SPEAKER_05 0:26

Welcome to episode five of Breaking Up is Hard to Do. This episode is about Islamic law in the context of the Australian family law system. I've got two guests on today. The first is Imam Shadi al-Sulliman, who's a senior Islamic cleric in Australia. Second guest is Dr. Gina Crayem, who's a lecturer in law at the University of Sydney. Each of my guests brings a unique perspective to this very interesting and relevant subject. Before we begin, there are two Arabic terms you'll hear throughout this episode and are worth explaining. My apologies to any native Arabic speakers for the way I'm about to butcher the language. The first is fuk. You'll often hear people use the term sharia lord, but strictly speaking, sharia refers to the broad Islamic way of life or moral path. Fuq is something more specific. It's Islamic jurisprudence, the body of legal principles developed by Islamic scholars over the centuries. In other words, fuq is the practical legal system that deals with matters such as marriage, divorce, inheritance, and financial obligations. The other term is maha. This is sometimes incorrectly translated as dowry, but they're not actually the same thing. In a traditional dowry, money or property is provided by the bride or family to the husband or his family. Maha actually works in the opposite direction. It's a gift from the husband to the wife as part of the marriage contract, and it belongs to her personally. Understanding those two concepts, folk, the Islamic legal tradition, and Maha, the marriage gift given by the husband to the wife, will make it much easier to follow today's discussion. First up, Imam Shahdi. My guest today is Imam Shahdi Al-Suliman, the president of the Australian National Imams Council and founder of United Muslims of Australia, one of the largest Muslim community organisations in our country. And I'm talking to Imam Shahdi at his offices at the United Muslims of Australia at Padstow in the month of Ramadan. Imam Shahdi is an expert in fiqh, which is Islamic jurisprudence. He has been listed amongst the most influential Muslims in the world by the Royal Islamic Strategic Studies Centre. He's widely known for his work in the Muslim community with his leadership, youth engagement, religious education, and public commentary on Islam in contemporary Australia and also working with government. Shadi Ramadan Mubarak, thank you very much for joining me and welcome to the podcast.

SPEAKER_04 2:56

Well, thank you, Michael, and Ramadan Mubarak to you. Thank you for having me.

SPEAKER_05 2:59

Muslims in this country actually come from a wide range of cultural backgrounds. It's quite a diverse group, and I suppose many Australians tend to think as Muslims as one homogenous group, but that's not quite right. So what challenges does that present to you as a Muslim leader? Firstly, in dealing with that diverse community and also in dealing with the misconceptions that non-Muslim Australians might have around Muslims in this country.

SPEAKER_04 3:27

Well, let me say, according to the 2021 census, uh over 800,000 Australians identify themselves to be Muslims. And uh 80% of the Australian Muslim community are under the age of 45, 60% under the age of 35, and 50% under the age of 25, which makes it to be that the vast majority of Australian Muslims are either born here or raised here. And that's what you give, that's why you get a typical Australian Muslim. There are typical Australians and Aussies, they have the Australian accent, language, understanding, and culture.

SPEAKER_05 4:01

Well, I just want to move on to the area of Islamic law. So the term Sharia law or Islamic law is often used in a fairly loose or negative way in public debate. To the extent that most Australians think about uh Sharia law at all, they associate it with hams being chopped off and adulterers being stoned to death. But can you tell us in simple terms what Sharia or Islamic law is?

SPEAKER_04 4:28

Sharah in Arabic means law. But when we say sharia in Arabic and within the Muslim context, it refers to the Islamic law. And Sharia means a way of life in all aspects of life. And uh there are areas where the sharia doesn't give you much flexibility, but when it comes to the wider context, and that's when Muslims living in Muslim countries or non-Muslim countries, the Sharia gives you a lot more flexibility for you to live your life. And that's why within our faith Islam, we are very fortunate that we have a sharia, an Islamic law, that gives us a lot of flexibility for Muslims wherever they are, at any time, at any day, any age.

SPEAKER_05 5:10

So, I mean, I suppose uh in terms of that broad concept of sharia, the where I'm interested in is where it intersects with civil law, a lot of the sharia is is about religious observance, which is only going to be relevant to Muslims. But there's quite a big overlap between the civil law and areas that would be part of the Sharia law, for example, the law of marriage and you know, around that, by implication, the law around separation and all that sort of thing. And so, how does what's generally understood as the Sharia law, how does that develop? And how how how do we know what it is?

