Sharia Divorce
While the Australian courts have the sole authority to grant a legal divorce in Australia under the Family Law Act 1975, the law does not preclude parties from pursuing the religious dissolution of their marriage. As such, Australian Muslims who wish to obtain a divorce may seek both a Sharia divorce and a civil divorce under Australian law. This article explores the nature of Sharia divorce, its interaction with Australian law, and the legal complexities faced by Muslim couples navigating both systems.
Sharia marriage
It is important to note that a marriage performed under sharia law in Australia is not recognised as a legal marriage in Australia. In such cases, there is no need to seek a divorce, as there is no legal bond to dissolve. Of course, even if the marriage is not recognised, the union may still constitute a de facto relationship that carries financial implications such as spousal maintenance and property settlements.
However, a sharia marriage performed outside Australia may be recognised as a legal marriage by the Australian courts, if it meets certain conditions, including that it is a recognised legal marriage in the country where the marriage was solemnised.
Sharia divorce
In Islamic jurisprudence, divorce is permitted but considered a last resort after reconciliation efforts have been exhausted. There are different kinds of Sharia divorce: Talaq, Khul‘, and Faskh:
- Talaq is the unilateral right of a husband to divorce his wife by pronouncing “talaq” (divorce) three times. While classical interpretations allow this to be done instantly, many modern Islamic scholars and jurisdictions impose waiting periods and require reconciliation efforts before finalising the divorce.
- Khul‘ is a form of divorce initiated by the wife, where she seeks dissolution by returning her dowry (mahr) or providing compensation to the husband. It requires the husband’s consent, which can create difficulties for women seeking a religious divorce.
- Faskh is a judicial annulment of marriage granted by an Islamic authority (such as an imam or religious council) where a woman can demonstrate valid grounds, such as cruelty, abandonment, or inability of the husband to fulfill marital obligations. This form of divorce is particularly important for women who are unable to obtain their husband’s cooperation for a Talaq or consent for a Khul‘.
Legal recognition of Sharia divorce in Australia
Australia has a wholly secular legal system, meaning that religious divorces, including Sharia divorces, have no legal standing unless they otherwise entirely comply with Australian family law. The Family Law Act 1975 establishes the sole legal framework for marriage dissolution in Australia, requiring that couples apply for a divorce through the Federal Circuit and Family Court of Australia (FCFCOA).
For a civil divorce to be granted, couples must demonstrate that their marriage has irretrievably broken down and that they have been separated for at least 12 months. Unlike some religious systems, Australian law does not require proof of fault on the part of either party, such as adultery or abuse. Once granted, the divorce is legally binding and irreversible.
Since Sharia divorces are not recognised under Australian law, Muslim couples must still obtain a civil divorce for their separation to be legally effective. Failure to do so can create legal complications, such as difficulties in remarrying.
Challenges faced by Muslim couples seeking divorce
The dual nature of civil and religious divorces creates several challenges for separating Muslim couples in Australia. While the Australian legal system ensures equal rights in divorce proceedings, religious considerations often introduce complexities, particularly for women. In many cases, a Muslim woman who obtains a civil divorce under Australian law will still want a religious divorce. If her husband refuses to grant a Talaq or consent to a Khul‘, a Muslim woman may face difficulties being recognised as divorced by her community. Religious divorce refusal, commonly referred to as “get refusal”, can leave a woman in limbo, legally divorced but still considered a married woman by her community.
To address this issue, some Australian imams and Islamic councils have developed procedures to grant Faskh (judicial annulment) to legally divorced women in cases where a husband is unwilling to cooperate. However, these processes are not uniform across all mosques and Islamic organisations, leading to inconsistencies in religious divorce practices across jurisdictions.
Property matters
Another challenge arises in property settlements and financial claims in cases of religious divorce. For all couples, divorce is a separate process to property matters. Under Australian law, property division follows principles of fairness and equity, considering financial and non-financial contributions to the marriage. However, Sharia principles predominantly view marriage as a contractual agreement, where financial settlements after dissolution may be guided by the terms of the marriage contract (nikah). Some Muslim couples prefer to resolve financial matters through Islamic mediation and avoid the family law court. However, this can lead to a financial agreement being reached that cannot be enforced under the Australian law.
Sharia divorce in Australia presents unique legal and social challenges due to the coexistence of secular family law and Islamic traditions. For advice about divorcing under Australian law, contact Go To Court Lawyers on 1300 636 846.