WHOS AFRAID OF POLYGAMY EXPLORING THE BOUNDARIES OF FAMILY, EQUALITY AND PROTECTION OF MUSLIM WOMEN IN POLYGAMOUS RELATIONSHIP IN AUSTRALIA

Student Name: Corey Gauci Student Number: 20101985 Supervisor: Dr Keith Thompson Date: 22 November 2013

Table of Contents
Acknowledgements. 3 Introduction .................................................................................................... 4 What is polygamy in the Islamic faith? ........................................................ 6 The recognition of polygamous relationships in Australia- An in-depth analysis of the 1992 Australian Law Reform Commissions Report on Multiculturalism ............................................................................................. 8 The Australian Law Reform Commissions report on multiculturalism 1992 ...................................................................................................... 9 A Practical Response to the ALRCs Report on the recognition of polygamous relationships in Australia ................................................. 11 Gender Equality ........................................................................ 11 Lack of Public Support.............................................................. 13 Broadening the property jurisdiction of the family courts: Developments affecting de facto couples ........................................................................... 14 A modern interpretation of section 4AA and 90SM of the Family Law Act 1975 (Cth) ..................................................................................... 17 The Family Courts jurisdiction over polygamous relationships ............ 23 Exceptions to the rule ................................................................................. 26 Registration of relationships under a prescribed law of a State or Territory ............................................................................................... 26 Polygamous marriages outside of Australia ........................................ 27

Future Direction Possible solutions to the inadequate protection of polygamous partners .................................................................................. 29 Amending the definition of marriage .................................................... 29 Separating church from state .............................................................. 30

The introduction of sharia law in Australia ........................................... 31 Changing the way the Australian public perceive Islamic marriage, in particular, the practice of polygamy ..................................................... 33 Conclusion ................................................................................................... 34 Bibliography ................................................................................................. 37

I. ACKNOWLEDGEMENTS

I would like to personally thank Dr. Keith Thompson for his passion, dedication and tireless efforts as my supervisor. It has truly been a great honour working with you and I am privileged to have shared my college experience and legal education with such an inspirational lecturer. Without his supervision and constant help this research paper would not have been possible. I must also thank my amazing sister, Michelle; brother-in-law, Charlie; partner, Sam; and late mother, Carmen, for being the foundations of my fortitude and strength. Without their unconditional love and constant unfailing support throughout the years, I would not be the man I am today. I would like to thank my colleagues at Dowson Turco Lawyers for their continuous support and assistance in helping me undertake this research paper. I would also like to personally thank Mr Nicholas Stewart, Director at Dowson Turco Lawyers, who has shown the attitude and the substance of a genius: he continually and persuasively conveyed a spirit of adventure in regards to research, and an appreciation for the rights of minority groups in Australia. I also wish to express my sincerest thanks and deepest gratitude to all of my closest friends. I am defined by the wonderful relationships that I share with each and every single one of them, which brings out the best in me. Their time, support and love were the fuel for my accomplishments. Finally, I want to extend my sincere appreciation to all my fellow students as part of my cohort. Thank you all for the wonderful support throughout this journey. I will never forget the great memories that this year has been or the amazing friendships that have been formed. So many of our dreams at first seem impossible, then they seem improbable, and then when we summons the will, they seem inevitable Christopher Reeve

II. INTRODUCTION

Over the last decade or so, significant changes have occurred within Australias legal system, particularly in regards to the way in which family relationships are dealt with under the Family Law Act 1975 (Cth) (FLA), 1. In 2008, the introduction of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act2 sought to extend the family court systems property jurisdiction, in effect, covering most de facto couples upon relationship breakdown. In amending the FLA3, parliament created a new definition to include persons in more than one de facto relationship simultaneously4, thereby covering a wider range of the Australian public across various family relationship structures. The overriding objective of the 2008 amendments to the FLA5 was the recognition of the changes to the typical family structure over the last few years, providing consistency and certainty of rights and responsibilities following the breakdown of intimate partnerships irrespective of the marital status of parties involved6. However, the recognition of multiple relationships within the property jurisdiction of the family law courts still stands in contrast to the legal definition of marriage, which retains its monogamous character7.

Michael Bracher, Gigi Santow, Philip Morgan, & James Trusell, Marriage Dissolution in Australia: Models and Explanations (1993) 47(3) Population Studies: A Journal of Demography, 403-425 2 2008 (Cth) 3 1975 (Cth) 4 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) 5 Family Law Act 1975 (Cth) 6 Catherine Caruana, State and Federal Reform Agenda (2006) 73 Family Matters, 60-61 7 Lindy Willmott, Benjamin Mathews, & Greg Shoebridge, D efacto relationships property adjustment law- a national direction (2003) 17(1) Australian Journal of Family Law, 37-61
1

Although Australia is a nation that prides itself on its multicultural status8, there exists only one legal system accepted in Australia: any suggestion of legal pluralism has been emphatically and repeatedly rejected9. On the other hand, Islamic law occupies a central place within the religion of Islam and the practical religious observance of Muslims in Australia10. For a minority of Muslims, this includes the tradition of into polygamous relationships, which are valid marriages under Islamic law but illegal under Australian law11. Until now, these relationships have either been entirely unrecognised or at most been considered as de facto relationships under Australian law, depending on the jurisdiction and area of law in question12.

In order to critically assess the protection offered to Muslim women in polygamous relationships in Australia, this research paper will examine the FLA and the Marriage Act13, alongside case law which considers the practice of polygamy within the Australia, particularly in light of the newly amended definition of de facto relationship contained in s4AA(5) of the FLA14. It will then consider the 1992 Australian Law Reform Commissions Report on Multiculturalism, alongside a range of recommendations with respect to the adequate protection of polygamous partners within Australia.
Jerzy Smolicz, Australia: from migrant country to multicultural nation (1997) 31(1) International Migration Review, 171-186 9 For example, in 2006, Prime Minister John Howard stated, if people dont like this country, they should not come here. Furthermore, Treasurer Peter Costello said the citizenship pledge should be a big flashing warning sign to those who want to live under Sharia law; Hossein Esmaeili, Islamic Law (Sharia) in Modern Democratic Nation States (2001) 7 Journal of Islamic Practical International Law, 23 10 Ann Black, & Sadiq Kerrie, Good and bad Sharia: Australias missed response to Islamic law (2011) 34 University of New South Wales Law Journal, 383 11 Ibid. 12 Ibid. 13 1965 (Cth) 14 Ibid.
8

III. WHAT IS POLYGAMY IN THE ISLAMIC FAITH?

Polygamy is defined as a marriage, which includes more than two partners15. When a man is married to more than one wife at a time, the relationship is called polygyny; and when a woman is married to more than one husband at a time, it is called polyandry16, although cultural evolutionist, Peter Richardson considers polyandry to be a rarely practiced tradition in the modern world17. In contrast, Monogamy is a marriage consisting of only two parties18.