SPEAKER_04 5:49

So, our sources are two primary sources the Quran, which is the words of God, Allah revealed to Muhammad, and the hadith, which is the prophetic tradition, which is again, it's from Allah, but the wording is from Muhammad. And uh that's divided in different categories. It's divided between your relationship as a Muslim and God, and your relationship as a Muslim and Muslims, and your relationship as Muslim and others. Your relationship between you and God, that's when it comes to the prayers and fasting and others. Your relationship as a Muslim with others when it comes to your family, your Muslim uh brothers and sisters, and then your relationship with the non-Muslims. And God also, in the Sharia, also uh does mention uh a way of life and dealing with non-Muslims and engaging with non-Muslims and living in a non-Muslim land. Being a Muslim in this country is sharia. Being an Australian is part of Sharia. Me being a law-abiding citizen in a non-Muslim country such as Australia, that's sharia.

SPEAKER_05 6:47

We've talked a bit about the perception of Islamic law, and uh I think there's a perception uh among many Australians that the Islamic law operates as a parallel legal system to Australian law. Do you have any observations or comments about that?

SPEAKER_04 7:03

Parallel but complementary to. So one of the fortunate things that we have here in Australia is that the Islamic law does not clash with the Australian law in many different ways. And when they do clash, they give each other the flexibility for them to reconcile to coexist. So, for example, um Islamically, if someone wants to forge marriage or they want to get married, they need to go through the Islamic process. And marriage is only between a man and a woman. And uh the process of marriage is that there are certain conditions which Islam had instructed in order for this to be a valid marriage. Now, people live in this country with freedom, people can do whatever they want. If you have a Muslim that wants to move on with someone, whoever this person is, no one can stop them. But the only reason they'll come to an imam like me, for them, for me to officiate their marriage ceremony is because they've got fear of God and they are observant of God and they want to be connected to God. That's why they want to please him through an Islamic marriage. Going through the process of an Islamic marriage does not clash with the Australian law. And registering or going through the Australian law where you register your marriage does not clash with the Islamic marriage. They both complement each other.

SPEAKER_05 8:25

Sure.

SPEAKER_04 8:26

And in this day and age, they both need each other.

SPEAKER_05 8:28

So can you explain what marriage means in Islamic law and in the Islamic religious tradition?

SPEAKER_04 8:37

So Islam talks about contracts, and contracts is that relationship between two parties. Islam talks about contracts of relationships, relationships whether they are based on marriage or based on uh partnership or based on uh other understandings. What's amazing in Islam, Islam refers to marriage as a contract, but God did not talk about any contract as firm as the contract between the man and the woman, the husband and wife. And they go into this marriage renaishi through a process, which is a very simple process. But the first step is she needs to grant her permission, her consent. Then after she gives the consent and says, I'm happy to get married to this person, then her father or her brother needs to be in attendance in that marriage contract. And uh, and then you need two male witnesses, and then you've got usually, which is not a mandate, but it's preferred to have the religious leader to make sure that the process is going through the right procedure. Then they're announced to be a husband and wife.

SPEAKER_05 9:43

So, do you want to talk about, you know, what is divorce in in Islam and to what extent is the attitude to divorce related to the fact that ultimately it's a contractual arrangement?

SPEAKER_04 9:56

Islam does not force anyone to live with anyone that I want to be with, regardless whether they have a valid excuse or no valid excuse. Islam will not force anyone to live with someone that I want to be with, then they they would lose their rights in many different ways. But they could always look out of that marriage anytime. At the same time, balancing the importance of keeping that marital relationship, so much so that the Prophet Muhammad, peace be upon him, said that the most disliked, permissible act to God is divorce. It's permissible, but it's highly disliked. And it's highly discouraged.

SPEAKER_05 10:33

So, in my practice as a family lawyer, I've represented a number of Muslim women in particular who've uh, whilst we're doing the family law um civil side of it, there's also something going on in the background, which is um they're consulting with their sheikh or their religious leaders and getting advice or getting sometimes getting arbitration or sometimes getting help with resolving issues. What role do you as an imam play in that when people do separate?

SPEAKER_04 11:06

In order for someone to be out of that marriage, they have to go through the process, the Islamic process. So right now, you as a legal expert, you know that the first pathway when you have a dispute, the first process is always mediation or reconciliation. This is our biggest part. The divorce is not usually in the hands of the imam, it's usually in the hands of the man and can be enforced by the imam, or it's by the request of the woman and can be enforced by the imam.

SPEAKER_05 11:33

Right. That's an interesting point. Um men and women have different rights in this process. So um in what circumstances can a man get a divorce in the Islamic law as opposed to circumstances where a woman can get a divorce? And uh are they are they different? And if so, how are they different?

