Marriage - Canadian Council of Muslim Women

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MARRIAGE
M U S L I M & C A N A D I A N F A M I LY L AW S
CCMW
Canadian Council Of Muslim Women
I NTRODUCTION
The Canadian Council of Muslim Women (CCMW)
has published a series of booklets to help Canadian
Muslim women make informed choices pertaining
to family law in Canada.
These booklets provide comparative information about
Canadian and Muslim family laws, particularly as they
pertain to women’s rights. We hope the booklets will
be of assistance to, among others, Muslim women,
professionals working with Muslim women in the
family court system, students who would like to
know more about the topic and community-based
services that assist women.
The material in this booklet is based on Muslim
and Canadian Family Laws: A Comparative Primer,
published by CCMW. Any errors that appear in
the booklets are the sole responsibility of CCMW.
Those interested in finding out about the sources
and validity of Muslim laws and legal opinions
referred to in the booklets should consult Muslim
and Canadian Family Laws: A Comparative Primer, a
meticulously referenced publication. Laws in a public
legal system are in a constant state of flux as they are
changed to adapt to the times. You are encouraged
to verify that the information contained in the booklets
about Canadian laws is current.
Both the booklets and the Primer are intended to
provide information only and should not be considered
a substitute for legal advice
M USLIM L AWS
Q URAN
AND THE HADÍTH
Muslims are guided in their daily lives by the Quran
and the hadíth. The Quran is considered by Muslims
to be the word of God as sent down to the Prophet
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Muhammad. The Quran considers women as
spiritually equal to men. Records of the sayings and
doings of the Prophet, called hadíth, or “anecdotes,”
are a kind of secondary set of scriptures. Like the
Quran, the sayings of the Prophet maintain respect
for women’s spirituality and for male-female relations.
T HE
LAWS AND THE ROLE
OF INTERPRETATION
The commandments of God are known as sharia,
the ideal “path” of life intended by God. However,
there is disagreement among Muslims concerning
the correct approach to the laws and the position
of women within it. This is because there is no one
codified “Muslim law.” Muslim law is a large body
of work built up by many dedicated scholars through
the centuries. There are various schools of thought,
and each has its own interpretations and rules. Even
scholars within the same school may disagree on the
exact details of the law.
M AIN SCHOOLS
J URISPRUDENCE
OF
M USLIM
There are four Sunnite schools of jurisprudence Hanafite, Malikite, Shafiite and Hanbalite - and one
main Shiite school, the Jafri. Each of these has its
own interpretations and rules, and there is a variety
of legal opinions among the different schools. At
times, scholars even within the same school disagree
on the exact details of the law.
R ELIGIOUS
AND LEGAL AUTHORITY
It is important that Muslim women keep in mind
that legal authority in Islam does not belong to any
one person or organization. According to Muslim
legal theory, the believers themselves choose the
persons they think to be the most knowledgeable
3
and pious to give them advice about the law. And
according to the Sunnites, this is counsel only, which
can be rejected by a sincere conscience and mind.
TAKHAYYUR
Literally meaning “selection,” takhayyur as a legal
concept is perhaps best translated as “eclecticism.”
It recognizes that individual Muslims may follow the
legal interpretation of any school of law or, indeed, of
any individual scholars within those schools. Under
the principle of takhayyur, Muslims are not bound
to the schools of law they were born into or that
predominate in the regions where they live.
R EFORMISTS
VS TRADITIONALISTS
The reformists believe that Muslim laws treating social
intercourse are meant to be constantly reinterpreted
according to time and place so that they continue
to reflect basic values in different kinds of societies.
Reformists point out that the term used for law is fiqh,
or “understanding,” indicating that it is a product of
the human mind and therefore fallible. This fallible
human understanding of God’s law, according to
the reformists, is meant to be constantly questioned
and revised.
Traditionalists, on the other hand, regard the rules
of the traditional law as fixed. They are likely to
equate their understanding of law with sharia, the
ideal path of life intended by God. In the view of
traditionalists, the laws are a timeless reflection of an
ideal and divinely ordained pattern of social relations.
Muslims often hear the strong egalitarian voice of
their religion and expect that all laws will have that
spirit. Muslims may assume that women’s rights
such as divorce and alimony are clearly affirmed by
law, but these are actually reformist ideas which
many people strongly oppose.
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C ANADIAN M USLIM
COMMUNITIES
Canadian Muslim communities are relatively new
and diverse. They are in the process of developing
institutions and defining their position as a minority
in a non-Muslim society. Fragmentation into many
groups with different backgrounds and practices
precludes the development of a generally recognized
ethic to which everyone can refer. We thus have
a fluid situation in which a very wide range of
views about Islam and its laws is being articulated
and debated.