For Islamic adherents, there are a number of benefits to polygamy, those of which include: (a) (b) providing polygamous family units with more productive workers, and allowing men to establish politically useful ties with a greater number of kin groups19. (c) providing financial security to Muslim women, particular where they are a single mother or where they have become a widow20; (d) (e) (f) lessening the burden on women to reproduce21; lessening the sexual pressures placed on women by their partners; and allowing women to avoid the social stigma of being unmarried and single22.
Abu Ameenah Bilaal Phillips, and Jameelah Jones, Polygamy in Islam (IslamKotob, 1st ed, 2005) 25 16 Miriam Koktvedgaard Zeitzen, Polygamy: A cross-cultural analysis (Berg, 1st ed, 2008) 12 17 Australian Broadcasting Corporation, Polygamy in Australia (2012) <http://www.youtube.com/watch?v=3HwAVIpz-Ko> accessed 30 October 2013 18 Ibid. 19 Abu Ameenah Bilaal Phillips, and Jameelah Jones, Polygamy in Islam (IslamKotob, 1st ed, 2005) 25 20 Ibid. 21 Haifaa A Jawad, The Rights of Women in Islam: an authentic approach (MacMillan Press, 1st Ed, 1998) 46
15

Alternatively, there exists a range of disadvantages associated with the practice of polygamy, including23: (a) (b) decreased male parental investment24; increased number of underage wives as men often choose younger wives than their first wife; (c) male kin lessen the value of their female relatives, derogating the value and autonomy of Islamic women; and (d) the motivation to enter polygamous relationships may not be entirely based on religious grounds and may provide men or women with an excuse to acquire multiple partners for questionable reasons.

It should be noted that the practice of polygamy is not unconditional and does entail a range of restrictions. Islam has emphasised that taking advantage of the permission of polygamy is conditional on the observance of several factors and circumstances. These conditions include: (a) if a woman thinks polygamy is against her interest, then she has the full right to announce her objection during the marriage contract; (b) (c) The man must deal justly among the wives25; and The man must maintain the ability to provide for his family adequately26.

Ibid. Australian Broadcasting Corporation, Polygamy in Australia (2012) <http://www.youtube.com/watch?v=3HwAVIpz-Ko> accessed 30 October 2013 24 Ibid. 25 an-Nisa, 4/129 26 Nikah, 2, 3, 19; Muslim, Nikhh, 1,3; Abu Dawud, Nikah, I; Ibn Majah, Nikah, ; Nasai, Siyam, 43
22 23

If the man lacks these material and moral conditions, or he is not competent enough to satisfy all of his wives, then he will not be eligible to take more than one wife.

IV. THE RECOGNITION OF POLYGAMOUS RELATIONSHIPS IN AUSTRALIA AN INDEPTH ANALYSIS OF THE 1992 AUSTRALIAN LAW REFORM COMMISSIONS REPORT ON MULTICULTURALISM

Statistics show that over 85% of societies throughout history have actively endorsed the practice of polygamy, including the Islamic, aboriginal and Mormon communities to name a few27. Whilst there is little evidence to suggest that Polygamy is a strongly practiced tradition in Australia, some commentators like cultural evolutionist, Peter Richardson, suggests that over non-legitimate polygamy occurs in over 15% of households within Australia28. Although polygamy may be practiced in Australia, Australian law does not provide comparable recognition of Polygamous partners compared to legally married couples29. Perhaps one of the greatest developments in respect of the recognition of polygamous partners has been the introduction of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act30 which led to the wider recognition of non-traditional relationships within the Australian community.

Australian Broadcasting Corporation, Polygamy in Australia (2012) <http://www.youtube.com/watch?v=3HwAVIpz-Ko> accessed 31 October 2013
27

28
29

Ibid.

Jessica Robyn Cadwallader, & Damien W. Riggs, The State of the Union: Toward a Biopolitics of Marriage (2012) 15(6) Media Culture Journal, 6 30 2008 (Cth)

Since the introduction of the amendments in 2008, there has been even greater support in the recognition of cultural observance within the Australian family law jurisdiction.31 However, there still remains strong opposition to such widening of Australian laws, most of which was addressed in the 1992 Australian Law Reform Commissions Report on Multiculturalism, and still remains one of the greatest impediments to the recognition of polygamous relationships in the Australian family law jurisdiction32.

A.

The Australian Law Reform Commissions (ALRC) Report on Multiculturalism 1992

Whether Australian law should recognise polygamous marriages was canvassed as part of the Australian Law Reform Commission's Report on Multiculturalism in the early 1990's33. Although the report is over 20 years old, it provides an indepth discussion of whether or not polygamous relationships should be recognised under Australian law34. In light of the ALRC report, the Commission concluded that polygamous relationships did not need to be included within the legal definition of marriage, nor the recognition of polygamous partners as de factos35.

Ibid. Australian Law Reform Commission, 'Multiculturalism and The Law' Report No 57, Australian Government Public Service, Canberra, 1992 33 Ibid.
31

32

34
35

Ibid.

Australian Law Reform Commission, Multiculturalism: Family Law, Discussion Paper No 46, 1991, at [3.28], 483.

10

The report critiqued not only the question of legalising polygamy but also whether the issue of legalising polygamy was necessary due to the lack of support for such a change at the time36. While legalising polygamy is not currently on the political agenda, similar reflection could benefit the public in evaluating the effectiveness of the newly enacted de facto property provisions in safeguarding the property rights of polygamous partners.

In the ALRCs report, western Judeo-Christian concepts of rights, equality, and individualism were common themes throughout the report, forming the case against the recognition of polygamous relationships37. In assessing the ALRCs report, prominent Sydney Law Professor Patrick Parkinson, noted that the ALRCs approach accords with the traditional liberal emphasis on the 'harm principle', providing that the law should not, as a rule, restrict individual freedoms but with the recognised exception of limitations which are in place to prevent harm to others. The report went on to add that the law should not "support relationships in which the fundamental rights and freedoms of individuals are violated"38. Accordingly, the report recommended against the recognition of polygamous marriages in Australia for two primary reasons: 1. it offends the principles of gender equality that underlie Australian laws and it offends the rights of individuals39; and 2. a lack of public support for extending the institution of marriage to include polygamous relationships40.
Ibid. Australian Law Reform Commission, 'Multiculturalism and The Law' Report No 57, Australian Government Public Service, Canberra, 1992 38 Patrick Parkinson, tradition and Change in Australian Law (Lawbook Sydney, 4 th Ed, 2010) 7 39 Australian Law Reform Commission, 'Multiculturalism and The Law' Report No 57, Australian Government Public Service, Canberra, 1992
36 37

11

However, given the continued gaps in the legal protection of polygamous relationships, particularly second spouses who are often women, it is crucial to consider whether or not other considerations require polygamous relationships to be better protected in alternative ways.

B.

A practical response to the ALRCs report on the recognition of polygamous relationships in Australia

1.

Gender equality and human rights

Arguments arising from principles of gender equality can be adequately addressed by ensuring that any provision extending the definition of marriage to polygamous relationships is drafted in such a way as to apply equally to both genders41. Marriage under Australian and Sharia law already requires the consent of both man and woman; a provision requiring the consent of existing spouses to the addition of a new spouse would not offend the principles of gender equality, particularly where the legislation permits polygamy in respect of both genders42.

