chapter  3
35 Pages

Muslims, family relationships and the Common Law

Introduction The Prophet’s wife, ʽA’ishah, related that Prophet Muḥammad said, ‘The best of you are the best to their wives, and I am the best to my wives.’ (At-Tirmidhi, Ḥadīth no. 3895). Across the Muslim World, even in the most ostensibly secular of Muslim countries, Muslims have paid very close attention to Sharīʽah family law. Even during colonial times and in the laws of post-colonial Muslim states, when commercial and criminal laws frequently were tampered with and replaced by legislation based on the colonial law (e.g. English or French), Sharīʽah family laws were left almost unscathed. Such was the importance and centrality of Sharīʽah rules relating to the family. It might be thought that given the diversity of Muslims in the West, and its very secular lifestyles, Sharīʽah has less relevance for Muslim families in these countries. Muslims can utilise a body of secular law to register their marriages, file divorces, seek or challenge custody for their children, and secure appropriate post-divorce financial settlements. Certainly for the Muslim ‘assimilationists’ we referred to in Chapter 2, they would not regard relying on English or Canadian law, for example, as problematic because they prefer ‘doing in Rome as Romans do’. Religion does not occupy a central place in their lives. Even for these people, however, cultural ties remain important and few would seek to marry or divorce in a way that would be unacceptable in their cultural community for fear of ostracism. Indeed, one of the problems we examine in this chapter is the ‘limping marriage’ and the perceived inability of a Muslim woman to remarry until her husband grants her a divorce in Sharīʽah terms. Relying exclusively on the secular law does not answer her problem. For other Muslims, whether they fall into our separatist or integrationist groupings, resolution of family matters through the framework of Sharīʽah assumes even more importance.