M USLIM
LAWS IN
C ANADA
Relying on Muslim laws may be more perilous
in Canada than in most Muslim countries. In
Muslim countries, there are defined laws laid down
by governments, and it is therefore possible to
have a good idea of what rules will be applied to
a particular case. In Canada, however, one may
be faced with unfamiliar standards and rules.
If you are thinking of having your affairs regulated
in any way by Muslim laws, it would be wise to
enquire beforehand about the kind of law involved.
Will it be some version of the reformed law or the
traditional law of one school or another?
You may be able to judge what kind of approach
will be used by asking specific questions. For example,
with regard to divorce: Do the persons with whom
you are dealing consider the quick triple divorce
valid? Do they believe that a woman has a right to
support by her husband even after the three-month
waiting period, and if so, for how long? With regard
to inheritance, you might ask: Will my daughter
have to share her part of the family inheritance with
her uncles? You can use these booklets to come up
with such questions and also compare the answers
you get with those found in Canadian law.
5
The information about Muslim laws in the following
pages is not definitive. It should be viewed as a starting
point only.
C ANADIAN L AWS
In Canada, the Canadian Charter of Rights and
Freedoms specifically address equality rights of women.
Canada is also a signatory of the Convention on the
Elimination of all Forms of Discrimination Against
Women (CEDAW) and of the International Covenant
on Civil and Political Rights (ICCPR). Both these
documents provide equality-rights protection for
women which take precedence over the right to
religious freedom.
C ASE
LAW
Case law, or court decisions, further addresses
the issue of women’s rights. Public court decisions
are required to conform with the Canadian Charter
of Rights and Freedoms. Court decisions are a
matter of public record and can be appealed to
a higher court.
F AMILY
LAW
Family matters are governed by a number of federal
and provincial laws. Some matters relating to marriage,
such as rules about who can marry whom, are a
federal responsibility; others, such as the technical
administration of marriage, are provincial. Divorce
is regulated federally under the Divorce Act. Provincial
laws cover custody, access, child support, property
division, spousal support, restraining orders and
child protection. Inheritance is also a matter for
provincial regulation.
The names of the statutes vary from province to
province, but the general issues covered are the same,
and the overall approach is similar, although there
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are regional differences. These laws exist to assist
families and to provide minimum common standards
across the country.
A CCESS
TO JUSTICE AND LEGAL AID
Everyone involved in a family-law matter can use
the services of a lawyer to support and assist them.
In an attempt to ensure that people without the
financial ability to pay for their own lawyer can still
be properly represented, the provinces have developed
legal aid plans. In Ontario, the legal aid plan is called
Legal Aid Ontario (LAO). Ontario’s model provides
successful applicants with a certificate for coverage,
and the person selects their own lawyer.
The financial criteria in Ontario are very limited.
Eligibility is determined by a review of the person’s
income and expenses. LAO covers representation for
court-based matters only. There is no legal aid available
in private dispute-resolution cases.
P RIVATE
DISPUTE RESOLUTION
Many people prefer to resolve the issues arising from
the end of their relationship outside the court system.
However, in situations where there is an unequal
balance of power, private resolutions may not reflect
either the legal rights or the interests of the person
with less power.
Family-law disputes are privately resolved through
either mediation, arbitration or collaborative law.
There have been significant changes to the Arbitration
Act with respect to the arbitration of family-law
disputes. Arbitration must be conducted exclusively
in accordance with the law of Ontario or of another
Canadian jurisdiction. Arbitration conducted under
any other system of law, including religious law,
is not considered “family arbitration” and is not
enforceable in Ontario.
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D IFFERENCES BETWEEN ARBITRATION
AND MEDIATION
Arbitration is quite different from mediation, in
that the arbitrator, after listening to what each party
has to say, will announce a decision (much as a judge
does) in the case. The parties are bound to accept
this decision – in fact, they have agreed to this before
beginning the process. While arbitration is recognized
and enforced by the courts, mediation is informal
community-based counselling and is similar to “good
advice,” which individuals are free to accept or reject.
The changes in the law do not interfere with the right
of individuals to go to elders and religious institutions
for advice and counselling. While mediation can
continue, it will not have the sanction of the state
and will not be legally binding.
