MARRIAGE

MU S L I M & CA N A D I A N FA M I LY LAW S

CCMWCanadian Council Of Muslim Women

MARRIAGE

Equity Empowerment Equality

Empowerment Equality Equity

Equality Equity Empowerment

Equity Empowerment Equality

Empowerment Equality Equity

Equality Equity Empowerment

Equity Empowerment Equality

INTRODUCTIONThe Canadian Council of Muslim Women (CCMW)has published a series of booklets to help CanadianMuslim women make informed choices pertainingto family law in Canada.

These booklets provide comparative information aboutCanadian and Muslim family laws, particularly as theypertain to women’s rights. We hope the booklets willbe of assistance to, among others, Muslim women,professionals working with Muslim women in thefamily court system, students who would like toknow more about the topic and community-basedservices that assist women.

The material in this booklet is based on Muslim and Canadian Family Laws: A Comparative Primer,published by CCMW. Any errors that appear in the booklets are the sole responsibility of CCMW.

Those interested in finding out about the sourcesand validity of Muslim laws and legal opinionsreferred to in the booklets should consult Muslimand Canadian Family Laws: A Comparative Primer, ameticulously referenced publication. Laws in a publiclegal system are in a constant state of flux as they arechanged to adapt to the times. You are encouragedto verify that the information contained in the bookletsabout Canadian laws is current.

Both the booklets and the Primer are intended toprovide information only and should not be considereda substitute for legal advice

MUSLIM LAWS

QURAN AND THE HADÍTH

Muslims are guided in their daily lives by the Quranand the hadíth. The Quran is considered by Muslimsto be the word of God as sent down to the Prophet

2

Muhammad. The Quran considers women as spiritually equal to men. Records of the sayings anddoings of the Prophet, called hadíth, or “anecdotes,”are a kind of secondary set of scriptures. Like theQuran, the sayings of the Prophet maintain respectfor women’s spirituality and for male-female relations.

THE LAWS AND THE ROLEOF INTERPRETATION

The commandments of God are known as sharia,the ideal “path” of life intended by God. However,there is disagreement among Muslims concerningthe correct approach to the laws and the position of women within it. This is because there is no onecodified “Muslim law.” Muslim law is a large bodyof work built up by many dedicated scholars throughthe centuries. There are various schools of thought,and each has its own interpretations and rules. Evenscholars within the same school may disagree on theexact details of the law.

MAIN SCHOOLS OF MUSLIMJURISPRUDENCE

There are four Sunnite schools of jurisprudence -Hanafite, Malikite, Shafiite and Hanbalite - and onemain Shiite school, the Jafri. Each of these has itsown interpretations and rules, and there is a varietyof legal opinions among the different schools. Attimes, scholars even within the same school disagreeon the exact details of the law.

RELIGIOUS AND LEGAL AUTHORITY

It is important that Muslim women keep in mindthat legal authority in Islam does not belong to anyone person or organization. According to Muslimlegal theory, the believers themselves choose the persons they think to be the most knowledgeable

3

and pious to give them advice about the law. Andaccording to the Sunnites, this is counsel only, whichcan be rejected by a sincere conscience and mind.

TAKHAYYUR

Literally meaning “selection,” takhayyur as a legalconcept is perhaps best translated as “eclecticism.” It recognizes that individual Muslims may follow thelegal interpretation of any school of law or, indeed, ofany individual scholars within those schools. Underthe principle of takhayyur, Muslims are not boundto the schools of law they were born into or thatpredominate in the regions where they live.

REFORMISTS VS TRADITIONALISTS

The reformists believe that Muslim laws treating socialintercourse are meant to be constantly reinterpretedaccording to time and place so that they continue to reflect basic values in different kinds of societies.Reformists point out that the term used for law is fiqh,or “understanding,” indicating that it is a product ofthe human mind and therefore fallible. This falliblehuman understanding of God’s law, according to the reformists, is meant to be constantly questionedand revised.

Traditionalists, on the other hand, regard the rulesof the traditional law as fixed. They are likely toequate their understanding of law with sharia, theideal path of life intended by God. In the view oftraditionalists, the laws are a timeless reflection of anideal and divinely ordained pattern of social relations.

Muslims often hear the strong egalitarian voice oftheir religion and expect that all laws will have thatspirit. Muslims may assume that women’s rightssuch as divorce and alimony are clearly affirmed bylaw, but these are actually reformist ideas whichmany people strongly oppose.

