Secular Court-Ordered Divorces: What Modern Fatāwā and Canadian Imams Say

Abstract:Many Canadian Muslim couples are hesitant to resort to civil legal processes and attempt to resolve their disputes within the religious community. Islamic law’s exclusion of non-Muslim judges from holding judicial authority in certain family law matters limits the feasibility of aligning religious commands with family court orders. By extrapolating contemporary legal opinions (fatāwā, sing. fatwā) issued by institutions and narrating experiences of Canadian imams, this article documents the views of both researchers and practitioners, finding that neither holds secular court-ordered divorces contested by the husband to suffice as a form of Islamic marriage dissolution. This article concludes that both Canadian imams and fatwā-issuing bodies call for the development of extra-judicial entities that apply Islamic law’s Alternative Dispute Resolution (ADR) procedures in a manner recognized by secular authorities.Résumé:De nombreux couples musulmans canadiens hésitent à recourir aux procédures judiciaires civiles et tentent plutôt de résoudre leurs différends au sein de la communauté religieuse. Par ailleurs, la non-reconnaissance dans le cadre du droit islamique de l’autorité judiciaire des juges non-musulmans dans certaines affaires de droit de la famille limite la possibilité d’aligner les commandements religieux sur les ordonnances des tribunaux de la famille. En extrapolant les avis juridiques contemporains (fatāwā) émis par les institutions et en relatant les expériences des imams canadiens, cet article documente les points de vue des chercheurs et chercheuses et des praticiens et praticiennes pour démontrer que les divorces laïques ordonnés par un tribunal, et qui sont contestés par le mari, s’avèrent insuffisants pour être considérés comme une forme de dissolution du mariage islamique. En conclusion, cet article montre que les imams canadiens et les fatāwā en appellent au développement d’entités extrajudiciaires qui appliquent les modes alternatifs de règlement des conflits (MARC) de la loi islamique d’une manière qui serait reconnue par les autorités laïques.


Introduction
Many Canadian Muslim couples are hesitant to resort to civil legal processes and attempt to resolve their disputes within the religious community. 1Islamic law's exclusion of non-Muslim judges from holding judicial authority in certain family law matters limits the feasibility of aligning religious commands with family court orders. 2Thus, court orders, even if they accord with religious practices, may not be morally authoritative if the judge is not Muslim.
For Muslim minorities residing in non-Muslim countries, classical Muslim jurists theorized alternative forms of judicial authority to accommodate community-led adjudication in the absence of a functioning Islamic system. 3 Perceiving religious leaders (imams and scholars) as mediators and arbitrators, 4 many North American Muslim families seek their assistance to resolve marital disputes, creating an unregulated "ad hoc system of individual imams and arbitrators reaching unreported decisions." 5This article identifies the ramifications of such "private ordering" on both the imams and disputants in relation to overlapping secular and religious authorities.
Since most disputes are not resolved by litigation, addressing issues of sociolegal integration for religious minorities through the study of case law is inherently limited.Instead, these issues are better addressed by analyzing the theoretical underpinnings of moral authority and legal bindingness, and the qualitative experiences of how Islamic law is lived by Muslim minorities.The absence of a religious judicial channel for Canadian Muslims or a unified clerical hierarchy limits the guiding sources of Islamic law to the legal opinions (fatāwā, sing.fatwā) of communally reputable institutions or the instructions of individual local imams.By extrapolating contemporary fatāwā issued by institutions and narrating experiences of religious leaders in Canada, this article documents the views of both researchers and practitioners on issues relating to religious marriage dissolution in minority settings.
