Who is Muslim in Family Law?

Muslims worldwide have been working towards reform of family law. Their efforts include developing an understanding of its need, crafting arguments that justify such change with Islamic legal authority and using strategies which have proven successful elsewhere.

This article will address these concerns by exploring Muslim family law as it applies to women abroad.

Islamic Marriage

Islamic family law serves over one billion Muslims around the globe and is the world’s most prevalent family law system today.

Marriage in Islam is founded upon piety rather than appearance, wealth or prestige. Muslim men and women are encouraged to seek a spouse who shares their understanding and practice of Islam. At an Islamic wedding ceremony, both parties meet multiple times before marriage with a chaperone present to meet up, exchange vows and agree on an agreed upon financial deal called dowry.

Dowry payments to brides at marriage are theirs to keep and use as they wish, although some of it may be returned if she obtains an ‘khul (faultless) divorce. Muslim women may marry anyone related by consanguinity or affinity except those in milk relationships (al-ridaa). Marriage between father and daughter, mother and sister and brother/niece or cousin marriages is strictly forbidden; as are marriages between sisters or cousins.

Islamic Inheritance

Islamic inheritance is a crucial aspect of Islamic family law (Arabic: fiqh al-adiliyya). Muslim family jurisprudence encompasses rules for marriage, divorce, child upbringing and adoption/fostering as well as criminal matters as part of its jurisdictional reach.

Islamic inheritance law is grounded in both the Quran and Hadith. There are specific guidelines regarding how someone’s estate should be distributed after death.

Typically, when someone dies their assets should be divided between two groups: quota-heirs and aydah. Quota-heirs would include husband, father, brother, paternal grandfather and maternal uncle while an aydah could include any extended blood relatives not included within this category such as aunts or female cousins.

Certain aydah may also be included as quota-heirs under certain conditions. A qadi, commonly found in Islamic communities, has the authority under religious law to settle disputes among heirs who claim rights and adjust relative heir shares as necessary. A Muslim may add additional customized clauses into his/her estate plan so long as they do not conflict with mandatory Shariah regulations.

Muslim Child Custody

Islamic law considers child care to be of immense responsibility and duty for parents, with mothers generally having custody until either age seven for male children, or puberty (14-15).

Custody is not simply a right but also an obligation of family kinship, so it cannot be given to someone unable or unwilling to fulfill this responsibility, nor someone who will ignore their obligation.

Therefore, women with custody of their children cannot travel to distant towns without prior approval from both father and mother. Furthermore, Imamiyyah rules specify that any female custodian must be Muslim unless she is close relative and approved by all family members except quota-heirs. Scholars agree that this person must also be responsible, reliable and non-dancing as she will act as role model to her charges.

Muslim Divorce

Islamic family law (IFL) encompasses marriage, divorce, custody and inheritance issues for over one billion Muslims globally and is regulated by Shari’a, an ancient system of jurisprudence developed over many centuries.

Though Islam discourages divorce, it does allow it under certain conditions. Divorce should always be seen as a last resort and couples should try reconciling before resorting to legal proceedings for divorce.

There are various forms of Muslim divorce, such as Talaq, Khula and Faskh. Each one comes with its own set of rules and procedures that must be observed to complete it successfully.

Whenever a woman seeks divorce, she should first go through mediation by an arbitration panel who will attempt to counsel and convince her husband to observe justice and fairness in their marriage. If that fails, she can then petition an Islamic canonical judge in order to initiate divorce proceedings; this is only allowed if it serves the best interests of their children; otherwise it will be seen as unlawful by the court. Furthermore, she must provide proof that her husband has failed in fulfilling their marital duties.