4

5

CANADIAN MUSLIM COMMUNITIES

Canadian Muslim communities are relatively newand diverse. They are in the process of developinginstitutions and defining their position as a minorityin a non-Muslim society. Fragmentation into manygroups with different backgrounds and practicesprecludes the development of a generally recognizedethic to which everyone can refer. We thus have a fluid situation in which a very wide range of views about Islam and its laws is being articulatedand debated.

MUSLIM LAWS IN CANADA

Relying on Muslim laws may be more perilous in Canada than in most Muslim countries. InMuslim countries, there are defined laws laid down by governments, and it is therefore possible to have a good idea of what rules will be applied to a particular case. In Canada, however, one may be faced with unfamiliar standards and rules.

If you are thinking of having your affairs regulatedin any way by Muslim laws, it would be wise toenquire beforehand about the kind of law involved.Will it be some version of the reformed law or thetraditional law of one school or another?

You may be able to judge what kind of approachwill be used by asking specific questions. For example,with regard to divorce: Do the persons with whomyou are dealing consider the quick triple divorcevalid? Do they believe that a woman has a right tosupport by her husband even after the three-monthwaiting period, and if so, for how long? With regardto inheritance, you might ask: Will my daughterhave to share her part of the family inheritance withher uncles? You can use these booklets to come upwith such questions and also compare the answersyou get with those found in Canadian law.

The information about Muslim laws in the followingpages is not definitive. It should be viewed as a startingpoint only.

CANADIAN LAWSIn Canada, the Canadian Charter of Rights andFreedoms specifically address equality rights of women.Canada is also a signatory of the Convention on theElimination of all Forms of Discrimination AgainstWomen (CEDAW) and of the International Covenanton Civil and Political Rights (ICCPR). Both thesedocuments provide equality-rights protection forwomen which take precedence over the right to religious freedom.

CASE LAW

Case law, or court decisions, further addresses the issue of women’s rights. Public court decisionsare required to conform with the Canadian Charterof Rights and Freedoms. Court decisions are amatter of public record and can be appealed to a higher court.

FAMILY LAW

Family matters are governed by a number of federaland provincial laws. Some matters relating to marriage,such as rules about who can marry whom, are a federal responsibility; others, such as the technicaladministration of marriage, are provincial. Divorceis regulated federally under the Divorce Act. Provinciallaws cover custody, access, child support, propertydivision, spousal support, restraining orders andchild protection. Inheritance is also a matter forprovincial regulation.

The names of the statutes vary from province toprovince, but the general issues covered are the same,and the overall approach is similar, although there

6

are regional differences. These laws exist to assistfamilies and to provide minimum common standardsacross the country.

ACCESS TO JUSTICE AND LEGAL AID

Everyone involved in a family-law matter can usethe services of a lawyer to support and assist them.In an attempt to ensure that people without thefinancial ability to pay for their own lawyer can stillbe properly represented, the provinces have developedlegal aid plans. In Ontario, the legal aid plan is calledLegal Aid Ontario (LAO). Ontario’s model providessuccessful applicants with a certificate for coverage,and the person selects their own lawyer.

The financial criteria in Ontario are very limited.Eligibility is determined by a review of the person’sincome and expenses. LAO covers representation forcourt-based matters only. There is no legal aid availablein private dispute-resolution cases.

PRIVATE DISPUTE RESOLUTION

Many people prefer to resolve the issues arising fromthe end of their relationship outside the court system.However, in situations where there is an unequalbalance of power, private resolutions may not reflecteither the legal rights or the interests of the personwith less power.

Family-law disputes are privately resolved througheither mediation, arbitration or collaborative law.

There have been significant changes to the ArbitrationAct with respect to the arbitration of family-law disputes. Arbitration must be conducted exclusivelyin accordance with the law of Ontario or of anotherCanadian jurisdiction. Arbitration conducted underany other system of law, including religious law, is not considered “family arbitration” and is notenforceable in Ontario.

7

DIFFERENCES BETWEEN ARBITRATIONAND MEDIATION

Arbitration is quite different from mediation, inthat the arbitrator, after listening to what each partyhas to say, will announce a decision (much as a judgedoes) in the case. The parties are bound to acceptthis decision – in fact, they have agreed to this beforebeginning the process. While arbitration is recognizedand enforced by the courts, mediation is informalcommunity-based counselling and is similar to “goodadvice,” which individuals are free to accept or reject.The changes in the law do not interfere with the rightof individuals to go to elders and religious institutionsfor advice and counselling. While mediation cancontinue, it will not have the sanction of the stateand will not be legally binding.