First, the article analyzes fifteen fatāwā issued by governmental and nongovernmental bodies across the globe from 2000 to 2021 opining on whether a secular divorce qualifies as a valid Islamic divorce.These fatāwā are influenced by evolving doctrines of the laws of minority (fiqh al-ʾaqalliyāt), exceptions to 1 Julie Macfarlane, "'Difference' or 'Sameness'?Law, Social Ordering & Islamic Marriage and Divorce in North America," Australian Journal of Family Law 29, no. 3 (2015): 21-22. 2 pre-requisite conditions of judicial appointment, binding implications of contract law, and facilitating access to justice.Second, the paper narrates qualitative findings of Canadian imams' personal and organizational experiences in mediating marital disputes.The findings are based on semi-structured interviews with twenty Canadian imams from seven different provinces, conducted throughout 2020-2021 as part of an LLM thesis completed at the University of Windsor Faculty of Law.Interviewees were invited to participate through affiliated institutions, such as provincial and national imams' councils and mosques, or by direct invitation, in a manner pursuant to the University of Windsor Research Ethics Board.
This research finds that most contemporary fatāwā and interviewees do not hold that secular court-ordered divorces suffice as a form of Islamic marriage dissolution when husbands contest them.Both Canadian imams and fatwā-issuing bodies advocate for the development of extra-judicial entities that apply Islamic law's Alternative Dispute Resolution (ADR) procedures in a manner recognized by secular authorities.

I. What the Fatwā Says: Islamic Legal Opinions on Court-Ordered Divorces Issued by Non-Muslim Judges
Two authorities are entitled to interpret and apply Islamic law to new cases: a legal scholar (muftī) and a judge (qāḍī).The difference between them is that a muftī issues a non-binding legal opinion (i.e., fatwā) while a qāḍī issues a legally and morally binding judgment ( _ hukm). 6Given this binding nature of judgments, Islamic law restricts judicial appointments with stringent eligibility conditions.One of the conditions agreed upon by the majority of Islamic schools of law is that the qāḍī must be a Muslim. 7However, almost all legal schools accommodate exceptions to some conditions to enhance communal independence and ensure social stability. 8For instance, if the governmental appointment process for qāḍīs is absent, Islamic law entrusts community leaders to either recognize temporary adjudicators or replace them. 9Notably, many of these exemptions facilitating access to justice developed in the family law context.Nonetheless, the condition requiring the judge to be Muslim has never been waived by classical Muslim jurists.
For the distinct requirements by each Sunni school, see ibid; Ghulam Azad, "Qualifications of a Qāḍī," Islamic Studies 23, no. 3 (1984) Secular Court-Ordered Divorces 69 Among the multiple Islamic marriage dissolution methods, two do not require the involvement of a judicial decision-maker: _ talāq and khulʿ.Ṭalāq is "a verbal or written unilateral divorce issued by the husband, explicitly or implicitly signaling his intent to divorce." 10 Khulʿ is "a verbal or written bilateral divorce initiated by the wife, denoting divestment.It is a contractual agreement that fiscally compensates the husband in exchange for his release of the marital bond." 11These methods do not inherently align with the secular processes of marriage dissolution: Only in limited circumstances can a civil divorce or annulment be treated as _ talāq or khulʿ.A wife who is granted a civil divorce or annulment despite the husband's contest must independently acquire a religious marital dissolution.To facilitate marital dispute resolutions in Canada, Islamic legal authority is needed to: (1) grant a religious divorce or annulment complementing a civil divorce, and (2) mediate or arbitrate corollary relief using religious laws and principles. 12 practice, North American imams differ in their approaches to mediating cases when the husband withholds _ talāq or his consent to khulʿ.Some imams assume the role of a qāḍī so as to grant an annulment (faskh) or order a divorce ( _ ta _ tlīq).Both of these methods allow the dissolution of the marriage to proceed according to Islamic law without the consent of an unreasonably recalcitrant husband.The different approaches practiced by imams reflect the jurisprudential arguments propounded by several contemporary fatāwā across the globe.
