DIVORCE

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MU S L I M & CA N A D I A N FA M I LY LAW S

CCMWCanadian Council Of Muslim Women

DIVORCE

INTRODUCTIONThe Canadian Council of Muslim Women (CCMW)has published a series of booklets to help CanadianMuslim women make informed choices pertainingto family law in Canada.

These booklets provide comparative information aboutCanadian and Muslim family laws, particularly as theypertain to women’s rights. We hope the booklets willbe of assistance to, among others, Muslim women,professionals working with Muslim women in thefamily court system, students who would like toknow more about the topic and community-basedservices that assist women.

The material in this booklet is based on Muslim and Canadian Family Laws: A Comparative Primer,published by CCMW. Any errors that appear in the booklets are the sole responsibility of CCMW.

Those interested in finding out about the sourcesand validity of Muslim laws and legal opinionsreferred to in the booklets should consult Muslimand Canadian Family Laws: A Comparative Primer,a meticulously referenced publication. Laws in a publiclegal system are in a constant state of flux as they arechanged to adapt to the times. You are encouragedto verify that the information contained in the bookletsabout Canadian laws is current.

Both the booklets and the Primer are intended toprovide information only and should not be considereda substitute for legal advice

MUSLIM LAWS

QURAN AND THE HADÍTH

Muslims are guided in their daily lives by the Quranand the hadíth. The Quran is considered by Muslimsto be the word of God as sent down to the Prophet

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Muhammad. The Quran considers women as spiritually equal to men. Records of the sayings anddoings of the Prophet, called hadíth, or “anecdotes,”are a kind of secondary set of scriptures. Like theQuran, the sayings of the Prophet maintain respectfor women’s spirituality and for male-female relations.

THE LAWS AND THE ROLEOF INTERPRETATION

The commandments of God are known as sharia,the ideal “path” of life intended by God. However,there is disagreement among Muslims concerningthe correct approach to the laws and the position of women within it. This is because there is no onecodified “Muslim law.” Muslim law is a large bodyof work built up by many dedicated scholars throughthe centuries. There are various schools of thought,and each has its own interpretations and rules. Evenscholars within the same school may disagree on theexact details of the law.

MAIN SCHOOLS OF MUSLIMJURISPRUDENCE

There are four Sunnite schools of jurisprudence -Hanafite, Malikite, Shafiite and Hanbalite - and onemain Shiite school, the Jafri. Each of these has itsown interpretations and rules, and there is a varietyof legal opinions among the different schools. Attimes, scholars even within the same school disagreeon the exact details of the law.

RELIGIOUS AND LEGAL AUTHORITY

It is important that Muslim women keep in mindthat legal authority in Islam does not belong to anyone person or organization. According to Muslimlegal theory, the believers themselves choose the persons they think to be the most knowledgeable

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and pious to give them advice about the law. Andaccording to the Sunnites, this is counsel only, whichcan be rejected by a sincere conscience and mind.

TAKHAYYUR

Literally meaning “selection,” takhayyur as a legalconcept is perhaps best translated as “eclecticism.” It recognizes that individual Muslims may follow thelegal interpretation of any school of law or, indeed, ofany individual scholars within those schools. Underthe principle of takhayyur, Muslims are not boundto the schools of law they were born into or thatpredominate in the regions where they live.

REFORMISTS VS TRADITIONALISTS

The reformists believe that Muslim laws treating socialintercourse are meant to be constantly reinterpretedaccording to time and place so that they continue to reflect basic values in different kinds of societies.Reformists point out that the term used for law is fiqh,or “understanding,” indicating that it is a product ofthe human mind and therefore fallible. This falliblehuman understanding of God’s law, according to the reformists, is meant to be constantly questionedand revised.

Traditionalists, on the other hand, regard the rulesof the traditional law as fixed. They are likely toequate their understanding of law with sharia, theideal path of life intended by God. In the view oftraditionalists, the laws are a timeless reflection of anideal and divinely ordained pattern of social relations.

Muslims often hear the strong egalitarian voice oftheir religion and expect that all laws will have thatspirit. Muslims may assume that women’s rightssuch as divorce and alimony are clearly affirmed bylaw, but these are actually reformist ideas whichmany people strongly oppose.