SPEAKER_04 11:53

A man can walk out of a marriage anytime. A woman can walk out of a marriage anytime, but there is a process. So a man can divorce, and if he if he decides to divorce and he has and he doesn't have a valid excuse, if he turns around and says, Look, she's good, but I just want to walk out, then he needs to compensate. And usually the compensation is a financial compensation. If a woman wants to walk out of the marriage without a valid excuse, then uh she can walk out of that, but there are two things, two conditions. One, she needs to return the dowry that he's paid her, and then she needs to go through a process where through the imam where the imam will ask the husband to divorce her upon her request. Right. So this is what we refer to as a khula. Now that one it's not in the Muslim community, in uh socially, it's like a taboo upon her to do this, it doesn't look good. So if she wants to move on to the next marriage, the next marriage, everyone would ask, What did you seek khula for?

SPEAKER_05 12:58

But is this in circumstances where she doesn't have a valid reason, is it? Or yeah. But it's different then if she says, Look, I'm a victim of family violence, that'd be a good one. Well, she'll get divorced.

SPEAKER_04 13:09

Yeah, would it would that be different? No, totally different. Yeah. Then she'll get divorced, uh, she'll get a valid divorce by her husband, and uh she'll get entitlements.

SPEAKER_05 13:22

Yeah. So we're talking about the divorce, but of course, you know, divorce is a general term that implies much more than the parties just separating. I mean, there's issues around who the children are going to live with, how often will they see the other parent, how will their property be divided, this sort of thing. How are all of those sorts of things dealt with?

SPEAKER_04 13:43

Uh this is where it becomes a bit complicated between the Sharia law and the Australian law.

SPEAKER_03 13:49

Right.

SPEAKER_04 13:49

Usually we try and reconcile the two. Islamically, the father will still have full access to his children, even if they are living with the mother, or the mother has full access to the children even if they live with the father? Sure, but does Islamic law say something about whether it should be the mother or father or some? If the children under the age of what we call as puberty, which is usually under the age of 15, so children under the age of puberty, which is usually the age of 14 and a half, 15, uh, they go with the mother. Uh if the mother gets married and the father is single, then they go to the father.

SPEAKER_05 14:24

But I mean there could be circumstances where, for instance, the mother was not suitable to have the children. Again, what if she's a drug addict or it goes to the father? Okay. So there is some concept of looking what's going to be in the best interest of the hundreds of children in that in that.

SPEAKER_04 14:41

So there is the threshold where it says that if children are under the age of 15, they go with the mother, but if the mother is irresponsible, she's not fit and proper to be a mother, then it goes to the father. If the father is uh not fit and proper, then it goes to his mother. But this process, in my call, it's not a set process where it's got to be that way. If both parties agree and say, we just want to put them with the with this person, then Islam will also accept that.

SPEAKER_05 15:09

Sure. Well, I mean, I'm thinking in terms of categories of arbitration and mediation and reconciliation, which of course, you know, the the the law sees those as quite separate aspects, but it sounds to me like, you know, when you're dealing with the people who are separating or thinking of separating, there's not really a firm dividing line between all of those things.

SPEAKER_04 15:29

The number one step is that when we get a husband or wife, a couple where there is a dispute among them, the first step is always reconcile. Obviously, we will go to the next level, which is arbitration, if there is a critical and serious situation, such as physical abuse or there are serious issues in that marriage.

SPEAKER_05 15:49

So, yeah, I just want to pick up on that because you know, when we talk about um mediation in the civil context, um, you know, there are cases where it's just not suitable to mediate. And I mean the prime example is where there's been significant family violence between the parties. And I imagine in your work you come across that from time to time because it's very prevalent in Australian society. So, I mean, are there cases where you would almost immediately look at them and say, look, this is not one where we can call a red red file?

SPEAKER_04 16:20

Right, okay. If there's physical violence in the marriage, or uh there are serious issues that we see which in uh meet the threshold of being a red file, from the very beginning we'll say no, this is uh that's it ends here. And that's probably 10 or 20% of the cases.

SPEAKER_05 16:38

So I just want to ask you add a couple of things, which in in a way this is the the pointy edge of talking about Sharia, and one of which is you know, Islamic law allows polygamy. Um and of course we don't allow that in in the civil law. Like, what does the Islamic law say about polygamy? And given that that is really something that's quite at odds with our Australian legal system, how do are those two things reconciled?

SPEAKER_04 17:05

No, it's a good question. So polygamy in Islam is permitted where a man is allowed to have four wives at one given time, but it's not encouraged. Polygamy is not encouraged in the Sharia, it's allowed.