S AFETY- RELATED
MATTERS
Although these booklets deal primarily with issues
of family law, it is important for women to know
that criminal law provides some protection from
abusive spouses. Both restraining orders and
exclusive-possession orders are important legal steps
women can take to protect themselves from abusive
partners, especially during the early days of separation,
when risk of violence often increases. Application
for a restraining order and/or for exclusive possession
of the home can be made as part of a larger court
proceeding dealing with custody, access, support and/
or division of property or it can be made separately.
T HE C ANADIAN
LEGAL SYSTEM
The Canadian legal system is a public legal system
with laws and systems in place that are intended to
ensure women’s equality rights. Under this system,
laws are open to public review and scrutiny and
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court decisions are a matter of public record.
Moreover, the decisions can be appealed to higher
courts. In Canada, anyone involved in court proceedings has the right to have a lawyer represent
her/him. For those who cannot afford legal representation, government-funded legal aid is available.
A public law system supports a consistent approach
and some measure of equality and accountability.
The system of law is not perfect.
Private rules, including religious laws, do not offer
these same protections. They are not open to public
review and scrutiny, and those who interpret them
are not accountable to the public in any way. There
is often no right of appeal from a bad decision made
under a private regime. There is not necessarily a right
to legal representation, and legal aid is never available.
For these reasons alone, a public system of family
law is to be preferred over a private one.
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M ARRIAGE
Muslim Laws
Introduction
The Quran and sayings of the Prophet emphasize affection
and mutual support between husband and wife. The
essential point to remember is that Muslim marriage
is a civil contract, not a religious sacrament.
The main requirements for a marriage are the offer and
acceptance on the part of the bride and groom, and that
dower (mahr) be a part of the contract.
Who can get married?
Muslim men may marry from among the “people of the
book” (ahl al-kitab); that is, adherents of the three revealed
religions, Judaism, Christianity and Islam. According to
some interpretations, this permission extends to Zoroastrian
women as well.
Muslim women are, under traditional law, required to marry
Muslim men. Part of the religious justification for this is that
traditionally, children followed the religion of their fathers.
As divorce is permissible in Islam, a divorced person
may remarry.
Who cannot marry?
Prohibited degrees include consanguinity as well as
certain relations by marriage. Most particular is the
prohibition against marriage between two people who
have been nursed by the same woman. There is no
prohibition against marriage between first cousins.
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Canadian Laws
Introduction
In Canada, the administration of marriage falls within
the jurisdiction of provincial governments. This means
that each province can set its own rules for how marriages
take place. In Ontario, the relevant legislation is the
Marriage Act.
Who can get married?
Any two unmarried adults may marry, with a few restrictions
as outlined below. Any individual who has previously been
married can remarry in Ontario if the previous marriage
has been dissolved in a manner recognized under
provincial law. Same-sex marriages are legal.
Who cannot marry?
The federal Marriage (Prohibited Degrees) Act specifies
that a person cannot marry someone to whom he or she
is related lineally either by consanguinity or adoption,
thereby prohibiting marriage between adoptive as well
as full or half-siblings. Marriage between first cousins is
generally taboo but not illegal in most of North America.
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M ARRIAGE
Muslim Laws
Minimum age for marriage
Under traditional laws, the minimum age for marriage varies
between 9 and 15 years, depending on the particular
interpretation. Consummation of the marriage, though,
is expected to take place after puberty. Most countries
where Muslim personal-status law is applied have
introduced a minimum age for marriage.
Who can solemnize a marriage?
Under Muslim laws, marriage is a civil contract between
a man and woman, with ensuing rights and obligations
between the two parties. There is no religious or legal
requirement that a cleric be present, although it is
customary for an imam to preside over the ceremony.
The marriage must be registered with Canadian provincial
authorities, which is important for the recognition of
legal rights under Canadian law. In Canada, many
imams or other recognized leaders are authorized by
Canadian law to register the marriages they solemnize.
Alternatively, a couple can also go through a separate
civil ceremony to register the marriage.
Requirement of witnesses
The requirement of witnesses for a marriage is very
important in the Sunnite schools. The Malikites place more
emphasis on making the marriage public and allow for
witnessing sometime after the marriage has been publicly
celebrated. The Shiite scholars have differing opinions on
these issues. Some say that while it is not necessary to have
witnesses to a marriage contract, it is still recommended.
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Canadian Laws
Minimum age for marriage
Under Ontario’s Marriage Act, any two people who are at
least 18 years of age may marry. If either party is between
16 and 18 years of age, the couple may marry with the
written consent of both sets of parents. Regulations on the
legal marrying age may vary from province to province.
Who can solemnize a marriage?