There are discernible trends in the positions of North American and international fatwā-issuing organizations on the absence of Islamic judicial authority in resolving family matters. 13While North American Muslims often consult their local organizations, many immigrants also consult fatwā-issuing councils and governmental bodies from "back home."Thus, modern fatāwā of both Muslimmajority and Muslim-minority contexts inform the legal practices of Muslims in North America.The fatāwā extrapolated in this study date from 2000 to 2021 and are issued by fifteen governmental and non-governmental bodies across the globe.
Fatwā-issuing institutions addressing whether a court-ordered divorce contested by the husband suffices as a religious divorce include governmental bodies in majority-Muslim countries, such as the Egyptian Dar al-Ifta, 14 the Jordanian Dar 10 Yousef Wahb, "Faith-Based Divorce Proceedings: Alternative Dispute Resolutions for Canadian Muslims," Canadian Family Law Quarterly 40, no. 2 (2022): 111.11   Ibid, at 110-13.
12 Ibid, at 112. 13 Not all institutions have publicly available or searchable digitized databases.To further investigate the context of fatāwā-making, I pursued numerous informal discussions with Islamic law experts belonging to multiple institutions across the globe to acquire unpublished materials, fatāwā, and research papers on the issue.However, the sample size of institutions was limited to those with publicized statements or decisions, excluding unofficial or individual opinions.Furthermore, aside from some Urdu fatāwā, not all institutions have their decisions accessible in English.I translated and summarized the Arabic fatāwā included in the study.al-Ifta, 15 and the Republic of Iraqi Sunni Endowment Diwan. 16Other nongovernmental bodies which rely on international contributors include: the Syrian Islamic Council, 17 the International Islamic Fiqh Academy (IIFA), the Majlisul Ulama of South Africa, 18 the European Council of Fatwa and Research (ECFR), the Fiqh Council of North America (FCNA), the Assembly of Muslim Jurists of America (AMJA), Darulifta: Institute of Islamic Jurisprudence in the United Kingdom, and Darulifta of Darul Uloom Deoband -India.Collectively, these bodies comprise a large number of scholars with diverse ethnicities and religious and educational backgrounds.With respect to Shia iftā bodies, the Council of Shia Muslim Scholars of North America and the Imam Mahdi Association of Marjaeya (IMAM) have dealt extensively with the issue, given the significance of religious authority and hierarchy within the Shia school.Both bodies comprise a large number of North American Twelver Shia scholars and leaders.
Fourteen of the fifteen statements below strictly commit to Islamic divorce proceedings by holding that a court-ordered divorce obtained by the wife without the verbal or written religious divorce granted by the husband is not religiously binding.Only one fatwā holds otherwise.Figure 1 illustrates the development of the juristic debate across Muslim-majority countries as well as North America and Europe.
Since 2000, the ECFR has been the leading authority in legitimizing secular divorces that are contested by husbands. 19The ECFR adopted the recommendation of a paper submitted by a Lebanese sharʿī judge, which argues that the husband's registration of marriage under the civil legal system constitutes his implied consent to civil law authority over the dissolution of marriage. 20The paper cautions against the inconsistency of marital statuses between religious and legal processes and advocates for immediacy in securing marital rights.The ECFR further developed this opinion in its twentieth and twenty-fourth annual conferences with guidelines for European "sharʿī judicial bodies" to enforce khulʿ on the husband. 21ECFR decisions frequently emphasize the importance of exhausting Islamic arbitration processes before resorting to a civil court to facilitate access to justice for Muslims.
In 2018, the FCNA held that court-ordered divorces issued by non-Muslim judges without the husband's consent are not religiously binding. 22However, according to one participant in the present study, some FCNA members are reviewing the possibility of religiously validating North American divorce decrees.The renewed debate is based on submissions from two of its members in 2020 and 2021 which, as of February 2022, have not resulted in any final statement.FCNA proponents of such validation rely on the same grounds as the European council's fatwā and emphasize the need to first seek Islamic arbitration, if possible.
