For many Muslim women, the process of seeking an Islamic divorce can be difficult and complex, particularly in regions where federal law differs from the Islamic practices within Shariah. In examining this issue, this article looks at the research conducted by Dr Ghena Krayem and Dr Farrah Ahmed into the experiences of Muslim women who have engaged with the Islamic divorce process, specifically within Australia, and what we, as Muslim communities, can do to help make these processes easier to navigate.
Australia’s Muslim communities are diverse in their cultural and linguistic needs and support networks. But one aspect all Muslims in Australia have in common is the need to have legal services available which are compatible with our Islamic faith and values. For marriage and divorce, in particular, having the legal validity of these processes in both a civil and Islamic sense allows us to fulfil our religious obligations and acknowledges our unique identity as Muslims living within the West.
Unfortunately, gaining access to Islamic processes, particularly within regions where Shariah, the law in which these processes come from, works outside civil law, can be difficult. In matters of divorce specifically, Muslim women who’ve sought out the Shariah process often face a long and arduous journey before they can separate from their husbands Islamically, putting an immense toll on their mental and spiritual health.
In examining this key issue within our communities, Dr Ghena Krayem of the University of Sydney (USYD) and Dr Farrah Ahmed of Melbourne University (MU) have combined their legal expertise and research on Muslim women and their experiences with Shariah in the Australian context and Islamic Family Law to write the book, Understanding Sharia Processes – Women’s Experiences of Family Disputes. This book presents the perspectives of Muslim women who have engaged with Australian Islamic divorce processes, as well as the perspectives of imams, community leaders, and professionals – lawyers, mediators, social workers, community workers and psychologists – who support women through family conflicts. In providing a platform where these stories can be heard, Dr Krayem and Dr Ahmed aim to open the dialogue within our Muslim communities to help make the Australian Islamic divorce process easier to discuss, access and navigate, especially for families who need it.
Continue reading below for some further explanation into the work of Dr Krayem and Dr Ahmed and the research into women’s experience of Australian Islamic divorce processes.
How Islamic Divorce Processes Work in Australia
While Islamic divorce processes are heavily context-specific and change over time, most processes, on the whole, follow these steps:
STEP 1: Applicant completes a divorce application form including details of the marriage and separation.
STEP 2: Applicant meets with a representative of the panel of imams, or with the imam, to discuss the application.
STEP 3: After hearing from the wife, the imam or panel of imams will attempt to contact the husband to facilitate the husband’s cooperation with the divorce process.
STEP 4: Depending on the case the applicant may meet with the imam/s multiple times. If the couple wishes to reconcile, the imam/s will attempt to facilitate reconciliation.
STEP 5: If the husband refuses to cooperate, the imam will continue to try to contact him to facilitate the divorce process (the timeline for this differs based on the organisation).
STEP 6: If the husband still refuses to cooperate, the imam or panel of imams will make a referral, recommendation or decision about the type of Islamic divorce which is appropriate.
Within these processes, imams also prioritise two factors before facilitating an Islamic divorce: the couple’s likelihood of reconciling and whether or not the couple has already facilitated a civil divorce. Islamically, it is required for imams to act as a mediator or a counsellor and encourage couples to try and reconcile. However, if there is no chance of reconciliation and the couple decides to go through with the recommended type of Islamic divorce referred to them, their divorce application will be processed by organisations such as the Board of Imams Victoria or the Australian National Imams Council, or smaller groups such as the Lebanese Muslim Association in Sydney.
Likewise, couples who have already gone through Australian civil divorce proceedings are more likely to be granted an Islamic divorce, especially if the couple has spent some time reflecting and finalising their separation. However, in a case where an applicant seeking divorce is experiencing domestic violence, regardless of whether or not they have engaged in civil divorce proceedings, their divorced application can be fast-tracked, as the safety of the victim is prioritised above all else.
Women’s Reasons for Engaging with the Islamic Divorce Process
Before engaging in Islamic divorce processes, it is common for us to first seek out advice and assistance from family, professionals and informal mediation services within our local communities to resolve family conflicts. But when a solution is unable to be found, these are four broad, interconnected reasons why an Islamic divorce would eventually be sought out, particularly for women.
- Religious and Spiritual Reasons: Some women wanted to facilitate an Islamic divorce as they were concerned they would lose their iman (faith) if they stayed in an unhappy marriage or were angry at their husbands for diminishing the importance of Islam to them. Others expressed they wouldn’t feel complete until they were also no longer married to their husbands in the eyes of Allah (SWT).
- The Need to End Emotional Exploitation: A religious divorce also helped women cut ties with their husbands and move forward after a cycle of emotional abuse.