SPEAKER_05 17:17

But then it's permitted, but it it sounds to me like it's not discouraged. Like you mentioned, for instance, divorce, you know, that's the thing that the Prophet Muhammad says is, you know, the most discouraged permissible thing, I think you said.

SPEAKER_03 17:30

Yeah.

SPEAKER_05 17:30

Whereas polygamy is just, you know, it's allowed, but we don't we don't encourage it. We don't actively discourage it.

SPEAKER_04 17:38

Is is that is that a correct uh it's more discouraged than encouraged like you know within the Muslim culture right now, especially in Australia, it's not that accepted thing as culturally, not as religiously. So is it a common practice? Absolutely not. Like rarely that you'll hear of someone that has more than one wife. Would it be frowned upon by you know people in the community in that way?

SPEAKER_05 17:59

Would they look a bit sideways? No, a lot more shocking.

SPEAKER_04 18:02

No, is it it's a lot more shocking? A lot more shocking. Right, okay. It's like you know if someone comes out and says, I've got two wives, uh it's not forbidden in Islam. It's a bit of a conversation stopper, is it? Oh absolutely, yeah.

SPEAKER_05 18:16

Like it's like um uh strange. Yeah, sure. Yeah, unusual. Okay, so let me just talk about or ask you about dowry. It's interesting that this has been r recognised in the Family Law Act recently, at least to the extent of um you know, dowry abuse being a parti a particular type of domestic violence. So can you just explain to us what what is you've given us a little bit about that, but what is the Islamic concept of dowry and why is it important?

SPEAKER_04 18:45

Uh so the dowry is a gift that's been given from the group to the bright. Because she's on the high status that she's been asked she needs to be compensated, a gift for accepting the marriage of this person.

SPEAKER_05 18:59

And does that money then remain her money throughout the marriage? It's her money, yeah. But I suppose that gives the wife some security in circumstances where the husband doesn't do the right thing or treat her right. Is that part of the thing? There's more security than that. So I mean, I think you were saying there has to be dowry, but it could be something quite tokenistic to to meet the requirements of the Islamic law.

SPEAKER_04 19:23

So on average dowry these days is about fifty thousand dollars, but it's not a big interest for the bride as much as the commitment and faithfulness from uh the groom.

SPEAKER_05 19:37

Well, this concept of dowry, when we're looking at, say, property settlements, it sounds like it's really a relatively minor issue in terms of financially, like potentially. I mean, let's say we had people got married, they're together for 25 years, you know, they buy a house, they maybe they have an investment property, they've got superannuation. I mean, and you've got fifty thousand dollars dowry. But but really the big issue for those people is going to be, well, how do we divide our property? Do you assist in that, or do you sort of say, well, that's a matter for the Australian law to We give them advice as part of reconciliation.

SPEAKER_04 20:13

So our advice is that this is the Islamic perspective, and we encourage you to agree to it. This is our first step. But we'll never impose. Right. And at the end of the day, I can't force someone to pray or fast. Likewise, I can't force someone to go with the Islamic ruling and sharia when it comes to marriage or when it comes to the division of their financials. So, from the financial aspect of things, the man is responsible for the finance. Whatever the woman works for, she's entitled to keep 100%. And the husband has no entitlement to even ask for a dollar unless she gives it willingly. Right. If divorce does occur, then Islamically, whatever she worked for is hers. Whatever she invested is hers, and whatever he worked for is his, whatever invested is his. So for example, if there's a shared house between the two and she's pulled $200,000 from her work, then that's her money.

SPEAKER_05 21:11

But of course, in the Australian civil law system, there's an acknowledgement that there can be contributions other than financial contribution. Is that something that's acknowledged within Islamic Islamically, it's considered.

SPEAKER_04 21:23

Yeah, but it's not black and white. What's black and white is the money that she's put in.

SPEAKER_05 21:27

We talked about dowry, and I'd sort of touched on that now dowry-related issues can be a form of domestic violence. I just want to talk about that more broadly. How do you deal with cases involving violence? I mean, what's the your approach and what's the wider approach of the Sharia law to uh cases involving violence, firstly between husbands and wife, and also you know, violence or abuse towards the children?

SPEAKER_04 21:54

Absolutely. So you know that domestic violence has different levels. You've got the physical one, which Which is the highest, and then you've got the verbal one, then you've got the emotional one, then you've got the financial one, and you've got all those different well, and then you've got the coercive control as well, which is a big issue these days. Of course, yeah. If it's physical, straight away we're telling you guys we call it to the police.

SPEAKER_03 22:15

Right, okay.

SPEAKER_04 22:16

That's our policy within the Australian National.

