of shaykhs are willing to assist women, by per-
suading the husbands to pronounce †alàq, or by
granting a divorce in other circumstances.
Rates of divorce among Muslims are relatively
higher than among the mainstream population in
younger age groups (Saeed 2003, 90). After the age
of 30, the incidence of divorce drops to well below
that of the non-Muslim majority. No studies have
as yet been undertaken to explain this situation, but
it may be that the encouragement to early marriage
in some communities results in early divorce as
couples mature and find they do not have as much
in common as they had hoped.
Other marriages break up because of migration
stresses, particularly among refugees and the newly
arrived. Factors such as lack of family and commu-
nity support networks, uncertainty about the
future (particularly in the case of refugees on
Temporary Protection visas), and non-recognition
of overseas qualifications leading to reduced
socioeconomic status (Kamalkhani 2002) all con-
tribute to the likelihood of marital breakdown,
affecting both men and women.Bibliography
Islamic Welfare Centre, The true position of women in
Islam, Sydney 2003 (pamphlet produced by local
Muslim group).
Z. Kamalkhani, Recently arrived Muslim refugee women
coping with settlement, in A. Saeed and S. Akbarzadeh
(eds.), Muslim communities in Australia, Sydney 2001,
97–115.
A. Saeed, Islam in Australia, St. Leonards, N.S.W. 2003.Jamila HussainCanadaDivorce has been of some consequence in the
interaction of Muslims and the West throughout
history, since the alleged ease with which Muslim
men could divorce their wives was often used by
European critics of Islam as proof of inequities and
lack of modernity within the tradition. For exam-
ple, the primary legalities of divorce are laid out in
the Qur±àn, by which the male uttering of the †alàq
formula (“I divorce you”) three times in succession
constitutes the legal end of the relationship. Since
the Qur±àn had no equivalent procedure for the
wife, the claim of inequity before the law was often
made. Muslim social law was therefore assumed to
be inferior to Western law by Western legists.
Moreover, when the earliest Muslims (ca. 1880s)
came to Canada, the legal system in place necessi-
tated many modifications of Muslim expectations:- Muslim men could not have more than one wife
102 divorce and custody: contemporary practices
and were expected to have divorced those not eligi-
ble to be the “first wife.” 2. Muslim divorce prac-
tice was not legally recognized in Canada, so
regardless of whether the formula had been pro-
nounced, Canadian legal procedures in the courts
had to be undertaken. 3. Children from severed
Muslim unions under most schools of Islamic law
were assigned to the mother until they were pubes-
cent, when they were typically assigned to the care
of the father; in Canadian jurisdiction, the courts
had no precedence in affirming the Islamic code, so
cases were decided on the basis of the court’s judi-
cious evaluation of the evidence. In the earliest
times this meant the children were assigned to the
mother. 4. Muslim law had various ways of provid-
ing for women after divorce, but none as clear-cut
as the alimony/child support legislation in Canada,
with the attendant responsibility falling on the hus-
band. Muslim men, therefore, preferred to divorce
under Muslim law.
The division of responsibilities between the fed-
eral and provincial governments in Canada has had
an impact upon Muslims. Section 91 of the British
North America Act of 1867 allowed the federal
government control over the “capacity” of mar-
riage, divorce, and custody, whereas solemnization
jurisdiction rested with the provinces. Canada’s
case is further complicated by the fact that Quebec
law differs significantly in its origins and formula-
tions, with the Civil Code providing the basis for
such social relationships as marriage. Some areas of
dispute, such as matrimonial property, are provin-
cial responsibilities. As a rule of thumb, the federal
rules apply to all matters relating to setting up the
legalities of these social relationships, but the prov-
inces handle all practical matters of delivering the
capacity to the people. In the early days, before
imams were available, Muslims could not have
marriages solemnized in a religious manner, and
Muslims in remote areas had to rely upon the au-
thorities validated by the province, making Muslim
marriage, for example, an entirely secular matter.
Furthermore, as in many aspects of federal-provin-
cial relationships, Canadians discover that provin-
cial custom defines the nuances much more readily
than the federal law seems to imply. Thus, in mat-
ters of divorce, for example, local judges have great
latitude regarding division of property, which
allows for the enlightened judge to take Muslim law
into consideration. A different judge, or one in an
area not familiar with Muslim law, many not be so
disposed. Moreover, since many Muslims came to
Canada in the postwar period, they were subject to
the changing perceptions of the legal fraternity.
Statutes covering divorce in Canadian law changed