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CANADIAN MUSLIM COMMUNITIES

Canadian Muslim communities are relatively newand diverse. They are in the process of developinginstitutions and defining their position as a minorityin a non-Muslim society. Fragmentation into manygroups with different backgrounds and practicesprecludes the development of a generally recognizedethic to which everyone can refer. We thus have a fluid situation in which a very wide range of views about Islam and its laws is being articulatedand debated.

MUSLIM LAWS IN CANADA

Relying on Muslim laws may be more perilous in Canada than in most Muslim countries. InMuslim countries, there are defined laws laid down by governments, and it is therefore possible to have a good idea of what rules will be applied to a particular case. In Canada, however, one may be faced with unfamiliar standards and rules.

If you are thinking of having your affairs regulatedin any way by Muslim laws, it would be wise toenquire beforehand about the kind of law involved.Will it be some version of the reformed law or thetraditional law of one school or another?

You may be able to judge what kind of approachwill be used by asking specific questions. For example,with regard to divorce: Do the persons with whomyou are dealing consider the quick triple divorcevalid? Do they believe that a woman has a right tosupport by her husband even after the three-monthwaiting period, and if so, for how long? With regardto inheritance, you might ask: Will my daughterhave to share her part of the family inheritance withher uncles? You can use these booklets to come upwith such questions and also compare the answersyou get with those found in Canadian law.

The information about Muslim laws in the followingpages is not definitive. It should be viewed as a startingpoint only.

CANADIAN LAWSIn Canada, the Canadian Charter of Rights andFreedoms specifically address equality rights of women.Canada is also a signatory of the Convention on theElimination of all Forms of Discrimination AgainstWomen (CEDAW) and of the International Covenanton Civil and Political Rights (ICCPR). Both thesedocuments provide equality-rights protection forwomen which take precedence over the right to religious freedom.

CASE LAW

Case law, or court decisions, further addresses the issue of women’s rights. Public court decisionsare required to conform with the Canadian Charterof Rights and Freedoms. Court decisions are amatter of public record and can be appealed to a higher court.

FAMILY LAW

Family matters are governed by a number of federaland provincial laws. Some matters relating to marriage,such as rules about who can marry whom, are a federal responsibility; others, such as the technicaladministration of marriage, are provincial. Divorceis regulated federally under the Divorce Act. Provinciallaws cover custody, access, child support, propertydivision, spousal support, restraining orders andchild protection. Inheritance is also a matter forprovincial regulation.

The names of the statutes vary from province toprovince, but the general issues covered are the same,and the overall approach is similar, although there

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are regional differences. These laws exist to assistfamilies and to provide minimum common standardsacross the country.

ACCESS TO JUSTICE AND LEGAL AID

Everyone involved in a family-law matter can usethe services of a lawyer to support and assist them.In an attempt to ensure that people without thefinancial ability to pay for their own lawyer can stillbe properly represented, the provinces have developedlegal aid plans. In Ontario, the legal aid plan is calledLegal Aid Ontario (LAO). Ontario’s model providessuccessful applicants with a certificate for coverage,and the person selects their own lawyer.

The financial criteria in Ontario are very limited.Eligibility is determined by a review of the person’sincome and expenses. LAO covers representation forcourt-based matters only. There is no legal aid availablein private dispute-resolution cases.

PRIVATE DISPUTE RESOLUTION

Many people prefer to resolve the issues arising fromthe end of their relationship outside the court system.However, in situations where there is an unequalbalance of power, private resolutions may not reflecteither the legal rights or the interests of the personwith less power.

Family-law disputes are privately resolved througheither mediation, arbitration or collaborative law.

There have been significant changes to the ArbitrationAct with respect to the arbitration of family-law disputes. Arbitration must be conducted exclusivelyin accordance with the law of Ontario or of anotherCanadian jurisdiction. Arbitration conducted underany other system of law, including religious law, is not considered “family arbitration” and is notenforceable in Ontario.

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DIFFERENCES BETWEEN ARBITRATIONAND MEDIATION

Arbitration is quite different from mediation, inthat the arbitrator, after listening to what each partyhas to say, will announce a decision (much as a judgedoes) in the case. The parties are bound to acceptthis decision – in fact, they have agreed to this beforebeginning the process. While arbitration is recognizedand enforced by the courts, mediation is informalcommunity-based counselling and is similar to “goodadvice,” which individuals are free to accept or reject.The changes in the law do not interfere with the rightof individuals to go to elders and religious institutionsfor advice and counselling. While mediation cancontinue, it will not have the sanction of the stateand will not be legally binding.