SPEAKER_03 22:19

Right.

SPEAKER_04 22:19

So if we have a domestic violence which is dangerous or serious and that's physical, first point of contact get to the police. Right. If it's the lower end of domestic violence, which does not reach the threshold of criminality, then we try and reconsult. That's our biggest ultimate. If it's possible. If it's uh if there is physical domestic violence, obviously obviously that's a threshold straight to the police, and we'll straight away uh red flag the file. We literally put a red tape on it. You've got the lower end of domestic violence. We assess the situation if there's room to reconcile, bring them together, and keep them together and work on that relationship, we'll work on it.

SPEAKER_05 23:05

Well, that was MM Shadi El Suleiman, who I spoke to recently. Next, we're going to speak to Gina Krayem, who's a senior lecturer in law at Sydney University. My guest today is Dr. Gina Krayem, a Sydney University Law School, a leading scholar in Islamic law and its interaction with the Australian family law system. She has written extensively on how Muslim communities navigate family law issues such as marriage, divorce, and financial obligations within Australia. She wrote Islamic Family Law in Australia, to recognise or not to recognise in 2014, and more recently in 2021, was the co-author of Understanding Sharia Processes, Women's Experiences of Family Law Disputes. Gina Crayon, welcome to the podcast.

SPEAKER_01 23:55

Thanks, Michael.

SPEAKER_05 23:56

So you write about the public perception of Islamic or Sharia law in liberal democratic states as something barbaric, uncivilized, and incompatible with modern society. What do you think gives rise to that perception? And how do you see the relationship between Sharia and liberal democratic values?

SPEAKER_01 24:16

The issue with Sharia, I've often said, even in public commentary, sometimes I call it the S word. It's like the word that you can't use. And I think that stems from a lot of misconceptions and misunderstanding about what it actually is. And so when it comes into the context of what is Sharia, really simply, I view it as a Muslim's moral compass. It's what guides a Muslim in every aspect of their life. And there is a component, obviously, within that that is legal based or what we would closely associate with how we view law as, but that's a small component. And so then within that framing, that small portion that is commonly associated with Shariat, the law part, it's actually called fuq, F-I-Q-H. The context for my work has been to situate the way in which Muslims live their life within liberal democratic states. Of course, there can be tensions, just like with any groups within a liberal democratic state, but I don't see inherent inconsistencies that prevent Muslims from living within liberal democratic states and adhering to their Islamic way of life.

SPEAKER_05 25:32

Sure. So what what I hear you saying is that a large part of what Sharia is is really a moral code. And, you know, if if you're a Muslim, you're choosing to adhere to that moral code. But in a democratic society, if you choose not to adhere to that moral code, it's up to you. And then a component of that is the more strict Fuch component, which is, you know, what I suppose I think of Islamic law, and a lot of your work has really focused on that. And as I understand it, of course, one of the obligations under the Fuch is that Muslims living in a non-Muslim country will obey the law of the land they live in. Do you want to talk more about that?

SPEAKER_01 26:17

As I did my research, what I found that particularly Muslim women, but Muslims more generally, are skillful legal navigators. And what I mean by that is that they have navigated their way successfully in adhering to both their moral code and when that includes what we associate with legal principles, as well as the Australian legal system. I found a very conscious effort by Muslims to abide by both sets of principles and of laws.

SPEAKER_05 26:51

Yeah, well, I mean I mean, often it's th this kind of diode set up between Sharia law on the one hand and civil law on the other hand. And from what I read in your research, you take a far more nuanced approach from that and you say, well, look, the the state is not the only producer of law. Law in the broad sense, inverted commons, in that, you know, I suppose we all have moral codes, whether it's Christian or whether you're even an atheist or a Jew or whatever, which you would see as binding on you because, you know, that's consistent with your own system of morality, or that's consistent with what you believe to be the word of God. And so, you know, many people are sort of living under two systems of quote-unquote law. It's not just Muslims. Is that right?

SPEAKER_01 27:37

Absolutely. I think that is exactly how I would view law from that legal pluralist lens. And I think this is an issue that's not just about Muslims, but as you've pointed out, Michael, you know, the Jewish community have uh similar way of navigating religious law and civil law or state law.

SPEAKER_05 27:56

So look, you've talked about particularly Muslim women you've spoken to being fairly sort of, if I could put it this way, fairly sophisticated legal consumers, many of them. Um, and you also said, well, look, with the Australian constitution, you know, like um you wouldn't expect somebody who knew nothing about it to be expressing opinions on it. But of course, I think this all points to one of the differences I see. I mean, with the Australian Constitution, of course, we've got the High Court. I mean, ultimately the High Court tells us what it means. With Islamic law, certainly from an Australian perspective, you don't really have that. And that can lead to, you know, people going around from shake to sheikh and getting different opinions. And, you know, there can be a range of opinions on the same point. And that can be quite problematic in a practical sense, can't it?

