Pushing the Law: Challenges for Divorced Women in Malaysia

After Sobia’s post last week about The Other Half of the Sky, a Tunisian film that tells a story about a woman’s experience with inheritance laws, I was interested to see this article, which talked about other cracks that women may fall through in another shariah-inspired legal system.  In this case, Mariam Mokhtar is writing about Muslim women’s experiences of divorce in Malaysia.

To back up a bit, Mokhtar was responding to developments described in this article:

Muslim women with problems should voice them to the Secretariat on the Protection and Enhancement of Muslim Women (Senada) to be channelled to government bodies for action.

Senada chairman Datuk Seri Shahrizat Abd Jalil said the secretariat would look into matters brought up by women pertaining to syariah laws such as divorce and other social problems.

“We will tackle the problems based on which parliamentary constituency the woman belongs to and work with non-governmental organisations within that area,” she said.

Shahrizat, who is also the special adviser to the Prime Minister for women and social development affairs, added that the key areas Senada would pay attention to were law, policies and regulations.

Sounds good, right?  Well, it seems like things might be a bit more complicated.  Mokhtar begins her response with this:

“[So] the newly formed Secretariat on the Protection and Enhancement of Muslim Women (Senada) is supposed to help Muslim women with problems? [...] Somehow, I doubt it.

Too many women and children have been let down by the current Syariah system, especially over the rights of a divorced Muslim woman. Countless other families have been torn apart by inequality, greed and by men who impose their selfish will on women.”

Focusing on the problems of “the current Syariah system” (which she discusses in its political and historical context, rather than dismissing the concept of “shariah” altogether like some people do), Mokhtar explains that the court system is expensive and subject to frequent delays.  Because of this, Muslim women have a hard time accessing support payments from their former husbands; some husbands even disappear, and the courts are unable to find them.  This leaves many women vulnerable and often depressed.

Although Mokhtar doesn’t go into extensive detail regarding the ways in which shariah law is exercised in the courts that she describes, her article does point to some of the ways that the law needs to be considered in context: if not enough safeguards exist to protect the people involved, and if not enough community support is available when women are not able to track down their former husbands, then the system needs fixing, regardless of the religious origins of the laws involved.  She also argues that many past initiatives aimed at supporting women have ended up failing, and she expresses skepticism that the latest one, Senada (as described above), will be any different.  That said, it seemed unclear whether her proposed solution of changing the laws would be sufficient to address the problems, or whether there might be some potential for Senada to function in a more effective way than Mokhtar predicts.

I did find Mokhtar’s description in her final paragraph of children who come from “a broken marriage” to be a bit simplistic and reductive; children can face all sorts of challenges and respond to them in very diverse ways, and the suggestion that all of these children will end up as “scarred”, as she describes, is a little far-fetched.  Despite this abrupt ending, the article was an interesting challenge to some of the projects that can be created to support women, as it asks some important questions about how effective these initiatives truly are and whether they can actually respond to some of the real challenges that Muslim women face in Malaysia’s court system.

  • http://getoutlines.wordpress.com Safiya Outlines

    Salaam Alaikum,

    I think a huge problem with Family Law is that there is always a huge reliance on people behaving reasonably. When this doesn’t happen the courts have little power of enforcement, prison would deprive the children of a parent, fines would also negatively impact the children.

    That’s why I think, whatever the system, mediation needs to play a huge role.

  • Krista

    @ Safiya: I completely agree. A lot of “Islamic family law” systems seem to be set up to make sure that the legal decisions are taken in accordance with shari`ah, but aren’t equipped to deal with the fact that these decisions were meant to be made in contexts where there were safeguards in place within the community to make sure that people wouldn’t end up being treated unfairly.

  • Farah

    “A lot of “Islamic family law” systems seem to be set up to make sure that the legal decisions are taken in accordance with shari`ah, but aren’t equipped to deal with the fact that these decisions were meant to be made in contexts where there were safeguards in place within the community to make sure that people wouldn’t end up being treated unfairly.”

