When Muslim women want to get divorced, they might be obstructed by both formal and informal factors, even though both parties have equal access to divorce according to Norwegian law.
“It can be difficult for these women to have their Norwegian divorce recognised in their country of origin if their marriage is registered in more than one country. They may also have difficulties getting their divorce recognised in their local community here,” says Tone Linn Wærstad.
She recently defended her PhD dissertation on how Muslim women’s human rights are protected in cases of divorce in Norway. Norway is, in accordance with the UN women’s convention, obliged to protect women from discrimination when their marriage ends.
Wærstad has conducted in-depth interviews with thirteen women – mostly from Pakistan – who have gone through a divorce.
If the divorce is not recognised according to Muslim family law, it might be difficult for the woman to remarry or it could lead to her and her children being stigmatised in their local and religious community.
The fact that many of the women are homemakers complicates things further for them. Moreover, they often come to Norway through arranged marriages and are therefore dependent on their husband.
However, it is important not to generalise, Wærstad emphasises.
“Muslim families are very different. It is perfectly possible to interpret Islam as 100 per cent in line with the women’s convention, but I have been interested in conservative and discriminating practice within Muslim law.”
Not equal access to divorce
Traditional Muslim family law has different regulations for women and men when it comes to divorce.
The husband can freely divorce his wife simply because he wants to. For the wife to get a divorce, one or more requirements must be fulfilled, such as the husband’s infertility or that she is able to prove that he is abusing her. But even then there is much pressure to give it another try, as there are strong traditions for mediation and reconciliation within Muslim family law,” says Wærstad.
One of Wærstad’s interviewees had to remain in an abusive marriage for a long time before the local community around the Mosque finally accepted her wish to get a divorce.
Wærstad finds it problematic that this practice of reconciliation is so informal, without Norwegian authorities knowing whether Norwegian laws are violated in the process. At the same time, she warns against institutionalising the mediation in the same manner as the UK, through the establishment of a Sharia Council.
“Women might end up losing formally established rights in order to gain informal rights during negotiations. There are examples of women who give up money or are pushed into shared custody with violent fathers in order to get recognition for a religious divorce,” says Wærstad.
She estimates that as many as 95 per cent of the cases that end up in the British Sharia Council are cases in which the husband refuses his wife to get a divorce. Norway has no similar documentation, but judging from Wærstad’s interviewees it seems clear that it is difficult for Muslim women to get religious acceptance for divorce in Norway as well.
There are examples of women who give up money or are pushed into shared custody with violent fathers in order to get recognition for a religious divorce.
No supporter of Sharia Councils
“What should Norwegian authorities do in order to protect these women from discrimination?”
“It’s not a good idea to increase the divide between ‘us’ and ‘them’, and allow ‘them’ to handle things in accordance with their own family laws and their own Sharia councils. In my opinion, that means disclaiming responsibility. We should aim for a society in which all people have the same access to their legally established rights,” says Wærstad.
She emphasises that there are no easy solutions to these problems. This is about enabling women to make their own choices, have their own economy, opportunities for education, employment, and language learning.
“We need to look at the situation of those who experience these problems, and ask what we can do for them. There is need for increased awareness and competence in this field within the public administration. The authorities are not sufficiently aware of the fact that the protection against discrimination applies in these cases,” says Wærstad.
Religious rights a disadvantage for women
There have also been attempts at introducing religious family law in Canada. In 2004, a Muslim organisation in Ontario established so-called Sharia tribunals in which Sharia law was applied.
“They went out in the media and recommended that all good Muslims use the Sharia tribunal. Such statements push women into religious trials instead of civil lawsuits, under the impression that this is a religious duty. Additionally, we see that both in the UK and in Canada religious law has proven to be a huge disadvantage for women,” says Wærstad.
The Canadian Sharia tribunals were established through the Ontarian Arbitration Act. Arbitration takes place when two parts of a legal dispute assign a third party the right to judge in the case with binding legal effect. This type of law is primarily used in major commercial cases.
Wærstad found it strange that the Muslim organisation was able to use this act as a loophole to introduce religious family law.
“What surprised me after having studied the law in Canada was that the Norwegian law is identical. But here it hasn’t been applied in the same way yet.”
Religious rights versus women’s rights
According to Wærstad, the example from Canada illustrates the necessity for balance between the rights of various groups. The Sharia tribunals were a threat to women’s rights, but it was also a difficult case for Muslims as a minority group.
The case received a lot of media attention; with headlines like “Stoning women to death becomes legal in Canada”, even though in reality it was about cases such as the division of the estate following divorce.
Eventually, the authorities in Ontario changed the law and practically banned religious arbitral tribunals. Wærstad finds it problematic that the authorities didn’t address the situation earlier in the process.
“One of my main conclusions is that the authorities need to be ahead in order to avoid stigmatising attitudes towards Muslims as a group. It must be horrible constantly having to answer for so much,” says Wærstad.
She thinks the authorities should ensure that the Norwegian Arbitration Act provides better protection for the weaker parties, or they should limit the possibility of handling questions related to family law through this type of dispute settlement.
One of my main conclusions is that the authorities need to be ahead in order to avoid stigmatising attitudes towards Muslims as a group.
Dumps the wife in Pakistan
Wærstad has also investigated cases where women are divorced against their own will. Among the thirteen women she spoke to, four had experienced attempts to send them back to their country of origin in order to end the marriage.
