Muslim ‘religious’ family laws

Author: Alia Hogben

Source: Kingston Whig-Standard

Far too often our organization, the Canadian Council of Muslim Women, gets frantic, sad calls from Muslim women asking about family laws.

They are confused about which family laws apply to them in Canada. They are often told that Muslim family laws are religiously mandated and apply in all countries. They are told that these laws override the secular family laws of Canada — which is not true. And often, the religious-based Muslim family laws and the Canadian secular laws are in conflict.

What is so discouraging is that these calls are not just from new immigrants but from young Muslim women born and brought up in Canada.

It should not surprise us that most of this incorrect, damaging information is found on traditionalist websites. Many are hosted by South Asian so-called religious experts spouting long, convoluted sentences in Arabic, impressive but not understood by many of us from Asia.

What are Muslim “religious” family laws and are these relevant in Canada? Surely these should be simple questions with simple answers, but that is not so.

Canadian Muslim families come from all over the world and don’t know that the family laws vary from country to country because of their distinctive religious interpretations.

These family laws are only based on interpretations, made over the past centuries by legal scholars who have developed a complex system of jurisprudence. But many individuals accept what they have been told: that because these laws are “religious” they should be adhered to no matter where they live.

This is so damagingly incorrect.

The topic is important for us because so many Canadian Muslim families are ill-informed on the nature and applicability of laws. The families are sincerely trying to understand whether these laws apply in Canada and whether they are accepted within the Canadian secular system of family laws.

For some families the laws of their countries of origin affect their lives in Canada because they are still connected to these countries. They were married there, they may have family property there, and some members may still be living there.

This overlapping can be a major challenge, both for the family and for their lawyers. It can be addressed but only with great difficulty if those asking for help in sorting through the various countries’ laws believe that that any family laws are religiously mandated.

Are the family laws of Muslim-majority states, such as marriage, religious laws? No, but over the centuries the misunderstandings of Quranic directives have become entrenched within a patriarchal model of the community and the family.

One glaring example is the practice of Muslim religious family laws in India. Because they are based on an understanding of Muslim jurisprudence, which varies from scholar to scholar and over the centuries, Indian Muslims have their own distinct and unique family laws.

Muslims are told that these Indian Muslim family laws are absolutely correct and based on Islam — which is so wrong. (For example, in Egypt, a Muslim-majority state, family laws have almost the exact opposite intent from Indian Muslim practices.)

Recently, there was a triumph of secular law overriding a religious interpretation. The secular Indian Supreme Court banned the practice of a Muslim man’s “legal” right to divorce his wife by vocally renouncing her three times in one sitting. The secular Indian constitution of equal rights and protection superseded the religious interpretation.

Saudi Arabia, which vociferously proclaims its interpretations of Muslim law as the only correct one, is highly influential amongst some traditionalists. Thank goodness they sometimes do change their minds. Recently, Saudi Arabia lifted its ban on woman drivers.

So how should we inform ourselves about the interplay between Muslim family laws, the laws of Muslim-majority states and our own laws in Canada?

Muslims often forget that in Islam marriage and divorce are civil contracts and have nothing to do with religion. Families hold marriage ceremonies with religious overtones but the actual legal civil contracts are simple ones between two parties.

Today, we need enlightened Muslim scholars who will provide clear interpretations in the belief that all laws must reflect the equality, equity and empowerment of women. Simultaneously, organizations such as ours have to provide education and resources to women and girls about their rights in Canada as embodied in the Canadian Charter of Rights and Freedoms. We already collaborate with sister organizations so that they, too, can assist women in mainstream services.

A major obstacle for our organization is lack of funding as we can only do so much as volunteers. We are waiting to hear from the Ontario Law Foundation about hiring legal experts to develop resources and to provide educational workshops across the country. We have done this previously and know we must do this again so as to reach young Muslim women in their local communities. Wish us success!