SHARIA law has become a shadow legal system within Australia, endorsing polygamous and underage marriages that are outlawed under the Marriage Act. A system of "legal pluralism" based on sharia law "abounds" in Australia, according to new research by legal academics Ann Black and Kerrie Sadiq.
They have found that Australian Muslims have long been complying with the shadow system of religious law as well as mainstream law.
But in family law, not all Muslims were registering their marriages and some were relying on religious ceremonies to validate unions that breached the Marriage Act.
This included "polygynist marriages", in which a man takes multiple wives, and marriages where one party is under the lawful marriage age.
Their research, which will be published on Monday in the University of NSW Law Journal, says that the wider community has been "oblivious to the legal pluralism that abounds in this country".
The findings come soon after Ikebal Patel, president of the Australian Federation of Islamic Councils, triggered a backlash inside the Islamic community when he called for Australia to compromise with Islam and embrace legal pluralism.
Mr Patel later said he supported secular law and it had been a mistake to even mention legal pluralism.
The latest research has found that while polygamy is unlawful, mainstream law accommodates men who arrive in Australia with multiple wives and gives some legal standing to multiple partnerships that originate in Australia.
"Valid Muslim polygynist marriages, lawfully entered into overseas, are recognised, with second and third wives and their children able to claim welfare and other benefits," they write.
Changes to the Family Law Act in 2008 meant that polygamous religious marriages entered into in Australia could also be recognised as de facto marriages. "It means a second wife can be validly married under Islamic law . . . and be a defacto wife under Australian law with the same legal entitlements as any other de facto relationship," they write.
The findings on polygamy were confirmed yesterday by Islamic community leader Kuranda Seyit. His personal view was "one wife is enough". But a small minority of Muslim men were taking second wives in ways that breached family law and their Islamic obligations.
"A second wife is permitted under Islam, but it is very difficult and there must be absolutely equal treatment of both wives," said Mr Seyit, who is director of the Forum on Australia's Islamic Relations.
He was aware of a very small number of "exploitative" arrangements in which men were taking much younger second wives and not complying with the sharia requirement of equal treatment.
"It's definitely a minority, but unfortunately is does exist and I think it comes down to the standard of living that Australia affords many men who normally would not be able to afford such a situation," Mr Seyit said.
In their article, associate professor Sadiq and Ms Black note that research on Islamic marriage found in 2008 that 90 per cent of Muslims did not want to change Australian law.
They write that many Muslims support the protection of human rights and had come to Australia because of practices such as genital mutilation and honour killings in countries ruled by unreformed versions of sharia.
However, they suggest there should be "tweaking" of family law to take account of sharia.
They suggest that the Family Law Act could be changed to ensure that when courts make parenting orders Muslim children are given similar rights to those enjoyed by indigenous children.
This would require courts to consider they have a right to enjoy their own culture and the culture of people who share their culture.
Federal Attorney-General Robert McClelland said if there was ever any inconsistency between cultural values and the rule of law "then Australian law wins out".
"There is only one law that's applicable in Australia - that's Australian law based on our common law tradition," he said. "Our constitutional founders included a provision against the state endorsing or prescribing any religion or religious practice."
He said the Family Law Act included specific provision for courts to consider, among other factors, an individual's lifestyle and background culture and traditions. "The government believes these provisions to be adequate," Mr McClelland said
|Liveleak on Facebook|