SAFETY-RELATED MATTERS

Although these booklets deal primarily with issuesof family law, it is important for women to knowthat criminal law provides some protection fromabusive spouses. Both restraining orders and exclusive-possession orders are important legal stepswomen can take to protect themselves from abusivepartners, especially during the early days of separation,when risk of violence often increases. Applicationfor a restraining order and/or for exclusive possessionof the home can be made as part of a larger courtproceeding dealing with custody, access, support and/or division of property or it can be made separately.

THE CANADIAN LEGAL SYSTEM

The Canadian legal system is a public legal systemwith laws and systems in place that are intended toensure women’s equality rights. Under this system,laws are open to public review and scrutiny and

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court decisions are a matter of public record.Moreover, the decisions can be appealed to highercourts. In Canada, anyone involved in court pro-ceedings has the right to have a lawyer representher/him. For those who cannot afford legal repre-sentation, government-funded legal aid is available.A public law system supports a consistent approachand some measure of equality and accountability.The system of law is not perfect.

Private rules, including religious laws, do not offerthese same protections. They are not open to publicreview and scrutiny, and those who interpret themare not accountable to the public in any way. Thereis often no right of appeal from a bad decision madeunder a private regime. There is not necessarily a rightto legal representation, and legal aid is never available.

For these reasons alone, a public system of familylaw is to be preferred over a private one.

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DIVORCE

Muslim LawsIntroduction

Muslim marriage is a civil contract, and divorce is the

dissolution of that contract. Since marriage is not a

religious sacrament in Islam, divorce, although frowned

upon, is permissible.

In traditional law, the power to divorce is given primarily

to men, and they are allowed to divorce their wives without

giving any reason although jurists say that divorce without

a reason is morally reprehensible (makrúh). A woman,

however, has few valid reasons for divorce in traditional law.

It is important to understand that Canadian law does not

recognize a Muslim divorce.

How divorce happens

Under traditional law, neither the wife’s consent nor her

presence is required for the divorce to be valid. Jurists,

however, say that the wife should be informed of the

divorce as soon as possible. Also, according to the

Sunnites, the husband’s act of divorcing his wife need

not be witnessed. The Shiites, however, consider

witnesses a legal requirement.

Only the husband has the unilateral right to divorce.

Divorce initiated by men can take the following forms:

Sunnah divorce: This is the approved form of divorce

and requires the husband to pronounce divorce at a

time when the woman is not menstruating and he has

not had sex with her since her last menstruation. The

wife then enters a waiting period (iddah), which lasts for

three menstrual cycles. During this time, the wife stays

in the husband’s house and he must continue to fully

maintain her. If the wife is pregnant, the waiting period

ends only with the birth of the child.

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Canadian LawsIntroduction

Divorce is governed by the federal Divorce Act.

A validly married man and woman can apply for a divorce

to end their marriage and resolve all related issues.

Unless a marriage is properly registered with the state,

one cannot get a divorce. A woman in a polygamous

relationship whose marriage is not registered cannot

get a civil divorce, as she is not married under civil law.

How divorce happens

Divorce cannot be dealt with by way of a domestic

contract or a private agreement, nor can it be arbitrated.

A couple married by Canadian law can be legally divorced

only through the process outlined in the federal Divorce

Act. Until this happens, the marriage is not over and the

couple is still considered married under Canadian law.

In order for either party to remarry, the couple must be

legally divorced.

Both the husband and wife have the right to initiate

divorce, whether or not the other party approves.

Section 9 of the Divorce Act requires lawyers to discuss

the possibility of reconciliation with their clients and

to inform them of services that might assist them

in reconciling them with their spouses “unless the

circumstances of the case are of such a nature that it

would clearly not be appropriate.” According to case law,

(continued on next page)

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DIVORCE

Muslim LawsHow divorce happens (continued)

The divorce becomes final when the waiting period

ends. Before that, it is retractable. However, the third

time a divorce pronouncement is made during a marriage,

it is generally considered irrevocable and the husband

may not take the wife back without an intervening

remarriage.

Quick divorce (bidah): While this form is legally effective

according to most but not all Sunnite jurists, it is strongly

disapproved of. Quick divorce occurs when the husband

pronounces divorce, implicitly or explicitly, to his wife

three times in the same sitting. Since quick divorce is

immediately final (bá’in), the man has no right to take

back, touch or approach his former wife. This is true of

all final divorces, including sunnah divorces.

