Many Muslim countries claim to follow Shari’a for family law purposes; however, most actually employ European-influenced legal systems left over from colonization. A strategy which incorporates the recognition of change with Islamic legal legitimacy will ensure lasting reforms reach further into society.
Shari’a is an Islamic ethical religious system that encompasses every aspect of life. Applying some or even just some principles to modern contexts or relationships could cause irreparable harm.
Marriage
Family is at the core of Islam. The society it strives to establish is not one characterized by sensuality and sexuality, but one with strong ideals and values that people ascribe to.
Whoever wishes to marry must freely consent and legally wed by signing a public Nikah contract, in the presence of both groom and guardian; furthermore, this contract should not remain hidden from public view.
Nikahs are traditionally arranged by parents or guardians and may seem strange to those accustomed to dating in Western societies; however, these marriages typically prove more stable and happy than secular marriages arranged through other means.
Divorce
Divorce is permitted within Islam, although reconciliation should always be sought when possible. Nonetheless, spouses have the right to an amicable and liberating divorce that leaves both of them with peace.
As well as using Talaq, Muslim wives may seek a divorce on grounds such as insanity, leprosy or venereal disease. Talaq must be read out orally before two witnesses who are honest and virtuous – according to Hanafi law no specific words must be spoken while Ithna Ashari requires the pronouncement be done before male mahrs (wedding promises).
Many imams and community leaders have become aware of the risks women who seek religious divorce face and are working to make this process safer and more accessible, often by reinterpreting Shari’a. This provides mediators an excellent opportunity to gain more insight into these new interpretations as they could apply within family law context.
Inheritance
Muslim wills impose certain restrictions regarding which individuals they can give away their assets to; male quota-heirs include husband, father and paternal grandfather while female quota-heirs include wife, daughter and granddaughter – although exceptions may exist depending on specific circumstances.
Heirs must pay off all debts prior to inheriting, with strong recommendations in the Quran that debts be written down. Unfortunately, many Muslim families fail to heed this advice, creating financial issues for heirs.
Some Muslim scholars are advocating for a new interpretation of Shari’a to ensure justice and equality for women within families and communities. This interpretation, known as ijtihad (eye-tih-HAD), would reopen up possibilities of changing laws to achieve goals of Muslim faith – for instance changing inheritance laws as well as rules regarding how much women should receive as their dowries (an inheritance that doesn’t come until after marriage).
Child Custody
Islamic law gives great emphasis to mother’s role in child rearing; however, fathers also play an essential part. When making decisions related to child custody and care arrangements, compassion and ethics should play an essential part.
Sponsorship rights belong to the mother until she marries or the child reaches maturity (approximately seven years for boys and nine for girls; Zaahiris, Maalikis and Hanbalis). At that point, custody passes back over to their father if she remarries.
If the father petitions for custody, he must meet certain conditions, such as being of sound mind and an active Muslim; providing a stable environment for his child; not being responsible for causing marriage dissolution and being capable of caring for them.