In its second conference in 2004, 23 the AMJA declared the religious illegitimacy of secular divorces contested by the husband and later codified its position in the "Assembly's Family Code for Muslim Communities in North America" in 2012. 24AMJA's fatwā database documents recurring statements holding this position.For example, in 2007, AMJA refused to approve a Canadian imam's grant of religious divorce.Instead, AMJA recommended that the husband be convinced to grant a khulʿ through arbitration or mediation. 25AMJA had similar recommendations to cases regarding a European couple in 201026 and an American couple in 2011 (the wife was advised to seek _ talāq from Jordan where she registered the marriage). 27The same stance was held by the Shariah Board of Assembly of Muslim Jurists of America, "Fatwa no.3916," (12 November 2007) online: Assembly of Muslim Jurists of America, <perma.cc/SPW7-N3M7>.America. 28Similar statements were issued by institutions from outside North America, such as the London Fatwa Council 29 and the Majlisul Ulama of South Africa. 30he International Islamic Fiqh Academy (IIFA) pronounced its decision in its nineteenth session in 2007 31 after reviewing research proposals by the official muftī of Lebanon, a former Minister of Justice of Mauritania, a judge of the sharʿī council affiliated to the Pakistani Supreme Court, and a professor from Saudi Arabia's Umm al-Qura University. 32The IIFA held that husband-contested secular divorces do not fulfil the requirements of _ talāq.Instead, IIFA encouraged the use of religious arbitration and stated that Islamic institutions are religiously authorized to represent the Muslim judiciary. 33ajlisul Ulama of South Africa criticized a fatwā declaring that "a divorce decreed by a non-Muslim secular court is a valid Talaaq" even if the husband "made the application for dissolution of the marriage," explaining that: The divorce decree of a non-Muslim court is directed at the civil contract, not at the Nikah [Islamic marriage contract].In fact, any court judge will confirm that his verdict has no relationship with the Nikah.It concerns solely the termination of the secular civil contract.Furthermore, the judicial decrees of a non-Muslim judge or a secular Muslim judge have no validity in the Shariah.The non-Muslim court has no wilaayat (jurisdiction) over a Muslim. 34e Majlis rejected the minority view's rationale that the secular judge is implicitly appointed as the husband's agent (wakīl ) to administer _ talāq on his behalf as a consequence of the husband's consent to the civil marriage: "This is palpably fallacious.A court judge is not the wakeel (agent) of any of the parties whose case he has to adjudicate.There is no legal system which accepts the ludicrous idea of a court judge being the agent of any of the disputants in front of him." 35n a 2015 fatwā, the Darulifta: Institute of Islamic Jurisprudence in the United Kingdom opined, "if the husband does not sign on any written document or he fails to give his 'clear' consent for the court to go ahead with the divorce, but the court [nonetheless] divorces him on behalf of his wife against his will, then this does not constitute a valid Islamic divorce."36 28 Mufti Mo _ hammed Sājid, "Fatwa Answer: Did the Divorce Take Place?" (14 May 2020) online: Shariah Board of America <perma.cc/YKJ5-85L9>.In responding to an intricate scenario questioning the validity of a "civil divorce granted by a French non-Muslim judge," Darul Uloom Deoband, India, acknowledged that "[w]e are not aware of France's circumstances" and advised the questioner to contact local scholars who assume quasi-judicial authority as prescribed by the twentieth-century Indian scholar Ashraf Tahānawī, 37 who endorsed the Mālikī school's authorization of community members to replace official judges in such circumstances.38 The Council of Shia Muslim Scholars of North America issued a statement in 2021 warning Muslim men against abusing their unilateral right to divorce and advising women to "consult a pious religious scholar who is God-fearing and fully familiar with family laws of Islam, and to stay away from anyone who claims to have the authority to divorce on behalf of the al-hakim al-shar'i (religious authority)".39 The council stated that correct Islamic procedures must be sought through religious authorities to legitimately grant _ talāq.Otherwise, "the divorce will not be [religiously] valid even if the underlying circumstances justify the