A man’s accusation of adultery against his wife can also

lead to a kind of quick divorce.

Shiites firmly reject the quick divorce. Some Muslim-

majority countries have brought in reforms banning

quick divorce.

The wife can initiate and possibly get a divorce from the

husband in the following ways:

Delegated divorce (tafwid): This form of divorce is accepted

in traditional law and requires the woman to invoke the

right of divorce delegated to her by the husband. The

husband can delegate the right to divorce at the time

of the marriage, or at any time after the marriage, by

specifying it in the marriage contract. The delegated right

of divorce is not a unilateral right, as the wife cannot

simply divorce herself from the husband. It is likely that

she has to approach the court and get a judicial divorce.

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Canadian LawsHow divorce happens (continued)

reconciliation need not be discussed in situations of

an extremely lengthy separation, a well-established

subsequent relationship, children from a subsequent

relationship and mental and physical cruelty.

Lawyers are also required to discuss with clients the

advisability of negotiating matters that might be subject

to a support or custody order. Lawyers must provide a

statement certifying that they have had such discussions

with their clients as part of their divorce application.

The court, too, is meant to satisfy itself that reconciliation

is not possible. If at any stage in the divorce proceeding,

the court believes there is a possibility of reconciliation,

it shall adjourn the proceeding and give the spouses an

opportunity to reconcile (section 10).

Divorce will not be granted if the court is not satisfied

that reasonable child-support arrangements have been

made. Also, the court can withhold granting the divorce

in cases where an applicant is involved in subverting

the administration of justice through suppressing or

fabricating evidence.

(continued on next page)

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DIVORCE

Muslim LawsHow divorce happens (continued)

It is more advantageous for women to have an uncondi-

tional right to divorce delegated to them, as opposed to

one where there are restrictions. Once the right is dele-

gated, the husband cannot take it back.

Negotiated divorce (khul): A woman may also obtain a

divorce by negotiating an agreement with the husband.

The khul divorce is a matter of negotiation during which

a woman can give up part of her dower or all of her

dower and other benefits, or she may not have to give

up anything at all. The decision to grant the divorce in

a khul negotiation still rests with the man, and he can

refuse to give the divorce.

Judicial divorce (faskh): A woman may apply to the

court for a judicial divorce citing valid grounds.

Grounds for divorce

A woman may appeal to a court for a judicial divorce

(faskh) on certain accepted grounds. These vary between

schools, with the Hanafites being the most restrictive and

the Malikites providing the broadest options to women.

Grounds for judicial divorce admitted by the law of many

modern states include sexual dysfunction; communicable

or repugnant disease; madness; absence of the husband for

a certain period (e.g., one year), including absence due to

imprisonment; taking a second wife, especially without the

first wife’s permission; physical abuse; immoral behaviour;

and sinking to a social status that is below the dignity of

the wife.

Non-maintenance might also be grounds for divorce, but

this may be limited to cases in which the husband continues

to refuse or is unable to pay after being given the opportunity

to do so by the judge. These are general trends, applied in

different ways and degrees in different countries.

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Canadian LawsHow divorce happens

Grounds for divorce

The Divorce Act allows one ground for divorce – marriage

breakdown. A marriage breaks down when the couple

has been living separate and apart for at least one year,

either spouse has committed adultery, or either spouse

has treated the other with such physical or mental cruelty

that it is no longer possible for them to live as husband

and wife.

Living separate and apart for at least one year: For this

ground to be valid, the spouses must have been living

separate and apart for one year immediately prior to the

divorce proceedings and should continue to do so when

the proceedings end. Also, there must be a physical

separation; a couple can be considered to be physically

separate even if they continue to live in the same house.

There also needs to be a recognition that the marriage is

over; this need only come from one of the spouses.

(continued on next page)

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DIVORCE

Muslim LawsGrounds for divorce (continued)

Traditional Malikite laws allow two additional strategies

of judicial divorce for women: harm (darar) and breach

between the couple (shiqaq).

Harm (darar): The first strategy is for the wife to prove

that some “harm” (darar) has been done to her by the

marriage. Generally speaking, harm would be the result

of actions not allowed by law, such as physical or verbal

abuse or not permitting the wife out of the house for

normal social visits.

