A never-published investigative feature where I explore the problems faced by Muslim women in gaining an Islamic divorce in Australia and the anguished limbo status these women face in getting their rights recognised by a legal system which ignores their cultural and religious concerns.
Nuzhat Mukhtar* sits on the lounge of her Sydney flat gesturing for me to eat. Her twenty- one year old son Junaid walks to the kitchen and brings out a smorgasboard of dishes- Turkish pizza, profiteroles with cream, cherry topped cake, three bottles of soft drink, as well as plates and glasses.
She won’t talk until I eat at least one gargantuan slice of Turkish pizza.
Her son sits beside her supportively his somber face creased with worry.
Nuzhat was eighteen years old when she came to Australia as a new bride from Pakistan in 1982. Within three months she knew there was something drastically wrong with the marriage.
“The place I came from was a medium type of family and here where I come was very strict. At home there was no TV, no radio, no bed, no nothing. I was not even allowed to go on the balcony without covering myself completely. Everything was changed for me so much…. But I tried,” recalls Nuzhat.
The fact that she was unable to communicate or seek help from anyone in her new country was particularly difficult.
“In couple of months it was so bad that I was really badly homesick. And I was losing weight heaps, within 3 months time I was thirty- seven kilos. I could not say anything to anybody . Hardly anybody here was Pakistani and could speak my same language,” says Nuzhat.
This reality for women stuck between two different cultural systems is not uncommon. Many women cope with the abuse in silence, reluctant to seek help or advice. The situation is heightened when religious considerations come into play, changing the dynamics of marriage and divorce proceedings.
Whilst the Jewish community have succeeded in formally recognizing aspects of Jewish religious law for couples within Australia through the “Beth Din” courts, the Islamic community continue to be plagued with problems in regards to marriage and divorce disputes.
If Nuzhat had known from the beginning of her marriage, the rights available to her through a government recognized Islamic law advisory body, it would have saved her a lifetime of humiliation and struggle attempting to wrest a divorce from pseudo sheikhs who were in fact, social friends of her husband and involved in the “jamaat” – the local Islamic evangelist network.
“I got so badly abused by that. They made me feel like a completely naked woman standing on the street,” she says of her mediation experience.
“There was an imam and my brother in law and some other people. And there was so many other people. My uncle. I couldn’t see their eyes because of the way the were talking about those things- inside what happened in our bedroom or outside what happened. Every single thing my ex was talking about like it was a joke. I was completely a joke. That time I felt like I most definitely didn’t want a divorce,” says Nuzhat.
Nuzhat says that her attempts to seek a divorce from the community “sheikhs” were continuously rejected on the basis that she had no grounds for divorce.
“They thought I was a woman who wanted a car, a money, a house and for those things I could do anything… How else can you make a person more ashamed? You can’t make a person feel lower,” says Nuzhat.
This was despite the fact that in Islamic law either party may initiate a divorce, but while a woman must usually go to an Islamic court, a husband can divorce his wife by pronouncing the talaq (which literally means to snap off or separate).
Scholars and jurisdictions differ as to the formalities before an irrevocable divorce occurs, and whether a period of time must elapse before each pronouncement of talaq. The general consensus is that the divorce may be withdrawn after two pronouncements of talaq, but after the third pronouncement it becomes irrevocable.
There are differences of opinion on the right of a Muslim cleric, as opposed to a sharia court to grant a divorce. Thus the absence of a religious sharia court in Australia to deal with wife-initiated divorces- known as khula, mean that Muslim women are largely dependant on the mercy of their husband to gain a divorce. This is particularly traumatic with women who seek to remarry or want children through subsequent marriages regarded as legitimate.In some circumstance a vindictive husband may use his power to abuse his position for negotiation purposes.
Nuzhat’s quest to seek a divorce from her husband was repeatedly denied, despite the fact that her husband had contracted another marriage in 1992, after a period of separation, and had two other children with this woman.
“He refused. But for that again I got very, very badly abused… emotionally and sometimes physically I was really abused. I could not cook. I could not clean my house. I felt like I was doing everything wrong. I am a wrong person. I can’t never do anything right,” says Nuzhat.
Still, the “authorities” were still not accomadating to Nuzhat’s situation.
“When the sheikh comes they talked about- I didn’t do this and I didn’t do that. But he is a man and he is allowed to have four wives. And he should spend one night here and one night there,” says Nuzhat.
The emotional toll of being linked to a man whom she was estranged from and who was in fact “married” to another woman was particularly confronting for Nuzhat.
“I used to remember that night I couldn’t sleep on the bed. I put disinfectant in front of me I was going to drink it. I went and looked at my three boys and they were sleeping. Can you imagine when you know your husband is sleeping with someone else? After that I never slept in that bed,” says Nuzhat.
Nuzhat formally divorced from her husband in 2003 under Australian civil law, but it was the culmination of a long struggle of exhausting all other methods of seeking a divorce.
Lakemba-based Sheikh Khalil Chami deals with many cases not unlike Nuzhat’s where Muslim men take advantage of the lack of regulation to deprive women of their rights under both Islamic and Australian law.
Chami argues that if the Australian government does not step in to regulate this laissez- faire state of affairs it will give renegade sheiks who are often unqualified and inept, opportunity to continue to profiteer from human misery, often applying misguided or incorrect interpretations of scripture to satisfy the patriarchal culture of their community.
Sheikh Chami who immigrated to Australia from Lebanon in 1964 has been shaped by his own experience of family breakdown which makes him particularly sympathetic to the concerns of women in marriage disputes.
Shiekh Chami’s whose parents divorced when he was seven, remembers how life was altered for him as a result of a family court verdict in favour of his mother.
