PRACTICAL CONSEQUENCES OF LEGAL DUALISM AND MONISM IN THE APPLICATION OF SHARI’AH FAMILY LAW TODAY IN AUSTRALIA AND SINGAPORE

A. Marriage

When Muslims marry,^[28] most will do so in accordance with the Shari’ah. In approaching important life events, Muslims, even non-observant ones, seek to ‘get it right’ by using traditional practices that accord with their religious and moral obligations.^[29] In both Singapore and Australia, Muslim couples marrying in accordance with Islam will need to meet the form requirements of a valid Islamic marriage which include a nikah (marriage contract) with offer and acceptance, witnesses and maskahwin/ mahr (dowry) provisions; the contract may also contain valid contractual taklik (conditions).

For Singaporean Muslims, the specific requirements and form for marriage are found in AMLA augmented by local Malay customs and traditions. In a dual legal system, the applicable marriage law depends on the religion of the parties to the marriage. For Muslims the laws on marriage are contained in Part VI of AMLA, whilst for all other Singaporeans these laws are in the Women’s Charter.^[31] In the Charter, the marriageable age is 21 years although 18-, 19- and 20-year-olds can marry with parental consent; in AMLA, the marriageable age is now 18 years.^[32] One of the differences between the two laws is that AMLA specifies and codifies the role of the wali, who is defined in AMLA section 2 as ‘the lawful guardian according to Muslim law for purposes of marriage of a woman who is to be married’.

Registration of marriage also comes under a dual system. The Registry of Muslim Marriages (ROMM) has exclusive jurisdiction to register marriages where both parties are Muslim,^[36] whilst the Registry of Marriages (ROM) registers all other Singaporean marriages including marriages between a Muslim and a non-Muslim. This is the case even where the non-Muslim woman is a Christian or Jew. In some schools and traditions of Islam, such a marriage could be lawful because of the kitabiyah (person of the Book)^[37] categorisation. For Shia and Muslims who adhere to the Hanafi school of Islam, marriage between a Muslim man and kitabiyah woman is lawful,^[38] although it is generally regarded as undesirable. However, Singapore follows the Shafi’i school in this and most matters. Shafi’i employs a narrow interpretation which requires the woman to establish she is a descendant from a lineage that was Christian before the time of the Prophet Muhammad, or Jewish before the time of the Prophet Isa - conditions that are almost impossible to fulfil. Consequentially, in practical terms this amounts to a de facto not de jure prohibition on this type of inter-faith marriage.

In secular Australia, there are no equivalent restrictions on religious grounds on whom one can marry. Under the Marriage Act 1961 (Cth), marriages between Muslims and non-Muslims present no legal obstacle; however, as most Muslims prefer to marry within their faith tradition, imams who conduct Islamic marriage ceremonies can refuse to marry the couple until the non-Muslim party converts. For this reason it is not uncommon for a conversion ceremony to precede a marriage ceremony, although distinguishing between the two events can be difficult in some cases and require court determination.^[39] Also, where one party is not Muslim, this fact may be kept secret from both the imam and the Muslim spouse’s family and friends. When there is deception of this type, it can unravel later, as was seen inHvH [2003] FMCAfam 31 where the imam and the bride’s Lebanese family were unaware that the man she was marrying in the Islamic ceremony was a Maronite Christian.

Australia’s Marriage Act 1961 (Cth) is accommodating of Islamic marriage. It provides that Islamic marriage ceremonies can be performed and the marriage registered with the relevant state government office for births, deaths and marriages. However, to be registered, the marriage must meet the requirements of the Act including that the parties are of marriageable age and have freely given consent, there is an absence of consanguinity and the ceremony must have been conducted by a recog­nised marriage celebrant or minister of religion. For Muslims this will usually be an imam or sheik from their mosque. The result is that marriages between Muslims can be simultaneously valid under Islamic law and Australian law. Some Muslims will choose to just have the marriage contract (nikah) and an Islamic ceremony making their union a lawful Islamic marriage without registering the marriage in accordance with the Australian legislation.

Some Muslim marriages may not be registered because in Australia they would be deemed a ‘forced’ or ‘servile’ marriage. These are distinct from arranged or facilitated marriages, which are lawful as both parties have given full and informed consent.^[46] Whilst it is more typical for the victim of a forced marriage to be taken overseas to wed under the national law of another country, marriages where there has been physical, emotional or financial duress or deception do take place in Australia.

Another difference between the two countries is that in Australia, a couple also has the choice to cohabit without marrying, as a de facto couple, in which case they will receive legal protections akin to a married couple. The latter attracts no penalty, whereas in Singapore such cohabitation could be a criminal offence (section 134 AMLA), attracting possible fines and/or imprisonment. AMLA also makes it an offence to entice an unmarried woman away from her wali (male guardian). However, as Singapore does not have religious police, it is generally acknowledged that this provision is rarely enforced. However, it acts as a deterrent and educative principle.

