Understanding Sharia Processes

Front matter

Understanding Sharia Processes

Women’s Experiences of Family Disputes

Farrah Ahmed & Ghena Krayem

Foreword

Krayem and Ahmed’s comprehensive and compelling analysis of the practice and use of Islamic family processes is important and timely for several reasons.

First, this project adds significantly to our understanding of the use of Islamic family processes inside Muslim communities, and their meaning for Australian Muslims. Krayem and Ahmed squarely confront the four major concerns often raised in majority non-Muslim countries like Australia about the use of these informal, non-legal processes. Islamic marriage and divorce traditions, and family and community management of marital disputes, are practices that that place outside the courts and they constitute an informal dispute resolution culture that is usually ‘under the radar.

Bringing these processes into the light of day means asking some tough questions about them. Are these processes fair to women? Do they respond adequately (not that the legal system necessarily does) to domestic violence? Do they conflict with or undermine domestic law, and persuade women to accept less than may be due to them in the event of divorce? Finally, can procedures that have historically privileged male decision-makers recognise gender equality rather than imposing conservative ideas of women’s roles?

Ahmed and Krayem have conducted in-depth interviews with participants in Islamic family processes as well as with imams, who play a special role for Australian Muslims seeking an authority figure. Their findings illustrate the range of experiences of the women who use such processes, as well as their multiple and deeply embedded motivations. Contemporary media often suggests a simplistic and inadequate understanding of Islamic religious and cultural traditions. In this ‘sound bite’ assessment, Islam universally oppresses women who are wholly unable to stand up for themselves and what they want. If you are interested in getting beyond this ‘sound bite, the real story, of course, is much more complicated.

As Ahmed and Krayem show, Islamic family processes do sometimes rely on gender stereotypes and exhibit a lack of appreciation for women’s lived experiences, especially in domestic violence situations, in the processes they studied. A lack of women in positions of authority around marital conflict is a further problem. These issues are certainly a part of the story they tell. But - and this is where this gets really interesting - this is nowhere approaching the whole story of sharia processes.

Many women, including those without strong religious practices themselves, describe positive experiences that are meaningful to them. Obtaining an Islamic divorce from an authoritative figure (usually their imam) is extremely important vi Foreword to their sense of closure and a new beginning when they end their marriage. It is often critical to their family relationships and to achieving their goal (divorce/separation) without creating a larger family schism. Contrary to the depiction of shari’a in the media, Ahmed and Krayem show that there are a wide range of practices, rather than a single immutable ‘shari’a law. Instead, they point to changes and modifications that aim to adapt sharia to the modern context of women in Australia. For example, some women describe the traditional assumption that only their husband can grant them a divorce - known as talaq - being used as a means of controlling and exploiting them emotionally. Yet some imams - and a growing number of modern Islamic legal systems - reject the triple, unilateral talaq. Some imams are more responsive to domestic violence, and other types of abusive behaviours inside marriage, than others. It is of course critical that women facing violence and abuse have a safe place to go to, and it essential to involve women as responders and decision-makers (this reflects the same struggle we see in non-Muslim communities and cultures to properly confront sexual violence). The evolution of the practice of family shari’a in twenty-first century Australia is inevitable, and it is critical for Australian Muslim communities. To maintain their own distinctive identity(ies) within a non-Muslim secular society, Australian Muslims need to reach for greater clarity about what is important to them and what needs to change.

Ahmed and Krayem meticulously document the range of sharia practices inside Australian Muslim communities, and show how some approaches come out far better than others when evaluated against criteria of fairness, appropriateness of response and outcomes. They have carefully and without judgment interrogated the experience of Muslim family processes and then evaluated them according to principles of equality and fairness, especially as this affects women participants. Ahmed and Krayem also identify and challenge patriarchy within the Muslim culture. They find many things that could be done better, and they say so. But their account maintains a crucial commitment to understanding this cultural and religious phenomenon as important and meaningful to many.

Beyond evaluating the current practices, Ahmed and Krayem give voice to the women who use them. In doing so, they demonstrate the importance of understanding before judging. Behind each individual who turns to an Islamic family process there is a history, a personality, an experience of marriage, a relationship with faith, and usually an extended family to manage. Feminists as well as conservatives need to recognise that these experiences are important and valid, even where they confound our expectations. The stories about the ending of a marriage described in this book reflect both the sameness and the differences in our human experiences.

