In order to understand divorce under the sharia law, we must first have a brief look at marriage under sharia law and its application in Australia.
- If you perform your marriage under sharia law (by way of a nikahnama) while living in Australia and do not register your marriage under Australian law then your marriage is not a recognised marriage.
- But, if you are outside of Australia and marry under sharia law and meet certain conditions precedent then you will be held to be married under Australian law.
If your marriage is not recognised under the Australian law but you have been living together then it may be recognised as a de facto relationship and the Family Law Act 1975 may apply for the purpose of spousal maintenance and property settlement.
If you married under sharia law outside of Australia but now live in Australia, you will be able to apply for a divorce in Australia and the usual requirements for divorce will apply. Generally, the requirement for a divorce in Australia are that you and your spouse have lived separately for a period of 12 months and that there is no reasonable likelihood of reconciliation.
Divorce under sharia law in Australia (not recognised by the court) can take place under two forms:
First, is where the husband pronounces divorce on the wife. In this situation, if a period of 3 months from the time the husband pronounces the divorce, known as the reconciliation period, passes and the pronouncement of divorce is not revoked by the husband, then the divorce becomes final and the parties are at liberty to marry again under sharia law.
Second, is where the wife obtains a divorce from a religious leader or someone with authority to hear her case and grant her an Islamic divorce. This is called a khulla.
There are different implications for the two forms. If the husband initiates the divorce then he may be liable to pay what is known as dower under the sharia law (also known as dowry, mehr, mahr or haq maher). If the divorce is initiated by the wife then the husband will not be liable to pay the dower.
Dower may be enforceable under Australian law. The leading Australian case on the enforceability of dower is in the Supreme Court of NSW judgement in the case of Mohamed v Mohamed  NSWSC 852.
If you require advice about your marriage conducted under sharia law, Armstrong Legal may be able to help resolve issues in relation to divorce, spousal maintenance, property settlement or parenting issues. Contact us.