Using Shari’ah to Protect Women Under the Common Law
Rafia Zakaria is an American lawyer and Ph.D. candidate at the Political Science at Indiana University. She writes in the September 2010 issue of Guernica about how she has used Shari’ah (Islamic law) to enhance the rights of a female client from Jordan who had been married, abused in the U.S., and finally divorced.
Rudi Stettner of the IndyPosted gives a summary of the predicament of Zakaria’s client,
The woman had married a fellow Jordanian in a whirlwind courtship and followed him to America. It very quickly became apparent that the man had an American mistress. When Zainab (The young Jordanian bride) confronted her husband about his infidelity, he beat her and in some instances followed it up with spousal rape. After a few months, Zainab’s husband set her belongings out on the street with “I divorce you I divorce you I divorce you” ringing in her ears.
Zainab was stunned. Her lawyer, Ms. Zakaria gently explained to her that no fault divorce left her with no material claims on her ex husband, that they both would walk away as childless spouses with whatever they brought into the marriage. Zainab was stunned. As a divorced woman, she was seen as being of diminished value in her village, and of far less value as a prospective spouse. She had really lost a great deal in a marriage that her ex husband contracted under false pretenses. What could she do?
Relief came from an unlikely source. Zainab had saved her marriage contract, a document that was neatly typed and drawn up in modern Arabic, along with a translation into clear English. It provided for compensation to the wife in case of divorce, with specific monetary stipulations. Ms. Zakaria struggled with the question of how to present a Shaaria document in an American court.
We have seen Canadian courts uphold religious contracts recently in Bruker v. Marcovitz, with a similar issue of contractual rights outside of the common law, in this instance based on the Jewish “ghet.” Harvey Simmons, Professor Emeritus at the Department of Political Science, York University, recently questioned the 2005 decision in Ontario to remove all religious tribunals,
Ironically, because religious arbitration now takes place mainly outside the scrutiny of the Ontario courts, there is no way to tell whether women are being treated well or badly in informal religious arbitrations conducted by imams, rabbis or, indeed, any other arbitrator chosen by the parties involved.
Five years on, there is simply no way to pass judgment on the premier’s fateful decision.
Public opposition at that time, as now, was largely based on misunderstandings and xenophobia, not taking into consideration the entirety of Marion Boyd’s report.
But before we can have an educated public on how appropriate balances and safeguards can be enacted, and how alternative legal systems can actually enhance women’s rights, we need greater education among legal professionals. Canadian law schools provide sparse offerings in any religious legal systems, and CLE credits on the subject appear non-existant. I had to go all the way to Israel last summer to further my education in Jewish and Islamic laws, because there was nothing comparable in Canada.
Unfortunately, my assessment is that this ignorance and animosity extends well into legal education in Canada. I have not seen any indication that the judiciary is particularly informed on the subject either. In the meantime, there are an unknown number of women like “Zainab” and Stephanie Bruker who are simply not finding their needs met by the current system.
In Ontario, she would have been entitled to an equal division of property under our law, so there is no need to resort to some “religious” law to achieve fairness.
I’d echo the previous comment. It’s also worth noting that “Zainab” would probably be entitled to spousal support in addition to a division of property, under the circumstances described.
That’s really not the point – which was more that there are gaps in even our family law that do not address the needs of some women.
How many women? We really have no idea, as Simmons mentions. But there are quite a few that provided evidence for the Boyd report (full copy here).
“Needs” are not only addressed by the secular common law, but also from the respective positions of members of society, and the Bruker case is a perfect example of this. At paras. 120-122, the court discusses how the secular nature of the courts does not prevent them from considering questions of religious law. At para. 123, they mention several B.C. cases where the mahr contract, like that of “Zainab,” were upheld: Nathoo v. Nathoo; Amlani v. Hirani; and M. (N.M.) v. M. (N.S.).
In many cases such contracts can actually provided for a greater division of assets or rights than the common law, even more than our family law system in Ontario.
