Equity Empowerment Equality Empowerment Equality Equity Equality Equity Empowerment Equity Empowerment Equality Empowerment Equality Equity Equality Equity Empowerment Equity Empowerment Equality DIVORCE M USLIM & CANADIAN FAMILY L AWS CCMW Canadian Council Of Muslim Women
INTRODUCTION The Canadian Council of Muslim Women (CCMW) has published a series of booklets to help Canadian Muslim women make informed choices pertaining to family law in Canada. These booklets provide comparative information about Canadian and Muslim family laws, particularly as they pertain to women s rights. We hope the booklets will be of assistance to, among others, Muslim women, professionals working with Muslim women in the family court system, students who would like to know more about the topic and community-based services that assist women. The material in this booklet is based on Muslim and Canadian Family Laws: A Comparative Primer, published by CCMW. Any errors that appear in the booklets are the sole responsibility of CCMW. Those interested in finding out about the sources and validity of Muslim laws and legal opinions referred to in the booklets should consult Muslim and Canadian Family Laws: A Comparative Primer, a meticulously referenced publication. Laws in a public legal system are in a constant state of flux as they are changed to adapt to the times. You are encouraged to verify that the information contained in the booklets about Canadian laws is current. Both the booklets and the Primer are intended to provide information only and should not be considered a substitute for legal advice MUSLIM LAWS QURAN AND THE HADÍTH Muslims are guided in their daily lives by the Quran and the hadíth. The Quran is considered by Muslims to be the word of God as sent down to the Prophet 2
Muhammad. The Quran considers women as spiritually equal to men. Records of the sayings and doings of the Prophet, called hadíth, or anecdotes, are a kind of secondary set of scriptures. Like the Quran, the sayings of the Prophet maintain respect for women s spirituality and for male-female relations. THE LAWS AND THE ROLE OF INTERPRETATION The commandments of God are known as sharia, the ideal path of life intended by God. However, there is disagreement among Muslims concerning the correct approach to the laws and the position of women within it. This is because there is no one codified Muslim law. Muslim law is a large body of work built up by many dedicated scholars through the centuries. There are various schools of thought, and each has its own interpretations and rules. Even scholars within the same school may disagree on the exact details of the law. MAIN SCHOOLS OF MUSLIM JURISPRUDENCE There are four Sunnite schools of jurisprudence - Hanafite, Malikite, Shafiite and Hanbalite - and one main Shiite school, the Jafri. Each of these has its own interpretations and rules, and there is a variety of legal opinions among the different schools. At times, scholars even within the same school disagree on the exact details of the law. RELIGIOUS AND LEGAL AUTHORITY It is important that Muslim women keep in mind that legal authority in Islam does not belong to any one person or organization. According to Muslim legal theory, the believers themselves choose the persons they think to be the most knowledgeable 3
and pious to give them advice about the law. And according to the Sunnites, this is counsel only, which can be rejected by a sincere conscience and mind. TAKHAYYUR Literally meaning selection, takhayyur as a legal concept is perhaps best translated as eclecticism. It recognizes that individual Muslims may follow the legal interpretation of any school of law or, indeed, of any individual scholars within those schools. Under the principle of takhayyur, Muslims are not bound to the schools of law they were born into or that predominate in the regions where they live. REFORMISTS VS TRADITIONALISTS The reformists believe that Muslim laws treating social intercourse are meant to be constantly reinterpreted according to time and place so that they continue to reflect basic values in different kinds of societies. Reformists point out that the term used for law is fiqh, or understanding, indicating that it is a product of the human mind and therefore fallible. This fallible human understanding of God s law, according to the reformists, is meant to be constantly questioned and revised. Traditionalists, on the other hand, regard the rules of the traditional law as fixed. They are likely to equate their understanding of law with sharia, the ideal path of life intended by God. In the view of traditionalists, the laws are a timeless reflection of an ideal and divinely ordained pattern of social relations. Muslims often hear the strong egalitarian voice of their religion and expect that all laws will have that spirit. Muslims may assume that women s rights such as divorce and alimony are clearly affirmed by law, but these are actually reformist ideas which many people strongly oppose. 4
