In pre-modern Islam, pre-nuptial agreements were the norm, and there were even rulings suggesting a woman’s right to sexual satisfaction as grounds for divorce.
Crucially, there was also a little-known clause women could request on signing a marriage contract known as a ‘talaq tafwid’.
This clause allowed a wife unfettered right to a divorce. The fact that in Islam marriage was a contract and not a sacrament meant divorce was not uncommon. But it is a right rarely spoken of or taught to contemporary Muslim women.
“There is not an awareness of the talaq tafwid position that women can have in their contracts and that was disturbing to me. So many of the religious leaders outrightly denied it,’’ says Melbourne University researcher Dr Anisa Buckley.
“They said no that’s not acceptable, that’s not under Islamic law. Perhaps they are just looking at the 12th century. Perhaps they are just turning a blind eye to it.”
Dr Buckley conducted dozens of interviews with Australian Muslim women, social workers, imams, academics and psychologists for her book: “Not ‘Completely’ Divorced: Muslim Women in Australia navigating Muslim family laws”, a portrait of how Muslim communities in the West deal with sex, love, generational discord, religion and family breakdown. What she found was the surprising and innovative ways women both navigate and subvert cultural stigma and religious norms.
Author of 'Not 'Completely' Divorced: How Muslim Women Navigate Muslim Family Laws', Dr. Anisa Buckley. Source: Supplied
As a feminist, her research took her into a world of pre-modern Islamic literature, which is how she came across the talaq tafwid.
Dr Buckley was no stranger to the topic of divorce. Born to Anglo convert parents (former Noor Al Houda Islamic college principal Silma Ihram and Siddiq Buckley) in western Sydney, her parents divorced when she was a teen. She grew up surrounded by Muslim women friends getting married, and then divorced, and trying to juggle the expectations of their communities, families and faith.
The key challenge she noticed was the problem women experienced in securing a religious divorce in community from local imams and religious authorities.
“The thing is with religious divorce, men and women have different grounds for divorce. Generally speaking, men are able to get a unilateral divorce, that doesn’t require the wife’s permission.
"A woman on the other hand, according to these laws, she has to get her husband’s consent. She has to prove within certain grounds that she is entitled to divorce, if her husband refuses.”
Dr. Buckley says many imams were self-appointed community leaders, working with narrow interpretations of traditional 12th century jurisprudence – law that had evolved in much of the contemporary Muslim majority world but had remained static in ad-hoc community mediation processes in the west. Some imams, who were more progressive, were under enormous pressure to stick to old interpretations.
Some of them are told: “You are not going to be able to survive, nobody is going to want you. You are just going to be a spinster. This is the end of your life, so just stay with it, especially if you have kids.
It’s situation that has left many religious observant women trapped in limbo, stuck in unhappy and sometimes abusive marriages, attempting a frantic and emotionally draining ad-hoc process of securing a divorce through “imam-shopping”, or if they had been married overseas, trying to secure a divorce in their country of origin.
“A lot of imams are reluctant to take the responsibility of pronouncing a divorce. In their minds they see divorce as shattering a family, that is the cornerstone of the society, so they will do whatever they can to try to reconcile the couple. A lot of imams tend to shunt the responsibility back onto the husbands. They feel their duty is to look after their flock and to preserve the bonds of family and in many ways, they see reconciliation as needing to take priority over divorce.”
Many less observant women also sought to secure religious divorce on top of their civil divorce, as a form of closure and for their families. Regardless of level of observance, many modern Muslims still desired a religious seal of approval for rites of passage like marriage, funerals and divorce.
“It (definitely) sparks generational discussions on how much you should practice and whether you should practice.”
Overseas she found the conversation on divorce had moved forward. There were legal rulings stating civil divorce in a non-Muslim jurisdiction has the same status as a religious divorce, as well as a rise in female Islamic law judges, activist groups and feminist theologians like Amina Wadud and American scholar Kecia Ali, challenging patriarchal interpretations.
“I’m just fascinated with the rich discussion that took place among the pre-modern literature, the open discussion around sexuality, women’s rights, the things they would talk about which I feel has been suppressed. There was this rich heritage of being just practical about this stuff and we need to revive that.”
Dr Buckley says one of the keys to changing this dynamic was more women as leaders and religious authorities.
“Muslim communities in the West are still very hesitant to accept women as scholarly authorities but in the past women were involved in a decision making and analysing rulings and source texts, whereas in Western societies they are notably absent from community processes.”
“A lot of these women refused and said 'I deserve a better life', so they went out and fought for it.“
Dr Buckley admits talking about this issue is fraught within a context of rising Islamophobia. Her status as a Muslim woman allowed her access to a community often fearful of interfering publicity, gaining the trust of female participants who shared their experiences with her, but the term ‘sharia law’ still draws hysteria.
The struggle, Dr Buckley maintains, is not different to feminists who fought to make no-fault divorce legal in Australia in 1975, before which a party could only gain divorce through proving one of 14 grounds of divorce, including adultery or desertion. Divorce is not permitted in the Catholic tradition and is difficult to obtain for women in orthodox Jewish communities.
Dr Buckley still recalls the backlash she received over an oped piece she wrote in 2008.
“My opinion was that (sharia law) already exists as there are people who go to religious leaders for advice. It’s not something that will be recognised soon and I definitely would not advocate it, but they conveniently portrayed me as being a supporter!
“For me that was a sign on how difficult it is to speak openly about the challenges women face, and how Muslim women are pushing back against these conservative interpretations of classical laws. Also how hard it is to be able to say anything about Muslim women for the fear of shock jocks pouncing in and saying ‘shariah law is always bad for women. Women are always oppressed and downtrodden and this is what the religion says’.
“Yes, there are more interpretations in Islam that tend to be patriarchal, but that is not the only interpretation there is.”
Dr Buckley maintains it was important the conversation remain open to evolve community understandings and ensure women were aware of pre-emptive avenues, like the talaq tafwid. Often women who had married Islamically but not under Australian civil law, were unaware they were entitled to a property settlement under de-facto legislation.
“What I tell women is to make sure you have the clause in the marriage contract so at least the husband realises you know you have this option. It doesn’t matter if people say you can’t or it’s not appropriate or not the way it’s done. There needs to be more awareness this has been a part of traditional scholarship for decades.”
Contrary to the public perception of downtrodden victims, many of the Muslim women Dr Buckley interviewed re-married (some several times) and actively fought back against stigmas around divorce.
“Some of them are told: “You are not going to be able to survive, nobody is going to want you. You are just going to be a spinster. This is the end of your life, so just stay with it, especially if you have kids,” Dr Buckley said.
“A lot of these women refused and said 'I deserve a better life', so they went out and fought for it.“
‘Not ‘Completely’ Divorced: Muslim Women in Australia Navigating Muslim Family Laws’ is available through Melbourne University Press, $16.99 (e-book), $49.99 (paperback), $69.99 (hardcopy).
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