An Essential
Islamic Service
in Canada

The Shariah (Muslim Law) says:
1Muslims living in non-Muslim countries are regarded as "Bedouins" (the wandering Muslim Arabs of the desert). They must observe the Divine Laws just like all the believers . (See Sahih Muslim: V.139-140)

Based on this, the universally accepted dictum of law by the great jurist Abu Yusuf, is:

"A Muslim is bound to regulate his conduct according to the laws of Islam, wherever he may be." (As-Sarakhsy, 'Al-mubsut' X,95)

Similarly, a very well known Muslim scholar of our times, Maulana Manzoor Nomani, has also given his legal opinion that:

"Muslim Personal Law [which includes family law] is a part of the religious structure of Islam and no non-Muslim government has the right to interfere with it. Muslims living under non-Muslim systems are, as such, required to make every possible effort for the recognition of this principle by their governments."

2 Marriage in Islam is neither a sacrament nor a simple contract. It is something in between.

"And marry those among you who are single. ... If they are needy, God will make them free from want out of His grace. [Qur'an 29:32]

3  In Islam, divorce is permissible when serious differences arise which cannot be resolved through reconciliation. However, it has to be the last resort, for the Prophet (pbuh) has described divorce as the most detestable of all lawful things in the sight of God.

4Acquiring knowledge is obligatory on all Muslim men and women according to the Qur'anic injunctions.
 

2Muslim divorces (those given according to Muslim law) are NOT recognized by Ontario law. A Muslim, like any other citizen, must apply for and obtain from Ontario courts a final decree of divorce. A few important provisions in Ontario law are:

• Divorce can be granted only on certain grounds i.e., adultery, cruelty, or irreconcilable differences.

• A minimum period of legally recognized separation must pass before applying to the court for divorce by consent of both parties, or by reason of irreconcilable differences.

• The court may order "maintenance" and "alimony" payments to continue for a long time even after the final divorce decree is issued by the court.

• Family assets have to be divided between the husband and the wife in accordance with the Ontario law.

• A pre-nuptial agreement is not required to be in writing under the Muslim Law, but in order to make it enforceable in Ontario, it must be reduced to writing and witnessed as the law of contract falls under provincial jurisdiction.

3In Ontario law, the criteria for determining what is in the "best interest of the child" in custody disputes is distinctly different from Muslim law rules with regards to guardianship.

4 The Ontario law with respect to remarriage to the same person who has been previously divorced is different from Muslim law.

5Other differences: provisions respecting iddat (i.e., waiting period after a divorce or death), dower, and prohibitions for marriage due to fosterage, and differences of religion, and so on.
 

2 There are no adequate facilities to provide information and practical assistance on the Muslim law of marriage and divorce. For example, before contracting the marriage; during the marriage; during serious disputes which threaten marriage breakdown; or when divorce becomes imminent and also advisable.

3 There are no educational opportunities ( e.g., lectures, seminars, workshops , etc.) on Muslim Law for

• those who are sincerely interested in acquiring or expanding their basic knowledge;

• young people born and brought up in this secular (non-religious) Canadian environment. Especially those who are contemplating marriage and who for some reason did not have the opportunity to learn about the consequent rights and obligations under the Islamic Law;

• There is little in English that caters to the special needs of Muslims living in a non-Muslim country like Canada. In offering Muslim Law Seminars/Courses, our approach therefore, will be to do three things: First to provide information on the essentials of Muslim Law on the subject of marriage, maintenance, divorce, status of women and polygamy and also deal with its flexibility, adaptability and relevance to our times. Second, with that purpose in mind, try to include some comparative study with Ontario and other laws. Third, to warn people of the danger of developing tunnel vision which results from studying parts of the whole rather than the complete whole in the proper context because Islam has its own approach to resolving conflicts of daily life.

• Therefore, there is also a need for a course which deals with the reasoning, justification and fairness of the various injunctions to show that Muslims are more than justified in claiming that Muslim law is the best that can be conceived for the good of man.
 

There is much confusion and criticism concerning the provision for divorce in Islamic law due to a lack of understanding of details of the order of priorities. A great deal has been said about the uncontrollable right of the husband to divorce his wife at the spur of the moment by pronouncing the statement of divorce three times in a row. If one makes the effort to analyse the position and rationale behind it, one would realize that before taking this final and desperate step, the Qur'an exhorts man to make a serious attempt at reconciliation in the following order:

1 The parties must try to settle (it's obligatory) their disputes and solve their problems between themselves;

2If they fail, two arbitrators, one from the husband's side and the other from the wife's side, should be commissioned so that the differences between the two can be settled. God's command is as follows:

"If you fear a breach between the couple, then appoint an arbiter from the man's family and an arbiter from the woman's family. If the two [man & wife] desire to reach a settlement, God will effect a reconciliation between them." [Qur'an 4:35]

3 If the arbitrator's efforts also fail, divorce may be applied. It should also be borne in mind that the wife may also acquire the right to divorce her husband if a stipulation to that effect had been made in the contract; otherwise, the husband retains that right and she must get the marriage annulled through the court.

