Cultural Voluntarism and Sharia Processes in Australia

Summary

1. INTRODUCTION

John Eekelaar and Mavis Maclean have argued that although the ‘question of how the family practices of distinct cultural, ethnic and religious minority groups are accommodated within the legal framework of the wider society’ has, increasingly, attracted theoretical attention, there is a noticeable lack of empirical research to develop these discussions. In the Australian context, the Australian Human Rights Commission has described the literature on ‘patterns and dynamics of alternative dispute resolution related to family law matters in Islamic communities’ as non-existent.

The first way in which this chapter engages with Eekelaar’s work is to respond to the call for empirical data to fill this gap in the literature, drawing on findings in Farrah Ahmed and Ghena Krayem’s book, Understanding Sharia Processes : Women’s Experiences of Family Disputes (2021). Based on this data, we can have informed discussions about the accommodation of Islamic family practices within the Australian civil legal framework.

This research’s focus on women’s experiences is important when considering that the main criticisms of sharia processes relate to the impact on Muslim women who engage with them. The empirical data gathered enriches our understanding of sharia processes in Australia by revealing a fuller and more nuanced range of women’s experiences, which are not reducible to the standard criticisms levelled at these processes. Standard criticisms range from blanket opposition to sharia processes from parties with Islamophobic agendas (such as Pauline Hanson’s One Nation party) to concerns that the decisions of sharia bodies may harm, discriminate against, or otherwise disadvantage women.

The empirical data informing this analysis comes from extensive interviews across three primary groups of participants: (1) women who have engaged with sharia processes due to marital breakdown; (2) imams and community leaders who have knowledge of these processes; and (3) professionals, including lawyers, mediators, psychologists and social workers, who have worked with clients participating in these processes. The interviews were conducted in Sydney and Melbourne, the cities with the largest Muslim communities in Australia.

Secondly, this chapter argues that the current practices of the Australian legal system with respect to sharia processes fit within Eekelaar’s theory of cultural voluntarism.