in 1968 with the advent of the Divorce Act; its pro-
visions made divorce easier and less humiliating.
Under it, Muslims who agreed to divorce could
make the claim that the pronouncing of the for-
mula was evidence of the absolute break of the
marriage bond, and the court could then accept
that “irreconcilable differences” had ended the
marriage. Revised, and eased further in 1985, the
statutes allowed the court wide jurisdiction in
interpreting the breakdown of a relationship, and
one aspect that came to be respected by the courts
was that a registered divorce in an Islamic context
would have the same weight in Canada. Further-
more, unless there was good reason for challenging
the Muslim legal case, courts could and did accept
the legal school of the litigants as binding with
regard to the children. If the mother contested that
ruling, then Canadian law would apply. Under
Canadian law to this date, the courts have acted as
parens patria, that is, as having parental responsi-
bility for the child’s welfare, and that has been
interpreted to mean that all aspects of foreign law
could and might be considered in the application of
custody. Normally, however, this means undertak-
ing to determine what the children themselves wish,
and only secondarily a consideration of Muslim
law. Under amending legislation that is now under
consideration, the word “custody” has been removed
from the text. This has arisen from arguments that
parents have no inherent custodial rights over their
children in divorce, since the court holds that pre-
rogative. Consequently, Muslim laws assigning
children to the father at age twelve are even less
likely to be given priority in Canadian courts.
Canadian courts have, however, shown some
developments in accepting Muslim notions of female
independence. If the wife had monies under her
ownership prior to marriage (such as a dowry), the
courts have shown some willingness to maintain
those as her personal wealth after the breakdown
of the marriage, as is the case under Muslim law.
However, these kinds of rulings can also be over-
ridden in provincial law, where the property brought
to the marriage and used by both parties during the
marriage is considered common property. Muslim
women are at a disadvantage in such proceedings,
since typically the males carry on the business of the
family, and the men are more familiar with the dis-
posing of assets. Finally, some women, married
under Muslim law but divorced under Canadian
law, sense a disjunction in their emotional life aris-
ing from the secular nature of the divorce; more
than a few have complained of still feeling bound
by Muslim religious marriage bonds even after sev-
eral years of being divorced in Canada.
the caucasus and central asia 103Beyond these areas of concern, Muslim women
in Canada have demonstrated an inventive mind
when it comes to Muslim law; they have, for exam-
ple, developed a facility to explore various schools
of Muslim law and to move from one legal school
to another as it best fits their perception of their
case. Canada thus allows them a freedom that they
would not have in their “home” jurisdiction, where
they are deemed to have been born under the juris-
diction of a certain legal school and are therefore
subject to its codes.Bibliography
A Bissett-Johnson, Family law, in J. H. Marsh (ed.), The
Canadian encyclopedia, i, Edmonton, Alta. 1985,
613–14.
M. Eichler, Families in Canada, Toronto 1983.
A. A. Engineer, The rights of women in Islam, New Delhi
1992.
Z. Husaini, Muslims in the Canadian mosaic, Edmonton,
Alta. 1990.
D. Laberge and P. Lanreville, Law, in J. H. Marsh (ed.),
The Canadian encyclopedia, ii, Edmonton, Alta. 1985,
984–6.
L. Larson, J. Walter Goltz, and B. Munro, Families in
Canada. Social context, continuities and changes,
Scarborough, Ont. 2000.
R. B. McGowan, Muslims in the diaspora. The Somali
communities of London and Toronto, Toronto 1999.
E. Waugh, S. M. Abu-Laban, and R. Qureshi (eds.),
Muslim families in North America, Edmonton, Alta.
1991.Earle WaughThe Caucasus and Central AsiaInitiation of divorce
The ability to end a marriage is an important
facet of women’s rights. Women frequently could
not dissolve their marriages on their own initiative
because of the economic conditions that bound
them. If they divorced, they had to give back the
kalym (bride-money) as decided by the court ofbiy
in Kyrgyz in the late nineteenth and early twentieth
centuries. A woman had the right to divorce
through the court in the following cases: the hus-
band was incapable of performing his marital
duties; the husband withheld from his wife food
and clothes for six months and 13 days; the hus-
band treated his wife cruelly; the husband had a
mental disorder; and physical defects of the wife
hindering her work. The judge had the right to
decide on the dissolution of the marriage, on return
of thekalym, and on a large fee for himself.
As a rule, husbands initiated divorce. A husband
could divorce his wife at any time and on any pre-
text. He had only to repudiate her by unilateral dec-
laration (†alàq); he could then take his word back