- The Need for Closure: For several women, marking the end of a significant relationship with Islamic divorce helped them start a new chapter in their life without any guilt or anxiety.
- Avoiding Stigma within their Community: For some women, obtaining a religious divorce diminished the stigma and judgement they faced from their community more than if they just waited for a civil divorce.
Women’s Experiences with Islamic Divorce Processes
Within Islamic divorce processes, imams play a pivotal role in helping Muslim women navigate the shariah processes and release them from unwanted marriages. Women who engaged in these processes had the most positive experiences when the imams took on the role of their ‘advocate’ and listened to their concerns seriously and without judgement. In a sense, being supported through the divorce processes gave some women a space to not only speak up and seek protection for their own interests (financial and otherwise) but also challenge cultural practices (including familial or community pressure to reconcile).
However, while imams were vital to the successful resolution of some martial disputes and family conflicts, there are equally concerns expressed by Muslim women as to how difficult and complex some Islamic divorce processes are conducted in practice. These concerns are in relation to:
- The Emphasis on Reconciliation: While women who initiate contact with imams might be open to reconciliation, some women may be uncomfortable with being pressured to try and reconcile with their husbands, especially in situations where they are currently experiencing abuse and family violence.
- Imams’ Lack of Skills and Training: A number of imams within our communities lack the counselling skills and qualifications to mediate between wives and husbands in matters of family conflict.
- A Lack of Transparency in Decision-making: Some imams do not clearly communicate how they come to the decisions they issue toward the couples they counsel, leaving women confused about the rationale for the advice they are given and what they should do next regarding the divorce process.
- A Failure to Respond Adequately to Domestic Violence and Injustice: Professionals and women reported that imams generally understood domestic violence to be limited to physical abuse, particularly in how wives contributed to ‘enraging’ or ‘provoking’ such behaviour from their husbands. Due to how often these types of questions were asked, some women felt that imams were insensitive to their concerns and the injustices being committed against them which lead them to seek out Islamic divorce processes.
- Gender Imbalance on Divorce Panels: Many panels discussing the topic of Islamic divorce and family conflict are mostly made up of men. This can leave Muslim women feeling disconnected from the advice being given as it lacks the input and understanding of a female perspective on the sensitive topic.
- Issues Relating to Privacy and Re-traumatisation: Some spaces where divorce proceedings take place are not considered to be safe spaces for women using them, leaving many women feeling uncomfortable and vulnerable when they express their concerns to their imams.
- How experiences with Islamic divorce processes impact women’s faith and religious practice: Some women turned to their faith for strength during the difficult process of divorce. However, some women found the divorce process to leave them questioning their faith due to the trauma it gave them.
Recommendations for Improving Islamic Divorce Processes
Since research into Australian Islamic Divorce Processes was first conducted, organisations like the Australian National Imams Council and the Board of Imams in Victoria have implemented significant changes to their judicial systems to improve their divorce processes. However, as every organisation are at different stages in improving its divorce processes, these are the overall suggestions for improvement given by those engaged in Islamic divorce processes:
- Support and Resources for Religious Divorce:
- Support and Resources for Imans: Imams often face an immense amount of pressure and stress when dealing with divorce applications and were especially fearful for their safety when situations escalated into violence. By giving more resources, support and training to imams, the right time, energy and sensitivity could be dedicated to each divorce case.
- Support and Resources for Women: Community organisations should also consider if women seeking Islamic divorce are able to bear the costs themselves. While women did not generally raise costs as a concern, many faced financial difficulties and would be eased of this burden if community organisations could fund the panels granting their religious divorce.
- Referral and Integration of Support Services: There are many instances where women would have benefitted from combined specialised counselling, mediation, legal aid and domestic violence services alongside the advice and mediation of imams, during Islamic divorce processes.
- Pre-marriage Briefing and Counselling: Counsellors and psychologists reported that Muslim couples often only approached them when the relationship had deteriorated significantly. If pre-marriage counselling became normalised, it could reduce the stigma of marriage counselling as a whole and encourage couples to seek early intervention.
- Informing Women of their Rights within Islamic Marriage and Divorce:
- Rethinking Marriage Contracts and Delegated Divorce Rights: Pre-marriage briefing and counselling sessions offer opportunities to discuss the Islamic marriage contract and allow women to gain knowledge about clauses granting them specific types of Islamic divorce. This includes talaq tafweedh, which delegates divorce rights to the wife.
- Financial Entitlements of Women in Divorce: Women seeking Islamic divorce often have little understanding of their options when considering types of Islamic divorce, particularly in the implications it had on their mahr (Islamic marriage gift), which women have a right to keep. Likewise, if Islamic marriage contracts are recognised as binding financial agreements (under the Family Law Act 1975 (Cth)), this would allow women to enforce property settlements.