SPEAKER_01 28:44

Yes, it can, um, in the sense that there's no enforceable binding authority with respect to Islamic law in Australia officially. The other thing I want to add there, Michael, is that whilst there might not be a binding court or uh governmental authority, there are centuries of scholarship that Muslims lean into that are credibly well developed. One of the concerns is that often though people don't know themselves, and I've always pushed for greater education.

SPEAKER_05 29:15

Okay, so let's just talk a bit about uh marriage. So in your book, Islamic Family Law in Australia, you quote an imam as saying, marriage to us is not a sacrament. If it fails, it fails due to human shortcomings. We are not compelled to stay in it. And you observe uh throughout your work that although the law in Australia or the marriage is ostensibly secular, it is based on an essentially Christian view which sees marriage as a sacrament, which of course Islam doesn't. How does that affect the Islamic concept of marriage?

SPEAKER_01 29:49

What I've learned over the there's spiritual weight to it, but undoubtedly the concept is still that it is a contract and it can be negotiated. And um, you know, there there's space for a discussion to be had and an agreement to be reached around the terms of the marriage. And the flip side of that is that divorce isn't out. Many scholars would say that it's better to go through the path of divorce than to stay in a marriage that causes harm, or you are not happy because you won't be able to fulfill your ultimate spiritual goal of reaching closeness to God. But historically, even in the very early Muslim period, going through divorce and remarrying is was very common.

SPEAKER_05 30:34

Well, let's just talk a little about a bit about the concept of maha. Tell us what maha is, firstly, and tell us what is the significance of that to Islamic marriage and an Islamic marriage contract.

SPEAKER_01 30:45

Mahat is a core component of the marriage contract, and it's essentially a gift that the husband must give the wife upon marriage, and it's something of value. There's no minimum or maximum limit to it. So, in particular, some of the Arab cultures, they have a prompt mahat and a deferred mahat. The prompt mahat is the gift that's given literally at the time of marriage, and then there's an agreement that at some point later in time, this other gift, whether it's money or whatever else they might decide, will be given later. So if the husband divorces the wife, and they must pay that first. If the husband dies, then the first thing that comes out of a husband's estate is the mahar. But behind that gift also sits um a concern for women that if they do get divorced, and that there is something that might give them some financial security at the time of divorce.

SPEAKER_05 31:44

Sure. Well, let's talk about the context of it because I mean the maha's often sort of said to be, well, this is a great protection for women. And, you know, I mean, if you look at sort of the seventh century, you know, women in the Middle East living in Islam are streaks ahead of the position of women in, say, Christian countries in Europe. But, you know, we we've got to look at this in a modern context and in Australia. And of course, in Australia, Maha's often quite nominal. It might be $50,000, $100,000. And, you know, the problem with that, of course, is in modern Australia, where it costs you over a million dollars to buy a house, it's not really very much of a protection for women in a divorce situation. Do you have any comments about that?

SPEAKER_01 32:24

What I would say is a couple of things. One is the context of compensating women at the time of divorce for things like the domestic service. And so it's akin to thinking about the homemaker contribution under Australian family law. So does that mean after a 20-year marriage the Mahad was $5,000, but the property pool is extensive? Does that mean a woman at that time of divorce just says, okay, my Islamic entitlement to Mahad is just, you know, whatever, five, ten thousand dollars? I would argue not because she has made those contributions. They're quite separate from the that's the status of the relationship. And um, and I did find um uh scholarly views that talked about compensating women for the financial contribution and the non-financial contribution within the marriage. And the other thing that sits in a broader context, though, is that men uh Islamically are financially responsible for women. So even if the wife earned a lot more money than than the husband does, Islamically he is still responsible for her.

SPEAKER_05 33:41

I've got to say, the main stories I've heard are about Islamic women uh, you know, really angsting over, well, how do I navigate this course between my religious beliefs and my religious duties and Australian civil law? And of course, they may well be getting advice from the sheikh that their entitlement is quite minor, and yet their entitlement under Australian family law could be, you know, 10, 20, 30, 50 times that because the Australian civil law is looking at, well, what have you contributed in a broad sense, not in a strict contractual sense. And so there's a world of difference often between the two. And you know, I mean, I think many Islamic women simply resolve this in they just grit their teeth and go through the Australian family law system and try and reconcile that morally as best they can, you know, and they may not have the religious opinion that says that's okay, you can do that. But you know, when it comes to, well, you know, I spent 30 years of my life with this guy, or maybe I've spent 15 years of my life with this guy, and I've got three children to look after, you know, there's pretty practical considerations that have to be and and and they're not immoral, you know, they're quite re reasonable in a general sense. You know what I mean?