In summary, in Australia’s ‘one law for all’ approach there is one Act regulating marriage with religious affiliation playing no role in marriage validity or its registration. Complete freedom is given to the individual to follow his or her religious or non-religious traditions for marriage, which, provided there is compliance with each component of the Act, can be lawfully registered. In Singapore, the main difference is that there is a dual system with separate legal pathways provided for Muslims and other Singaporeans. Muslim marriage is governed exclusively by AMLA with separate registration, from which a range of legal consequences flow should the marriage end by divorce or when one of the spouses dies.

Who is a Muslim for the purposes of the Women’s Charter and for the application of AMLA? Section 2 of AMLA gives little guidance, as it provides simply that a Muslim is ‘a person who professes the religion of Islam’ and states that the court’s jurisdiction is for actions and proceed­ings in which ‘all the parties are Muslim or where the parties were married under the provisions of Muslim law’.^[52] There is acceptance that a child born to a Muslim parent is by birth Muslim, as is a person who formally converts to Islam and registers the conversion with ROMM. Although the issue of ‘who is Muslim’ does not frequently arise, jurisdiction can be relevant in cases of mixed religious marriages or in situations of conversion, whether into or out of, Islam especially for marriage validity^[53] and for inheritance distribution,^[54] as the estate of a Muslim must be distributed in accordance with Islamic inheritance laws.^[55]

B. Divorce

Islamic law has always allowed for divorce by either the husband or the wife. It has been widely disliked but the message in the Quran is clear: couples need not stay in unhappy or destructive marriages. Instead they should part ‘with kindness’. The avenues for divorce differ for husbands and wives. As already mentioned, husbands can divorce by talak/talaq (pronouncement),^[56] and there are several forms of divorce generally accepted as available to wives including mubarat, mutual agreement; taklik/ta’liq, breach of a marriage condition; talaq-i-tafwid, a delegated divorce; fasakh, annulment or fault divorce; khuluk/khula, no-fault divorce but where a wife dislikes her husband and returns her maskahwin/mahr; dharar, dissolution because of the husband’s cruelty; and divorce by conversion of one spouse to another religion.

In keeping with its ‘one law for all’ commitment, Australia also takes a monist stance on divorce with one law, the Family Law Act 1975 (Cth) governing divorce and all ancillary matter including the care of children, property and financial issues flowing from the divorce. Under s48 of the Family Law Act (Cth), the only ground for divorce in Australia is ‘irretrievable’ breakdown of the marriage proven by 12 months’ separ­ation. Fault is irrelevant. As the law applies equally with the same procedure required for husbands and for wives, and as the court is unconcerned about the cause of the marriage breakdown, both dimen­sions place Australian divorce law at odds with the principles and processes of Islamic divorce. Because of the gender complexity in Islamic divorce, there cannot be simultaneously a valid Australian (that

is, secular) divorce which also serves as an Islamic one. For example, a talak/talaq divorce proclaimed by a husband in Australia has no formal legal status, although he may hold it to be lawful under Islam and it may be seen as such in the eyes of his family and the Muslim community to which he belongs, including its religious leaders. Although talak/talaq has no legal consequences under Australian law, it may be used to mark the commencement of the required 12-month separation period needed to establish ‘irretrievable’ breakdown of the marriage. In the same way, a divorce decree (absolute) under Australian secular law will not generally be recognised as also ending the religious Islamic marriage.

However, as with marriage, a Muslim couple can comply with both Shari’ah and Australian divorce law, but they are two separate events. The Australian divorce is overseen by the Family Law Act and the Family Courts, but Islamic (or other religious) divorce is relegated to an informal and unofficial regulatory process governed by the rules and processes of the religion itself.

