Sharia Law
If you live in Australia, you are subject to all Australian laws, regardless of your faith, culture, or country of birth. Many Australian Muslims also feel bound by Sharia law including when it comes to marriage and divorce, child custody, and marital property settlements. It can be difficult for an Australian Muslim to understand how best to comply with both Australian and Muslim family law. This article focuses on how Australian law and Sharia law apply to family law matters.
Marriage
Married under sharia law in Australia
In Australia, marriage is regulated by the Marriage Act 1961 (Cth) (the Act). A couple must follow the rules outlined in the Act to have a legally recognised marriage.
Under the Act, a couple must be eligible to be married. Participants in a marriage must be single, at least eighteen, and not closely related to one another. An authorised celebrant conducts the ceremony, and the couple must register the marriage with the government. When a couple meets all of these requirements, their marriage is legally recognised in Australia.
Many Australians get married according to their faith, combining legal requirements with their own religious traditions. Australian Muslims often have a member of the Muslim religious community (such as an Imam) perform their marriage ceremony. This qualifies as a legal marriage as long as the Islamic celebrant is registered with the Australian Government, and the couple fulfil the other requirements.
Alternatively, a Muslim couple may choose to hold separate ceremonies, a religious ceremony and a separate civil marriage ceremony. Australian law does not recognise a marriage made only under Sharia law. If you get married in Australia via a Muslim wedding contract (a nikahnama)you will likely be considered a de facto couple under Australian family law.
Married under sharia law outside Australia
Australia recognises the validity of overseas marriages, as long as the union was valid in that country and abides by Australian law. For instance, if you were married in Iran under Sharia law, then Australian law will usually recognise this marriage as valid. This is because the Iranian government recognises the marriage as valid.
However, there are exceptions when another country’s law conflicts with Australian law. A marriage is not valid if either person was under eighteen at the time of the union. In the same way, while Sharia law permits polygyny, this is not legal in Australia.
Divorce
What does sharia law require for a legal divorce?
Both Muslim men and women can divorce under Islamic family law. An Islamic religious divorce is called talaq.
Under Sharia law, men can unilaterally declare an Islamic divorce to dissolve their marriage. In contrast, women must have their husband’s acceptance to the divorce, or seek the approval of an outside authority such as a Sharia council.
How do you divorce in an Islamic marriage?
A husband can obtain a religious divorce under Sharia law simply by pronouncing a talaq. He does not need the consent of his wife, and there is no requirement to prove fault. Witnesses are not required under Sharia law, but it is best to have two witnesses to the declaration of religious divorce. The divorce becomes final if the husband does not withdraw the pronouncement during the three month reconciliation period. The parties are then free to remarry under Sharia law. The husband often pays a dower to the wife in these circumstances. Australian courts have previously ruled that dowers are an enforceable contract.
It is not as simple for a wife to obtain a religious divorce under Sharia law. A wife must have her husband’s consent to a divorce or ask a Muslim community leader to grant her a khulla (Sharia divorce). A Khulla is a no fault divorce and the wife does not need her husband’s consent. No dower is paid if the wife initiates the divorce.
There are Sharia courts in some Islamic countries that will grant a Muslim woman a divorce through a faskh, tafriq or ta‘liq. This process requires evidence that the husband is at fault for the breakdown of the marriage. It is not possible to seek this type of divorce through the Australian courts.
Crucially, there is a much simpler way for a wife to access a religious divorce. In the marriage contract, the wife can stipulate a talk tafwid clause. Under this clause, a wife has the same unfettered right to declare divorce as her husband.
Does Australian family law recognise Islamic divorce?
It is important to understand that a religious divorce is not the same thing as a legal divorce in Australia. These are separate processes. You may wish to obtain only a legal divorce, only a religious divorce, or both.
If you receive a religious divorce under Sharia law in Australia, this is not recognised as a legal divorce. Even after you obtain a religious divorce, you will still be legally married until you apply through the Federal Circuit and Family Court of Australia for a legal divorce.
How to get a legal divorce using Islamic or Sharia law
If you live in Australia, you can seek a legal divorce through the Federal Circuit and Family Court of Australia. You can also apply for a legal divorce in Australia if you were religiously married in a Sharia law country. If you were religiously married in Australia, you do not need to seek a divorce, because you are not legally married. However, you may still wish to seek a religious divorce.
In order to get a legal divorce in Australia you need to live separately from your spouse for a year with no real prospect of getting back together (this is called “irretrievable breakdown”). Even if you and your spouse continue to live under the same roof during this year, you can establish that you lived “separately under one roof“.
Do I need an Islamic divorce if I am an Australian?
