Ms Jamila Hussein

Author, Australia

The Shariah and Australian Family Law: Conflict or Compatability?

Abstract

The majority of Muslim migrants come to Australia from countries where family law is governed by the Shariah (Islamic law). In these countries, religious courts give effect to laws based on the Quran and Sunnah and are presided over by Shariah court judges who hear and determine matrimonial disputes between Muslims. By way of contrast, Australia has a secular family law system based originally on English common law and developed into its modern form through modern legislation. So far, the Australian government has been adamant that the one secular system must prevail throughout the country and that it will recognize no separate family law rules based on religion. Nevertheless, the Shariah binds all Muslims in a personal capacity, and this sometimes places them in a dilemma as they struggle to navigate a way between the Australian law which binds them as citizens and the Shariah which embodies their religious beliefs.

This paper sets out to examine the relationship between the Shariah  and Australian family law.  It will consider the concept of the family in both systems and whether any form of legal pluralism appears to be possible, now or in the future. It will consider similarities and differences in the rules which relate to marriage, relationships within the family, divorce, responsibilities towards children, adoption and other family related matters. It will address some contentious issues: should the Australian legal system recognise the Shariah? Should Australian Muslims be allowed to live in accordance with Shariah rules if they choose to do so? Can or should the Shariah itself adapt and integrate into the mainstream Australian family law system?

Finally the paper takes a look at how Australian Muslims are coping with family law in everyday life, and explores some new initiatives suggested by Australian imams to overcome the religious difficulties which some Australian Muslims face in family law matters. In particular it looks at proposals by some Muslim religious leaders to establish a religious tribunal or committee of imams to hear, counsel and advise Muslim couples with marriage difficulties, and the legal, administrative and social implications of such as scheme.

Bio

Jamila Hussein graduated in Arts & Law from Sydney University and practised law as a solicitor in suburban practice for approximately 10 years, before taking up teaching Law, first at TAFE and later at University.

Between 1992 & 1994 Jamila and her family lived in Kuala Lumpur, where Jamila taught common law at the International Islamic University, and at the same time studied Shariah law, and gained her Diploma in Shariah Law & Practice and MCL (Masters in Comparative law).

After returning to Australia, Jamila worked for two years at the Centre for South East Asian Law at Northern Territory University. She is currently a lecturer at UTS, teaching Islamic law and Asian Law & Legal Systems.

In recent years, she has been actively involved with the Muslim community in Australia, has been a member of the ‘Engaging with Women’ committee of the Muslim Community Reference Group and has a particular interest in the relationship between Australian law and Islamic law, as well as multiculturalism and interfaith issues.

She is also a member of the Women’s Interfaith Network.