On 25 February 2016, we posted the first in a series of blogs aimed to highlight the challenges and opportunities offered to Australian family lawyers by the ever increasing cultural diversity within Australian communities. While there can be no doubt that as a society and a nation we have a long way to go before we can boastfully sing about the “boundless plains to share” to “those who’ve come across the seas, without raising the collective eyebrow of the international community”, family lawyers are nonetheless in the fortunate position to encounter a variety of cultural backgrounds on a daily basis.
Of particular interest is the challenge which arises when addressing disputes between clients who subscribe to laws and systems of belief which, in their view, sit equal to the secular system. One such example arises when regulating disputes in Australia when one or both separated spouses adheres to the principles Sharia law.
The 2015 Family Court decision of Bant & Clayton considered the living arrangements for the daughter of an Australian mother and Emirati father in circumstances where the father’s wish was for the child to live with him in Dubai. In large part, the public focus on the outcome of that case was due to the perceived risk that the child, upon returning to Dubai, would be prevented from further contact with her mother due to:
- the ability of the father to restrict the daughter’s travel pursuant to the local laws of Dubai (based on Sharia Law); and
- the potential dangers to the mother travelling to or spending time in Dubai, a foreigner who had renounced the Islamic faith and who was in the midst of a domestic dispute with a local male.
In 2001 the Family Law Council published a report entitled “Cultural-community Divorce and the Family Law Act 1975: A proposal to clarify the law”. Of particular concern to the Council was the lack of recognition of cultural and religious practices under the current family law system. For many clients who submit to Sharia law, a divorce under the Family Law Act can be largely immaterial to marriages that were made in accordance with the principles of Sharia Law. The Council identified that in order to effect a marriage which is recognised by both the Australian civil system and adherents to Sharia law, a Muslim couple must engage in both a civil marriage ceremony and a religious ceremony (or nik’ah). Similarly, Islamic divorce is treated as a separate act to a divorce under the Family Law Act. Most interpretations of Islamic principles provide that a husband may unilaterally initiate a divorce extra-judicially by pronouncing the formula of repudiation (or talaq); however a wife’s access to divorce (according to most traditions) is usually limited to very specific circumstances. Some interpretations of Sharia law permit a wife to approach a religious court to request that it grant her a divorce, whilst others extend the power to Muslim clerics to grant a wife a divorce. Often, however, such a divorce can be granted by a cleric only in circumstances where the wife “buys her freedom” by returning to the husband something of value. This may require that the wife repay the money she received from her husband at the time of their marriage (mahr).
Failure by family lawyers to recognise such elements can be devastating for separating couples. This is especially so where the separated couple must continue to co-parent children, or where subsequent partnerships produce further children, who, for example, can be subject to significant social isolation if the correct traditions are not observed by clients and their lawyers in formalising all aspects of the divorce.
An example of managing parenting disputes both under the Family Law Act and in accordance with Sharia Law, is in Justice Kent’s judgment in Clayton & Bant (No. 2), where he identified that, “the right of women to custody of a female child ends upon that child reaching 13 years of age, unless the court deems that extending this age up to her marriage is in her best interest. Where the mother is a non-Muslim, custody ends at the age of five years”. And further, that “[t]here are [particular] conditions that the mother, as custodian, must satisfy…”. Some of these conditions include:
- that the potential custodian not have been previously convicted of a crime against honour; and
- if the potential custodian is a woman, that she:
- be no longer married to a foreign husband, following a consummated marriage, unless the court decides otherwise in the interest of the child; and
- be of the same religion as the child, with due compliance to…the Law.
Practitioners have, in the past, attempted various methods of addressing these obvious systematic differences, such as including specific cultural or religious obligations in post-separation agreements. However the element of compulsion in such arrangements often negates their effect. At BWB we take the view that a thorough understanding of our client’s specific circumstances, including the particular religious laws or traditions to which he or she subscribes, is a vital starting point. It may be that a better informed strategy of interest based negotiation, mediation, or counselling is a better method of addressing such matters, rather than imposing on clients just the principles and obligations the Australian legal system without any reference given to the consequences or obligations of any religious or other laws they adhere to.
In the case of adherents to Sharia law, it involves exploring the implications of the client’s particular religious commitments and obligations, and outlining the various options available to clients in these circumstances. Some of these options may involve steps not traditionally taken in matrimonial matters in Australia, such as:
- considering the Islamic concept of marital property rights (whereby entitlements are largely determined by direct contribution) in negotiations surrounding civil property settlements;
- contemplation of religious divorce (including its execution and implications, such as the right to re-partner and have children to a new partner) in considering the terms of a property or parenting arrangement; and
- in the case of couples entering into a new relationship, including provisions recognising Islamic concepts of marital property rights in agreements such as pre-marriage Binding Financial Agreements.
The conduct of matrimonial matters where the family law lawyer involved are unaware of or unwilling to acknowledge religious laws and cultural traditions, has the potential to create considerable power imbalances or cause tremendous pain or frustration for our clients. Such imbalances, if left unaddressed, undeniably influence the conduct of negotiations and outcomes in relation to both property and parenting matters.
  FamCAFC 222
  FamCA 898