40

Australian Law Reform Commission, 'Multiculturalism and The Law' Report No 57, Australian Government Public Service, Canberra, 1992 41 Homa Hoodfar, & Shadi Sadr, Islamic Politics and Womens Quest for Gender Equality in Iran (2010) 31(6) Third World Quarterly, 885-903 42 Ibid.

12

Beyond these questions of appropriate drafting, the ALRC report relies heavily on the argument that polygamy itself is by nature 'oppressive to women', considering the practice in a range of cultures in which it may be considered to be so43, although this argument is inherently based on the western concept of gender equality44. Although this is plausible given the western character of Australia's dominant culture, western concepts of rights do not necessarily translate to cultural minorities, particularly where ideology and belief clash with the dominant culture or where the importance on understanding and recognition of sex equality differs45. It is paternalistic to argue against granting someone legal recognition of an equal relationship which they choose and value, simply because it does not afford them the kind of equality that is easily recognisable to the dominant culture46. Irrespective of the effect of such practice, it seems that the act of a dominant culture informing and constraining attempts at legal provision for, and the protection of, minority cultural expression is a precedent, which Australia has established throughout history47.

Irene Marques, Confused Slaves of many Traditions: the Search for the Freedom dance in Chizianes Niketche: A Tale of polygamy (2010) 41(2) Research in African Literatures, 133-134 44 Similar argument have been utilized in European countries including, France and Turkey to ban women from wearing Islamic head scarves based on the assumption that Islamic women are forced to war head scarves against their will and they want to paternalistically stamp out that particular type of oppression of women on gender equality grounds, especially if the women involved do not realize that they are being oppressed; Maria Karamessini, and Jill Rubery, Women and Austerity: The economic crisis and the future for gender equality (Routledge, 1st Ed, 2013) 22 45 Ibid. 46 Manivong J. Ratts, Multiculturalism and social justice: Two sides of the same coin (2011) 39(1) Journal of Multicultural Counseling and Development, 24-37 47 Jessica Freitas, Practicing Polygamy: Multicultural Right or Liberal Crime? (2012) 6(1) Global Tides, 10
43

13

2.

Lack of public support

Although the lack of public support forms part of the ALRCs report as a reason for the non-recognition of polygamous relationships in Australia, this argument is problematic due to the inherent nature of a minority cultural view as being, by definition, in the minority48. The overriding duty of a Law Reform Commission is considered to be to engage in public discussions and to seek a better understanding of the publics perception on particular proposals, a process requiring the commission to consider the views of both the majority and minority within the community49. Accordingly, the opinion of a majority is not a sufficient reason for denying the human rights of a minority to cultural and religious expression50.

Nina Dickel, & Gerd Bohner, minority and majority influence on attitudes (2012) Univeristy of Bielefeld Law Journal, 22 49 Evert A. Lindquist, Sam Vincent, & John Wanna, Delivering Policy Reform: Anchoring Significant Reforms in Turbulent Times (ANU Press, 1st Ed, 2011) 56-59 50 Ibid.
48

14

At the time of the report, there was also no real call from Muslim communities within Australia to adjust the law, and therefore, arguably no real need to consider amending the legal definition of marriage51. However, irrespective of whether there exists no current push to amending the current laws surrounding the recognition of polygamy within Australia from a legal perspective, the issue remains as to whether or not the law adequately protects the parties involved in those religious marriages in other ways52.

Given that the legal definition of marriage remains monogamous, particularly in light of the 2008 amendments to the FLA53, there remains gaps in the legal protection of Muslim women entering into polygamous relationships54. Accordingly, there have been calls from the wider community, both Muslim and non-Muslim, to broaden the property jurisdiction of the family courts to provide adequate protection to Muslim women who may not have their marriage legally solemnised in Australia, but nevertheless, are disadvantaged as a direct consequences of the breakdown of their relationship with their partner.

Nadirsyah Hosen, & Rochard Mohr, Law and Religion in Public Life: The Contemporary Debate (Taylor & Francis, 1st Ed, 2011) 14 52 Archana Parashar, Australian Muslims and Family Law: Diversity and Gender Justice (2012) 33(5) Journal of Intercultural Studies, 565-583 53 1975 (Cth) 54 Jenny Millbank, De facto relationships, same-sex and surrogate parents: Exploring the scope and effect of the 2008 federal relationship reforms (2009) 23(3) Australian Journal of Family Law, 45-62
51

15

V.

Broadening the property jurisdiction of the family courts: Developments affecting de facto couples

The Family Law Amendment (De Facto Financial Matters and Other Measures) Act55 introduced a new Part of the FLA56 empowering federal family courts to make property orders affecting many de facto couples on the breakdown of their relationship, following the referral of relevant power to the Commonwealth from participating states57.

In the second reading speech of the Bill, the overriding theme of the legislation was stated as being to 'Provide greater protection for separating de facto couples and simplify the laws governing them [and] ... bring all family law issues faced by families on relationship breakdown within the federal family law regime'58.

55

2008 (Cth) 1975 (Cth) 57 Commonwealth Parliamentary Debates, House of Representatives, 25 June 2008, pp 5823-4 (Robert McClelland, Attorney-general), p 5823. 58 Family Law Amendment (De Facto Financial Matters and other Amendments) Bill 2008, Second Reading
56

16

Thus far, the reforms have largely been debated with reference to the potential impact on the financial consequences of relationship breakdown for de facto couples in Australia generally, and associated jurisdictional and constitutional issues; as well as the potential effect in other areas of law such as superannuation, bankruptcy and succession59. In response to the intensifying debate, Australias former Attorney General Robert McClelland remarked that

There is absolutely no way that the government will be recognising polygamist relationships. They are unlawful and they will remain as such.

Nevertheless, the reforms were designed to provide better protection to de facto couples, and this was phrased in terms of extending the legislation to all 'families', irrespective of the formation of social structure of such relationships60.

For a de facto relationship to be recognised under Australian law, it must fall within the definition of 'de facto relationship'61. Despite the extent of the amended definition, the reforms do not theoretically extend to all 'families', particularly as the family units contemplated by the reforms are only those which are monogamous in nature. Section 4AA(5) contemplates that for the purpose of the FLA62, a de facto relationship can occur in the following circumstances:

J Behrens, De Facto Relationship? Some Early Case law under the Family Law Act (2010) 24 Australian Journal of Family Law, 350 60 Commonwealth Parliamentary Debates, House of Representatives, 25 June 2008, pp 145 61 Family Law Act 1975 (Cth) s4AA 62 1975 (Cth)
59

17

1.

between 2 persons of different sexes and between persons of the same sex; and

2.

where one of the persons is legally married to someone else or in another de facto relationship63.

The Federal Government has so far rejected any suggestion that s4AA(5) of the FLA64 could apply to polygamous de facto relationships. The Second Reading Speech of The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill65 provided that the multiple relationships contemplated by s4AA of the Act were those in which a couple had been separated for some time but not divorced, and 'only to that extent, and in those circumstances, does the legislation apply to concurrent relationships' 66.