SPEAKER_01 34:55

You are absolutely right that one of the most difficult things for Muslim women is reconciling that and making that decision about how to move forward. I'd like to think that this is a work in progress at a community level. I think things have improved and and are improving.

SPEAKER_05 35:13

So let's just talk about divorce a bit more because um, of course, under Islam there are a number of forms of divorce, and one of those is the talak divorce. When although a man can delegate that at the outset to a wife, it doesn't always. I'm not even sure if that commonly happens. But you know, of course, the talak divorce, unless delegated, it can't be initiated by a woman. There are other forms of divorce that can be initiated by a woman, yeah, but they're not as, if I could put it straightforward as that. You know, like in the Australian legal context, we think of it as a footnote to the whole, you know, parenting and property and so forth. But you know, if you're an Islamic woman, it could be quite central, you know, you you need to get a divorce because you can't just simply start a relationship with somebody else before you get a divorce.

SPEAKER_01 36:02

I accept that uh a man has that um, I suppose an easier way or a more straightforward way, as you said, Michael, to say, look, I want to divorce you. And then when we look at the different other types of divorce, although they are not the same as pronouncing divorce, but they should not be convoluted and they should not be causing women harm because exactly what you said, a woman cannot move on and form another relationship without sorting out the status of her relationship, you know, being married or divorced. I think the issue is when the other forms of divorce have become more complicated, have become more difficult and have imposed barriers on women accessing the divorce. There's been a lot of changes in that area that I have witnessed over the time that I've researched this in Australia. Um, and whilst there is still some difficulty now for Muslim women, it's nowhere near what it was like, you know, even a decade ago. The community processes have been much more streamlined. My last research project, I didn't meet a woman who wanted a religious divorce who couldn't get one. And I think that's because the imams have been thinking about how to make these processes better for women.

SPEAKER_05 37:16

Sure, but the uh the other forms of divorces, as I understand them, are sort of far more contingent on, you know, certain things. For example, if a woman's applying for divorce, it's often interpreted that they would need the husband's consent for that. And also there's there's implications on the Maha. Not that the Maha's probably that significant in the Australian context, but that it could be. In practice, what it may mean is men perhaps unscrupulously using the divorce as a lever to get other things they want. So, look, I'll give you the divorce, but you don't take any of my property. Or even worse, I'll give you the divorce, but I'll keep the children. And, you know, so the woman is still either left in limbo or she's got to agree to some fairly um draconian conditions to get it. And I think this does still happen in Australia. And you might say, well, look, the man's not acting Islamically there. But, you know, he would say, Well, look, I'm acting according to the black letter law. And, you know, this is this is what practically happens in in some cases. Have you got any comment about that?

SPEAKER_01 38:21

Yeah, yeah, absolutely. I think this is where the community and those processes and the imams absolutely need to be to step in and to prevent that from happening. I agree with you. I think that's one of the greatest concerns is when men are able to use that to leverage things. I think it's a form of violence.

SPEAKER_05 38:41

Well, it's coercive control, really, isn't it?

SPEAKER_01 38:44

Absolutely. And and I think the work that I've been doing and um trying to communicate with the imams to make them much more aware of the way in which these processes that they are a part of and that they are overseen can be used as a form of violence against women. I think what has changed is that these groupings of imams that come together that a woman can go to, what has happened now is that the the imams are not requiring his consent. So it's often putting the imams in opposition to the men, and that's causing some issues, but it's not requiring the man's consent. They are issuing that divorce certificate.

SPEAKER_05 39:23

You've written about binding financial agreements, and of course you said at the beginning, you know, Islamic law, Islamic marriage rather, is essentially contractual. And that seems to sort of segue fairly well into the concept of a binding financial agreement, which we have in Australian law. My understanding for talking practitioners is there was a great hope when BFAs came in, but it really hasn't been taken up in Islamic circles to any great degree. Is have you got anything to say about that?

SPEAKER_01 39:54

Yeah, I think it's a great opportunity. I think it's definitely a way forward for Muslim couples to turn their marriage contract or at least part of their marriage contract into a binding financial agreement. But there are a few obstacles in that. One is they're pretty expensive to draft and there's a lot of reluctance. Secondly, you know, people think they don't need it because they don't have much property, you know, unless they're really wealthy to start off with.