CANADIAN MUSLIM COMMUNITIES Canadian Muslim communities are relatively new and diverse. They are in the process of developing institutions and defining their position as a minority in a non-muslim society. Fragmentation into many groups with different backgrounds and practices precludes the development of a generally recognized ethic to which everyone can refer. We thus have a fluid situation in which a very wide range of views about Islam and its laws is being articulated and debated. MUSLIM LAWS IN CANADA Relying on Muslim laws may be more perilous in Canada than in most Muslim countries. In Muslim countries, there are defined laws laid down by governments, and it is therefore possible to have a good idea of what rules will be applied to a particular case. In Canada, however, one may be faced with unfamiliar standards and rules. If you are thinking of having your affairs regulated in any way by Muslim laws, it would be wise to enquire beforehand about the kind of law involved. Will it be some version of the reformed law or the traditional law of one school or another? You may be able to judge what kind of approach will be used by asking specific questions. For example, with regard to divorce: Do the persons with whom you are dealing consider the quick triple divorce valid? Do they believe that a woman has a right to support by her husband even after the three-month waiting period, and if so, for how long? With regard to inheritance, you might ask: Will my daughter have to share her part of the family inheritance with her uncles? You can use these booklets to come up with such questions and also compare the answers you get with those found in Canadian law. 5
The information about Muslim laws in the following pages is not definitive. It should be viewed as a starting point only. CANADIAN LAWS In Canada, the Canadian Charter of Rights and Freedoms specifically address equality rights of women. Canada is also a signatory of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and of the International Covenant on Civil and Political Rights (ICCPR). Both these documents provide equality-rights protection for women which take precedence over the right to religious freedom. CASE LAW Case law, or court decisions, further addresses the issue of women s rights. Public court decisions are required to conform with the Canadian Charter of Rights and Freedoms. Court decisions are a matter of public record and can be appealed to a higher court. FAMILY LAW Family matters are governed by a number of federal and provincial laws. Some matters relating to marriage, such as rules about who can marry whom, are a federal responsibility; others, such as the technical administration of marriage, are provincial. Divorce is regulated federally under the Divorce Act. Provincial laws cover custody, access, child support, property division, spousal support, restraining orders and child protection. Inheritance is also a matter for provincial regulation. The names of the statutes vary from province to province, but the general issues covered are the same, and the overall approach is similar, although there 6
are regional differences. These laws exist to assist families and to provide minimum common standards across the country. ACCESS TO JUSTICE AND LEGAL AID Everyone involved in a family-law matter can use the services of a lawyer to support and assist them. In an attempt to ensure that people without the financial ability to pay for their own lawyer can still be properly represented, the provinces have developed legal aid plans. In Ontario, the legal aid plan is called Legal Aid Ontario (LAO). Ontario s model provides successful applicants with a certificate for coverage, and the person selects their own lawyer. The financial criteria in Ontario are very limited. Eligibility is determined by a review of the person s income and expenses. LAO covers representation for court-based matters only. There is no legal aid available in private dispute-resolution cases. PRIVATE DISPUTE RESOLUTION Many people prefer to resolve the issues arising from the end of their relationship outside the court system. However, in situations where there is an unequal balance of power, private resolutions may not reflect either the legal rights or the interests of the person with less power. Family-law disputes are privately resolved through either mediation, arbitration or collaborative law. There have been significant changes to the Arbitration Act with respect to the arbitration of family-law disputes. Arbitration must be conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction. Arbitration conducted under any other system of law, including religious law, is not considered family arbitration and is not enforceable in Ontario. 7