This is the second way in which this book is important. The events of this year, 2020 - among many, the re-emergence of the Black Lives Matter movement, and the COVID-19 pandemic and its unequal impact on different communities - have highlighted the importance of our collective commitment to understanding and

Foreword vii respecting our differences. Differences mean that we all have learning to do about others. Differences often mean inequality and unfair treatment. Why are Australian Muslim family processes sometimes singled out as ‘scary’ and ‘threatening’ when similar processes exist in many other religious and cultural groups? As Krayem and Ahmed show, there is little if any interest among Australian Muslims in substituting Islamic processes for those of the state; they are simply using a parallel process that aligns with their religious and cultural values and has important meaning for them. Rather than fearing or stigmatising these differences, our goal should be to better understand and then - ideally collaboratively - evaluate them.

Ahmed and Krayem’s methodology offers a model for how we should learn about and seek to understand other groups who are demonised in the media, and who experience unfairness and discrimination. Instead of ‘othering’ our goal should be understanding and responding. Only then can we answer some of the plethora of questions crowding in on us this year. Why are Black and South Asian communities experiencing a higher incidence of COVID and death than white communities? Why do Black children grow up being given “The Talk about dealing with police, when this is an unknown issue for other children with different coloured skin? Why does fatal violence disproportionately affect transgendered people?

2020 is making us increasingly aware of the need to replace a narrative which relates and compares everyone’s experience — in countries like Australia, Canada, the UK and the US and beyond - to the experience of white people, and especially white men. An alternative narrative both respects, and aims to better understand, other life experiences, beliefs and values. Ahmed and Krayem’s work challenges the expectation that everyone will think and behave like the dominant white community. Yet at the same time, it reminds us of our many similarities when it comes to choosing a life partner and our despair when our choice turns out to be the wrong one. Many of the descriptions of marital strife in this book will resonate with anyone who has ever been in a long-term relationship, Muslim or non- Muslim. Domestic violence is endemic, and no community is untouched by this. Many of the problems the authors identify in Islamic family processes - assumptions about a women’s role in the family, patriarchal norms, and a preponderance of male decision-makers - will be all too familiar to those who have used other religious or cultural processes, or even the courts.

Ata time of confusion, strife and often hastily formed judgements, Ahmed and Krayem’s book is a light that shines brightly reminding us of how much better we can do.

Julie Macfarlane

Professor of Law and Distinguished University Professor, University of Windsor

October 2020

Vili

ACKNOWLEDGEMENTS

This book was made possible by a generous Australian Research Council Discovery grant. It could not have been completed without the constant help, guidance and support of our co-investigators on that grant, Carolyn Evans and Helen Rhoades. Carolyn and Helen guided and encouraged our earliest articulations of the idea for this project with wisdom, kindness and generosity. We remain deeply grateful to them.

We have been fortunate to work on this project with dedicated, knowledgeable, collegial and brilliant research fellows who oversaw the complicated logistics of fieldwork over two cities and significant time period, assisted with conducting and coding interviews, undertook research on specialist topics, edited the manuscript and served as sounding boards for our ideas about the project. Amira Aftab, Anisa Buckley, Tamana Daqiq, Mehal Krayem, Balawyn Jones, Mohamed Hamed and Helen McCue have made vital and valuable contributions to the project. We also benefitted from excellent assistance from Ken Kiat of the Academic Research Service at Melbourne Law School and Samantha Hinderling in preparing this manuscript.

We benefitted greatly from feedback from a range of scholars. Carolyn Evans helped us shape the initial contours of the plan for this book. Helen Rhoades provided foundational guidance on the methodology. An entire draft book manuscript was generously reviewed by Adam Possamai, Julie Macfarlane, Jeff Redding, Helen Rhoades and Ihsan Yilmaz. We are particularly grateful for Julie's continued support for the project over many years.

The research for this bookis based on fieldwork in Sydney and Melbourne which would not have been possible without the assistance of community organisations such as the Board of Imams Victoria, the Australian National Imams Council, the Muslim Women’s Association, the Australian Muslim Women’s Centre for Human Rights, the Lebanese Muslim Association and the Islamic Council of Victoria. In giving us their time and support, these organisations demonstrated their commitment to research and learning. We offer them our sincere thanks.

Most of all, we owe thanks to the women with direct experience of engaging with sharia processes who agreed to be interviewed by us. Their experiences form the very heart of this book and we hope that we have done justice to the experiences they shared with us.

We would like to thank our families and friends, whose patience and support have made this book possible.

Contents

IL. Why Sharia Processes Exist .::ississossstsecrsseceoseseedenseseadsesesselsanieaseosevendensnteabens 4

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V. Significance and OwUtline’....sccsssssecsasssiscsncosvesesconssvavsescevoasesiassncsssepesceuseravees 12