SPEAKER_05 40:19

Sounds like the reason a lot of people in the broader community don't enter into binding financial agreements because they think, well, it's all going to work out, we're in love, and you know, do you don't do you don't trust me? You know, this is a sign that you don't trust me if you want a contract.

SPEAKER_01 40:34

Michael, what what I have observed, they're not technically binding financial agreements, but I have observed couples who've drawn up their own contract. Um so it could be just on a piece of paper that they've just sat down before they got married or at the time of marriage. In fact, what's interesting is that the Victorian Board of Imams have a condition in this standard marriage contract that people sign that delegates the right of divorce to the wife.

SPEAKER_05 41:02

Well, I mean, standardization of that sort of thing may be one solution, like you know, like the Victorian Board of Imams say, well, if if you want to get married Islamically in Victoria, you sign this or you're not getting married, you know, and then that just sets the expectation rather than everything being negotiable in an individual case, you know. So let's just talk about informal dispute resolution because of course mediation has always been a very big part of Islamic life. What I want to ask you is how do you see that as coordinating with or you know being consistent with Australian law? And what what are the differences and inconsistencies that you see between the the two?

SPEAKER_01 41:48

Well, it's actually one of the reasons that I trained as an as a mediator, as an FDRP, uh, as I was doing my research, because of those synergies, Michael. Like I was like, wow, I actually want to test out in practice because I'm thinking this is absolutely a way forward. But rather than it being in a theoretical framing, I wanted to do the practical stuff. I think that is the way forward. The the the it's exactly as you've described it at the heart of dispute resolution in Islam. And then when I see that it was such a focus under Australian law, it it it makes sense to bring them together.

SPEAKER_05 42:24

I get that there's a broad synergy and quite an important synergy between the two, but there are some things with as the way I understand it, this process normally happens in an Islamic context, which kind of jar with me a bit as an Australian civil lawyer. Uh, because in many cases what you have is you've got the Imam or the Sheikh firstly uh attempting basically marriage counselling for the people, but then that same sheikh will go on to do the mediation, and then if that doesn't work, the sheikh's giving his uh ruling as to what happens. And in the Australian family law context, that's somewhat problematic.

SPEAKER_01 43:04

The things you identify around conflict of interest and confidentiality, all of these things which I've written about, which can be problematic in the community process around divorce, we don't want to replicate that in what I'm suggesting. But what I but there could be scope so that because what sometimes happens, I'm sure you probably have experience of this, is that you're dealing with the Australian divorce and property and possibly children, whilst the Islamic divorce is happening somewhere in the background. And if if they never talk to each other, if the lawyers don't understand what's happening in that informal space, it could be heavily influencing what's happening in regards to property and children.

SPEAKER_05 43:42

Yes, for sure.

SPEAKER_01 43:44

If there was a space where where a dispute resolution practitioner had oversight over the case, but if the couples wanted the advice of an imam, they'd bring it in. But the imam is not the mediator.

SPEAKER_05 43:57

Looking more broadly over the next five years, where do you think the gains are to be made in terms of supporting Islamic women to enforce their rights under Australian and Islamic law to get a better outcome? And also just in terms of the understanding of what Islamic law really is and means within the broader Australian community.

SPEAKER_01 44:25

I think that the education within community needs to continue. There are female scholars who are joining these panels, so the decisions are not just being made by men. There's greater involvement of women as decision makers in those community processes. That inevitably changes things. But also like to think that there's room and scope for the Australian legal system to get a greater understanding, as you said, about experiences of Muslims and not to position them as just being the other or as just being so difficult and this can't possibly work within our system when in fact it does. The reality is it does. I'd like to think that there's scope and space that for how does the Australian family law system become more responsive of the needs of not just Muslims actually, but the broader multicultural community in Australia.

SPEAKER_05 45:16

Yes. Well, uh, Gina Krayem, it's been a fascinating conversation this morning. I've enjoyed it very much. And um thank you very much for joining us. On breaking up is hard to do.

SPEAKER_01 45:27

Thanks, Michael. Thank you very much.

SPEAKER_05 45:30

My thanks to Imam Shardi and Dr. Gina Krayem for sharing their insights into the Islamic family law and its interaction with the Australian legal system. In the next episode, we'll move from theory to practice. I'll be speaking with Sydney family lawyer Tamara El Hashimi about the real life issues facing Muslim families in the Australian family law system and how lawyers help clients navigate both their legal and religious obligations. So I hope you'll join me next month on Breaking Up is Hard To Do. Thanks for listening.