Rights, religion and entitlements to law

Yet again, women are forced to take up the struggle against the imposition of religion and the notion that women are and should be subject to male authority. The male authority here in issue is that of the husband and, in defence of male right through the husband, religion. In this case, the mosque and sharia law.

On 11 July 2012 The Age reported that a Melbourne mosque published on its Facebook website advice that polygamy ‘is better’ than divorce: ‘If your husband is telling you that he wants to take another wife and you are not doing the right thing by him, then know that he is thinking straight and using a weapon that doesn’t have severe consequences.’

Albeit this was said to have been advice ‘to one woman’, described as a ‘vulnerable Melbourne Muslim woman who was desperately seeking advice about her marriage’, its ramifications go way beyond the apparently intended recipient. The message is a grotesque reminder of the failure of some religious ‘authorities’ to understand, comprehend, or acknowledge the realities of polygamy – their effect upon both women and men, and upon children – girls and boys – born of such ‘relationships’, and its repercussions socially, economically and legally. It is also indicative of a failure to recognise and to accept that polygamy is unlawful.

The wrong message is being sent not only to the woman concerned but also to the community in which the information is disseminated and, most particularly, to members of the mosque from which it emanates. If said to one, the message will be repeated to other women seeking advice, as well to any man who attends the mosque and any who asks for advice.

Beyond this, in making the statement so readily available, publicly, all who access the Facebook site – or did so prior to the item’s removal – are regaled with misinformation. This is an indicator, too, of the failure on the part of some religious ‘authorities’ to take seriously their position of authority not only within their own religion but in a country where freedom of religion means religious authorities have responsibilities in conformity with the society in which they seek to promote their religion. Religion cannot operate without regard to or above secular law. It cannot promote, in its name, unlawful conduct nor support any unlawful status.

All religious authorities have a responsibility not to misinform adherents of their respective religions as to the laws existing in the country wherein they reside. In Australia, divorce is legal and polygamy is not. Any woman told by her husband that he intends taking a ‘new’ wife without divorcing her has a right to obtain clear, accurate and lawful advice. Anyone in a position of authority who is not prepared to ensure that such a woman is able to exercise this right is acting irresponsibly. Equally, anyone in a position of authority who advises a man that polygamy is ‘okay’ is acting irresponsibly and potentially advising the man to engage in unlawful behaviour.

Once upon a time, ecclesiastical law governed legal relations in Britain. The struggle between the Crown and religious authorities ultimately ended with secular courts trumping ecclesiastical courts. Family law was the last bastion of religious dogma, the last field of law where religion held sway. Women’s claims to rights of divorce, the right to own property during marriage, the right to own their own income albeit married, and rights to custody of children born of a marriage were claims made in the face of notions that denied women rights and women’s rights by reason of religious diktat seeping into secular law.

There can be no kowtowing, today, to religious precepts so as to oust the operation of secular laws governing marital relations in Australia. Indeed, Australia has a responsibility to ensure that secular law is adhered to and that it is not undercut by any religious ideology or contentions as to religious ‘law’. Religious law – from whichever source it may be alleged to emanate – has no place in the secular court system and should have no place in advice given to married persons – women or men, which may affect their status at law.

The Age article quotes Joumah El Matrah, executive director for Australian Muslim Women’s Centre for Human Rights, as saying that the Australian government is ‘not contributing in any way to helping root out or eradicate polygamy, except to point out that it [is] an illegal practice’. This, she added, ‘did not stop conservative mosques secretly pushing these views in Australia’. Notably in this instance, the ideology was being ‘pushed’ without ‘secrecy’. Hence, it happened that this case was exposed. Yet this case, Ms El Matrah implied, is an example only. The problem is far more widespread.

Successive Attorneys-General have confirmed there is no place for sharia law in Australia. On 17 May 2011, then Attorney-General Robert McClelland was reported as saying that the government ‘strongly rejects any proposal for its introduction’. He was responding to a submission to the Parliamentary Inquiry into multiculturalism, where the Australian Federation of Islamic Councils called for ‘legal pluralism’, meaning Muslims should be entitled to apply sharia law and have it enforced or at least supported through the Australian legal system. The Attorney-General observed that in any ‘inconsistency between cultural values and the rule of law’, ‘Australian law wins out’.

Almost a year later, on 17 March 2012, Attorney-General Nicola Roxon restated this principle. In the context of an ACT Supreme Court decision involving a challenge under probate law, the Attorney-General was quoted as saying: ‘There is no place for sharia law in Australian society and the government strongly rejects any proposal for its introduction, including in relation to wills and succession. The Australian government is committed to protecting the right of all people to practise their religion without intimidation or harassment, but always within the framework of Australian law.’

This message is vital, and its reiteration by Australia’s top law officer is important. Yet is this enough?

The Australian government’s responsibility is to ensure that everyone living in the country or seeking to do so knows that under the law, women and men have equal rights in marriage and, amongst other matters, polygamy is antithetical to this. The signing and ratification by the Australian government of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) makes this clear, as does the UN Declaration on the Elimination of Violence Against Women, to which Australia also subscribes. Article 4 of the latter and Article 5 of the former are salutary in their recognition that religion and/or culture cannot stand in the way of equal rights, cannot be employed as ‘excuses’ or in support of women’s rights denial, and are no basis for supporting inequality for women in marriage or any other relationship.

CEDAW Article 5 provides: ‘State Parties shall take all appropriate measures:  (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

Article 4 of the Declaration on the Elimination of Violence against Women states: ‘States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination.’

Some reports assert that Muslim women ‘accept’ sharia law and wish to live under its strictures, even in Australia. These reports are themselves disturbing, for there is evidence that ‘not all Muslims [are] registering their marriages and some [are] relying on religious ceremonies to validate unions that [are] in breach of the Marriage Act’. The alleged breaches go so far as to including ‘polygamist marriages or where one member [is] under the legal age’.

Ms El Matrah is right. Consistent with its position as the government charged with responsibility vis-à-vis marriage and family law, steps must be taken beyond the Attorneys-General statements. Any religious official who has standing as a marriage celebrant under Australian law, along with civil marriage celebrants, must be obligated to ensure that, before any marriage goes ahead, the parties are fully aware of their rights. This must be effected not by ‘instruction’ from celebrants of whatever standing, but through information provided by the Family Court of Australia. Rather than simply an institution providing for marriage breakdown and its legal consequences, the Family Court needs to be reconstituted as a place where putative marriage partners obtain information as to their rights in marriage and how marriage with alter their legal status, property and income rights, their responsibilities vis-à-vis children born to them or coming into the marriage, and the general appurtenances of marriage-at-law: Australian law.

Providing this information in written form is insufficient. Parties should be required to speak in a formal setting with a Registrar tasked with the responsibility for advising them. Not only would this mean that no one would marry without an awareness of Australian marriage law and what it means for them, but it would ensure that they know where to go to seek help and advice should it be necessary to do so.

Many marriages do not end in divorce. Yet marriages would be more stable if the parties are made aware, beforehand, as to their rights and obligations as they truly exist in law. To be advised by religious ‘leaders’ as is now the case where religious celebrants consecrate marriages is clearly misdirected. No longer does religion govern marriage, just as it does not govern divorce, property distribution or children’s rights to parenting. In the interests of ensuring that marriage is recognised by the parties as an egalitarian relationship rather than a patriarchal one, explicit steps need to be taken by government to ensure that no religious ‘standards’ are allowed to replace secular marriage law by stealth.