- Education and Transparency about Divorce Processes: Women seeking Islamic Divorce are often poorly informed about what to expect from Islamic divorce processes. Given the stressors women face during these processes, it’s particularly important to brief them thoroughly on what to expect with the process before engaging in it. Providers of Islamic divorce processes are also required to give clearer policies, processes and procedures – relating to domestic violence, confidentiality and conflicts of interest – to their applicants that adequately account for their needs and vulnerabilities.
- Women and Professionals on Panels: Including female religious scholars on Islamic divorce panels would allow for women to feel safer and more comfortable in speaking about their experiences, including personal concerns about more intimate aspects of their marriage. Likewise, including a range of professionals, such as lawyers, mental health professionals and social workers on these panels would allow for better-informed decisions to be made when finalising Islamic divorce applications.
- Acknowledgement and Response to Injustice, Abuse, Harm:
- Delivering Justice: Women using Islamic divorce processes expected an authoritative acknowledgement that their former husband’s behaviour was un-Islamic, however, these desires and expectations were often not met during the processes. In these cases, imams should consider whether they can do more to acknowledge injustices and harm experienced by women.
- Acknowledgement of Domestic Violence: While imams encourage women to report domestic violence to the police, professionals working with women stated that the labelling of domestic violence (of physical and other types of violence) by an authoritative religious figure such as an imam is important in order for the violent partner to be held accountable and potentially change their behaviour.
- Sensitivity to Cultural and Linguistic Diversity: Islamic divorce processes need to be more sensitive to the diverse needs of the Australian Muslim community and address the ‘gaps’ in their services. This includes access to accredited interpreters, who are fluent in English, as well as the relevant languages of people who support participants through the processes.
- Enhanced Role for Muslim Women’s Organisations: The support of Muslim women’s organisations and advocacy services, such as Muslim Women Australia (MWA) and the Australian Muslim Women’s Centre for Human Rights (Victoria), for women facing relationship problems is vital, particularly as concerns about their community standing or reputation are important to some women. These services would likewise ensure that vulnerable women are supported in a holistic way and that their various needs, such as housing, legal advice, financial support and counselling, are met in a religiously and culturally appropriate manner.
- Improving the Family Law System
- Better Enforcement of Orders against Former Partners: Women who engaged with the family law system reported frustration with problems in the enforcement of court orders against their former partners, especially in matters of child support.
- Better-Tailored Legal Aid: A number of women struggle with the effectiveness and amount of time to discuss their issues with legal aid lawyers. The additional burden of women when undergoing dual state and community processes should be taken into consideration when allocating legal aid and legal representation.
- Enhancing the Cultural Sensitivity of Mainstream Services: A number of women felt that the mainstream services they accessed were unaware of and unable to support their cultural or religious needs. Mainstream services need to be culturally sensitive and knowledgeable to allow for women to feel comfortable enough to articulate their cultural needs, including by providing a greater diversity of mediators from different religious, cultural and ethnic backgrounds.
- Legal Recognition of Mahr (Islamic Marriage-Gift to be Given to the Wife): Even where a right to mahr was recognised during divorce proceedings, imams are generally powerless to enforce the payment of mahr if the husband is unwilling to pay. The potential for Islamic marriage contracts to make mahr legally enforceable is an area that requires further research and advocacy.
- A Muslim Family Relationship Centre/Service: Some Muslims are reluctant to access mainstream dispute resolution processes as they do not view these processes as being sensitive to their religious beliefs and needs when navigating divorce. A specialised service for Muslim families can help to overcome these concerns, as well as address shortcomings within current Islamic divorce processes, particularly in alleviating the pressure on imams to act as a ‘jack of all trades’ during these processes.
Overall, the experiences and recommendations for improvement of women and their support networks who engage in Australian Islamic divorce processes outlined in the research of Dr Ghena Krayem and Dr Farrah Ahmed are multi-faceted and ongoing. However, by collating and presenting these perspectives within a digestible format, it can help make Islamic divorce processes easier for our Australian Muslim communities to discuss and a more supportive system for families who most need it.
For more information on Dr Krayem and Dr Ahmed’s research, be sure to connect to the resources directly at:
- Summary report: https://law.unimelb.edu.au/__data/assets/pdf_file/0012/3768528/Islamic-Community-Processes.pdf
- The Book: https://www.bloomsburycollections.com/book/understanding-sharia-processes-womens-experiences-of-family-disputes/
- On Purpose Episode 5 with Dr Ghena Krayem: https://mwa.org.au/on-purpose-podcast/