DIFFERENCES BETWEEN ARBITRATION AND MEDIATION Arbitration is quite different from mediation, in that the arbitrator, after listening to what each party has to say, will announce a decision (much as a judge does) in the case. The parties are bound to accept this decision in fact, they have agreed to this before beginning the process. While arbitration is recognized and enforced by the courts, mediation is informal community-based counselling and is similar to good advice, which individuals are free to accept or reject. The changes in the law do not interfere with the right of individuals to go to elders and religious institutions for advice and counselling. While mediation can continue, it will not have the sanction of the state and will not be legally binding. SAFETY-RELATED MATTERS Although these booklets deal primarily with issues of family law, it is important for women to know that criminal law provides some protection from abusive spouses. Both restraining orders and exclusive-possession orders are important legal steps women can take to protect themselves from abusive partners, especially during the early days of separation, when risk of violence often increases. Application for a restraining order and/or for exclusive possession of the home can be made as part of a larger court proceeding dealing with custody, access, support and/ or division of property or it can be made separately. THE CANADIAN LEGAL SYSTEM The Canadian legal system is a public legal system with laws and systems in place that are intended to ensure women s equality rights. Under this system, laws are open to public review and scrutiny and 8
court decisions are a matter of public record. Moreover, the decisions can be appealed to higher courts. In Canada, anyone involved in court proceedings has the right to have a lawyer represent her/him. For those who cannot afford legal representation, government-funded legal aid is available. A public law system supports a consistent approach and some measure of equality and accountability. The system of law is not perfect. Private rules, including religious laws, do not offer these same protections. They are not open to public review and scrutiny, and those who interpret them are not accountable to the public in any way. There is often no right of appeal from a bad decision made under a private regime. There is not necessarily a right to legal representation, and legal aid is never available. For these reasons alone, a public system of family law is to be preferred over a private one. 9
DIVORCE Muslim Laws Introduction Muslim marriage is a civil contract, and divorce is the dissolution of that contract. Since marriage is not a religious sacrament in Islam, divorce, although frowned upon, is permissible. In traditional law, the power to divorce is given primarily to men, and they are allowed to divorce their wives without giving any reason although jurists say that divorce without a reason is morally reprehensible (makrúh). A woman, however, has few valid reasons for divorce in traditional law. It is important to understand that Canadian law does not recognize a Muslim divorce. How divorce happens Under traditional law, neither the wife s consent nor her presence is required for the divorce to be valid. Jurists, however, say that the wife should be informed of the divorce as soon as possible. Also, according to the Sunnites, the husband s act of divorcing his wife need not be witnessed. The Shiites, however, consider witnesses a legal requirement. Only the husband has the unilateral right to divorce. Divorce initiated by men can take the following forms: Sunnah divorce: This is the approved form of divorce and requires the husband to pronounce divorce at a time when the woman is not menstruating and he has not had sex with her since her last menstruation. The wife then enters a waiting period (iddah), which lasts for three menstrual cycles. During this time, the wife stays in the husband s house and he must continue to fully maintain her. If the wife is pregnant, the waiting period ends only with the birth of the child. 10
Canadian Laws Introduction Divorce is governed by the federal Divorce Act. A validly married man and woman can apply for a divorce to end their marriage and resolve all related issues. Unless a marriage is properly registered with the state, one cannot get a divorce. A woman in a polygamous relationship whose marriage is not registered cannot get a civil divorce, as she is not married under civil law. How divorce happens Divorce cannot be dealt with by way of a domestic contract or a private agreement, nor can it be arbitrated. A couple married by Canadian law can be legally divorced only through the process outlined in the federal Divorce Act. Until this happens, the marriage is not over and the couple is still considered married under Canadian law. In order for either party to remarry, the couple must be legally divorced. Both the husband and wife have the right to initiate divorce, whether or not the other party approves. Section 9 of the Divorce Act requires lawyers to discuss the possibility of reconciliation with their clients and to inform them of services that might assist them in reconciling them with their spouses unless the circumstances of the case are of such a nature that it would clearly not be appropriate. According to case law, 11 (continued on next page)
