THE AUSTRALIAN Newspaper 23 Dec 2015
By Jacquelin Magnay & Gina Rushton
Muslim communities in Australia have been quietly practising sharia law in negotiating divorces, disadvantaging women in custody and property arrangements.
The Muslim communities then have been turning to the Family Court to authorise the heavily weighted “agreements’’, which often provide “guardianship” of school-aged children to men and incorporate the return of any marriage dowry as well as other financial compensation from the women.
The “guardianship” principle under sharia law means the parent can make all the significant decisions about a child, irrespective of who has custody.
The Australian has learned that Muslim women agree to the sharia agreements so that they can then initiate a religious divorce before Islamic imams, and avoid being stuck in a restrictive “limping marriage’’.
An issue of increasing concern is where a Muslim man refuses to give his wife a religious divorce, even though the couple may be civilly divorced, and she is unable to remarry or travel to many Islamic countries and can be ostracised in her community.
The husband is not penalised however, as he can take up to four wives without penalty under Islamic law.
But even women awarded religious and civil divorces can find sharia principles restrict their future life decisions.
Muslim single mother and asylum-seeker Tahira Sajid fears being sent back to Pakistan after her husband divorced her under the “three strike’’ sharia process and then later under Australian law. Ms Sajid said unmarried women faced a higher risk of violence and persecution in Pakistan but she was caught in a cultural bind because, if she remarried, her ex-husband could take away her eight-year-old daughter, Malaika.
“I felt intimidated into a divorce,” Ms Sajid said. “And now if I remarry, under sharia law he can take Malaika away.”
Ms Sajid said she worried about going back to Pakistan where she would have no legal protection against her ex-husband.
“I feel safe here under a protection visa,” she said.
Ms Sajid’s friend Ammara Nazish said it was “impossible to practise sharia law 100 per cent” and she appreciated her newfound freedoms as a woman after arriving in Australia in 2012.
“In Pakistan women die every year from rape on the streets and domestic violence no matter how well educated you are,” said Ms Nazish, who holds a masters degree in environmental science. “I love the rights I have here and how safe I feel every day.”
Ms Nazish’s husband, Imran Yousef, said the practice of sharia law in Australia was “bizarre”. “I follow the Koran but I follow the law of the land,” Mr Yousef said.
Sydney mother Mahassen Issa discovered the problems of not obtaining a religious divorce when she was charged with adultery and bigamy and detained for nearly three months in Lebanon after holidaying with a new partner last year.
A former adviser to the Lakemba mosque in Sydney’s west, solicitor Hasaim Farache, is one of several Muslims being trained by Legal Aid to facilitate culturally specific consent orders for the Family Court.
Mr Farache admitted to applying sharia principles to his arbitrations. He said sharia had been playing out since the mediation aspect of the Family Court was introduced in 2005 and claimed the application of sharia at the mediation level avoided expensive litigation.
The Family Court registers an agreement between a couple believing it has been jointly agreed, and there is little scrutiny of the cultural pressure Muslim women face in coming to make the deal.
Senior NSW lawyer Jamila Hussain said the Muslim community was not using sharia tribunals, as none existed in Australia, but were instead relying on a commonsense application of sharia principles to circumvent a limping marriage, also euphemistically labelled “marital captivity’’. “We are not using sharia tribunals, but we rely on trained Muslim mediators who are legally qualified people we can go to and who advise what to do under Australian law and to get an Islamic divorce,’’ Ms Hussain said.
She agreed it was a pragmatic approach but added: “It works because it overcomes the problem (Muslim) women would otherwise face when obtaining a divorce in the Family Court.’’
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