    It is a criticism that can be leveled at all family law systems, not just Islamic ones. There isn’t enough social or legal safeguards to identify situations of family violence and support victims (especially where the violence has been long-term), to support women and provide opportunities for employment after separation, and (while I agree that the writer’s last paragraph is simplistic) to support the children who tend to suffer the worst.

    “That’s why I think, whatever the system, mediation needs to play a huge role.”

    “@ Safiya: I completely agree”

    Mediation is not necessarily the best move for parties for a number of reasons. Firstly, mediation is unable to effectively deal with situations of family violence and domestic abuse. This is applicable to situations of emotional abuse or neglect as well; mediators are generally ill-equipped to identify and address serious power imbalances between the parties. In such agreements reached through mediation cannot be assumed to be consensual – women may often effectively be coerced into agreement. Mediators themselves cannot in reality be considered independent – patriarchal perspectives can easily enter and even drive the mediation process to the detriment of many women.

    (See generally http://www.austlii.edu.au/au/journals/QUTLJJ/2005/2.html for a discussion on the push for mediation within Australia).

    Additionally, interest-based mediation like within the family law context focuses upon the interests of disputants rather than upon objective measures of fairness. Parents focus upon their own desires rather than the needs of the children. This is especially true within Australia – though the Family Law Act has stated that the child’s best interest is the court’s paramount consideration, the same principle is not extended to mediation – mediators are not required to inform the parties that their decisions reached must be in the child’s best interest, nor that the principle exists at all. One must also note that mediation proceedings and the parties are not completely cut off from the influence of the law. There has been a lot of research done that demonstrates that bargaining in mediation (indeed, bargaining within any informal dispute resolution process) takes place within “the shadow of the law”, that is, parties bargain towards settlement in the shadow of expected trial outcomes. There a generally two main implications of this idea. Firstly, some parties are fully aware of their entitlements and rights regarding child support, child access, spousal maintenance and property division and will push for a resolution to their benefit, usually at the expense of the weaker party. Alternatively, some parties are completely unaware of their rights and entitlements under the law and as such can be bullied or harassed into accepting resolutions that are neither in their own best interest or the child’s. Economic disparity between the parties is also an additional factor to consider: in Australia decisions reached in mediation cannot be appealed. Where a party later feels that the agreement is unfair, they must mount a fresh case within the court system and submit to the findings of the court. Parties who therefore cannot afford lengthy trials or even basic legal advice are more likely to accept unfair decisions because they have no alternative.

    (See generally on this point Mnookin, R. H. and Kornhauser, L.1979, “Bargaining in the shadow of the law: The case of divorce”. Yale Law Journal 88: 950–997 and http://ftp.informatik.rwth-aachen.de/Publications/CEUR-WS/Vol-430/Paper6.pdf, and Batagol, Becky and Brown, Thea (2009) Bargaining in the Shadow of the Law? The Case of Family Mediation (Federation Press/Themis Press)

    “I think a huge problem with Family Law is that there is always a huge reliance on people behaving reasonably. When this doesn’t happen the courts have little power of enforcement, prison would deprive the children of a parent, fines would also negatively impact the children.”

    Mediation relies on people’s participation and their respect of the process to be effective because it is an extremely informal decision making process. If the court is unable to deal with unreasonable people, how can like mediation deal with them?

    I don’t think mediation cannot operate as a “safeguard”. For a small number of amicable divorces where the problems I’ve mentioned above are not present, then I agree the process can be extremely effective and efficient. But then again, how many divorces do you know that are actually amicable?

  • Farah

    Though I should add as a caveat that my definition of mediation may be different to both yours. Here I have used mediation to mean a process in which the parties to a dispute, with the assistance of a neutral third party identify the disputed issues, develop options, consider alternatives and then endeavour to reach agreement. The decision reached is one that has been negotiated by the parties; the mediator merely facilitates discussion and encourages the parties to reach an agreement. This can be contrasted to a process like arbitration, where the arbitrator takes a more active role in the decision reached.