A.

A modern interpretation of s44A and s90SM of the Family Law Act 1975 (Cth)

An increasing number of cases concerning the definition of a 'de facto relationship' under section 4AA of the FLA67 are being disputed in a number of Australian courts, often as a result of jurisdictional issues under the new provisions68.

Family Law Act 1975 (Cth) s4AA(5)(a)-(b) Family Law Act 1975 (Cth) 65 Commonwealth Parliamentary Debates, House of Representatives, 25 June 2008, pp 5823-4 (Robert McClelland, Attorney-general), p 5823
63 64 66 67 68

Dakin & Sansbury [2010] FMCAfam 628; Family Law Act 1975 (Cth) Dahl & Hamblin (2011) 46 Fam LR 229; 254 FLR 49; [2011] FamCAFC 202

18

These cases commonly require a determination of whether or not a de facto relationship existed at all or at a particular point in time69. Accordingly, the following propositions have been established through a range of cases, which have dealt with the issue of de facto relationships: 1. The FLA70 has been generally interpreted using the 'purposive approach' and accordingly as beneficial legislation. Accordingly, unlike other statutes which are inflexible, the FLA provides the courts with wide discretions, the outcome of which will ultimately be based on the particular section of the Act and attempt to accommodate the family accordingly on the basis that it is in the families and, or partners best interests. 2. Section 4AA of the Act71 cannot be interpreted with reference to the meaning which 'de facto relationship' has under other legislation or case law, and its meaning is entirely governed by the provisions of section 4AA itself. 3. The courts appear to be following the approach of state courts in exercising a broad discretion to recognise the existence of a de facto relationship72.

Baker & Landon (2010) 43 Fam LR 675; 238 FLR 210; [2010] FMCAfam 280 Family Law Act 1975 (Cth) 71 Ibid. 72 Dakin & Sansbury [2010] FMCAfam 628
69 70

19

Section 4AA of the FLA73 begins by setting out the basic definition of a de facto relationship; one which involves a person who is neither legally married to or related to the other person as family, but with whom 'having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis'74. Section 4AA(2) then sets out a wide number of factors to which the court may have regard in determining whether or not the parties are in fact living together on a genuine domestic basis75 such as, the duration of the relationship, the nature of the couples living arrangements, and the care and support of children, to name a few.

Subsection (3) of the Act76 provides that no one factor is determinative, nor are the factors individually weighted, but any weighting is determined by the court under subsection (4)77. Subsection (5)(a) then provides for both heterosexual and same sex de facto relationships78. While differing from various other statutory definitions of de facto relationships in some respects, much of the content of s4AA follows a similar structure to those found elsewhere79. Additionally, s4AA(5)(b) of the FLA80 provides that 'a de facto relationship can exist even if one of the parties is legally married to someone else or in another de facto relationship'81.

Ibid. Family Law Act 1975 (Cth) s4AA(1) 75 Family Law Act 1975 (Cth) s4AA(2) 76 Family Law Act 1975 (Cth) 77 Family Law Act 1975 (Cth) s
73 74

Family Law Act 1975 (Cth) s4AA(5)(a) Ibid. 80 Family Law Act 1975 (Cth) 81 Family Law Act 1975 (Cth) s4AA(5)(b)
78 79

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Enquiries and debates into the intention of parliament in respect of section 4AA(5)(b) has confirmed that that it was not Parliament's intention for this section to extend to polygamous de facto partners82. Nevertheless, the broad wording of the section potentially opens the door for polygamous partners to fall within the definition of a de facto relationship and thus attract the same legal status and protection, which the Act accords to other de facto partners, who meet the threshold requirements83. The precise relationships that are contemplated by s 4AA(5)(b) have not yet been judicially determined84 and remains somewhat ambiguous.

Moreover, s90SM(10) of the FLA85 provides a potential remedy for polygamous partners. The section provides that a person who is a party to a de facto relationship with a party to the subject de facto relationship may be entitled to become a party to proceedings in which an application is made for an order by a party to a de facto relationship86. It would appear that the test under s90SM(10)(b)(i) of the FLA87 is significantly less onerous as opposed to s4AA, particular in respect to the definition of a couple for the purpose of property division under the FLA, thereby possibly affording polygamous partners similar, if not the same protection offered to monogamous couples under the FLA88.

Commonwealth Parliamentary Debates, House of Representatives, 25 June 2008, pp 145 Peter, De cruz, Family law, sex and society: a comparative study of family law (Routledge, 2nd Ed, 2010) 33 84 Janes Bridge, A practical approach to family law (Oxford University, 1st Ed, 2012) 65 85 Family Law Act 1975 (Cth) 86 Family Law Act 1975 (Cth) S90SM(10)(b)(i) 87 Family Law Act 1975 (Cth) 88 Ibid.
82 83

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The only power that the court has in altering property interests of a three person polygamous relationship would be to treat each de facto wife's relationship with the husband as entirely separate for the purposes of the division of property; just as it would in a situation involving a de facto couple where one party had a second relationship 'on the side'. Section 4AA(5)(b) would appear to have been included to cover such a situation, especially when read alongside s 90SM(10) of the FLA89 which allows someone to be added as a third party to proceedings if they have, inter alia, been involved in a de facto relationship with one of the parties.

Section 90SM(10) of the FLA90 has been interpreted by the courts to protect the de facto partner and allow them to be joined to any property proceedings where their partner's marriage has broken down. However, it is uncertain whether these provisions would extend to a Muslim woman who is the second spouse of her husband under sharia law, where all three or more adult partners are living as one family unit. Under sharia law, each marriage is a separate relationship, and in practice, in most Muslim countries and communities, families in polygamous marriages live in separate dwellings. However, there are cases where families live together in one residence. In both cases, the husband is in charge of financial management. Thus, even if it is applicable in these situations, s 90SM of the Act may not by itself provide adequately for the second spouse's interests. At the least, the court's task may be unduly complicated.

89

90

Family Law Act 1975 (Cth) Family Law Act 1975 (Cth)

22

In Baker v Landon91, Riethmuller FM took the 'multiple couple' approach, although he did not specifically address the question of whether or not polygamous couples could fall within that definition at all. Rather, Riethmuller FM addressed the impact of section 4AA(5) of the Act on the meaning of 'de facto', given that it broadens the traditional definition, as it departed from the traditional monogamous views on marriage. He phrased his inclusion of what he calls 'multiple contemporaneous relationships' as being an example of what the broader definition must 'at least' include, given the existence of s4AA(5). In contradistinction, Mushin J in Moby v Schulter92 more specifically referred to section 4AA of the Act as applying strictly to a relationship of two people. Mushin J considered a two-stage approach to the exercise of the discretion in making a declaration that a de facto relationship exists93. He reflected on two elements necessary to establish a de facto relationship; 'a couple' who are 'living together'94. Consequently, if a de facto couple under section 4AA of the Act95 requires a two person couple as a starting point, this may well preclude the availability of relief under s 90SM of the Act96 from members of polygamous (as distinct from multiple) de facto couples97.

