Muslim Family Law in Western Courts

Elisa Giunchi, Elisa Giunchi

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317750307
• Edition: 1
• Topic: Sozialwissenschaften
• Subtopic: Landeskunde

This book focuses on Islamic family law as interpreted and applied by judges in Europe, Australia and North America. It uses court transcriptions and observations to discuss how the most contentious marriage-related issues - consent and age of spouses, dower, polygamy, and divorce - are adjudicated. The solutions proposed by different legal systems are reviewed, and some broader questions are addressed: how Islamic principles are harmonized with norms based on gender equality, how parties bargain strategically in and out of court, and how Muslim diasporas align their Islamic worldview with a Western normative narrative.

1 Muslim family law and legal practice in the West

An introduction

Elisa Giunchi

DOI: 10.4324/9781315796369-1

At the beginning of the twentieth century, the scholar James Bryce, in the context of discussing the introduction in India of British-influenced codes, predicted that ‘European ideas … will sink deeper and deeper until the old native life dies out [and] will come to prevail everywhere’ (1914: 2). In the face of the ‘rising tide of European law’, he added with evident satisfaction, ‘both Hinduism and Islam may … begin within a century or two to show signs of approaching dissolution’ (ibid.: 131, 129). Completing a process that had been initiated in the previous century, under the ‘beneficial influence of the British, rationalization and uniformity would prevail over chaos and plurality’ (ibid.: 118, 133), the hallmarks of the ‘irrational Orient’.

Back then, most Europeans would have agreed with him on the inevitability of the expansion and ultimate success of the European legal model. And yet, colonialism could not, in India or elsewhere, completely dislodge native customs and laws, but rather it added a new layer of pluralism to the existing one. Family law remained largely outside the purview of colonial intervention. When it was reformed after independence, codes on personal status retained some aspects of classical fiqh, rethought others along modernist lines, and added new concepts and procedures. The hybridization of the legal system was further complicated by the process of Islamization in the 1970s and 80s. Through this process, relevant segments of Muslim societies expressed the desire to distance themselves from the Western legal model and replace it with ‘authentic’ Islam, seen as a panacea for all social and economic ills. In the name of authenticity, concepts and norms of fiqh, selectively picked and transformed, entered the penal and financial fields in several countries, coming to coexist with legal procedures and concepts of European origin as well as with previous, modernist interpretations of shari‘a. The ideas that inspired the Islamization of laws were in many ways a product of the very globalization this process wished to reverse, and ‘Islamist’ reformists were undoubtedly under the spell of Western influence despite their anti-Western rhetoric. Besides using concepts and terms that were foreign to classical Islam, the quest for ‘authenticity’ – a primordial essence freed from any historical and local contamination – is itself a modern idea. Be that as it may, the Islamization of laws added a new exegetical model to pre-existing ones, with the effect of furthering the heterogeneity of state Islamic law in those countries in which the criminal and fiscal system have been ‘Islamicized’.

Today, one century after Bryce and contrary to his predictions, Islamic law, far from dissolving, remains part of the legislation on personal status, albeit transformed from its classical model, and it has increasingly penetrated the West itself. This has occurred through official and unofficial means. On the unofficial level, faith-based mechanisms for dispute settlement have been thriving, particularly in countries with an established Muslim population and multicultural policies. In Britain, in particular, Muslim diasporas increasingly refer their marital disputes to these alternative channels, which tend to be part of mosques and cultural centres. On the official level, Western legal systems have come, to some extent, to recognize Islamic rules and institutions, although they have adopted slightly different methods of incorporating them and/or recognizing the validity of their results. When addressing family disputes concerning citizens of other countries, some legislators, such as those of Germany and Italy, have decided to apply the laws of the foreigner’s country through international private law norms, as long as they neither contravene the concept of ‘ordre public’ – that is, the fundamental principles of the prevailing system – nor violate international conventions to which the host country is a party. Other countries, such as Switzerland, Denmark, Norway and Britain, have decided to adhere to the principle of domicile or residence unless a contrary bilateral agreement exists. Even in such cases, state Islamic law is taken into account when authorities are called upon to assess the effects of changes in civil status that have been undertaken in a Muslim country and to balance these changes with ‘ordre public’. Religious family practices are also often recognized in the West unless they clash with fundamental principles of the ‘hosting’ legal system or, as in Britain, are deemed ‘unreasonable’. Some countries, such as France, recognize for example kafala, a form of guardianship of children that does not create a full parental relationship between child and guardian. In other countries, such as Britain and Norway, Islamic marriage ceremonies celebrated at registered mosques are recognized as having legal validity.

