Sharia operates within the legal system, new research shows
15 December 2011
The NSW Muslim community believes Islamic law is already accommodated in Australian society without legislative change and is not seeking to establish it as a separate legal system, according to the University of Sydney's Dr Ghena Krayem.
In the first empirical research project to be completed in Australia on sharia, or Islamic law, Dr Krayem found that the NSW Muslim community wants Islamic principles integrated within the existing Australian legal system, not to create a rival legal system or special legislation to allow its recognition.
Dr Krayem, a Sydney Law School lecturer who recently completed her doctoral thesis on this topic, focused on family law, a major area in which observant Muslims seek to abide by the requirements of both Australian law and sharia.
She consulted Islamic religious leaders, community leaders and community workers as well as ordinary Australian Muslims who have been through marriage and divorce.
The interviews were undertaken with established Muslim communities in particular the Lebanese Muslim community in Sydney.
"The issue of sharia has received a lot of public attention, with various politicians and media commentators stating that we are bound by one law in Australia and that our liberal democratic state has no place for sharia," said Dr Krayem.
"In direct contradiction of that my research shows that Australian Muslims are regularly and successfully interacting with the mainstream legal system to resolve issues of family law and are committed to abiding by both Australian law and Islamic principles in this area."
Generally, Dr Krayem's thesis argues, Muslims marry according to the requirements of both the Marriage Act and Islamic law. Similarly, they seek to finalise their divorce according to both the Family Law Act and Islamic laws of divorce.
"They do this by participating in established but legally unenforceable community negotiations. In the case of divorce for example the family, community leaders and religious leaders undertake Islamic dispute resolution, which has similar principles of conciliation and mediation to Family Dispute Resolution provided for by the Family Law Act.
"Existing legislative instruments such as prenuptial agreements or binding financial agreements, already provided for in the Family Law Act, are among the legal mechanisms which allow sharia to be practised within the Australian legal system," she said.
Debates over the accommodation of sharia have proven highly divisive in both Canada and the United Kingdom. In Canada, as Dr Krayem discusses in her thesis, the Ontario government responded by enacting a law banning faith-based arbitration despite a government authorised report that recommended it be allowed to continue.
"Australia does not need to follow the same route as these countries. The needs and existing practices of Australian Muslims described in my work show that sharia is not a threat to Australia's social cohesion. Instead, by understanding the way in which Australian Muslims are generally successfully navigating their way through multiple legal settings while also recognising the challenges they encounter when doing so, we can greatly enhance Australia's social cohesion."
Ghena Krayem's PhD is titled To Recognise or Not To Recognise that is NOT the Question: Family Law and the Muslim Community in Australia.
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