(2010) [2010] FLC 93-447 93 Moby & Schulter [2010] FLC 93-447 94 Ibid. 95 Family Law Act 1975 (Cth)
91 92

96
97

Ibid.

Ibid.

23

Even if polygamous relationships are not excluded from the definition of a de facto relationship under section 4AA of the FLA98, the implicit assumptions as to how a 'couple' relationship operates may impact on the content of any property orders, perhaps through the approach which the court takes to their relationship, or the weight which is given to each individual spouse's contribution to the family's welfare and property99. However the court decides the weight of each parties contributions, it is likely that the court would struggle to apply a system of property division based upon the existence of either one couple or 'multiple' discrete couples to a family, which involves polygamous partners whose lives and property are not separated along those lines100. Given the current interpretation of 'couple' as involving two people, section 4AA(5)(b) of the Act101 clearly intends to cover additional relationships of one of the parties to a de facto relationship102. It does not however, directly cover a polygamous relationship in which one spouse has several partners103.

Section 90SM(1)(a) provides that in property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them; altering the interests of the parties to the de facto relationship in the property.

Family Law Act 1975 (Cth) Linda D. Elrod, & Robert G. Spector, review of the Year in Family Law: Working toward More Uniformity in Laws relating to Families (2010) 55 Family Law Quarterly, 469 100 Ibid. 101 Family Law Act 1975 (Cth) 102 Family Law Act 1975 (Cth) s4AA(5)(b) 103 Ibid.
98 99

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Furthermore, s90SM(10)(b) provides that a person who is a party to a de facto relationship with a party to the subject de facto relationship is entitled to become a party to the proceedings in which an application is made for an order. Current case law, along with the application of section 90SM104 of the Act, would suggest a three or more person polygamous relationship would be treated as discrete couples living together, and their property would be assessed accordingly105. Although there is no Full Court decision on this point, this is the meaning that 'couple' has so far been given, and it accords with the ordinary meaning of the word as well as the careful drafting of section 90SM106. This is particularly the case if section 4AA(5)(b) was intended to apply where one person was still legally married but had re-partnered, or to ensure that secret additional partners would not be 'left out in the cold' but instead enabled to make their own separate claim on the property of their de facto partner if the relationship ends107. Consequently, 'multiple' relationships as covered by section 4AA(5)(b) are not synonymous with 'polygamous' relationships108. At worst, polygamous partners may be left out of the ambit of the definition (as not being members of a 'couple'). At best, a polygamous partner may be included in property division only through s 90SM(10) of the FLA109.

Family Law Act 1975 (Cth) Ann Black, Legal recognition of Sharia Law (2010) 84 Family Matters, 65 106 Ibid. 107 Family Law Act 1975 (Cth) s4aa(5)(b) 108 Amanda Head, The Legal Recognition of Close Personal Relationships in New South Wales - A Case for Reform (2011) 13 Flinders Law Journal, 53 109 Family Law Act 1975 (Cth)
104 105

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B.

The Family Courts jurisdiction over polygamous relationships

The definition of 'de facto relationship' in s 4AA110 is generally considered inconsistent with members of a polygamous relationship, despite provision for 'third parties' to be added to an application for property orders under s 90SM(10), and irrespective of the broad discretionary approach, which courts routinely take to property division111. A further complicating factor regarding the jurisdiction of the Family Court and the Federal Circuit court in respect of polygamous partners is the limited weight, which has been given in cases such as Dakin & Sansbury112 to the parties' own intentions and conceptualisation of their relationship, given that the existence of a de facto relationship is a question of fact. In consideration of all of these factors, it can be said that although the precise breadth of section 4AA(5)(b)113 is as yet unclear, both the wording of section 4AA as a whole, and the expressed parliamentary intention behind the section do not easily extend the ambit of the court's jurisdiction, and with it, the law's protection to a de facto partner who is in a second polygamous partner114. Reform may well be needed in order to achieve that end.

Family Law Act 1975 (Cth) Reg Graycar, Rights and Obligations in the Contemporary Family: Retheorising Individualism, families, and the State (2012) 13 Theoretical Inquiry Law Journal, 241-645 112 [2010] FMCAfam 628 113 Family Law Act 1975 (Cth) 114 Archana Parashar, Australian Muslims and Family Law: Diversity and Gender Justice (2012) 33(5) Journal of Intercultural Studies,565-583
110 111

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Although section 4AA of the FLA115 remains perhaps the most contentious section of the FLA116, there are a number of further requirements which de factos, regardless of the makeup of their social lives, must satisfy before the court will fully recognise partners as de factos. The ancillary requirements, which de facto partners must prove, to the court include: 1. 2. 3. 4. residency in a referring jurisdiction117; and either; have a relationship of a minimum total duration of 2 years118; or there must be a child of the relationship119; or their relationship must be registered in their state/ territory120.

Alternatively, the court may exercise jurisdiction where the order is applied for by a person who made 'substantial contributions' to the property and failure to make an order 'would result in a serious injustice' to that person121.

These threshold requirements for the most part define jurisdiction according to the factual circumstances of the parties' relationship122. This is due to the characterisation of a de facto relationship as one of fact and not law. However, this leaves inherent gaps in the family court system's jurisdiction over polygamous de facto relationships, which fail to meet those criteria. As mentioned previously, legislative interpretation suggests that section 4AA(5) does not extend to polygamous relationships123.

115 116

Family Law Act 1975 (Cth) Ibid. 117 Family Law Act 1975 (Cth) s90RD(2)(e) 118 Family Law Act 1975 (Cth) s90RD(2)(a) 119 Family Law Act 1975 (Cth) s90RD(2)(b) 120 Family Law Act 1975 (Cth) 90SB(d) 121 Family Law Act 1975 (Cth) s90RD(2)(c) 122 Family Law Act 1975 (Cth) s90RD 123 Commonwealth Parliamentary Debates, House of Representatives, 25 June 2008, pp 145

27

However, the effect of these threshold requirements is that even if the relationship of a polygamous family unit could fall within the definition of a de facto relationship, the section would not in itself adequately provide for the property interests of the second partner, but only those who meet the threshold jurisdictional requirements. Because of the second reading speeches and the careful drafting of section 90SM and s4AA, polygamous women are still at risk of being unprotected. Sympathetic judges can probably use the existing criteria to help them (at risk of appeal, but reform is needed to protect this vulnerable and needy class on our society124.

124

Family Law Act 1975 (Cth)

28

VII. FUTURE DIRECTIONS Although case law and parliamentary debate has shown that it is unlikely that an Australian court would recognise a polygamous relationship, there remains the opportunity for the federal government to take an active role in the advancement and protection of polygamous partners. The most notable solutions to the inadequate protection offered to polygamous partners are as follows:

A.

SHORT-TERM SOLUTIONS

1.