Marriage in Ontario can be solemnized by either a civil
or a religious ceremony. In a civil marriage, the parties
purchase a licence from the municipal clerk, and the
solemnization is performed by a judge, justice of the peace
or any other person authorized to do so. Although there
is no particular formula to be followed, certain statements
must be made by each party and by the person solemnizing
the marriage. In a religious marriage, the ceremony is
conducted by any individual who is “authorized to solemnize
marriage” under the Minister of Consumer and Business
Services. In Canada, most imams are authorized to
solemnize and register marriages.
The person who solemnizes the union must register
the marriage and complete a Statement of Marriage Form
and file it with the Registrar General within two days of
the event.
Requirement of witnesses
At least two adults must witness the solemnization,
whether religious or civil.
(continued on next page)
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M ARRIAGE
Muslim Laws
Requirement of witnesses (continued)
The requirements for who may serve as a witness differ
between schools of law. Only Hanafites and Shiites will
allow a Christian or Jew to serve as witness at a marriage
in which the bride is a Christian or Jew.
Role of the guardian
With the exception of pre-pubertal girls and virgins, Muslim
laws insist very strongly that a female cannot be married
without her consent.
In the case of underage marriage, traditional law provides
that the guardian has complete authority to contract the
marriage of the ward. Such guardianship is limited to
the father or paternal grandfather of the ward.
The Hanbalites, Shafiites and Malikites allow the guardian
of a virgin to contract her marriage without her consent
or knowledge. In the marriage of a non-virgin female,
these schools also require the consent of the guardian
in addition to the consent of the bride.
The Hanafites allow a guardian to contract the marriage
of a girl without her consent only until she reaches puberty.
After puberty, a guardian cannot marry off a girl without
her consent, even if she is a virgin. The Hanafite jurists
insist strongly upon this point of difference between them
and the other schools. There is no need for the agreement
or consent of a guardian for a marriage a woman chooses
for herself after puberty.
Traditional Shiite scholars disagree about the power of
a guardian in marrying off a virgin without her consent.
According to some, the power of the guardian ceases
when she reaches puberty; others say that it continues.
It must be noted that the permission of a guardian
cannot be withheld without good reason.
14
Canadian Laws
Requirement of witnesses
Role of the guardian
Canadian law does not require guardianship except
for children 16 to 18 years of age. If either party is
between 16 and 18 years of age, the couple may marry
with the written consent of both sets of parents.
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M ARRIAGE
Muslim Laws
Types of marriage
In addition to the civil contract of marriage, the Shiite
school also recognizes temporary or mutah marriage.
A mutah marriage is for a set time frame, stated in the
contract, and requires that a gift be made to the temporary
wife. Temporary marriage does not result in inheritance
rights between the two partners, but children of temporary
marriages are considered legitimate.
The lesser-contract marriages in the Sunnite tradition
are urfi, meaning “customary” marriage; sirri, meaning
“secret” marriage; and misyar, meaning “itinerant”
marriage. Lesser-contract marriages give the “husband”
a chance to have relations with “wives” whose rights
have been reduced.
Bigamy and polygamy
Traditional Muslim laws permit men to take up to four
wives, with the exhortation that the wives must be treated
fairly and equally. The theoretical legal requirements
include the capacity to maintain wives according to their
station and the provision of a separate dwelling for each
co-wife. Plural wives also have a right to spend equal time
with the husband. However, there is no specific legal
sanction against a husband who does not properly divide
his time
Modern reforms to Muslim personal-status laws generally
seek to curtail or discourage polygamy by requiring
registration or judicial permission. Turkey and Tunisia
are two Muslim-majority countries that have banned
polygamy altogether.
In Canada, it is known that some religious leaders perform
second, third or fourth marriages through a religious
“Muslim” ceremony. These marriages have no legal status,
and the rights of the women may not be protected under
Canadian law.
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Canadian Laws
Types of marriage
Marriage in Canada must be registered in court by way
of a civil or religious ceremony.
Couples in common-law unions can contract to protect
their rights through a cohabitation agreement.
In June 2005, the federal government passed legislation
recognizing same-sex marriage in Canada.
Bigamy and polygamy
Bigamy falls under the federal Criminal Code. The bigamous
individual, as well as anyone who “celebrates, assists or
is a party to such a rite, ceremony, contract” is liable to a
maximum penalty of five years’ imprisonment. Exceptions
exist where a party has reasonable grounds to believe
that his or her spouse is dead or where the other spouse
has been continuously absent for at least seven years.