The court in Bruker also note an Ontario case where this form of contract was not upheld; Kaddoura v. Hammoud. Here, the $35,000 amount stipulated in contract likely exceeded an equal division of property and spousal support for this young and financially meagre couple, meaning if this contract was upheld the woman could have received much more than what she would have been entitled to under Ontario family law. Instead, however, Rutherford J. stated,
The very fact that we have inter-provincial inconsistency here is enough to my mind to conclude that we do need more scrutiny of these matters before they are put to trial, from legal minds familiar with these systems and able to move with ease through this “religious thicket.”
I think there are a lot of different issues blurred in together here. The issues of religious arbitration for family law disputes and civil courts enforce contracts that compel a person perform a religiously based task are quite different. So too are the issues of enforcing a pre-marriage contract that requires a person perform a (potentially) financially burdensome somewhat complicated and contractually ill defined obligation and a post-marriage contract that requires a person to perform a relatively simple clearly defined task.
I personally didn’t like the Bruker decision and preferred the minority reasoning:
Thankfully Bruker doesn’t stand for the proposition that Canadian courts must enforce contractually based religious obligations. This leaves it open to legislatures to decide that a contractual provision like that at issue in Bruker is not enforceable in the courts.
I also like this part that you quoted from Kaddoura:
KC, I suspect your affinity for the dissent in Bruker is more based on your personal beliefs, and not so much an interest in reconciling the needs of our population, or even advancing the position of women in these situations. I don’t think either of the religious minorities discussed here are present in significant numbers in the Yukon.
You are right that the issues here are different, but overlapping. Religious arbitration is a specialized tribunal of sorts that could potentially be better equipped to deal with these issues. Any contractual ambiguity is due to the drafters, and can be adequately resolved through proper structuring. More importantly, the court can vary a contract which meets the definition of a marriage agreement under the Family Relations Act, where a court finds it to be unfair. The point that Simmons raises is that arbitration already occurs outside of the legal process. By making these cases justiciable, it allows for oversight.
The same reason why courts might want to enforce such contracts would be the same reasons we given effect to contractual parties elsewhere in the law – for stability and predictability. Of course the same concerns of undue influence can and should be raised, but it’s quite typical in these cases to have counsel when signing (this issue is raised in paras. 26-28 of N.M.M.). Not necessarily (and probably rarely) legal counsel, but that would be one advantage of bringing it within civil jurisdiction.
Nathoo points to this:
I did read that passage in Kaddoura, and with all respect to Rutherford J., she’s simply wrong in this case. The mahr is entirely dissimilar from the aspirational goals of “to love, honour and cherish.” It plays a central role in the contract, and is equivalent to consideration (there is also an offer and acceptance component), as it is based in contract law. Without giving effect to the mahr, there is essentially no contract. It prevents this segment of the population from effectively getting married to begin with.
I’m not sure that the question is whether the courts should ‘recognize’ Islamic personal law – certainly not in general. It is whether they should enforce a pre-marriage contract made in Islamic form, the mahr, as they would one made in the common-law tradition. I am inclined to think that the BC courts have it right, and Mr Justice Rutherford took too narrow a view.
The Family Law Act in Ontario provides for the enforcement of a domestic contract made under other law, under some conditions. (s. 58). That should be sufficient to support the mahr in appropriate cases.
Bruker was a very different case in any event. The husband had made a deal on his civil divorce, in which the consideration he was giving was consent to a Jewish religious divorce. He got the benefit of the civil deal but reneged on the consideration. The court was not required to make any pronouncement about Jewish law in this case; the parties did not differ on the effect of the get. The court just made him pay damages for his refusal to complete his part of the bargain. No religion required.
If I give the church money to say prayers for my ancestors, then the church had better say those prayers, or I should have a civil remedy. The court does not have to inquire into the form of the prayers or their efficacy, which in any event cannot be demonstrated until after a different Judgment Day.