Formally authorize the courts to treat Islamic polygamous marriages as if they were successor marriages, or as successor de facto relationship One of the simplest short-term solutions in response to the inadequate protection of Muslim women in polygamous relationships is to formally authorise the courts to treat Islamic polygamous marriages as if they were successor marriages, or as successor de facto relationships. As mention previously, the law currently provides for such a situation however, due to a lack of judicial interpretation of the newly amended s4AA of the FLA, there remains much ambiguity surrounding the application of the Act and whether the newly amended sections of the FLA would adequately protect women in polygamous relationships.

29

Perhaps the way forward for the courts is to wait until a situation like this arises and then make a declaration which would enable the courts to declare the true nature of the law or the rights, duties and interests of the applicant under it, setting a precedent for other courts125. It would appear that the closest that the courts have come to providing any such guidance on the way s4AA in respect of polygamous relationships should be interpreted since the amendments in 2008 was in Baker v Landon126. In this case, Riethmuller FM preferred the multiple contemporaneous relationship approach that characterised s4AA of the FLA as encompassing multiple partner circumstances, although Riethmuller FM did not specifically address the question of whether or not polygamous couples could fall within s4AA of the FLA at all.

2.

Registration of relationship under a prescribed law of a State or Territory

In future, one solution may lie with the last criterion in s 90SB(d) of the FLA127. This subsection provides for property matters to apply where the de facto relationship 'is or was registered under a prescribed law of a State or Territory'128. Where it was, the courts need look no further to the factual circumstances of the relationship to determine the question of jurisdiction129.

125 126
127 128

Nsi Group Pty Ltd v Mokas [2006] NSWSC 976 (2000)

Ibid. Family Law Act 1975 (Cth) 90SB(d) 129 Ibid.

30

However, at present, registration of de facto relationships is not available in all states and territories130, nor are the relevant state and territory laws framed to provide for the registration of a polygamous de facto relationship131.

Although it is common for registration to be available either to intimate partners or to other close personal relationships, the relevant definitions again apply only to a relationship between two people, and a person cannot have a relationship registered if they are married to another person at the time, or already in a registered relationship132. Those requirements would remove registration as an option for women in polygamous relationships either where their partner already had a legal spouse, or where all members of that relationship were de facto partners only133.

3.

Registration of marriage outside of Australia

Section 6 of the FLA134 extends the jurisdiction of the family court system to marriages, which are polygamous for the purposes of obtaining orders for property division and maintenance. In effect, section 6 validates polygamous relationships, whilst polygamous relationships contract within Australia remain illegal. Section 6 of the Act135 requires the marriage to have taken place outside of Australia, but has no other restrictions on its operation or the range of

Relationships Register Act 2010 (NSW) s5 Ibid. 132 Ibid. 133 Ibid. 134 Family Law Act 1975 (Cth) 135 Ibid.
130 131

31

relationships to which it might apply136. Originally, the section's intended application was to immigrant family groups who, for example, separated after arriving in Australia so as to not leave a second spouse disadvantaged by being outside the jurisdiction of the family court system137. However, as drafted, it could conceivably apply to Australians who enter into a legally valid polygamous marriage overseas, return home to Australia, and then separate at some later date138, in effect, creating a legal loophole where polygamous relationships will be brought within the jurisdiction of the Australian courts.

In addition, section 6 of the FLA omits the jurisdictional thresholds of the de facto property provisions explicit in s90RD139. Neither would it be necessary to enquire into the factual state of the partners' relationship to ascertain if they fit within the definition of a 'de facto' relationship under section 4AA of the Act140, although the same exception does not cover all marriages officiated overseas. As a result of the 2004 amendments to the FLA, parliament has effectively denied the Family Court jurisdiction in same-sex marriages even though the marriage was contracted overseas141. Application of section 6 of the Act to partners in a polygamous relationship would also side step the question of whether or not a de facto 'couple' can include more than two people142.

Family Law Act 1975 (Cth) s6 Malcolm Voyce, & Adam Possamai, Legal Pluralism, Family Personal Laws, and the Rejection of Sharia in Australia (2011) 7(4) Democracy and Security, 338-353 138 Ibid. 139 Family Law Act 1975 (Cth) 140 Family Law Act 1975 (Cth) s6 141 Rober Wintemute, and Mads Tnnesson Andenes, The Legal Recogntiion of Same-Sex Partnerships: A Study of National, European and International Law (Hart Publishing, 1st Ed, 2001) 32 142 Ibid.
136 137

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It would not validate or recognise the relationship as a legal marriage, but would bring the parties involved within the jurisdiction of the court, as if they were legally married143. Despite these advantages, there is one obvious practical disadvantage. To come within section 6 of the Act, the parties involved would be required to travel overseas to be married, rather than being married in Australia. Whether or not it is an acceptable legal and practical alternative in multicultural Australia is of course another question.

B.

LONG-TERM SOLUTIONS

1.

Amending the definition of marriage

Amending the definition of marriage contained within the Marriage Act144 to one that encompasses polygamous relationships has been a commonly suggested solution to the inadequate protection and recognition of polygamous relationships. Advocates of such change support the adoption of an internationally recognised definition of marriage that is gender, race, sex, colour, religion or sexual orientation neutral145. For example, the United Nations defines a marriage as the civil joining of a member of any nation with any other member of any nation, regardless of sex, gender, race, religion, sexual orientation, colour, or any other characteristic, with the exception of age146.

Ibid. (1961) Cth 145 Roy F Baumeister, and Mark R Leary, The need to belong: desire for interpersonal attachments as a fundamental human motivation (1995) 117(3) Psychological Bulletin, 497 146 United Nations Resolution No. 81
143 144

33

The United Nations definition of marriage resolution was originally designed to legalise gay marriage in all United Nations states, thereby building upon the idea of the Gay Rights resolution.

Unfortunately, whilst the UN approved definition of marriage inevitably includes a wider range of the Australian public, some of whom are not currently covered by the definition of marriage in Australia, the definition is itself biased towards polygamous relationship, particular in that it refers to the joining of a member with any other member. Furthermore, given that the social conditions present at the time of the ALRCs report on polygamous relationships remain much the same, it is unlikely that such a change is practical, and it is still not supported or called for generally by Muslim communities in Australia147.

2.

Separating church from state

Australian politics has been closely aligned with religion since the inception of the English legal system pre-1901148. The relationship between the two is evidenced in a range of political theories, statutory regulations and political debates. These religious ideals range from the governments stance on gay marriage to the decision not to legalise polygamous relationships149.

147

Australian Law Reform Commission, 'Multiculturalism and The Law' Report No 57, Australian Government Public Service, Canberra, 1992 148 Gregory Melleuish, Religion and Politics in Australia (2010) 11(6) Political Theology,909-927 149 Ibid.

34

Whilst many Australians align themselves with the Christian ideals adopted by the federal government; multiculturalism has inevitably lead to the some disenchantment with such strongly held beliefs150.

