Legal Research

Using Shari?ah to Protect Women Under the Common Law

By Omar Ha-Redeye

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.

Full post as published by Slaw.ca on September 19, 2010 (boomark / email).