DIVORCE Muslim Laws How divorce happens (continued) The divorce becomes final when the waiting period ends. Before that, it is retractable. However, the third time a divorce pronouncement is made during a marriage, it is generally considered irrevocable and the husband may not take the wife back without an intervening remarriage. Quick divorce (bidah): While this form is legally effective according to most but not all Sunnite jurists, it is strongly disapproved of. Quick divorce occurs when the husband pronounces divorce, implicitly or explicitly, to his wife three times in the same sitting. Since quick divorce is immediately final (bá in), the man has no right to take back, touch or approach his former wife. This is true of all final divorces, including sunnah divorces. A man s accusation of adultery against his wife can also lead to a kind of quick divorce. Shiites firmly reject the quick divorce. Some Muslimmajority countries have brought in reforms banning quick divorce. The wife can initiate and possibly get a divorce from the husband in the following ways: Delegated divorce (tafwid): This form of divorce is accepted in traditional law and requires the woman to invoke the right of divorce delegated to her by the husband. The husband can delegate the right to divorce at the time of the marriage, or at any time after the marriage, by specifying it in the marriage contract. The delegated right of divorce is not a unilateral right, as the wife cannot simply divorce herself from the husband. It is likely that she has to approach the court and get a judicial divorce. 12
Canadian Laws How divorce happens (continued) reconciliation need not be discussed in situations of an extremely lengthy separation, a well-established subsequent relationship, children from a subsequent relationship and mental and physical cruelty. Lawyers are also required to discuss with clients the advisability of negotiating matters that might be subject to a support or custody order. Lawyers must provide a statement certifying that they have had such discussions with their clients as part of their divorce application. The court, too, is meant to satisfy itself that reconciliation is not possible. If at any stage in the divorce proceeding, the court believes there is a possibility of reconciliation, it shall adjourn the proceeding and give the spouses an opportunity to reconcile (section 10). Divorce will not be granted if the court is not satisfied that reasonable child-support arrangements have been made. Also, the court can withhold granting the divorce in cases where an applicant is involved in subverting the administration of justice through suppressing or fabricating evidence. 13 (continued on next page)
DIVORCE Muslim Laws How divorce happens (continued) It is more advantageous for women to have an unconditional right to divorce delegated to them, as opposed to one where there are restrictions. Once the right is delegated, the husband cannot take it back. Negotiated divorce (khul): A woman may also obtain a divorce by negotiating an agreement with the husband. The khul divorce is a matter of negotiation during which a woman can give up part of her dower or all of her dower and other benefits, or she may not have to give up anything at all. The decision to grant the divorce in a khul negotiation still rests with the man, and he can refuse to give the divorce. Judicial divorce (faskh): A woman may apply to the court for a judicial divorce citing valid grounds. Grounds for divorce A woman may appeal to a court for a judicial divorce (faskh) on certain accepted grounds. These vary between schools, with the Hanafites being the most restrictive and the Malikites providing the broadest options to women. Grounds for judicial divorce admitted by the law of many modern states include sexual dysfunction; communicable or repugnant disease; madness; absence of the husband for a certain period (e.g., one year), including absence due to imprisonment; taking a second wife, especially without the first wife s permission; physical abuse; immoral behaviour; and sinking to a social status that is below the dignity of the wife. Non-maintenance might also be grounds for divorce, but this may be limited to cases in which the husband continues to refuse or is unable to pay after being given the opportunity to do so by the judge. These are general trends, applied in different ways and degrees in different countries. 14
Canadian Laws How divorce happens Grounds for divorce The Divorce Act allows one ground for divorce marriage breakdown. A marriage breaks down when the couple has been living separate and apart for at least one year, either spouse has committed adultery, or either spouse has treated the other with such physical or mental cruelty that it is no longer possible for them to live as husband and wife. Living separate and apart for at least one year: For this ground to be valid, the spouses must have been living separate and apart for one year immediately prior to the divorce proceedings and should continue to do so when the proceedings end. Also, there must be a physical separation; a couple can be considered to be physically separate even if they continue to live in the same house. There also needs to be a recognition that the marriage is over; this need only come from one of the spouses. 15 (continued on next page)
