Randa Rafiq is currently a Case Manager at County Court of Victoria.
Abstract of honours submission
As a direct result of large scale migration, Australian society is becoming more diverse with significant consequences. Islam is now Australia’s second largest religion and many Australian Muslims believe they must abide by Sharia (Islamic law). However, the Australian legal system does not formally recognise Sharia. Research indicates that Australian Muslims are regulating their lives according to Islamic law– including marriage and divorce – however, these processes are unofficial, unregulated and extra-legal. Whilst legal pluralism is in operation unofficially, dual compliance with both systems can be problematic, particularly for wives caught in limping marriages.1 Hence the need for transparent, official and regulated processes in Australia which accommodate Islamic family law. The main difficulty in officially accommodating legal pluralism is the need to maintain a balance between the claims of certain religious groups who wish to be governed by their own rules, and the interests of society as a whole.
Comparative law methods, i.e. legal transplant and socio-legal research are used in this paper to assess the potential for Australia to officially accommodate Islamic family law, based on lessons learned from Canada and the United Kingdom (UK). The findings show that Australia’s family law system arguably has room to officially accommodate Islamic family law. Australia is a plural society, so at some point it will have to wrestle with the extent to which the state should consider the possibility of entrenching legal pluralism for many minority groups. Australia is not yet ready to officially recognise Islamic family law, but in time it may be the path that Muslim and non-Muslim Australians choose to take.