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Religion and the law: Sharia-compliant wills in Australia

All religions, including Islam can influence the legal decisions of individuals.

In March this year the ACT Supreme Court overturned a will made by an elderly Muslim lady called Mariem Omari. Her daughter contested the estate and the court found that because Omari signed the will while she was a dementia patient, it was invalid.

This small case caught the attention of the national media, suddenly making news headlines around Australia.

Why? Because the will was drafted in accordance with Sharia or Islamic law, dictating that the daughter is entitled to half of her male counterparts. The media saw this as meaning under Sharia a female is worth half that of a male. Hence headlines like: “Daughter challenged will that says she is worth half her brothers”.

Again today, The Australian reported concerns that Sharia was being “blended” with Australian family law, to the detriment of Muslim women going through divorce.

But there is a fundamental misunderstanding here about the law, about Sharia and about the role religion has within our secular legal system.

A secular system

The Australian judicial system recognises any will whether it is based on religious teachings and principles or on secular values. Wills, in Australia, are rendered invalid not due to their religious or cultural nature but on the grounds of legal impropriety.

It is up to the individual in each case how their estate is divided. Problems surrounding a will can only arise when it is contested, which can be for any range of reasons, including lack of testamentary (mental) capacity, undue influence or fraud.

An individual can draw up a will distributing their wealth however they choose, and often that will relate to their relationships with loved ones and their beliefs - religious or otherwise.

Religious application

In Australia, the private application of Sharia is widespread in Muslim communities, including the design of wills.

But there is nothing wrong with adhering to religious beliefs within a legal framework (i.e without breaking the law) and this happens frequently with many religions in many different legal scenarios.

For example, in Canada and the US, there have been a number of court cases relating to a father or parents who disinherited their children for marrying outside the Jewish faith. In one case, the Illinois Supreme Court found that they were within their rights to disinherit any grandchildren who married outside the faith.

In Australia more recently, another case is before the courts looking at the enforceability of religious arrangements. A man is arguing that he does not need to pay a “deferred dowry” after divorcing his wife. The Islamic marriage included this in the contract, but the man’s counsel is arguing that this is contrary to public policy. The agreement is essentially like any other common law contract, only it is done in accordance with Islamic tradition.

Sharia unlikely

Before I explain the position Sharia takes on this issue, it is critical to note that this is not the first time the media has played the “Sharia” card to create hysteria and demonise Islam.

Since September 11, seeing Islam and Muslims as the “other”, particularly in the media in the West, has indeed become a lucrative business.

The fact of the matter is, as I have argued previously, there is neither a real nor a perceived threat of Sharia becoming a formal legal code in Australia.

Fundamentally, Muslims in Australia are not a large enough population, they selectively observe Sharia, and cannot agree on what exactly Sharia is.

The ethnic, sectarian, parochial and ideological differences are far too large to have a unified law that all Muslims adhere to. Even the dates for the Eid ul-Fitr (end of Ramadan celebration) and Eid ul-Adha (festival of sacrifice) festivals have not been settled. If Muslims in Australia cannot agree when to celebrate a religious festival, how can they agree on a corpus of law that is broad-ranging and governs all aspects of life, from the private relationship between a couple to economic management?

The suggestion then that Muslims pose a threat through the implementation of Sharia to the Australian way of life has no empirical substance.

Unequal distribution?

Regarding the distribution of wealth and property in Islam by the parents or a parent to the children, the Qur'an, which constitutes the principal divine source of Sharia, is unequivocally clear on the matter.

“Allah commands you regarding your children. For the male a share equivalent to that of two females” (Qur'an 4:11).

There are only three verses [4:11, 4:12 and 4:176] in the Qur'an which give specific details of inheritance shares which are used by Muslim jurists.

Indeed the Qur'an raised the status of women by bestowing them share of inheritance which was not the case before the advent of Islam in the Arabian Peninsula. It also completely forbade the common practice of inheriting widows.

Through the introduction of inheritance law which was absent in the birth place of Islam at the time, the religion not only elevated the status of women but simultaneously safeguarded their social and economic interests.

Double share

Male children are entitled to the share which is twice as much as the female children. There is a sound and logical explanation for this.

In Islam, a male child receives twice the share of the female child not because she is worth less by any measure but because her entitlement is for her personal use only, she does not need to share it.

However, the male child is required to share his entitlement with his wife and children and if he is responsible for his mother or other family members then them as well. In Islam family provision is a male responsibility, and failure to do so constitutes a sin.

The issue here is not about equality but equity. In Islam equity takes precedence over equality and takes account of how the society functions.

The Mariem Omari case is neither about the application of Sharia in Australia, nor about a female being worth half her male counterpart in Islam.

The case only highlights that the design of wills is up to an individual and their beliefs. And that a will can be contested in the court of law in Australia if is seen to be legally flawed.

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