Sharia law. Could it affect your divorce?

by Peter Magee on October 4, 2011

Peter Magee
You may have read about “Sharia Law” which  has been discussed in the news a bit in Australia lately.  What is this law, and how could it impact families undergoing separation?

Sharia Law is a legal system commonly seen in Islamic countries. Not all Islamic countries embrace Sharia Law. Some migrants come from a Sharia law culture which they wish to preserve privately in Australia even though the laws are incompatible. For example, laws permitting polygamous (having several wives) marriage or underage marriage are in conflict with Australian laws and such marriages would be declared invalid by an Australian court.

Beyond having a marriage declared void, can a Sharia marriage affect property entitlements or children’s issues?

The short answer is no. Regardless of cultural background, every separated person is entitled to commence a claim in the Family Court seeking a property adjustment and parenting orders under Australian law, which is the Family Law Act.

However, the Family Court may look at a husband’s obligation to support other persons, and potentially this could include looking at how many wives, (whether ‘Sharia wives’ or just de facto spouses under Australian law) and offspring that the husband is supporting. If there are other de facto partners involved, Australian law requires you to serve notice on those other persons who would potentially be affected, such as the other spouses (de facto or married) of your claim. The reason for this would be that your property settlement with your husband may need to take into account the entitlements of other parties to receive a fair share of the available property (for example, equity in a house). Those other spouses need to be given the opportunity to declare an interest in an asset before the Family Court will make an order in one wife’s favour.

Regarding parenting orders, the Family Court has an obligation to consider the children’s best interests and how to protect a child from harm, abuse or family violence. Potentially the court would consider evidence about cultural practices that might be deemed to be abusive or violent  in Australia. A court may make orders which protect a child from practices that might be allowed or approved of in other countries.

As of today, the Family Law Act has not yet been amended to include Sharia law. If you have any questions about your property settlement entitlements or parenting arrangements after separation, make an appointment to see one of our specialist family lawyers today.

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