CCN0133

Janette Hashemi lives by two laws. Like many Muslim women in Australia, she had to negotiate two legal systems

when she married a Muslim man and later wanted a divorce.

After Ms Hashemi's husband returned to Dubai for work in the late 1990s, the couple, who had been married for 10 years and had a daughter, drifted apart.

When Ms Hashemi decided to end the relationship, she could request and be granted a divorce because she had included her right to do this in the Islamic marriage contract she had drawn up.

"Marriages don't last as long as they used to," says Ms Hashemi, a convert to Islam who speaks on Islamic issues at universities, schools and community groups.

"I wanted to be careful because I had been a Muslim for a few years and I didn't want cultural practices to interfere with the marriage or if the marriage had broken down; I wanted to protect myself."

Unlike Ms Hashemi, many women do not write their contracts and end up in limbo when the husband refuses to grant an Islamic talaq (divorce in Arabic). These women will often seek a civil dissolution of the marriage through the Family Court.

In response to this growing problem, a group of Sydney sheiks recently decided to reform an Islamic judicial council to hear such matters.

The Lakemba-based Sheik Khalil Chami, who will sit on the council, called the situation a "tragedy" that hurt all Muslims. He deals with about two or three divorce cases a week and most requests for divorce are from women, many of whom are unaware of their rights.

However, much of what is known about this problem is anecdotal.

Ms Hashemi, who grew up on Sydney's North Shore and now lives on the Sunshine Coast, met her husband in Australia and their Islamic marriage was followed three months later by the signing of the civil certificate.

Most Muslim marriages and divorces in Australia are overseen by a religious leader (an imam or sheik) who is an authorised celebrant.

But Ms Hashemi's Islamic contract, which allowed her to divorce without resorting to an Islamic court or a panel of religious leaders, is not recognised by Australian courts.

In some countries the power to grant an Islamic divorce to a wife is carried out by the sharia [Islamic law] court through a qadi, or sharia court judge. Australia has no such court, so if the husband refuses to pronounce talaq, the wife is unable to remarry under Islamic law.

If a woman ignores this and remarries according to Australian law, she may be condemned in the eyes of Muslims, explains Jamila Hussain, a lecturer in Islamic law at the University of Technology, Sydney. She believes a qadi or circuit judge would give women "some way out".

"This issue doesn't worry the men in the community because they are not the ones with a problem," she says. "A lot of women don't know their rights in this respect because they are not taught their Islamic rights. And that needs to be looked at in terms of Islamic education."

While Ms Hashemi's rights to an Islamic divorce were spelled out, some advised her to seek a divorce through a religious leader. So she came to Sydney to see the sheiks and "to keep the community happy".

"They took one look at the contract and asked me what I was doing there," Ms Hashemi says. "They asked me if I wanted to divorce my husband and I said, yes, and they said, 'OK, you are divorced. Bye.' It took five minutes.

"While some people didn't think that my Islamic marriage contract would hold up, my ability to initiate a divorce was a valid condition."

Ms Hussain says most Australians do not understand the Islamic position on divorce, with the popular idea being that all a husband has to do is to recite talaq three times.

While in some countries the triple talaq is considered a valid divorce, Ms Hussain points out that in others it is not. Some Muslim countries now require husbands also to apply to the court to divorce.

The Muslim Women's National Network of Australia argues that the problem for women arises when the husband is overseas, his whereabouts are unknown or he refuses to pronounce talaq.

The solutions the network put forward in 2002 included establishing an Australian sharia court or equivalent authority, employing a qadi to visit Australia to hear cases and empowering the Family Court to adjourn an application made by a husband until he grants his wife a religious divorce.

Some religious leaders agree that the Lakemba mosque's Sheik Taj el-Din al Hilaly has the power to grant a divorce by khula' (where the woman must return her mahr, or dowry, to her husband), but others are reluctant to go near this issue.

There have been cases, the network says, where women have had to travel to their country of birth to access a sharia court, which is not only time-consuming but expensive.

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