It should be stressed that when Western judges apply foreign norms, or recognize their effects, Islamic law is relevant only inasmuch as it has been absorbed by the national law of the litigants, or by the law of the country in which certain acts were performed. Islamic law therefore reflects one understanding of shari‘a, rather than shari‘a per se, and it stems from legal devices and doctrinal developments that depart from fiqh on several points. The Western judge needs not be aware of the plurality of Islamic sources and exegetical methods, though his limited knowledge of the nuances and meaning of Islamic law may hinder his understanding of state Islamic law, an issue we will return to later on.

Irrespective of the methods used, and of the varying degrees of flexibility displayed, when accommodating aspects of Islamic law all Western systems face similar dilemmas, such as how to balance gender parity – the core of ‘ordre public’ – with other valued principles, such as freedom of religion and equality. As Büchler observes, ordre public is an elusive concept that confers great discretionary power on the judiciary (Büchler 2011: 41) as well as hiding, as she and Latif point out in Chapter 4 of this book, culture-specific ideals of marriage that have an underpinning of Christian morality. The aspects of Islamic family law most at odds with the concept of ordre public, and which are, with few exceptions (such as Turkey, Tunisia and the Central Asian republics) part of state Islamic law, are polygyny and the unilateral right of the man to repudiate his wife (talaq). While polygyny is apparently fairly rare outside Gulf countries, talaq is probably the most common form of divorce in the Muslim world, though reliable statistics are hard to come by, as nikah (religious marriage) and talaq are not often registered. According to fiqh, the husband desiring to repudiate his wife needs neither grounds nor her consent, although legislation in the contemporary Muslim world has made talaq dependent on a series of conditions, which are regulated by the state, in order to limit the practice. The wife, according to Islamic law, can divorce in limited circumstances only. One of them is through khul‘, i.e. at her initiative with the consent of the husband, provided she forfeits the deferred portion of the mahr (dower) to which she is entitled. However, in some countries the requirement of the husband’s consent has been dropped through legislation (Egypt) or via the judiciary (Pakistan). Mubarat is a rarely practised no-fault option which, if initiated by the husband with his wife’s consent, does not entail the loss of her financial rights. Another infrequent option is that of delegated divorce (talaq-i tafwid), i.e. the delegation to the wife, in the marriage contract, of the right to pronounce talaq on behalf of her husband. Neither of these options is usually included in legislation. The wife can divorce by means of the court’s intervention in case of breach of licit contractual clauses or in some other cases that vary from school to school. While the only valid grounds that the Hanafi school accepts are the husband’s apostasy, his impotence and prolonged absence, at the opposite end of the spectrum the Maliki school provides women with several ways to escape from an unhappy marriage, including claims of desertion and harm (darar). Legislation in the Muslim world has often extended women’s rights to divorce by referring to the Maliki madhhab (legal school), even in countries where another madhhab is prevalent, and the judiciary has in some countries often expanded the concept of darar to cover the psychological sphere (Giunchi 2013a).

Another problematic aspect of Islamic law, from the point of view of the Western legal system, concerns agency in contracting the marriage. The guardianship powers of the male legal representative (wali) of the bride, particularly if she a minor, are central to Islamic law and are today widely recognized in legislation in the Muslim world, as are the duty of the woman to obey her husband, the legal inequality of male and female heirs and the distinction between the mother’s custody (hadana) and the father’s guardianship (wilaya). Reflecting a consensus among classical jurists, most laws in Muslim countries, despite increasing attention paid by legislators and judges alike to the ‘best interests of the child’, establish that women are entitled to the custody of children only up to a certain age and under certain conditions, one of them being that they do not remarry outside their husband’s family. Custody can also be revoked if the mother leaves Islam as an apostate or is deemed nusyuz (disobedient).