divorce."40 The council stated, If it reaches a stage at which divorce by the religious authority is needed, such as when the husband (unreasonably) refuses to divorce his wife or maintain the relationship with her by giving her rights and treating her properly, then no one has the authority to execute the divorce on behalf of Imam al-Mahdi (p) except the qualified jurist or his authorized representative who has been granted such power.41 In 2011, consultations with over a hundred experts and key leaders from the Shia Muslim community in North America were conducted and compiled in "The Shia Roadmap."42 The Roadmap was presented to The Council of Shia Muslim Scholars of North America during its eleventh conference, where it received the Council's endorsement.Based on the Roadmap, the IMAM issued a blueprint document in 2011 including the following recommendations: to "[e]stablish a Shia Muslim Divorce Committee to look into issues of divorce and receive the authority of the Jurist to execute a divorce."43

Summary of Findings: Two Opinions
The minority opinion, represented by one fatwā, considers a divorce ordered by a non-Muslim judge to be religiously binding on Muslims living in non-Muslim 37 Darulifta of Darul Uloom Deoband -India, "Social Matters: Women's Issues," online: Darulifta of Darul Uloom Deoband-India, <perma.cc/9CX9-U4VW>.majority countries regardless of the husband's consent.The juristic rationale for this opinion rests on four grounds: 1) the registration of marriage in a non-Muslim jurisdiction denotes an implied consent to its family laws and assigns the husband's right of divorce to its judges, 44 2) the legal custom (ʿurf) of the exclusivity of divorce authority to the civil court stands as an implied condition in the marriage contract, 3) the legal and social dilemmas of having inconsistent marital statuses, and 4) the Islamic principles of necessity, public interest, and preventing harm.In addition, the discussion extends to the different roles and authorities judges carry across religious and secular frameworks, rendering some traditional qāḍī qualifications inapplicable today. 45he majority opinion, represented by fourteen fatāwā, holds that a divorce granted by a non-Muslim judge without the husband's consent is of no religious consequence.This opinion views the lack of religious authority of non-Muslim judges as a matter of consensus (ijmāʿ), which, as a primary source of Islamic law, cannot be disputed or overridden by principles of public interest or necessity.The majority prioritizes the theological safeguarding of family law matters from secular authority over adapting ʿurf.Alternatively, this opinion proposes that mosques and Islamic centres, represented by their imams, should be religiously authorized to legitimize civil divorces and certain legal settlements among community members in novel settings.
While all fatāwā, those which ascribe religious legitimacy to civil divorce and those which do not, advocate for communal adjudication, no fatwā precisely demarcates the scope of religious legal authority they would be granted, nor does any establish procedural rules to secure sound religious practices and legal compatibility.As illustrated in the next section, although some Canadian imams incline towards the rationale of the minority opinion in their desire for access to justice, all imams ultimately adopt the conclusion of the majority.

II. What the Imam Says: Qualitative Experiences with Family Mediation
Since, in the absence of Islamic judicial authority in Canada, imams are often called upon to resolve marital conflicts, the present study narrates the experiences of Canadian imams conducting informal ADR services, which, unlike court decisions, are not documented or published.Literature concerning religious divorce and faith-based arbitration predominantly identifies divergences between Islamic and Canadian marital rights schemes, examines past experiences of ADR projects, and surveys the experiences of Canadian Muslim couples navigating divorce processes between religious norms and legal systems.
From 2006 to 2010, Macfarlane collected over 100 personal accounts of marital conflicts through interviews with about 200 divorcees, imams, and social workers 44 Some modern scholars, who agreed with the conclusion of this fatwā, rejected this premise since the assignment of rights, although a valid concept in Islamic law, requires an explicit verbal or written agreement and cannot be implied.