Generally all Muslims must try to fulfil their obligations both individually and collectively, in order to establish an environment which, as much as is feasible and practical, in a non-Muslim country, is conducive to living in accordance with the way in which Allah would wish Muslims to live. For Muslims, the sine qua non of action, indeed of their whole life, is that it be lived with the intention of submitting oneself to Allah's Will in such a way that the action is made and one's life is lived for the sake of Allah, as an expression of love and worship of Him.
 

To be able to live a reasonably good life in a liberal, multicultural society like Canada, Muslims have a civic and democratic obligation to see to it that their freedom of religion is not seriously circumscribed nor inhibited. Muslims must ask for and secure their right that Canada live up to the preamble of the Canadian Charter of Rights which stipulates that Canada is founded on principles which recognize the Supremacy of God, and that the guarantee that the Charter of Rights concerning the freedom of religion is lived up to.

Permitting alternative methods of resolving disputes (A.D.R.) in matters of family/personal law would provide Muslims with a way of doing things that reflects fundamental aspects of their sense of justice.

How can this be accomplished?

Alhamdu li-Allah, we have developed a three-part plan and are in a position to offer services and courses in the following areas:--

A Marriage

1(a) Assist parties to learn about the rights, obligations and consequences of marriage before obtaining a Marriage License from the municipal authorities.

(b) Solemnize marriages in full compliance with Muslim as well as Ontario laws.

(c) Maintain the Register of Marriages.

(d) Attend to the necessary filing of documents with the provincial Registrar of Births, Deaths, and Marriages.

2Assist in drafting special clauses peculiar to Muslim Law so as to avoid any conflict with Ontario Law (eg., division of property, custody, maintenance, etc.)

B Dispute Resolution (3-Step Settlement)

1We can help YOU implement the Qur'anic solution and injunctions in such a way as to ensure compatibility and conformity with Ontario law by concentrating on the following points:

• Use of our Arbitration Service can provide the necessary knowledge, experience and expertise both in Muslim and Ontario law -- with great saving in the cost, time and other headaches associated with court litigation.

• In deciding a case, Muslim Arbitration Tribunals would deal with all schools of Muslim Law and will specifically apply the laws designated by the parties.

• Our built-in safeguards are designed to avoid conflicts with secular Ontario laws.

• One of the unique advantages of Muslim Arbitration Tribunal Awards (settlements) is that they will be binding on parties and will also be enforceable through the Ontario courts (unless the subject matter of the award is not capable of being the subject of arbitration under Ontario law).

2On our part, we would try to implement the Qur'anic requirements in the following manner:--
(i) Guide each party to first try to settle their disputes themselves -- with our professional help. Our help in this respect will be restricted by the need to avoid conducting any part of the arbitration as a conciliation or mediation (or other similar process) that might compromise or appear to compromise our ability to decide the dispute impartially, or that might be construed as a practice of law.

(ii) Use of two arbitrators (one chosen by each party) who will in turn choose an Umpire/chair.

(iii) decide the case either by (a) mutual consent of the disputing parties or (b) the Arbitration Award (decision).

3As a last resort, if parties decide to divorce through mutual consent, we will help them, at extra cost, to finalize the process appropriately.Normally, the help mentioned in this 3rd step would be available only to those people who have used our services to comply with the first two steps above.

C Courses
 Insha-Allah, Syed Mumtaz Ali will be conducting Introductory to Advanced level courses on Muslim Law of marriage, divorce, and arbitration (details upon request).
 

• Muslim Law of your choice (eg., Hanafi, Shafii, Hanbali, Maliki) applied for settlement
• settlement of disputes without litigation headaches
• absolutely binding on both parties
• fully enforceable through the courts
• informal religious setting, fair & impartial proceedings
• cost-efficient, time saving, flexible in special situations
• expertise & experience in Muslim & Ontario law
• each party may have their own lawyer
• safeguards against running afoul of Ontario law
• marriage ceremonies under Muslim/Ontario law
• seminars on Muslim Law of Marriage and Divorce
• as a non-profit organisation, operations are conducted on a cost-recovery basis
• peace of mind and satisfaction that the Shariah law is obeyed and that the Ontario law is not flouted.

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