SAFETY-RELATED MATTERS

Although these booklets deal primarily with issuesof family law, it is important for women to knowthat criminal law provides some protection fromabusive spouses. Both restraining orders and exclusive-possession orders are important legal stepswomen can take to protect themselves from abusivepartners, especially during the early days of separation,when risk of violence often increases. Applicationfor a restraining order and/or for exclusive possessionof the home can be made as part of a larger courtproceeding dealing with custody, access, support and/or division of property or it can be made separately.

THE CANADIAN LEGAL SYSTEM

The Canadian legal system is a public legal systemwith laws and systems in place that are intended toensure women’s equality rights. Under this system,laws are open to public review and scrutiny and

8

court decisions are a matter of public record.Moreover, the decisions can be appealed to highercourts. In Canada, anyone involved in court pro-ceedings has the right to have a lawyer representher/him. For those who cannot afford legal repre-sentation, government-funded legal aid is available.A public law system supports a consistent approachand some measure of equality and accountability.The system of law is not perfect.

Private rules, including religious laws, do not offerthese same protections. They are not open to publicreview and scrutiny, and those who interpret themare not accountable to the public in any way. Thereis often no right of appeal from a bad decision madeunder a private regime. There is not necessarily a rightto legal representation, and legal aid is never available.

For these reasons alone, a public system of familylaw is to be preferred over a private one.

9

10

MARRIAGE

Muslim LawsIntroduction

The Quran and sayings of the Prophet emphasize affection

and mutual support between husband and wife. The

essential point to remember is that Muslim marriage

is a civil contract, not a religious sacrament.

The main requirements for a marriage are the offer and

acceptance on the part of the bride and groom, and that

dower (mahr) be a part of the contract.

Who can get married?

Muslim men may marry from among the “people of the

book” (ahl al-kitab); that is, adherents of the three revealed

religions, Judaism, Christianity and Islam. According to

some interpretations, this permission extends to Zoroastrian

women as well.

Muslim women are, under traditional law, required to marry

Muslim men. Part of the religious justification for this is that

traditionally, children followed the religion of their fathers.

As divorce is permissible in Islam, a divorced person

may remarry.

Who cannot marry?

Prohibited degrees include consanguinity as well as

certain relations by marriage. Most particular is the

prohibition against marriage between two people who

have been nursed by the same woman. There is no

prohibition against marriage between first cousins.

11

Canadian LawsIntroduction

In Canada, the administration of marriage falls within

the jurisdiction of provincial governments. This means

that each province can set its own rules for how marriages

take place. In Ontario, the relevant legislation is the

Marriage Act.

Who can get married?

Any two unmarried adults may marry, with a few restrictions

as outlined below. Any individual who has previously been

married can remarry in Ontario if the previous marriage

has been dissolved in a manner recognized under

provincial law. Same-sex marriages are legal.

Who cannot marry?

The federal Marriage (Prohibited Degrees) Act specifies

that a person cannot marry someone to whom he or she

is related lineally either by consanguinity or adoption,

thereby prohibiting marriage between adoptive as well

as full or half-siblings. Marriage between first cousins is

generally taboo but not illegal in most of North America.

12

MARRIAGE

Muslim LawsMinimum age for marriage

Under traditional laws, the minimum age for marriage varies

between 9 and 15 years, depending on the particular

interpretation. Consummation of the marriage, though,

is expected to take place after puberty. Most countries

where Muslim personal-status law is applied have

introduced a minimum age for marriage.

Who can solemnize a marriage?

Under Muslim laws, marriage is a civil contract between

a man and woman, with ensuing rights and obligations

between the two parties. There is no religious or legal

requirement that a cleric be present, although it is

customary for an imam to preside over the ceremony.

The marriage must be registered with Canadian provincial

authorities, which is important for the recognition of

legal rights under Canadian law. In Canada, many

imams or other recognized leaders are authorized by

Canadian law to register the marriages they solemnize.

Alternatively, a couple can also go through a separate

civil ceremony to register the marriage.

Requirement of witnesses

The requirement of witnesses for a marriage is very

important in the Sunnite schools. The Malikites place more

emphasis on making the marriage public and allow for

witnessing sometime after the marriage has been publicly

celebrated. The Shiite scholars have differing opinions on

these issues. Some say that while it is not necessary to have

witnesses to a marriage contract, it is still recommended.

13

Canadian LawsMinimum age for marriage

Under Ontario’s Marriage Act, any two people who are at

least 18 years of age may marry. If either party is between

16 and 18 years of age, the couple may marry with the

written consent of both sets of parents. Regulations on the

legal marrying age may vary from province to province.

Who can solemnize a marriage?