Marion Boyd’s argument is reflected in Omar’s comments: if one does not hold out the possibility of enforcing a family arbitral award made under Islamic law, at least on some grounds (and she set out a number of conditions about procedural and substantive fairness), then those who go to arbitration under that law anyway have no protection in civil law, and the arbitrator has no incentive to conform to our general notions of fairness. This was, aoccording to Ms Boyd, a problem in the UK, which refused to recognize such awards in law.
Professor Julie Macfarlane of U Windsor Law has been doing in depth research on what is actually happening in family disputes in Islamic communities. It will be interesting to read what she comes up with.
Ad hominems like aren’t going to get you far. I suspect your affinity for the majority in Bruker is based on your personal beliefs, your religious beliefs, and your immersion in a highly religious milleu (where more secular viewpoints are less common). So we can both play the bias game if you want. You’ve ventured away from legal analysis and into the normative realm so “personal beliefs”, as you put it, are going to play a role in discourse. You also assume a lot from where I live now. I spent my formative years in terms of political and legal theory in metropolitan areas.
Just because something is characterized as a “need” does not make it incumbent upon the state that it enforce this need. I am interested in “reconciling the needs of our population” but in this case other values–freedom of religion, the secular state–come into conflict with that need so a reconciliation of that need may not be proper. You already know that I (like many other in society) see religious accomodation as being one value among others and it does not automatically take precedence over other values including secularism and freedom of religion. So comments like “[i]t prevents this segment of the population from effectively getting married to begin with” are not that persuasive when the cost of having secular courts wade into what are essentially personal religious matters is compromising secular values.
I also think that my position could be seen as more in tune with freedom of religion. Fundamental to freedom of religion is the freedom to change your mind about religion and thus enforcement of any “contract” that purports to bind you to some religiously based course of action could be seen as infringing on freedom of religion. I’m highly uncomfortable with judicial enforcement of the performance of a very personal religious obligation, even when it arises from contract. At the very most–if there is to be a compromise–the failure to perform a religious obligation could give rise to monetary damages but even that goes further than I would be prepared.
As for “advancing the position of women in these situations”, I think with this comment (which you have repeated several times) you are blurring the lines between womens rights and women’s equality on the one hand and women’s interests on the the other. There are certainly unfairness in society with respect to women but I don’t think substantive family law is one of them. I don’t really see any substantive unfairness in (those jurisdictions I’m familiar with at least) existing division of property and spousal support laws vis-a-vis women–aside from some shortcomings in legal aid–so I see no need to import religious concepts to enhance women’s legal positions in that regard. I think you are using the persuasive appeal of the advancement of gender equality for what in the end is really just good ole fashion rent seeking.
I should say that I don’t see any problem with a prenuptial agreement that sets out clearly defined tangible obligations on the part of spouses upon separation, even if those obligations are assumed because of personal religious beliefs. So long as those contracts meet the common law requirements for contract and comply with provincial/territorial family law statutes they can be upheld. What I would object to is if those contracts were drafted in a way that required that the court embark on a theological analysis to interpret the contract, or if those contracts reequired that a person perform some sort of religious ritual.
It’s not ad hominems, really. It’s more about a need of your client base, which is probably close to non-existant in your practice and jurisdiction. I mentioned it on based on your practice, and not where you may or may not have lived. You will note that I did not reference any personal traits beyond that, such as your firm or your name, out of respect.
Just so we’re clear, I don’t practice family law, and don’t intend to. In fact, I often post on a variety of subjects on all kinds of different aspects of law. This specific topic doesn’t arise out of any personal interest or business opportunity, but rather yet another policy issue I find of interest.
The discrepancy is exactly based on the one you identify. In B.C., the contract did meet common law requirements, in Ontario it did not. Without seeing the original documents it’s difficult to conclude conclusively, but there is usually very little thelogy involved in the interpretation of the mahr, which played the central role in the cases above, and absolutely no ritual. It’s an issue of law.
Thank you for your comments though, and it’s always good to have other perspectives. I look forward to hearing from you again more on this or a related subject in the future.