Privatizing Family Law in the Name of Religion

This Essay examines a movement across the world to allow fundamentalist religious norms, rather than state law, to govern family matters associated with divorce and inheritance. Such religious norms often depart significantly from the state’s protections for vulnerable dependents at two significant points: in divorce and in death. This Essay explores the risks to women and children, two particularly vulnerable groups, when religious couples enter into marriages that are recognized religiously, but not civilly, leaving little opportunity for state oversight. Without state oversight, women are bound by a religious community’s norms, a phenomenon now occurring in the Sharia courts that operate in Great Britain. These courts apply Islamic, not British, law to divorce and inheritance. The Essay also examines the system of shared jurisdiction in Western Thrace, where three Mufti decide family disputes for a Muslim minority. In both systems, the fundamentalist religious norms provide considerably less protection to individuals in two periods of great need, upon divorce and the death of a spouse. The Essay contends that the state plays a crucial role in protecting traditionally vulnerable groups. It shows that if certain schools of Islamic law govern divorce proceedings, women face the loss of custody or their adolescent children and near certain poverty. The operation of religions norms undercuts a woman’s ability to exit marital relationships, especially violent ones. Under Islamic law, women are left financially at risk upon their husband’s death. Therefore, policymakers should proceed cautiously before expanding the opportunity for the application of religious norms in instances that may leave women and children trapped in poverty or abusive relationships.