Marriage in Ontario can be solemnized by either a civil

or a religious ceremony. In a civil marriage, the parties

purchase a licence from the municipal clerk, and the

solemnization is performed by a judge, justice of the peace

or any other person authorized to do so. Although there

is no particular formula to be followed, certain statements

must be made by each party and by the person solemnizing

the marriage. In a religious marriage, the ceremony is

conducted by any individual who is “authorized to solemnize

marriage” under the Minister of Consumer and Business

Services. In Canada, most imams are authorized to

solemnize and register marriages.

The person who solemnizes the union must register

the marriage and complete a Statement of Marriage Form

and file it with the Registrar General within two days of

the event.

Requirement of witnesses

At least two adults must witness the solemnization,

whether religious or civil.

(continued on next page)

14

MARRIAGE

Muslim LawsRequirement of witnesses (continued)

The requirements for who may serve as a witness differ

between schools of law. Only Hanafites and Shiites will

allow a Christian or Jew to serve as witness at a marriage

in which the bride is a Christian or Jew.

Role of the guardian

With the exception of pre-pubertal girls and virgins, Muslim

laws insist very strongly that a female cannot be married

without her consent.

In the case of underage marriage, traditional law provides

that the guardian has complete authority to contract the

marriage of the ward. Such guardianship is limited to

the father or paternal grandfather of the ward.

The Hanbalites, Shafiites and Malikites allow the guardian

of a virgin to contract her marriage without her consent

or knowledge. In the marriage of a non-virgin female,

these schools also require the consent of the guardian

in addition to the consent of the bride.

The Hanafites allow a guardian to contract the marriage

of a girl without her consent only until she reaches puberty.

After puberty, a guardian cannot marry off a girl without

her consent, even if she is a virgin. The Hanafite jurists

insist strongly upon this point of difference between them

and the other schools. There is no need for the agreement

or consent of a guardian for a marriage a woman chooses

for herself after puberty.

Traditional Shiite scholars disagree about the power of

a guardian in marrying off a virgin without her consent.

According to some, the power of the guardian ceases

when she reaches puberty; others say that it continues.

It must be noted that the permission of a guardian

cannot be withheld without good reason.

15

Canadian LawsRequirement of witnesses

Role of the guardian

Canadian law does not require guardianship except

for children 16 to 18 years of age. If either party is

between 16 and 18 years of age, the couple may marry

with the written consent of both sets of parents.

16

MARRIAGE

Muslim LawsTypes of marriage

In addition to the civil contract of marriage, the Shiite

school also recognizes temporary or mutah marriage.

A mutah marriage is for a set time frame, stated in the

contract, and requires that a gift be made to the temporary

wife. Temporary marriage does not result in inheritance

rights between the two partners, but children of temporary

marriages are considered legitimate.

The lesser-contract marriages in the Sunnite tradition

are urfi, meaning “customary” marriage; sirri, meaning

“secret” marriage; and misyar, meaning “itinerant”

marriage. Lesser-contract marriages give the “husband”

a chance to have relations with “wives” whose rights

have been reduced.

Bigamy and polygamy

Traditional Muslim laws permit men to take up to four

wives, with the exhortation that the wives must be treated

fairly and equally. The theoretical legal requirements

include the capacity to maintain wives according to their

station and the provision of a separate dwelling for each

co-wife. Plural wives also have a right to spend equal time

with the husband. However, there is no specific legal

sanction against a husband who does not properly divide

his time

Modern reforms to Muslim personal-status laws generally

seek to curtail or discourage polygamy by requiring

registration or judicial permission. Turkey and Tunisia

are two Muslim-majority countries that have banned

polygamy altogether.

In Canada, it is known that some religious leaders perform

second, third or fourth marriages through a religious

“Muslim” ceremony. These marriages have no legal status,

and the rights of the women may not be protected under

Canadian law.

17

Canadian LawsTypes of marriage

Marriage in Canada must be registered in court by way

of a civil or religious ceremony.

Couples in common-law unions can contract to protect

their rights through a cohabitation agreement.

In June 2005, the federal government passed legislation

recognizing same-sex marriage in Canada.

Bigamy and polygamy

Bigamy falls under the federal Criminal Code. The bigamous

individual, as well as anyone who “celebrates, assists or

is a party to such a rite, ceremony, contract” is liable to a

maximum penalty of five years’ imprisonment. Exceptions

exist where a party has reasonable grounds to believe

that his or her spouse is dead or where the other spouse

has been continuously absent for at least seven years.