Breach between the couple (shiqáq): If harm cannot be

established, the Malikites allow the wife to claim that

there is an irreparable “breach” (shiqáq) between the

couple. If the wife claims before a judge that the couple

is not getting along and that there is effectively a breach

between her and her husband, the case would have to

be referred to mediation as required by Quran 4:53. If

this fails and if the judge finds that the husband is at

fault, the woman is granted her divorce. She does not

have to give up her mahr (dower). If, on the other hand,

the woman is at fault, the judge may either refuse the

divorce or grant divorce in return for a payment made by

the woman.

The Malikite idea that divorce can be initiated by a

woman due to a simple breach has not been easily

accepted in the Muslim world.

Traditional laws give a man the unfettered right to unilater-

al divorce; there is no need for him to provide grounds.

In most Muslim-majority countries, the law has placed

legal restraints on the man’s power to divorce. It has

also made the grounds on which a woman can obtain

a divorce wider.

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Canadian LawsGrounds for divorce (continued)

While the end of sexual intercourse is not a conclusive

factor in determining whether the couple is living separate

and apart, it is nonetheless taken into consideration.

Other factors to be considered are whether the spouses

continue to communicate; whether they socialize together;

whether others view them as a couple; whether they have

separated their financial obligations and responsibilities;

and how they share responsibility for the children.

During the one year of living separate and apart, couples

undergoing an attempt to reconcile can resume living

together for 90 days without interrupting the calculation

of the one year.

Adultery: Where one spouse commits adultery, the other

spouse may use this, with proof, as a ground for divorce.

The spouse committing adultery cannot use it as the

ground – only the other spouse. If the adultery happened

many years before and was known to the applicant,

who continued with the relationship regardless, it will

be difficult to have adultery accepted as the basis of

a divorce.

Physical or mental cruelty: For a divorce application to

succeed on this ground, cruelty and its intolerability must

be established. If a spouse was mentally or physically

abusive to the other spouse before they married and

continued that abuse after marriage, it would be difficult

to use this ground because of the requirement that the

cruelty be intolerable to continued cohabitation.

Where the grounds for divorce are either adultery or cruelty,

there is no requirement that the parties live separate

and apart for one year.

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DIVORCE

Muslim LawsFollowing a divorce

The wife retains ownership of all property and wealth

that belonged to her before the marriage, or was given to

her, or she inherited, during the course of the marriage.

The wife is not entitled to any property and finances

accumulated during the marriage – they belong to

the husband.

The husband is obliged to maintain the wife regardless

of her independent means. His obligation to maintain

her ends after the waiting period, or iddah, is over and

the divorce is final. Also, if the husband divorces the

wife, he must pay her any outstanding portion of her dower.

Division of property and other payments between the

former spouses are an important part of divorce. Please

see booklets “Custody and Child Support” and “Family

Property and Spousal Support.”

Jurisdiction

Those who would like to have their divorce recognized

in a Muslim-majority country should check the laws of

that particular country to ascertain whether the divorce

is recognized.

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Canadian LawsFollowing a divorce

Property acquired over the course of the marriage,

including the matrimonial home, is to be shared equally

between the spouses upon marriage breakdown, regardless

of whose name it is in and who paid for it.

When determining the amount of spousal support, the

courts consider factors such as length of cohabitation;

functions performed within the family unit by both

partners; any agreements entered into by the partners;

current and likely future assets and means of the parties;

the dependent partner’s capacity to contribute to her/his

own support; and the parties’ ages and physical and

mental health.

Jurisdiction

Divorce granted outside of Canada is recognized by

Canadian courts. However, if a couple has been married

under Canadian law and later divorces according to

religious law, their divorce will not be valid and they

would still be viewed as married under Canadian law.

To order copies of the booklets please visitwww.ccmw.com or write to CCMW P.O. Box 154 Gananoque, ON, K7G 2T7, Canada

We gratefully acknowledge the Status of WomenCanada for the financial support which made possible the research and publication of this book.

The information on Muslim and Canadian familylaws in the booklet is provided in a side-by-side format to allow for comparison. Sometimes there is no direct comparison available. These situationsare noted as such.

This booklet is one in a series of six and should beread in conjunction with the others.

Titles in the series:

1) Domestic Contracts

2) Marriage

3) Divorce

4) Custody and Child Support

5) Family Property and Spousal Support

6) Inheritance