriages. The Australian Law Reform Commission produced a
report regarding this predicament in 1992, followed by Family Law Council
reports in 1998 and again in 2001. The main recommendation involved minor
legislative changes to remove the barrier to remarriage faced by these women —
essentially involving the withholding of a decree absolute until the religious
divorce was effected. But the Attorney-General’s office was not convinced that
the proposed legislative changes would provide the best solution.
Jewish women’s advocacy groups also expressed concerns that such proposals
would mean recalcitrant husbands who are not interested in a civil divorce
could prevent their wives from receiving either a religious or a civil divorce.
Another concern is that husbands will seek to delay or prevent their wives from
accessing a civil divorce by insisting that they go through a community process
Many of the
submissions regarding Islamic divorce stated that women in “limping” marriages
are not completely divorced until they gain a religious divorce through
community processes, even when they have undergone a civil divorce. My research
on Muslim women’s experiences of religious divorce found this approach
restricts the avenues by which Muslim women can secure a religious divorce, and
doesn’t consider other options available under Islamic laws that a woman can be
free of an unwanted marriage.
found troubling about this approach was that all Muslim women were positioned
as passive subjects that needed to be saved from their “limping” marriage
situation rather than as active instigators seeking justice for themselves. In
my own family and among many of my friends, I have witnessed numerous instances
of Muslim women who married and divorced, in some cases multiple times.
“not ‘completely’ divorced” in the title of my book does not imply my agreement
that all Muslim women are trapped in “limping” marriages — rather, it serves to
highlight the dilemma in which Muslim women find themselves. At many levels,
from families to friends to community groups to religious authorities, women
are told that they are not “completely” divorced unless they have a definitive
religious divorce. But how do they decide what is definitive to them?
of my research, therefore, was to explore and understand how Muslim women in
Australia go about determining for themselves what constitutes a “complete”
divorce, and how they navigated the challenges faced along the way.
Options for Women to Divorce
Muslim community perceptions that under Islamic laws women can only divorce
with their husband’s consent or by means of community processes, there are in
fact multiple options available by which Muslim women in Australia can secure a
religious divorce. Derived from the primary religious texts of the Qur’an and
Sunnah (sayings and teachings of Prophet Muhammad) and formulated by Muslim
male jurists into religious rulings by the twelfth century (six centuries after
the introduction of Islam), they have become codified in many contemporary
Muslim countries through case law or legislation.
initiate divorce through talaq — which is no-fault — and they do not need the
wife’s consent. According to Muslim jurists, this form of divorce is
extra-judicial, in that they do not need to declare it before a religious
authority. In order to manage registration of marriages and divorces, however,
most Muslim countries now require men divorcing through talaq to notify the
Husband’s Consent Necessary?
able to initiate divorce through the process of Khula‘. This is a form
of no-fault divorce referred to in the Qur’an and Sunnah where the husband’s
consent was not stated to be required. In these primary texts, the wife is
granted the ability to divorce her husband for the simple reason of
incompatibility, and there are records of women at the time of the Prophet who
married and divorced numerous times. There are also reports of women who
married the Prophet but then changed their mind on the wedding night and he
granted them divorce without seeking cause.
however, the majority of Muslim male jurists determined that the husband’s
consent was necessary, and most Muslim countries today still adopt these
twelfth-century rulings. Interestingly, case law in Pakistan (1967) and
legislation in Egypt (2000) returned to the Prophetic practice whereby the husband’s
consent was not needed.
husband is at fault, women can also initiate a judicial divorce through faskh,
tafriq or ta‘liq — whereby in Muslim countries they present their case and
prove certain grounds before a court judge. Because this form of divorce does
not require the husband’s consent, this is usually the main option women take
when they are not successful with Khula‘. Given there are no such courts
in Australia, Muslim women seek out divorce through community processes
or religious leaders in Australia prefer the husband to pronounce Talaq or give
their consent to a Khula‘, so that they are not responsible for ending
the marriage, but in extreme cases of domestic violence they will award women
this form of divorce. However, as reported by the ABC in a series of
investigations across various religious communities in 2018, a number of Muslim
women experiencing domestic violence faced numerous challenges seeking
religious divorce from imams. This was in part due to imams having narrow
interpretations as to what constituted “domestic violence” and requiring
meetings with both the husband and wife present in the same place.
research, as well as that of others, imams and community leaders are becoming
aware of the dangers presented to women experiencing domestic violence and are
working with specialist services to make the religious divorce a safer process
option for divorce is that women can specify in their marriage contract her
right to divorce through talaq at-tafwid, whereby the husband grants his right
of talaq to his wife through delegation so that she can initiate divorce
without needing his consent. Contrary to common belief among many Muslims, he
still maintains his right of talaq. Given the sensitive nature of mentioning
divorce at the time of marriage, many Muslim women are discouraged by their
families from including it in their contract for fear that they are seen as not
committing to the marriage long-term. There is a long tradition of talaq
at-tafwid in countries such as Bangladesh, India and Pakistan, but it is
largely unknown and not commonly practised in many other Muslim countries and
communities, including in Australia.
Options Do Muslim Women In Australia Have?
The women I
interviewed for my research were aware of their rights to Khulaa and
divorce through imams, but not many had heard of Talaq At-Tafwid.
However, it didn’t prevent them seeking out other ways in which they could be
“completely” divorced by using their civil divorce decree.
who were married overseas started proceedings in religious courts and were able
to get a divorce through the system overseas with the help of family members.
women’s names have been changed here to protect their identity) applied for and
received a civil divorce and sent it to her home country of Algeria, because it
was accepted as legitimate. She considered their recognition of the Australian
civil divorce and subsequent registration as divorced under Algerian laws as a
“complete” divorce without needing to engage Muslim community processes for a
who had sought religious divorce through community processes and had been
unsuccessful decided that their civil divorce sufficed as a “complete” divorce.
“Aisha” felt that the imams were not completely aware of her situation when
they refused to grant her a divorce without her husband’s consent, and that she
was entitled to one — so once she had gained her civil divorce she felt certain
that it was sufficient “in the eyes of God” because her marriage was
effectively over and she was legally divorced.
reflects a ruling issued in 2002 by the European Council for Fatwa and Research
(ECFR), a body of contemporary Muslim jurists who offer new interpretations of
Islamic laws specifically for Muslims living as minorities in non-Muslim
countries. This ruling or fatwa declared that Muslims who conduct their
marriage according to a country’s laws should also comply with the rulings of a
non-Muslim judge in the event of divorce. According to the ECFR, a civil
divorce can and should be considered as sufficient for a Muslim to have a
“complete” divorce. Indeed, in Britain some community processes such as the
Fiqh Council of Birmingham have adopted this approach to streamline the many
religious divorce requests from women.
illustrates that improving Muslim women’s access to religious divorce in
Australia requires addressing particular social norms and interpretations of
juristic rulings that exist among many Muslim communities in Australia, to
ensure that just and equitable outcomes are achieved. The Muslim women I
interviewed were able to define their own parameters of a “complete” divorce
due to their own determination and resilience, and awareness of how civil
divorce can be used to gain religious divorce.
current Muslim community processes are not always easy to navigate, the
research shows that Muslim women value their membership within their religious
community. Making women aware of the various options they can access to gain a
religious divorce is thus an important way they can claim their religious
rights and freedom.
Dr Anisa Buckley is a Research Fellow at the University of Melbourne and
the University of Sydney. She is the author of Not ‘Completely’ Divorced:
Muslim Women in Australia Navigating Muslim Family Laws.
Headline: What are Muslim women’s options in religious divorce?
Source: ABC Religion and Ethics