In a polygamous marriage, the legal status of the subse-

quent wife is ambiguous. If she entered into a polygamous

marriage knowingly, then her marriage is valid only under

religious law. She is without rights under civil law. However,

she may be able to acquire some of her rights if she is

able to prove she was unaware of her husband’s existing

marriage. Women who consent to a polygamous marriage

on the basis of religious or cultural beliefs are left in a

very vulnerable position under Canadian law.

18

MARRIAGE

Muslim LawsRights and duties in marriage

A Muslim marriage does not take full legal effect until it

is consummated. Before consummation, some (but not

all) rights of the parties are reduced.

Marriage contracts, like other domestic contracts, are

made by adding conditions defining the rights and duties

of the spouses within the marriage. (For a more detailed

discussion of conditions in a marriage contract, see the

booklet “Domestic Contracts.”) However, the basic legal

duties of the husband are to give the wife dower (mahr)

and support (nafaqah), including food, clothing and a

place to live befitting her station in life. (For a more

detailed discussion of the husband’s duties of dower

and support, see the booklet “Spousal Support and

Division of Property.”) In return, the wife owes her

husband obedience (ta’ah).

According to traditional Muslim laws, the wife is

disobedient if she (a) refuses to live in the same house

or socialize with her husband, (b) leaves the house without

her husband’s permission or (c) refuses to engage in

sexual relations with him.

There are legal consequences for disobedience or “incorrect

behaviour” (nushuz) on the part of the wife. If the husband

fears “incorrect behaviour” from a wife, he may discipline

her, either by (a) admonishing her, (b) refusing sexual

relations or (c) some kind of hitting. The subject of “hitting”

is highly controversial, and there have been many attempts

to explain what it might mean. There is no consensus on

its interpretation.

Muslim laws clearly define who can hit whom, the limits

of hitting and the punishment of the hitter who exceeds

those limits.

19

Canadian LawsRights and duties in marriage

Marriage contracts are made under the Family Law Act

and can include any number of stipulations defining the

rights and duties of both spouses within the marriage.

There are certain conditions, however, that are not

enforceable, even if they are part of the marriage contract.

Section 52(1)(c) specifically excludes custody of and

access to children from being governed by way of a

marriage contract. Section 52(2) states that any provision

in a marriage contract limiting a spouse’s rights to the

matrimonial home is unenforceable. Moreover, provisions

that make the rights of a party dependent upon remaining

chaste are unenforceable.

Since agreements made under the Family Law Act allow

parties to sign away their legal rights, it is important that

women seek independent legal advice before signing a

marriage contract. Even if conditions in the agreement

are unfair, once it has been signed, the courts cannot

intervene and set it aside.

Under Canadian law, abuse of any kind within the marriage

is illegal and can lead to criminal charges. There is no

acceptance of disobedience (or discipline) of wives.

(continued on next page)

20

MARRIAGE

Muslim LawsRights and duties in marriage (continued)

All the schools agree that a wife is disobedient if she

refuses to live with her husband and socialize with him.

However, if she has good reason for not staying with her

husband, such as his failure to pay the amount of a mahr

(dower) that is due or provide adequate and safe housing,

the husband cannot withdraw support.

A woman does not need her husband’s permission to

visit her relatives a certain number of times. There is

no consensus on the allowed number of visits. Going

out visiting more than allowed does not cause a woman

to lose support, although it does give the husband the

right to discipline her.

A wife cannot be considered disobedient and lose her

right of support for refusing to engage in sexual relations

with her husband if she is ill, menstruating or expected

to participate in forbidden sexual practices. She cannot

be considered disobedient if he fails to pay an amount

of the dower.

A woman’s obedience does not include turning over any

of her money or property to her husband or letting him

control it. A woman’s wealth, including her dower, is

entirely her own, and she can deal with it as she likes.

A wife’s right to support resumes when she returns

to obedience.

The concept of nushúz is not limited to the wife.

Examples of a husband’s “incorrect behaviour” are his

refusal to engage in sexual relations with the wife or

taking a cold and abusive attitude towards her.

21

Canadian LawsRights and duties in marriage

To order copies of the booklets please visitwww.ccmw.com or write to CCMW P.O. Box 154 Gananoque, ON, K7G 2T7, Canada

We gratefully acknowledge the Status of WomenCanada for the financial support which made possible the research and publication of this book.

The information on Muslim and Canadian familylaws in the booklet is provided in a side-by-side format to allow for comparison. Sometimes there is no direct comparison available. These situationsare noted as such.

This booklet is one in a series of six and should beread in conjunction with the others.

Titles in the series:

1) Domestic Contracts

2) Marriage

3) Divorce

4) Custody and Child Support

5) Family Property and Spousal Support

6) Inheritance