Without a formal Shari’ah Court, a wife seeking a Shari’ah divorce in Australia has to find a person or organisation that she believes can grant her a divorce in accordance with Islamic law. This is not always easy, especially for recent immigrants, or for couples with tenuous links to a mosque or a Muslim community. However, obtaining an Islamic divorce remains of considerable importance. Krayem Ghena explains that ‘regardless of their religiosity, even if they have never walked into a mosque in their lives, and don’t really pray or do any outwardly religious things, when it comes to marriage and divorce they think it’s important to go to a mosque or imam’.^[57] In the Australian context, much will hinge on the imam or group of scholars to whom the wife turns. As there are no religious qualifications prescribed by the government, nor are religious functionaries appointed by the government (unlike in Singapore), it is a system resting on self-assertion of expertise or Muslim community recognition of a person’s religious authority and standing. The men assuming this role are usually sheikhs or imams, but it could also be undertaken by an individual Shari’ah scholar or group of scholars or imams (majlis ulama) who simply put themselves forward as sufficiently learned, pious or authoritative to make family law determinations, especially for the ethnic community with which they are aligned. In determining issues of Islamic divorce they may apply modernist inter­pretations on matters such as polygamy, divorce, maskahwin/mahr rul­ings, property settlement and child custody, or they may adhere to patriarchal, conservative and textualist interpretations that are found in the more conservative parts of the Muslim world. This increases the likelihood of inconsistent outcomes,^[58] and also gives rise to concerns of unaccountability and the possibility of error or bias. One tangible consequence is the practice of Imam shopping. When it is known, for example, that certain imams will not grant a khuluk/khula divorce (divorce by redemption where the wife forgoes her mahr to buy her way out of the marriage) unless the husband first agrees to the divorce,^[59] a wife may seek an imam with a more liberal interpretation. Some imams are known to give greater veracity to a husband’s statement of facts and accept his over his wife’s in cases of fasakh (where a wife seeks divorce based on fault). When a conservative approach favours the husband in divorce cases, it can leave Muslim women disadvantaged and vulnerable. This is especially true for recent migrants whose English is limited, and who have little knowledge of additional avenues or contacts outside their immediate Muslim community. The phenomenon known as ‘limping’ marriages, where a secular divorce is given or is available to a wife, but a religious one is denied, is well documented in Australia^[60] and also in the United Kingdom.^[61] What isn’t known is the number of wives in that position. Macfarlane estimates that 20 per cent of Muslim women in Canada who seek a Shari’ah-sanctioned divorce do not obtain one.^[62] President of the Australian Federation of Islamic Councils Iqbal Patel sees limping marriages as a significant issue which warrants government intervention to deal with ‘the difficulties some divorced Muslim women experienced in persuading their former husbands to grant them a reli­gious divorce. If that doesn’t happen, she is in limbo - she cannot move on.’^[63]

In Singapore, limping marriages do not arise. As there is no avenue for a Muslim to go the civil court and use the divorce procedures under the Charter, it is not possible to have a secular divorce and be denied a religious one. If you married under AMLA then you are required to divorce under AMLA. As with marriage, in Singapore there is a dual system for divorce. One’s divorce pathway depends solely on religious affiliation. For Muslims, only the Shari’ah Court has authority to hear and determine a divorce application. AMLA recognises many of the classic Shari’ah divorce avenues: talak/talaq for the husband, although the court has the power to appoint arbitrators to bring out a reconciliation (section 50), but as the divorce takes effect from the time of pronounce­ment this is not a significant limitation. Referral for arbitration and counselling can also be ordered when a wife requests divorce by khuluk/khula (section 46), taklik/ta’liq (section 48) and fasakh (section 49). Whilst the grounds for fasakh are quite specific, the law on divorce in AMLA is not a comprehensive codification and the court’s general jurisdiction to apply Muslim law continues, which can be varied where applicable by ‘Malay custom’.^[64] The court therefore can turn to primary sources of law, the Quran and Sunnah, as well as the writings of classic jurists and scholars for elaboration and interpretation.^[65] In this way the court has the jurisprudential licence to invoke interpretations of Islamic family law that resonate with family life in contemporary Singapore. Yet Abdul Rahman has found that the court accepts and does not question what it sees as an immutable body of divine and absolute legal rules, but what she describes as ‘the rich and diverse body of juristic thought and legal traditions are of little interest or concern’.^[66] Whilst AMLA could allow for assimilation of more progressive and egalitarian legal opinions on many aspects of family law, the court in Singapore instinctively adopts what has been described as a traditionalist stance. This is particularly evident in divorce cases, where the Shari’ah Court in Singapore upholds the conservative view that divorce is the ‘exclusive preserve of the husband who has an unfettered right to pronounce talaq and thereby terminate his marriage without cause’.^[67] Abdul Rahman also found that the court makes divorce applications by women procedurally onerous and resists decreeing divorces initiated by wives.^[68] Fasakh, for example, was found to be confined to a few cases of apostasy and insanity, and the referral to arbitrators appeared merely to lengthen the process, with the added disincentive that further financial costs would be incurred.^[69]

The Shari’ah Court’s exclusive power to hear and make an order on divorce does not extend to determining all the legal issues that may arise in a divorce case. Matters of spousal maintenance or whether a protection order should be issued must be remitted to the civil court. In some matters the courts have concurrent jurisdiction. Whilst a Muslim couple must have their divorce heard in the Shari’ah Court, applications for child custody, access and distribution of matrimonial property can be made to ‘any court’, which enables a Muslim party during or after divorce proceedings in the Shari’ah Court to make an ancillary application to the civil Family Court where the civil law will be applied.^[70] AMLA requires this to be with the consent of the parties and with the leave of the Shari’ah Court.^[71] Although adoptions fall under the jurisdiction of the civil family court,^[72] the court takes into account Islamic principles on adoption - for example, to allow the child to keep the name of her birth parents and not that of the adoptive family (Abdul Rahman 2004: 416). Also as the Shari’ah Court lacks powers of enforcement, its orders for mutaah (compensation),^[73] marriage expenses, custody and property divi­sion are enforceable (section 53) but not reviewable by the civil court. They are enforced as if they were orders of the District Court. It means that in many areas of family law there is a shared jurisdictional arrangement between the religious and the civil court. This gives rise to one of two views: it is either a working court partnership or a system made notoriously complex.

IV.