This is particularly so as religion plays a significant role in politics, demonstrated in section 116 of the Australian Constitution151; however, to what extent can the government ethically control religious practice. Some critics argue that Australia has already reached its limit in the degree of control it governs with respect to religious beliefs and traditions, particular where the government actively seeks to promote Christian beliefs over the beliefs and traditions of minorities groups within Australia152. Consequently, proponents of polygamy within Australia advocate for the separation of church and state insofar as the state actively discriminating minority groups on the grounds of inconsistency with Christian ideals153. Although polygamy is prohibited in Australia for reasons discussed above, changing the way in which politics is influenced may be the first step in removing the prohibition of practices that are based on cultural traditions and beliefs. However, as history has shown, in light of the GLBTI lobby movement, influencing the government is no easy feet, particularly where those who are fighting for their rights are powerless or form a minority within society. Consequently, changing/ influencing politics is generally argued as a long-term solution as opposed to an instant change within the community.

Bhikhu Parekh, Rethinking multiculturalism: Cultural diversity and political theory (Harvard University Press, 2nd Ed, 2002) 22 151 1901 (Cth) 152 Geoff Stokes, The politics of identity in Australia (Cambridge University Press, 1 st Ed, 1997) 8799 153 Ibid.
150

35

3.

Introduc[ing] sharia law in Australia

In a submission to the Federal Parliaments Committee on Multicultural Affairs in early 2011, the Australian Federation of Islamic Councils called for the introduction of sharia law alongside the current Australian legal system154.

In response, Attorney-General Robert McClelland stated that there was no place for sharia law in Australian society, rejecting any proposal for its introduction155. Critics further argue that having two legal systems would not only overly complicate the Australian legal system, but would also place unnecessary strain on the Australian parliament, particular whether there exist little push to introduce such extreme measures156.

In further response, Sheik Nawas, a sharia expert, told the Australian Newspaper that he backed an Islamic tribunal or arbitration option that would work with the Family court to settle disputes. Such option would potentially make it possible for Australian courts to accommodate Australian law whilst observing the Islamic tradition157. Given public antipathy towards this introduction, it is probably not the simplest or quickest solution to the plight of Islamic women in Australia who wish to exit polygamous marriages with some of the relevant joint property.

154

Patrician Karvelas, Muslims to push for sharia The Australian: National Affairs, 17 May 2011, Patrician Karvelas, Muslims to push for sharia The Australian: National Affairs, 17 May 2011, Ibid. Ibid.

22
155

22
156 157

36

VIII. Conclusion

Although there are distinct differences between the Australian and Islamic family law systems, there are only a few areas where the practice of Islamic law may be inconsistent with Australian law158. One of the obvious conflicts that exist is the practice of polygamy, as polygamous marriages are void under the Marriage Act159. Muslim women who enter into a second religious marriage in Australia are not recognised as legal spouses and their status under the FLA160 is unclear. Consequently, this restricts the capacity of the FLA161 to provide for their property interests in the event of their relationship breakdown. Their only possible status would be as a de facto spouse under the FLA162 . However, even if their relationship meets the jurisdictional requirements, it is possible that their relationship may not fall within the definition of a 'de facto relationship' in s 4AA of the Act163. If this is the case, women in polygamous relationships may be left out of the reach of a provision specifically designed to apply to a broad range of de facto family relationships164.

Lynn Welchman, Muslim Family Laws and Womens Consent to Marriage: does the law mean what it says (2011) 1 Journal of the Center for the Critical Analysis of Social Differences at Columbia University, 63-79 159 1961 (Cth) 160 Family Law Act 1975 (Cth) 161 Ibid. 162 Ibid. 163 Ibid. 164 Elly Robinson, & Ken Knight, Family Law Update (2012) FamilyMatters,, 110
158

37

The Family Law Amendment (De Facto Financial Matters and Other Measures) Act165 has significantly extended the jurisdiction of family courts over property disputes. Irrespective of the developments in family law in Australia since 2008, case law has not yet addressed whether a polygamous de facto relationship does fall within s4AA(4) of the FLA166, and it is by no means clear that it could, particularly given the emphasis within the FLA167 on 'couples', defined as a relationship involving only two people, and the stated intention of Parliament168. Including Muslim women in polygamous relationships within the new de facto provisions of the FLA169 would not recognise sharia law 170. Recognising a polygamous relationship under section 4AA(5)171 would bring it within the jurisdiction and protection of the family court system172. Islamic religious laws relating to marriage ceremonies currently enjoy the same status as the traditions of all other recognised religions under the Marriage Act173, and this has been the case for some time. Such inclusion would provide valuable protection to Muslim women in polygamous relationships who make up a potentially vulnerable minority within Australia174. Including such relationships within s 4AA(5) is arguably preferable to reliance on section 6, as it would not require the parties to marry overseas.

165 166

2008 (Cth) Family Law Act 1975 (Cth) 167 Family Law Act 1975 (Cth) 168 Australian Law Reform Commission, 'Multiculturalism and The Law' Report No 57, Australian Government Public Service, Canberra, 1992 169 Family Law Act 1975 170 Ibid. 171 Family Law Act 1975 (Cth) 172 Normann Witzleb, Marriage as the Last Frontier - Same-sex relationship Recognition in Australia (2011) 15(2) International Journal of Law, Policy and the Family, 135-164 173 1975 (Cth) 174 Normann Witzleb, Marriage as the Last Frontier - Same-sex relationship Recognition in Australia (2011) 15(2) International Journal of Law, Policy and the Family, 135-164

38

However, one benefit of section 6 is that it does not require the relationship to meet the jurisdictional requirements of the new de facto property provisions175.

Ultimately, the FLA176 does seem to offer a measure of protection to Muslim women who are in polygamous relationships, at least through the potential application of section 6 in some cases177. The question remains whether or not such women are also able to access the family court system's protection through classifying their relationship as de facto within the meaning of section 4AA as it currently stands.178 Even if they are, depending on the facts, the jurisdictional thresholds for de facto relationships may be prohibitive179. If they are not, then their protection under the FLA180 remains quite limited.

Family Law Act 1975 (Cth) s90RD Family Law Act 1975 (Cth) 177 Family Law Act 1975 (Cth) s6 178 Family Law Act 1975 (Cth) s4AA 179 Family Law Act 1975 (Cth) s90RD 180 Family Law Act 1975 (Cth)
175 176

39

IX. Bibliography

Books/ Reports/ Journals

Ali, Hulam, Polygamy and the Nature of Marriage in Islam and the West (2012) Doctoral dissertation

Australian Law Reform Commission, 'Multiculturalism and The Law' Report No 57, Australian Government Public Service, Canberra, 1992

Australian Law Reform Commission, Multiculturalism: Family Law, Discussion Paper No 46, 1991, at [3.28]

Barnett, Martha, Just and Equitable (2013) The Journal of the NSW Bar Association

Behrens, J, De Facto Relationship? Some Early Case law under the Family Law Act (2010) 24 Australian Journal of Family Law

Bracher, Michael, Gigi Santow, Philip Morgan, & James Trusell, Marriage Dissolution in Australia: Models and Explanations (1993) 47(3) Population Studies: A Journal of Demography

