Abstract
The 12 articles in this important book delve into the great variety of nuances concerning the heavily contested subject of divorce laws in Islam and specifically the extent of women’s rights to seek divorce. They provide a remarkable and original contribution, benefitting from much first-hand field research. Moreover, this publication is rather balanced in handling the maze-like web of laws, customs, beliefs and courtroom practices which inform this heterogeneous and complex topic.
The volume is accessible even to those not accustomed to dealing with such intricate issues because of its plain style and its brief and useful introduction. Organised into five sections, the articles cover basically two main streams of analysis. On the one hand, the book focuses on the diverse realities in Muslim-majority countries, whose dissimilar family laws remind us that Islamic law ‘is not purely divine and consequently immutable’ (p. 21), but quite the opposite. On the other hand, it investigates how Muslim couples cope with the clash between state laws and religious law in Western countries and in jurisdictions that seek to reform traditional Islamic laws.
The first section focuses on ‘Theoretical Reflections’ and deals with recommendations proposed in Pakistan in 2008 by the Council of Ideology to modernise the Muslim Family Laws Ordinance of 1961 by giving ‘the right of divorce to women similar…to men’ (p. 44). This proposal, in a country where widespread community customs are often confused with Shari’a led to huge engineered popular uprisings which forced the government to reconstitute the Council. Here, one sees an example of how Pakistan gives in to fundamentalism. The author shows that ‘[t]he strong conception that only men have the right of divorce is largely a local cultural perception extended to Shari’a’ (p. 48), coherently demonstrating that the assumption ‘that Shari’a does not allow the right of divorce to women…is hard to establish’ (p. 48).
The second section, with case studies on marriage and divorce laws, analyses the gap between law and its implementation in recent reforms in Iran, Egypt and Morocco. Since the 1979 Islamic Revolution in Iran, ‘lawmakers have been forced to dig into legal theory and classical jurisprudential concepts in order to reinterpret and readjust them in response both to the reality on the ground and to women’s aspirations for equal treatment in law’ (p. 65). Despite this, women have been experiencing difficulties when claiming their rights. The chapter about Egypt finds ‘a striking discrepancy between the legal model of marriage and the lived realities of marriages’ (p. 91). The author investigates whether the introduction of khul’ law in 2000, deemed to empower women by giving them an equal right to divorce, has really achieved its purpose. Assuming that this reform ‘was of great significance for women’ (p. 86), it is found that ‘khul as it is practised now in Egyptian courts is not ensuring women more equal access to divorce’ (p. 103), but it does have some beneficial effects. The third case study examines the 2004 changes in Morocco’s family law code, seen as one of the most progressive in the Muslim world. The author highlights the uneven application of its principles by judges, who often ‘utilise religious interpretation in matters that are believed to be unclear’ (p. 121) to prevent women from obtaining divorce. Nevertheless, by doing so, they depart from their proper role, with heavy consequences, such as the ‘sense of frustration on the part of women who knew about reforms but found that access to justice was impeded by custom, corruption, or the courts themselves’ (p. 112).
A comparative section presents Muslim and Hindu laws on divorce in India and Pakistan, analysing the way those countries cope with the fact that ‘state law cannot but take into account the de facto plurality of the ground realities in South Asia’ (p. 151). This section concludes with an investigation of the great diversity of meanings given to the Muslim concept of khul’ in different societies and demystifies the common belief that ‘giving the right of divorce to women would result in the destruction of the family’ (p. 166).
The section on ‘Reform Trends in Western Countries’ focuses on the hardships Muslim women often face when trying to seek divorce in Western countries such as the UK, Denmark and Canada. Muslim couples are often forced to marry twice if they want to be regarded as legally married by both their community and state authorities; thus, they also feel obliged to divorce twice. Even if getting a civil divorce is not a problem, if a woman wants her divorce to be recognised by her community and to have the chance to ‘remarry and remain faithful to Islam’ (p. 217), a religious divorce is needed. However, it is still widely assumed that such divorce cannot normally be obtained without the husband’s consent, allowing men to make their wives’ lives a nightmare by forcing them into ‘limping marriages’. Hence, a woman seeking to untie her religious bond has to find an Imam who is willing to grant her a divorce. Some Imams are recalcitrant, which leads to ‘forum shopping’ that ‘may not be confined to the borders of the nation state’ (p. 192). This scenario is clearly an invitation to reflect on the need for greater formal recognition of plurality.
The last section on ‘Secular Perspectives of Divorce’ highlights how the Indian legal system skilfully allows people to choose whether to follow the secular law or the legal customs of particular religious communities, both affected by general state laws (p. 291). This section concludes with a paper on the evolution of Danish divorce law, which perceptibly recalls the previous debates by discussing how women cope with double marriages and double divorces.
The leading message for the reader is that state law everywhere is far from comprehensive in covering the whole legal system. Though a large number of lawyers and judges strongly believe in it, legal positivism is, thus, quite ineffective. Bringing together the fieldwork by various authors, the book shows how many different solutions to marriage-related issues are provided even within Muslim-majority countries. Divorce law in Islam is really all about interpretation. Meanwhile, by acknowledging the lack of plain solutions, readers may feel encouraged to learn more, or, if they are scholars themselves, to keep researching what is nowadays known as MILLI, ‘Muslims, Islam and the Law: A Legal Industry’ (p. 206).