quired to negotiate their way through two sets of
social and legal systems – the Islamic system, which
governs their religious belief and culture, and the
Western, secular Australian system, which operates
under different principles and procedures. To date,
there have been few, if any, formal studies of the
way in which Australian Muslims deal with divorce
and custody, and the information in this entry is
based on a small number of informal surveys, re-
sponses from Islamic welfare organizations, and
anecdotal evidence.
The Muslim community in Australia is small,
recent, and very diverse. According to the 2001
census, 281,578 persons out of a total population
of over 19 million identified themselves as Mus-
lims. This number represents about 1.5 percent of
the Australian population. Substantial migration of
Muslims to Australia began only in the early 1970s,
and so the majority of Muslims are recent migrants,
the children of migrants, or their grandchildren.
The Muslim population originates from more than
60 different countries, with different languages,
and cultures and following different schools of
Islamic law.
The majority of Muslim migrants to Australia
come from countries where divorce, custody, and
similar matters are regulated by Islamic law, and to
most of them the Sharì≠a remains binding on the con-
duct of their family affairs. The Australian govern-
ment does not recognize Islamic law. The Australian
legal system is secular and is applied without distinc-
tion of ethnicity, race, or gender to all Australians.
There is therefore some tension in the minds of
Muslim Australians about how to accommodate
both systems in case of family breakdown.
Under the Australian Family Law Act 1975,
there is only one ground for divorce – irretrievable
breakdown of marriage, evidenced by the fact that
the parties have lived separately and apart for a
period of at least twelve months. There are no fault
grounds for divorce and no inquiry into the reasons
for the marital breakdown. Either husband or wife
may unilaterally decide to end the marriage and
lodge an application for divorce with the family
court. After proof of service of the application on
the respondent spouse, the court can grant a
divorce, provided that it is satisfied that proper
arrangements have been made for any minor chil-
dren of the marriage.
Ancillary matters such as child custody and
access (residence and contact orders) are dealt with
by separate applications. There is no presumption
in favor of either parent and the welfare of the child
is the paramount consideration. In recent years, the
courts have placed much more emphasis on media-
australia 101tion as a way of resolving disputes concerning chil-
dren. Although mainstream mediators undergo
cross-cultural training, there are very few Muslim
mediators and there is no culturally specific coun-
seling service available to Muslims. In the first
instance, women will normally seek the help of a
sympathetic shaykh or imam, and in some commu-
nities there is strong social pressure not to involve
institutions outside the Muslim community.
However, family members may not be present in
Australia to help mediate family disputes, and
women complain that male community leaders are
too close to other men in the community and not
prepared to support women even in cases of domes-
tic violence. Women are frequently exhorted simply
to exercise patience (ßabr). There is only one refuge
for Muslim women who have been forced to leave
their homes. This was set up by the Muslim
Women’s Association in Sydney in 1988 to provide
protection to Muslim women in an Islamic envi-
ronment, since it was found that Muslim women
were reluctant to enter culturally inappropriate
mainstream refuges.
In some cases, women encounter community dis-
approval for seeking help about marital problems
and are simply expected to endure bad marriages.
There is still some social stigma attached to divorce
in some communities, and divorced women may
find it difficult to remarry.
Accessing the Australian court system is usually
a last resort, although anecdotal evidence is that
people from some communities, for example, the
Turkish community, are more willing to do so. This
may be because migrants from Turkey are used to
having their family affairs regulated by a secular
legal system. Where there is a dispute over child
custody and it is feared that a child may be removed
overseas, the Australian court system is more fre-
quently used to obtain the necessary orders to pre-
vent the child leaving Australia without the consent
of the custodial parent.
Other than this, it is difficult to generalize about
the way in which Muslim women deal with divorce
and its consequences, because of differences in cul-
tural background, level of education, and level of
adherence to religious tradition. Some Muslims
rely entirely on Islamic principles, entering into reli-
gious marriages and divorcing by †alàq, bypassing
the Australian legal system completely. Other peo-
ple with marital difficulties engage in forum shop-
ping, accessing whichever system seems to suit their
needs. Women who want a religious divorce, in cir-
cumstances where the husband refuses to pronounce
†alàq, are unable to access an Islamic religious
court, since none exists in Australia. A small number