It is up to you whether you want to seek both a legal and a religious divorce. It is possible to apply for a legal divorce while simultaneously requesting a religious divorce. However, a wife who initiates a legal divorce may be unable to obtain approval from the Islamic community to Sharia divorce. If a husband refuses to grant his wife a religious divorce and she cannot obtain approval from a Muslim authority, she may be legally divorced but remain religiously married. This restriction applies only to a Muslim wife, as a husband can declare a religious divorce without the approval or consent of any other party.
In Australia, it is necessary to legally divorce to sever official ties with your spouse. For Muslim Australians, a religious divorce may be as important for personal and cultural reasons. It is necessary to religiously divorce in order to remarry in the Islamic faith.
In recent decades, Muslim authorities have suggested that there is no need to obtain a religious divorce in addition to a legal divorce. In 2002, the Muslim jurists of the European Council for Fatwa and Research (ECFR) issued a fatwa. In this formal interpretation of Muslim law, the Council declared that a legal divorce is considered a “complete” divorce. As such, under this interpretation you can obtain both a legal and religious divorce through a single application to the Federal Circuit and Family Court of Australia. Whether you feel that a separate religious divorce is desirable or necessary is up to you.
Differences between an Australian civil divorce and Australian Islamic divorce?
Australian judicial divorce is relatively slow and cumbersome, especially compared to an Islamic divorce. In Australia, there are significant delays before a divorce is finalised, and an applicant must complete certain forms and submissions to the Court. A legal divorce can also feel quite bureaucratic and impersonal.
You might find this detachment upsetting, but you should take comfort from the thought that the Court treats every case with the same neutrality. Australia has a “no fault” divorce system, so the Court has no interest in knowing who is to blame for the marriage breakdown. Both parties have the right to seek a divorce. Legally, a wife has no need to seek approval from anyone before filing for divorce, and no need to prove fault on the part of her husband to be entitled to a divorce.
The most significant difference between Australian civil divorce and Islamic divorce is legal recognition. An Islamic divorce does not fulfil the requirements of Australian divorce set out in the Family Law Act 1975 (Cth). The Court will not recognise or enforce an Islamic divorce as the legal dissolution of a marriage.
A legal property settlement is a separate action to the legal divorce process. With an Australian civil divorce, unlike a Sharia religious divorce, a husband is not automatically liable to financially support his wife. In terms of a legal property settlement, the Court is focused on ensuring that each party receives a fair and equitable division of the marital assets. The Court will order a property settlement in light of each party’s relative contributions to the marriage, their current resources, and ongoing needs.
You do not need a lawyer to obtain either a legal or religious divorce in Australia, but a family law solicitor can help you navigate the complex legal systems. You can access alternative dispute resolution (such as mediation) under both systems to address the division of assets and care of children.
Children
Who gets custody of child in divorce in Islam?
Under the Family Law Act, both parents have equal and shared parental responsibility for any children. There is no concept of “custody” in Australia, but ideally a child should spend substantial time with each parent, both of whom will take an active parenting role. The Court considers the best interests of the child to be the primary consideration in any parenting arrangement.
In contrast, under Sharia law, it is traditional for the mother to receive primary guardianship of young children. Under this tradition, the father has primary financial responsibility for the children.
A Muslim couple can agree privately to comply with traditional Sharia law, so that the mother has care of the children while the father provides financially. However, either parent can apply to the Federal Circuit and Family Court of Australia to change this arrangement. The Court is likely to order that a child spend substantial time with both parents, unless it is not in the child’s best interests. Under Australian family law, shared parental responsibility is the preferred outcome, even when it is contrary to Muslim traditions.
Property
How are assets divided in Islamic divorce?
In Australian family law, there is a specific formula for dividing marital assets. Under this formula, the couple’s assets and liabilities are divided based on their own contributions to the marriage and their current and future needs.
Islamic law does not acknowledge the concept of marital property, and spouses are not legally required to share their property. Each person continues to retain full ownership of assets they brought into the marriage. In addition, it is common for Muslim couples to agree a pre-marital Islamic marriage contract setting out the division of assets in the event of divorce.
However, Islamic law does state that wives are entitled to compensation for contributions to a marriage. This compensation reflects both a wife’s work outside the home and household management. Following religious divorce, a Muslim husband is expected to provide his wife with an amount to cover her expenses. If the husband has requested the divorce, he must also pay a dower to his wife.
Often, an Islamic couple reaches a private property agreement based on Sharia law, or through arbitration with a religious leader. This private agreement does not have legal force in Australia unless it is submitted to the Court as a binding financial agreement. Otherwise, either spouse can apply to the Court for a review of the financial settlement.
If you are married under Sharia law and your marriage is not legally recognised in Australia, you can still legally seek a de facto spousal maintenance and a property settlement.
Here For You
The team at Unified Lawyers can help you understand your legal rights if you are seeking a legal or religious divorce in Australia. Please contact or call 1800 572 131 if are seeking a legal divorce through the Australian legal system. If you have already obtained an Islamic divorce, we can assist you with property settlements, spousal maintenance and parenting arrangements.
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