“If you think about the flower, if you cut it from its branch will it stay forever? No it will lose its energy. Similarly it’s the same if you take a child from its mother or destroy her emotionally,” says Shiekh Chami.
Sheikh Chami, who has been dealing with marriage disputes for over forty years argues that the Quranic ideals of justice, fairness and equity, are often ignored by parties seeking advantage. In addition language barriers, lack of access or knowledge of their rights leaves women, particularly from migrant communities, especially vulnerable.
“Not all human beings have the same problems. Not all laws can solve the same problems. If we give variety to the people, especially if they believe in it (the decision) it will be better for the government and for society,” says Shiekh Chami.
Sheikh Chami is particularly concerned with the amount of cases he receives from women, particularly from the Lebanese community, who are dealing with husbands who are unofficially contracting second or third marriages, without the consent or guide of any formal body.
Polygamy has traditionally been a red flag upon which the essential incompatibility of the Australian secular law system and Islamic family law system arise. Islamic law while it does not encourage or recommend polygamy, does permit it under strict guidelines.
A regulatory database of approved clerics who are qualified to perform valid marriage ceremonies would be one solution to solve this problem.
“If all the marriage celebrants researched the couples they married. 90% of these problems would not occur,” says Shiekh Chami.
“Sometimes a woman will go to the Australian family court. She will come to me with this paper. She has given him a divorce and he has remarried. We will write letter after letter to him, and then we would consider this wife divorced,” says Shiekh Chami.
Muslims in Australia may undergo two different ceremonies to contract a lawful marriage in the eyes of the Australian legal system and also their own cultural community. The Muslim marriage ceremony is called the nikah (literally the union of the two sexes).
The fact that Australian Muslims hail from a variety of nationalities and denominations- making regulation notoriously difficult, is a concern Sheikh Chami recognizes.
However he argues, it is even more imperative reason to create a community consensus on what is acceptable behaviour, and a standardized body from which people of Muslim background can use for guidance when it comes to conflicts.
“If we have input form a variety of sects- Alevi, Sunni, Shi’ite it will be less of a problem and encourage unity,” says Chami.
Zarina Rahman*, Fijian-Australian woman from Sydney also remembers the difficulties encountered by the absence of a formal body to solemnize her divorce under religious law.
Zarina who divorced her husband of twenty-two years in 1998 remembers how she was caught in effective limbo. She was unable to remarry until she went to a shiekh in Pakistan in 2003, who granted her a ‘khula’ or wife-initiated divorce on the basis of separation for five years.
Although property and custody disputes had already been settled, the formalisation of her divorce under Islamic law was particularly important to Zarina, who as a practicing Muslim would be reluctant to remarry until her divorce was fully recognised.
“It was very important to me, without the sheikh I would never get remarried. And if I did want to get re-married in that time I would not be able to get married Islamically even if I did find the right person,” says Zarina.
Zarina admits that attempting to find a sheikh to solemnize her divorce in Sydney was a draining experience in “sheikh-shopping,” often resulting in conflicting and contradictory advice.
“It was a hassle. A big hassle. The sheikh we talked to, Shiekh Yahya didn’t even know English. If there was someone who was qualified in Australian and Islamic law who could give me advice it would save women a lot of heartache and money and time,” says Zarina.
Now that her five-year hiatus on re-marrying is over, Zarina is optimistic about the future.
“I feel free. Whatever happens in the future inshallah it will be for the best,” she says.
However for women still stuck within unhappy marriages, the difficulties involved in seeking divorce- navigating through religious customary law which is haphazardly applied and the formal Australian civil law system- which often has little understanding of their cultural issues leaves them reluctant to exercise their rights.
Mother of four Sabiha Qureshi* , currently separated from her husband, is similarly disillusioned with her experience dealing with the Australian legal system, which had little empathy and understanding of her situation.
An example of this was in negotiations for child-parenting arrangements by the Family Court, in which her husband was able to claim the children not only for Muslim religious holidays, but Christian holidays like Easter and Christmas, despite the fact neither celebrated it.
When she sought an AVO against her husband for domestic violence last October, the fact that her husband used religious justification for his abhorrent behaviour in court was particularly galling for Sabiha.
“He would say he could do such and such under Islam and I thought that is not Islam! That is just his way of manipulating (religion) to suit him,” says Sabiha.
It is Sabiha’s hope that she can train as a social worker and promote greater awareness of problems within migrant communities, leading to a change in the culture of social welfare services to better understand the concerns of the communities it seeks to help.
“I remember when I was seeking help and I would have really preferred it to speak to a woman. Also many women from immigrant families, they are very shy to speak out to someone. They don’t know what’s available and from where,” says Sabiha.
Jamila Hussain, the Secretary of the Muslims Women’s National Network and UTS Islamic Law lecturer argues that common perceptions of Islamic family law as inherently patriarchal and incompatible with Australian secular law reflect a stereotypical and simplistic understanding of Islamic religious law, ignoring the complexity and diversity of contemporary Islamic law in different contexts.
“Most people have the idea of a Iran-like theocratic law. But if you look at family law systems around the world you have a wide variety of interpretation. This includes Malaysia where there are even female sharia judges. The idea that legal systems cannot be flexible and learn and adopt ideas from other systems is very insular, and ignores the fact that we live in a multicultural society,” says Hussain.
However proposals for an Islamic law tribunal to work with the Family Court by Muslim leaders in April 2005, was met by censure by the Howard Government.
“The law in this country is secular. There’s a clear separation between religion and the law and Australia’s laws apply equally to all citizens, regardless of their religion.” declared Citizenship Minister Peter McGauran vehemently.
Whilst politicians and academics continue to debate the viability of such schemes, ordinary people caught within the bureaucracy continue to suffer.
*Names have changed to protect the interviewee’s identity.