Enforcement of the Right of Islamic Dower in Australian Courts

Dower is a consideration of marriage payable to a wife by a Muslim husband. The quantum and nature of the consideration are settled before the marriage.

There are different understandings about the nature of the consideration in different Muslim societies and sects. In the subcontinent, it is also known as Haq Mahr. The consideration could be money or assets.

Some societies practice settling a consideration other than money or assets.

For example, compounding of an offence. In this practice (now mostly abandoned) a female has to marry to compound an offence, usually murder, committed by her brother, father or other relatives.

This practice has been stopped with legislation. For example, section 309 of the Pakistan Penal Code 1860 (PPC) provides right to an adult legal heir of a murder victim to waive the offence of intentional murder (qatl-i-amd) without any compensation. Section 310 of the PPC provides same right to compound the offence after accepting compensation. The compensation is called “Badl-isulh”.

There has been practice to offer and accept a female for marriage as compensation to compound the offence.

To stop this practice a proviso was attached to section 310 (1) of the PPC that forbids this practice, the provision is reproduced:

310. Compounding of qisas (Sulh) in qatl-i-amd:

(1) In the case of qatl-i-amd, an adult sane wali may, at any time on accepting badl-isulh, compound his right of qisas:

Provided that a female shall not be given in marriage or otherwise in badal-i-sulh.

Compounding or waiver of an offence in Pakistan is a different subject and is not part of this article.

The dower practices in Muslim societies are different in different geographical regions and to some extent or still under the influence of local pre-Islamic traditions. However, the concept of dower is clear. It is a basic element of a marriage contract and is the right of the wife.

The Australian legislation in the past provided “dower” as a right of the wife to a life estate of all the lands of her husband after his death. The equity did not approve the right of dower and was gradually abolished. For example; Dower Abolition Act 1880 (VIC) and Conveyancing Act 1919 (NSW) s 21.

This article argues that the right of a Muslim female to recover her dower amount from her husband can be enforced in Australian courts. The primary question is:

“whether an Islamic marriage contract is a valid legal document in Australia?”

The answer to this question is Yes, provided the agreement is free from undue influence or unconscientious conduct.

The Muslim Marriage Contract is usually a written document with different names in different societies. For example, in Pakistan it is called Nikah Nama prescribed under Muslim Family Law Ordinance 1961 and its columns 13 and 14 provide for the agreed dower amount and the time to pay.

The part VIIIA of the Australian Family Law Act 1975 (the Act 1975) provides a comprehensive framework for the validity and enforcement of financial provisions in the marriage contracts. Section 90B of the Act 1975 provides validity of a written financial agreement between couples agreed upon by them before their marriage. The dower clauses of a Nikah Nama are the terms of a financial agreement agreed upon by the parties of a proposed marriage as required by s 90B of the Act 1975. A valid Nikah Nama is a binding spousal financial agreement as provided by section 90G and may be enforced under section 90KA of the Act 1975.

Subsection (1) of s 90G provides some conditions to qualify a spousal financial agreement as a binding agreement. The conditions include the condition that a spouse party was provided with legal advice at the time of signing of the agreement. A Muslim marriage contract like Nikah Nama does not comply with this condition. However, the subsection (1A) of s 90G provides that even if any condition as provided by section 90G (1) has not been complied with, an agreement will be binding if the court is satisfied that it would be unjust and inequitable if the agreement was not binding on the spouse parties. Additionally, section 90KA of the Act 1975 provides that a court would determine the validity, effect and enforcement of the contracts on the principle of law and equity.

In matrimonial litigation, the Common Law confers all powers on courts to enforce or revoke a financial agreement between spousal parties if the circumstances demand so. The courts are also empowered to modify the terms of a written or oral agreement to make it consistent with the law and equity.

In Hyman v Hyman [1929] AC 601 the wife after divorce claimed maintenance more than the agreed by her in writing before the separation. The husband defended on the ground of the written covenant signed by the wife to the effect that she would not petition to the court for further maintenance. The court held that the covenant cannot limit the powers of the court to intervene and award maintenance more than what was agreed upon between the parties. Now the same principle reflects in s 90 F of the Act 1975 which provides that no provision of a financial agreement excludes or limits the power of a court to make an order in relation to the maintenance if the circumstances after an agreement are changed.

On the issue of Islamic Dower, Haq Mahr, the most relevant case decided by an Australian court is Mohamed v Mohamed [2012] NSWSC 852. In this case, the spousal parties were Muslims and they signed a written agreement before marriage that in case of their separation the husband would pay $ 50,000 if he is responsible for the separation. The marriage failed, and they separated. The wife claimed the agreed amount and was successful at the lower court. The husband appealed, and the grounds included that the; the lower court decision was not in accordance with the law as the separation or end of the marriage was not in accordance with Sharia law. The court dismissed the appeal. At paragraph 31 the court noted;

[31] Mahr is a required component of a valid Islamic contract of marriage, as it specifies the payment a wife will receive as a nuptial gift from her husband, which will be prompt (paid at the time of the marriage) or deferred (paid at the dissolution of the marriage by death or divorce) or a combination of both. It is a payment designed to provide for a wife when she is no longer required under Sharia law to be financially maintained by her husband, and as such has been an important security net in Muslim societies.

The leave to appeal the decision was refused as reported at; Mohamed v Mohamed [2013] NSWCA 65.

Conclusion

A Muslim wife’s right of dower also known as Haq Mahr can be enforced in Australian courts if the enforcement is fair, just and equitable.

Disclaimer: This article provides general information and is not legal advice. Legal advice can only be given as per specific facts.

Originally published on 2 February 2019 at LinkedIn.

Basharat Ahmad Jatt

Barrister & Solicitor

Principal

Jatt Lawyers

Melbourne, Australia


Disclaimer

This article is general information for the community and not legal advice. For legal advice please contact with particular facts of your case.

The author is an Australian Lawyer of Pakistani origin. Anyone looking for an Urdu, Punjabi, or Hindi speaking lawyer in Australia can confidently contact Jatt Lawyers.

Legal support for Australian Muslims for inheritance and family law issues in Australia is the common practice area of Jatt Lawyers.

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