In a polygamous marriage, the legal status of the subsequent wife is ambiguous. If she entered into a polygamous
marriage knowingly, then her marriage is valid only under
religious law. She is without rights under civil law. However,
she may be able to acquire some of her rights if she is
able to prove she was unaware of her husband’s existing
marriage. Women who consent to a polygamous marriage
on the basis of religious or cultural beliefs are left in a
very vulnerable position under Canadian law.
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M ARRIAGE
Muslim Laws
Rights and duties in marriage
A Muslim marriage does not take full legal effect until it
is consummated. Before consummation, some (but not
all) rights of the parties are reduced.
Marriage contracts, like other domestic contracts, are
made by adding conditions defining the rights and duties
of the spouses within the marriage. (For a more detailed
discussion of conditions in a marriage contract, see the
booklet “Domestic Contracts.”) However, the basic legal
duties of the husband are to give the wife dower (mahr)
and support (nafaqah), including food, clothing and a
place to live befitting her station in life. (For a more
detailed discussion of the husband’s duties of dower
and support, see the booklet “Spousal Support and
Division of Property.”) In return, the wife owes her
husband obedience (ta’ah).
According to traditional Muslim laws, the wife is
disobedient if she (a) refuses to live in the same house
or socialize with her husband, (b) leaves the house without
her husband’s permission or (c) refuses to engage in
sexual relations with him.
There are legal consequences for disobedience or “incorrect
behaviour” (nushuz) on the part of the wife. If the husband
fears “incorrect behaviour” from a wife, he may discipline
her, either by (a) admonishing her, (b) refusing sexual
relations or (c) some kind of hitting. The subject of “hitting”
is highly controversial, and there have been many attempts
to explain what it might mean. There is no consensus on
its interpretation.
Muslim laws clearly define who can hit whom, the limits
of hitting and the punishment of the hitter who exceeds
those limits.
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Canadian Laws
Rights and duties in marriage
Marriage contracts are made under the Family Law Act
and can include any number of stipulations defining the
rights and duties of both spouses within the marriage.
There are certain conditions, however, that are not
enforceable, even if they are part of the marriage contract.
Section 52(1)(c) specifically excludes custody of and
access to children from being governed by way of a
marriage contract. Section 52(2) states that any provision
in a marriage contract limiting a spouse’s rights to the
matrimonial home is unenforceable. Moreover, provisions
that make the rights of a party dependent upon remaining
chaste are unenforceable.
Since agreements made under the Family Law Act allow
parties to sign away their legal rights, it is important that
women seek independent legal advice before signing a
marriage contract. Even if conditions in the agreement
are unfair, once it has been signed, the courts cannot
intervene and set it aside.
Under Canadian law, abuse of any kind within the marriage
is illegal and can lead to criminal charges. There is no
acceptance of disobedience (or discipline) of wives.
(continued on next page)
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M ARRIAGE
Muslim Laws
Rights and duties in marriage (continued)
All the schools agree that a wife is disobedient if she
refuses to live with her husband and socialize with him.
However, if she has good reason for not staying with her
husband, such as his failure to pay the amount of a mahr
(dower) that is due or provide adequate and safe housing,
the husband cannot withdraw support.
A woman does not need her husband’s permission to
visit her relatives a certain number of times. There is
no consensus on the allowed number of visits. Going
out visiting more than allowed does not cause a woman
to lose support, although it does give the husband the
right to discipline her.
A wife cannot be considered disobedient and lose her
right of support for refusing to engage in sexual relations
with her husband if she is ill, menstruating or expected
to participate in forbidden sexual practices. She cannot
be considered disobedient if he fails to pay an amount
of the dower.
A woman’s obedience does not include turning over any
of her money or property to her husband or letting him
control it. A woman’s wealth, including her dower, is
entirely her own, and she can deal with it as she likes.
A wife’s right to support resumes when she returns
to obedience.
The concept of nushúz is not limited to the wife.
Examples of a husband’s “incorrect behaviour” are his
refusal to engage in sexual relations with the wife or
taking a cold and abusive attitude towards her.
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Canadian Laws
Rights and duties in marriage
21
We gratefully acknowledge the Status of Women
Canada for the financial support which made
possible the research and publication of this book.
The information on Muslim and Canadian family
laws in the booklet is provided in a side-by-side
format to allow for comparison. Sometimes there
is no direct comparison available. These situations
are noted as such.
This booklet is one in a series of six and should be
read in conjunction with the others.
Titles in the series:
1) Domestic Contracts
2) Marriage
3) Divorce
4) Custody and Child Support
5) Family Property and Spousal Support
6) Inheritance
To order copies of the booklets please visit
www.ccmw.com or write to CCMW
P.O. Box 154 Gananoque, ON, K7G 2T7, Canada