Bridge, Janes, A practical approach to family law (Oxford University, 1st Ed, 2012)

40

Black, Ann, & Sadiq Kerrie, Good and bad Sharia: Australias missed response to Islamic law (2011) 34 University of New South Wales Law Journal

Black, Ann, Legal recognition of Sharia Law (2010) 84 Family Matters

Cadwallader, Jessica Robyn, & Damien W. Riggs, The State of the Union: Toward a Biopolitics of Marriage (2012) 15(6) Media Culture Journal

Caruana, Catherine, State and Federal Reform Agenda (2006) 73 Family Matters

CCH Australia Limited, Australian Family Law Act 1975: With regulations and Rules (CCH Australia, 7th Ed, 2010)

Charsley, Katharine, & Anika Liversage, Transforming polygamy: migration, transnationalism and multiple marriages among Muslim minorities (2013) 13(1) Global Networks

Commonwealth Parliamentary Debates, House of Representatives, 25 June 2008, pp 5823-4 (Robert McClelland, Attorney-general)

Davis, Adrienne, Regulating Polygamy: intimacy, Default Rules, and Bargaining for Equality (2009) 9(9) Washington University School of Law Working Paper

De Cruz, Peter, Family law, sex and society: a comparative study of family law (Routledge, 2nd Ed, 2010)

41

Dickel, Nina, & Gerd Bohner, minority and majority influence on attitudes (2012) Univeristy of Bielefeld Law Journal

Elrod, Linda D, & Robert G. Spector, review of the Year in Family Law: Working toward More Uniformity in Laws relating to Families (2010) 55 Family Law Quarterly

Esmaeili, Hossein, Islamic Law (Sharia) in Modern Democratic Nation States (2001) 7 Journal of Islamic Practical International Law

Fournier, Pascale, Muslim marriages in western courts: lost in transplantation (Ashgate publishing, 1st Ed, 2010),

Freitas, Jessica, Practicing Polygamy: Multicultural Right or Liberal Crime? (2012) 6(1) Global Tides

Friedman, Howard, Australian Court Rejects Muslim Mans Claim of Invalidity of Marriage (2009) 6(2) Religious Clause

Ghani, Usman, Reconfiguration Islamic Tradition: Reform, Rationality and modernity (2013) British Journal of Middle Eastern Studies

Graycar, Reg, Rights and Obligations in the Contemporary Family: Retheorising Individualism, families, and the State (2012) 13 Theoretical Inquiry Law Journal

42

Hakeem, Farrukh, & Arvind Verma, The concept of Punishment Under Sharia (2012) Policing Muslim Communities

Head, Amanda, The Legal Recognition of Close Personal Relationships in New South Wales- A Case for Reform (2011) 13 Flinders Law Journal

Hoodfar, Homa, & Shadi Sadr, Islamic Politics and Womens Quest for Gender Equality in Iran (2010) 31(6) Third World Quarterly

Hosen, Nadirsyah, & Rochard Mohr, Law and Religion in Public Life: The Contemporary Debate (Taylor & Francis, 1st Ed, 2011)

Kalin, Ibrahim, Roots of misconception. Euro-American perceptions of Islam before and after September 11 (2004) 21(5) Islam, fundamentalism, and the betrayal of tradition

Karamessini, Maria, and Jill Rubery, Women and Austerity: The economic crisis and the future for gender equality (Routledge, 1st Ed, 2013)

Karvelas, Patrician, Muslims to push for sharia The Australian: National Affairs, 17 May 2011

Lindquist, Evert A, Sam Vincent, & John Wanna, Delivering Policy Reform: Anchoring Significant Reforms in Turbulent Times (ANU Press, 1st Ed, 2011)

43

Marcotte, Roxanne D, Gender and sexuality online on Australian Muslim Forums (2010) 4(1) Contemporary Islam, 117-138

Marques, Irene, Confused Slaves of many Traditions: the Search for the Freedom dance in Chizianes Niketche: A Tale of polygamy (2010) 41(2) Research in African Literatures

McCue, Helen, & Abdullah Saeed, Family Law and Australian Muslim Women (Melbourne University Publishing, 2nd Ed, 2013)

Melleuish, Gregory, Religion and Politics in Australia (2010) 11(6) Political Theology,909-927

Millbank, Jenny, De facto relationships, same-sex and surrogate parents: Exploring the scope and effect of the 2008 federal relationship reforms (2009) 23(3) Australian Journal of Family Law

Parashar, Archana, Australian Muslims and Family Law: Diversity and Gender Justice (2012) 33(5) Journal of Intercultural Studies

Parekh, Bhikhu, Rethinking multiculturalism: Cultural diversity and political theory (Harvard University Press, 2nd Ed, 2002)

Parkinson, Patrick, tradition and Change in Australian Law (Lawbook Sydney, 4th Ed, 2010)

44

Ratts, Manivong J, Multiculturalism and social justice: Two sides of the same coin (2011) 39(1) Journal of Multicultural Counseling and Development

Rehman, Tabassum and Sophie F. Dziegielewski, Women who choose Islam: Issues, changes, and challenges in providing ethnic-diverse practice (2003) International Journal of Mental Health

Rehman, Javaid, The Sharia, Islamic family laws and international human rights law: Examining the theory and practice of polygamy and talaq (2007) 21(1) International Journal of Law, Policy and the Family

Robinson, Elly, & Ken Knight, Family Law Update (2012) FamilyMatters,,

Rozario, Santi, Islamic marriage: A haven in an uncertain world (2012) 13(2) Culture and Religion

Stokes, Geoff, The politics of identity in Australia (Cambridge University Press, 1st Ed, 1997)

Sumner, Cate, & Tim Lindsey, Courting Reform: Indonesias Islamic Courts and Justice for the Poor (2011) International Journal

Voyce, Malcolm, & Adam Possamai, Legal Pluralism, Family Personal Laws, and the Rejection of Sharia in Australia (2011) 7(4) Democracy and Security

45

Welchman, Lynn, Muslim Family Laws and Womens Consent to Marriage: does the law mean what it says (2011) 1 Journal of the Center for the Critical Analysis of Social Differences at Columbia University

Willmott, Lindy, Benjamin Mathews, & Greg Shoebridge, Defacto relationships property adjustment law- a national direction (2003) 17(1) Australian Journal of Family Law

Witzleb, Normann, Marriage as the Last Frontier- Same-sex relationship Recognition in Australia (2011) 15(2) International Journal of Law, Policy and the Family

Case Law

Baker & Landon (2010) 43 Fam LR 675; 238 FLR 210; [2010] FMCAfam 280

Dahl & Hamblin (2011) 46 Fam LR 229; 254 FLR 49; [2011] FamCAFC 202

Dakin & Sansbury [2010] FMCAfam 628

Moby & Schulter [2010] FLC 93-447

Oltman & Harper (No 2) [2010] FamCA 1360

Wold & Kleppir [2009] FamCA 178

46

Legislation

Family Law Act 1975 (Cth)

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)

Marriage Act 1965 (Cth)

Relationships Register Act 2010 (NSW)

47