Columbia, Saskatchewan, Manitoba, and Nova Scotia) constituting the vast majority of the Canadian Muslim population. 54articipants were asked five categories of questions: background, jurisprudential, procedural, evaluative, and future recommendations.First, background questions explored the length of their experience with family disputes as religious leaders and whether they obtained any Canadian legal training prior to or during their involvement with such matters.Second, jurisprudential questions discussed their characterization of the conflict between Islamic law and Canadian law as it relates to wife-initiated divorce proceedings and whether Islamic law can accommodate secular procedures, especially in the case of a minority community.Third, procedural questions inquired about ADR methods they employ in providing marital resolution services to their communities.Fourth, evaluative questions assessed the impact of their services by surveying their observations on the "binding effect" of any agreements produced as a result of ADR services, including whether they are filed with courts for enforcement.Fifth, future recommendation questions surveyed participants' proposals of how the Muslim community can improve its ADR services and institutionally contribute to resolving the gap between religious and secular divorce law.

Background Questions: Demographics of Sample
The interviewees represent diverse communities, ethnicities, institutions, and Sunni Islamic law doctrines. 55While three participants were born in Canada, most were immigrants of unique nationalities (Egypt, Lebanon, India, Pakistan, Eritrea, Guyana, Jordan, Sudan, Tunisia, and Algeria), which enriched their appreciation for legal pluralism and diversified their views on access to justice.All twenty participants were imams, some of whom are also religious educators and counselors.Although no uniform credentials are required for an individual to hold the position of an imam in North America, most employers require imams to have general knowledge of Islamic theology and law and to have memorized all or some of the Quran.If these qualifications cannot be met, a community may resort to appointing whomever they deem the most qualified available individual.
At the time this research was conducted, some provinces with small Muslim populations, such as Nova Scotia and Saskatchewan, had very few imams, while other provinces, such as Newfoundland, had none.Some localities, instead, relied on volunteers to conduct religious services or referred to imams from other provinces for religious advice.As such, the participants proportionately reflected 54 "The highest concentration of Canadian Muslims is in Ontario (4.6% of the general public), followed by Alberta (3.2%) and Quebec (3.1%).The remaining provinces' populations are comprised of less than 2% Canadian Muslims."Sarah Shah, "Canadian Muslims: Demographics, Discrimination, Religiosity, and Voting" (2019) at 28, online (pdf): Institute of Islamic Studies Occasional Paper Series: <perma.cc/2K2D-P92Z>.at 10-11.
the distribution of religious leaders across the country and the population of Muslims in each province (Figure 2).
All imams confirmed that family disputes occupy a significant portion of their employment and communal duties.Their experiences in resolving family disputes range from four to fifty years in Canada (four interviewees previously worked as imams in the United States).Imams described that disputes are frequently initiated by women seeking to persuade their husbands to agree to _ talāq or khulʿ, which, according to a Manitoba imam, is "the biggest challenge we have."An Ontario imam shared that Muslim women with marriages registered abroad may opt to "go back home to get divorced" by a Muslim judge.Those without marriages registered in Islamic jurisdictions are especially vulnerable to religious abuse by men who can take advantage of their unilateral right to marriage dissolution: "we have seen so many situations where women are abused … which is contrary to the objectives of Islamic jurisprudence."To proactively combat such abuse, a Manitoba imam explained that he is considering advising Muslim women to ask for the transfer of the right to divorce (tafwīḍ) upon entering the Islamic marriage contract "because there is no other way for them-if something goes wrong." Participants asserted that it is uncommon for imams to be trained in Canadian family law or conflict resolution, nor is it a qualification required by their employers.Only three participants obtained Canadian legal training: one completed a mediation and conflict resolution program in Ontario and served as a human rights commissioner in the province for six years, a second holds a family mediation certificate from British Columbia, and a third attended intensive courses offered to his organization by governmental bodies on family dispute resolutions in British Columbia.However, all imams attested that such training is much needed to improve and legitimize their services.An Ontario imam shared that his institution intends to provide legal and social work training for all imams in the locality involved in family disputes.