An issue often arising in divorce cases, in the Muslim world and in the West, is that of mahr. According to Islamic law and most legislation in Muslim countries, following the divorce the wife must refrain from remarrying for a period of time, the ‘idda. At its expiration, she must be given the part of the mahr that she has not already received, unless the marriage has not been consummated or has been dissolved at her request through khul‘. The question of who initiated separation and/or divorce is therefore crucial. However, women often forfeit mahr in exchange for the right to hadana, or for her husband divorcing her or consenting to her request for divorce through khul‘.

Maintenance of divorced women is limited by Islamic law and most Muslim legislation to only a few months or until delivery if they are pregnant. Another critical issue, from a Western perspective, is the prohibition of inter-religion marriages between Muslim females and non-Muslim males, which is found in most present-day legislation in the Muslim world. Underage marriages are also common, despite the fact that most legislation in the Muslim world now prescribes a minimum marriage age of 18 for females, although exceptions can be authorized by judges under certain circumstances. Another customary practice in some areas of the Muslim world is that of forced marriages, despite the fact that laws in most Muslim countries require that the bride must consent to the marriage. It needs to be stressed here that the fact that a wali can voice her consent or that the marriage has been arranged does not necessarily mean that the bride was coerced into it. Finally, ‘proxy marriages’, which the laws of several Muslim countries recognize, provided that there is the consent of both spouses, are considered by several western countries as invalid.

This brief overview indicates that, with the exception of Turkey and Central Asian republics, which have eliminated all references to Islamic law in their laws on personal status, codification in the Muslim world has softened but not eliminated the fiqh construction of the marital bond as an asymmetrical relationship that is based on what Ziba Mir-Hosseini, using Chiba’s (1986) tripartite model of legal systems, calls ‘the qiwwama postulate’ (Mir-Hosseini 2013: 11), whereby submission (tamkin) is given in exchange for maintenance (nafaqa). All elements of inequality that characterize Islamic law stem from this postulate, which recent legislative reforms (such as the 2004 Moudawana in Morocco, eliminating the duty of obedience), as well as judicial practice in several Muslim countries, is eroding.

It is quite obvious that by contravening the concept of gender parity the elements of Islamic law summarized above are contrary to ordre public. Any faith-based discrimination is also considered as unacceptable. For example, whether a parent is lax in his/her adherence to religion should have no bearing on the parenting orders given by judges; similarly, the adherence to a specific religion cannot be a requirement for marriage. The Western judicial approach is, however, guided by a certain amount of pragmatism, as all the contributions in this volume indicate. Even though poligyny is not allowed in any Western country, for example, some of the legal effects of polygamous unions are usually recognized, provided that the unions are validly contracted in a country that formally allows them. A similar pragmatism is evident with regard to talaq and to informal religious marriages.

These accommodations are no doubt ad hoc concessions made in certain circumstances and on a limited scale. As such, they do not subvert Western legal systems or their narrative of Muslim ‘otherness’. It is the ‘hosting’ system of law that, on the basis of its perception of what is acceptable, sets the boundaries of accommodation or, in the case of recognition of informal mechanisms for dispute resolution, defines the categories of instances in which its own institutions will refrain from acting (Woodman 2008: 35). These ‘gracious concession[s]’ to diversity (Ahdar and Aroney 2010b: 24) result, some have argued, in a haphazard and at times discriminatory process as different religious communities are subject to differential treatment (Menski 2009: 31–32).¹ Secularism, often invoked as a benchmark and central to Western self-perception, barely masks the priority given by the ‘hosting’ systems to the religion of the majority – be it Christianity or other ‘acceptable’ faiths (Bradney 1993: 160–61; see also Sayyid 2009).

Some scholars advocate the introduction in the West of a ‘personalized’ system of laws similar to that prevailing in many Muslim countries and in India, where the laws of other major religious communities concerning personal status are recognized by the state and are applied by courts headed by members of those communities (Menski 2009). Others have argued against this approach on various grounds (Pearl 1999). The most common concern is that the recognition of faith-based forms of adjudication would threaten the secular nature of the states in which adjudication takes place and challenge state hegemony while, at the same time, restricting individual freedoms. The diversity of Islamic legal doctrine and of Muslim societies is another important element to be considered: Muslim diasporas o...