DIVORCE Muslim Laws Grounds for divorce (continued) Traditional Malikite laws allow two additional strategies of judicial divorce for women: harm (darar) and breach between the couple (shiqaq). Harm (darar): The first strategy is for the wife to prove that some harm (darar) has been done to her by the marriage. Generally speaking, harm would be the result of actions not allowed by law, such as physical or verbal abuse or not permitting the wife out of the house for normal social visits. Breach between the couple (shiqáq): If harm cannot be established, the Malikites allow the wife to claim that there is an irreparable breach (shiqáq) between the couple. If the wife claims before a judge that the couple is not getting along and that there is effectively a breach between her and her husband, the case would have to be referred to mediation as required by Quran 4:53. If this fails and if the judge finds that the husband is at fault, the woman is granted her divorce. She does not have to give up her mahr (dower). If, on the other hand, the woman is at fault, the judge may either refuse the divorce or grant divorce in return for a payment made by the woman. The Malikite idea that divorce can be initiated by a woman due to a simple breach has not been easily accepted in the Muslim world. Traditional laws give a man the unfettered right to unilateral divorce; there is no need for him to provide grounds. In most Muslim-majority countries, the law has placed legal restraints on the man s power to divorce. It has also made the grounds on which a woman can obtain a divorce wider. 16
Canadian Laws Grounds for divorce (continued) While the end of sexual intercourse is not a conclusive factor in determining whether the couple is living separate and apart, it is nonetheless taken into consideration. Other factors to be considered are whether the spouses continue to communicate; whether they socialize together; whether others view them as a couple; whether they have separated their financial obligations and responsibilities; and how they share responsibility for the children. During the one year of living separate and apart, couples undergoing an attempt to reconcile can resume living together for 90 days without interrupting the calculation of the one year. Adultery: Where one spouse commits adultery, the other spouse may use this, with proof, as a ground for divorce. The spouse committing adultery cannot use it as the ground only the other spouse. If the adultery happened many years before and was known to the applicant, who continued with the relationship regardless, it will be difficult to have adultery accepted as the basis of a divorce. Physical or mental cruelty: For a divorce application to succeed on this ground, cruelty and its intolerability must be established. If a spouse was mentally or physically abusive to the other spouse before they married and continued that abuse after marriage, it would be difficult to use this ground because of the requirement that the cruelty be intolerable to continued cohabitation. Where the grounds for divorce are either adultery or cruelty, there is no requirement that the parties live separate and apart for one year. 17
DIVORCE Muslim Laws Following a divorce The wife retains ownership of all property and wealth that belonged to her before the marriage, or was given to her, or she inherited, during the course of the marriage. The wife is not entitled to any property and finances accumulated during the marriage they belong to the husband. The husband is obliged to maintain the wife regardless of her independent means. His obligation to maintain her ends after the waiting period, or iddah, is over and the divorce is final. Also, if the husband divorces the wife, he must pay her any outstanding portion of her dower. Division of property and other payments between the former spouses are an important part of divorce. Please see booklets Custody and Child Support and Family Property and Spousal Support. Jurisdiction Those who would like to have their divorce recognized in a Muslim-majority country should check the laws of that particular country to ascertain whether the divorce is recognized. 18
Canadian Laws Following a divorce Property acquired over the course of the marriage, including the matrimonial home, is to be shared equally between the spouses upon marriage breakdown, regardless of whose name it is in and who paid for it. When determining the amount of spousal support, the courts consider factors such as length of cohabitation; functions performed within the family unit by both partners; any agreements entered into by the partners; current and likely future assets and means of the parties; the dependent partner s capacity to contribute to her/his own support; and the parties ages and physical and mental health. Jurisdiction Divorce granted outside of Canada is recognized by Canadian courts. However, if a couple has been married under Canadian law and later divorces according to religious law, their divorce will not be valid and they would still be viewed as married under Canadian law. 19
We gratefully acknowledge the Status of Women Canada for the financial support which made possible the research and publication of this book. The information on Muslim and Canadian family laws in the booklet is provided in a side-by-side format to allow for comparison. Sometimes there is no direct comparison available. These situations are noted as such. This booklet is one in a series of six and should be read in conjunction with the others. Titles in the series: 1) Domestic Contracts 2) Marriage 3) Divorce 4) Custody and Child Support 5) Family Property and Spousal Support 6) Inheritance To order copies of the booklets please visit www.ccmw.com or write to CCMW P.O. Box 154 Gananoque, ON, K7G 2T7, Canada