“Most men’s prime motivation for doing this is to get rid of their wife. If she’s in Norway she might make demands or perhaps report him to the police for domestic violence. If he dumps her in her home country, he is rid of her,” says Wærstad.
One of Wærstad’s interviewees had a Muslim wedding ceremony, a nikkah, with her future husband in Pakistan, but the marriage wasn’t formally registered. The husband thereafter left her in Pakistan and went back to Norway. It took years until the woman finally came to Norway, where she was exposed to grave abuse from his family. It also turned out that her husband had a Norwegian partner.
“Perhaps this was a forced marriage for him. He had lived in Norway all his life,” says Wærstad.
After a while, her family in law said they were taking her on holiday and brought the woman back to Pakistan where they left her.
Don’t know that they’ve been divorced
According to Wærstad, the women who are dumped in their home country are put in a very vulnerable situation. They are often deprived of their identification documents and without valuables. Being divorced in Pakistan can also be very stigmatising.
When the husband applies for his Pakistani divorce to be recognised in Norway, the women get no information from Norwegian authorities regarding their rights in Norway.
“It is a breach of Norwegian administrative law when the authorities fail to inform the second party that a divorce has taken place,” says Wærstad.
She noticed this when going through cases from the past five years at the County Governor of Oslo and Akershus' office. The County Governor is responsible for recognising foreign divorce.
Even though administrative law requires that the authorities contact the second party in a foreign divorce case, a circular letter from 2004 says that exemptions from this requirement may be made if it is considered to be ‘obviously unnecessary’ and without any harm or disadvantage on behalf of the second party.
According to Wærstad, this exception has come about because it has been difficult to get in touch with these women. She believes that an informing letter from the County Governor could make a big difference
“These women know very little about their rights and that they are entitled to a residence permit in Norway. They might not even know that they’re divorced,” says Wærstad.
These women know very little about their rights and that they are entitled to a residence permit in Norway. They might not even know that they’re divorced.
County Governor says they follow the circular
At the County Governor’s office, they have a hard time understanding the accusations regarding the breach of administrative law.
“We follow the law of recognition and the circular designed for handling these cases. There it is stated that informing the second party is not practiced. We have acted in accordance with this because it is often difficult to reach the second party due to unknown address,” says senior adviser Hege Skaanes Nyhus.
According to Nyhus, the circular is now subject to revision. Since it will be revised by the The Norwegian Directorate for Children, Youth and Family Affairs, Nyhus is reluctant to predict any changes. Nevertheless, Wærstad’s findings might have significance for the handling of these cases in the future.
“Perhaps we could be more attentive in these cases. The goal is of course that no one is discriminated. We’re doing our best to achieve that,” says Nyhus.
According to Nyhus, the cases concerning recognition of foreign divorce only amount to a few hundred cases annually at her office.
“Most of the cases are fairly straightforward, from countries with well organised legal systems. Then there are some cases that require more attention, and these cases are forwarded to the embassy for verification,” says Nyhus.
Norwegian legal system fails to handle the challenges
The woman who was dumped in Pakistan by her family in law eventually managed to get in touch with the Norwegian embassy in Islamabad, and came back to Norway.
According to Wærstad, the embassy does good work in order to help the women who are dumped in their country of origin, but there seems to be little or no contact between those who recognise the divorce in Norway and those who help the women in Pakistan. Wærstad sees this as an example of a much bigger set of problems.
“In my experience there is not enough focus in our legal system on the problems that arise when immigration law, human rights, family law, and criminal law meet. These legal areas blend together, and no one takes the responsibility for identifying what consequences it might have,” says Wærstad.
Wærstad believes that her own research is a significant contribution to this field.
“My research addresses many different areas. In my dissertation, I would claim that I build a bridge between various legal areas and point out where they slip,” says Wærstad.
“In your dissertation you point out that Muslim minorities are under constant attack, and that they are exposed to racism and xenophobia in the West today. It is hotly debated nowadays whether we should downscale the right to family reunification in order to restrict immigration, and your research shows that Muslim family law may harm Muslim women in Norway. Are you afraid that your research may be misused in this context?”
“Yes, I am, and it’s the last thing I want. I want everyone who works within this field to be able to hold two thoughts in their head at the same time, and that they manage to weigh various rights against each other. The protection against discrimination of women is a very strong right, and we mustn’t accept any encroachment of this protection. But the right to live a religious life is also important. We need a society in which both rights are ensured,” says Wærstad.
Translated by: Cathinka Dahl Hambro
- In her doctoral dissertation, Tone Wærstad has studied the legal protection of Muslim minority women in divorce cases.
- The dissertation is entitled Protecting Muslim Minority Women’s Human Rights at Divorce: Application of the Protection against Discrimination Guarantee in Norwegian Domestic law, Private International Law and Human Rights Law.
- Wærstad has looked at how Norway fulfils its duties in accordance with the UN women’s convention and the Human Rights Act when these laws encounter Muslim family law and Muslim traditions.
- She has analysed the various relevant laws, among them family law, procedural law, administrative law, and arbitration law. Methodologically, she has applied both quantitative and qualitative data in her examination of how the laws affect the women’s situation.
- The dissertation is partly based on in-depth interviews with thirteen Muslim women who have gone through a divorce.
- The dissertation also contains a comparative analysis of experiences with dispute settlements within the British Sharia Council and Canadian arbitral tribunals as a point of departure for how religiously based dispute settlements might be better controlled in Norway.