Australian Family Law and Islamic Dispute Resolution Processes Project

This post has been contributed by:

• Tamana Daqiq  BA.Psych, LLB, Masters in Islamic Studies, and
• Dr Helen McCue AM B.Ed, MHPEd, PhD (UNSW)

Both Tamana and Helen are Research Officers at the Law School of the University of Sydney.

Case Scenario

Mariam and her husband Abdul live in Australia and have been married for 13 years. They have three children aged between 6 and 12 years. In recent years there has been an increase in the conflict between Mariam and Abdul. Mariam is unhappy and exhausted from the conflict. She no longer wants to remain married to Abdul.  After speaking to Abdul she sees a lawyer and files an Application for Divorce in the Australian Family Court. Mariam is a practising Muslim and seeks the advice of her local Imam to obtain an Islamic divorce and resolve the issue of custody of the children.

 This scenario illustrates some of the issues that Muslim women face when they are seeking a divorce in Australia and demonstrates some aspects of the relationship between Australian family law and Islamic family law in the case of a divorce.

The Research Project

The Australian Family Law and Islamic Dispute Resolution Processes Project,  is a multi-method policy-based research project. The project, funded by the Australian Research Council and conducted by researchers from the Law Schools of Sydney University and Melbourne University, brings together expertise in family law and law and religion to examine the issue of how Australian family law should respond to Islamic community-based dispute resolution processes in relation to family law disputes.

Research Question

The project examines the question of how the Australia’s family law system can best respond to these Islamic community processes, and how, as in the case of Mariam in the above scenario, this response can support Muslim women. The project seeks to provide reliable empirical evidence for evaluating the responses to these processes and how these might support Muslim women. At its completion the project will propose, based on rigorous empirical and normative research, the best response from a liberal legal system such as Australia’s to these Islamic community processes.

Existing Literature

The literature informs us that Australia is home to a variety of cultural and religious norms, laws, practices and communities which for the Muslim community includes often informal and unenforceable community-based dispute resolution processes for dealing with family conflict. In recent years government initiatives have emerged that are designed to enhance access to the legal system’s services for people from culturally and linguistically diverse backgrounds. Despite this, little is presently known about the experiences of Muslim women who use community processes to resolve family disputes, or about how the Australian family law system might go about responding to these processes in a way that supports Muslim women. While there is a growing scholarship on the issue outside Australia, scholarship on Islamic decision-makers within Australia is limited. To date, the only relevant empirical research in Australia which documents how Australian Muslims deal with family disputes can be found in a ground breaking book by Dr Ghena Krayem titled Islamic Family Law in Australia: To Recognise or Not To Recognise published in 2014.

Research Method

This research project, Australian Family Law and Islamic Dispute Resolution Processes Project,   will be conducted in two stages. The first stage, led by Professor Helen Rhoades and Dr Ghena Krayem, involves interviews with relevant stakeholders including individual Muslim men and women and community leaders, Imams, community workers and other services providers from Islamic organisations as well as family lawyers and family dispute resolution practitioners.  The second stage, led by Professor Carolyn Evans and Dr Farrah Ahmed, will involve an analysis of the Stage 1 data to engage in a normative examination of how Australian family law should respond to Islamic community-based dispute resolution processes in relation to family law disputes.  The research results will be available through our web page.