Jurisprudential Questions: Court-Ordered Divorces Issued by Non-Muslim Judges
While adopting Sunni theology, not all imams formally identify with a particular Sunni school of law (Ḥanafī, Mālikī, Shāfiʿī, Ḥanbalī) in issuing their legal opinions.This reflects the increasingly used legal tool of selectively amalgamating opinions or doctrines from different schools (talfīq).Similarly, the lived experiences of Canadian Muslims, despite general cultural affiliation to particular schools of law, do not reflect doctrinal affiliation or strict adoption of a set of practices prescribed by a singular school of law.This reality decenters the "notion that there is one Islamic orthodoxy or truth, a common misunderstanding about Islam and Muslims."56Although studying a madhhab is required to attain Islamic legal qualification, there is no recognized hierarchy of scholarship.A few educational programs culturally associated with South-Asian Muslims produce graduates with the distinct titles of muftī and qāḍī.Nonetheless, imams or scholars holding these titles are accorded moral or social authority only over the community members associated with their ethnicity or culture.
All participants reported that the inaccessibility of religious divorce is one of the most contentious issues faced by the community, with Muslim women being vulnerable to a tremendous amount of abuse.As described by a Manitoba imam, "Muslim women are quietly suffering from this and we, as imams and mosques, are sitting there, feeling sorry, and doing nothing… sisters are paying a heavy price on this."Despite all imams' admission of the gravity of the situation, most do not automatically grant a religious dissolution of the marriage.According to an Alberta imam, "I do not think an[y] imam with enough Islamic knowledge would rush to issue an Islamic divorce just based on the civil one.In some cases, she [the wife] does not have the right, and I don't think the imam will jeopardize his knowledge and status just to give a divorce and then put himself in a sharʿī embarrassing and wrong situation." All imams, except for one, believe that civil divorce does not confer automatic religious authority.In their view, local Islamic authority is needed to religiously legitimize civil divorces contested by the husband.These nineteen participants disagree with the contemporary Islamic law minority opinion that a secular courtordered divorce contested by the husband suffices as a form of Islamic marriage dissolution.Only one imam, a member of a North American fatwā-issuing institution, publicly advocates for the minority view, arguing for its practical suitability given the realities of current ADR procedures.
Imams oppose the minority view for various reasons.Some consider it as violating traditional ijmāʿ, which contingent principles of necessity cannot justify.Some perceive lenience in these matters as a threat against the community's faith identity and erosion of religious and cultural autonomy.Others find no utility in adopting the minority view.As explained by an imam from Manitoba, "I don't know if people will feel comfortable with that fatwā… theoretically, even if it [is] sound given the circumstances we have… a better alternative which would hopefully satisfy both [legal systems] is maybe a legal divorce enforced or approved by an Islamic institution."Thus, the Islamic defensibility of the minority view is not the only factor influencing the practices of the community; the parties may not find it legitimate as it does not accord with their sense of what Islamic law demands.
Imams from Québec and Manitoba explained that the community has "a widespread understanding that legal separation through the court is not Islamically binding."For example, based on this premise, some Muslim couples may apply for legal divorce but remain living together to obtain certain welfare benefits.According to one imam, the common "understanding that legal divorce does not mean anything" is the root cause of recurrent financial and physical abuse.Such abuse is heightened by the fact that some Muslim women are reluctant to seek a civil divorce, even upon the advice of the imams, because of associated stigma: "when [people] hear that she went to the court, that would not look positive on her." Abusive husbands may also blackmail wives who try to seek civil divorce by accusing them of not being devoted Muslims and of falling into sin.
One imam cautioned against the overuse of the minority argument, critiquing some of fiqh al-ʾaqalliyāt's jurisprudence: "we need to be careful with the word 'minority.'The minority situation will end if I do what?In Islam, we have opinions that can accommodate different situations.I do not feel we are a minority in Montréal… many scholars of sharīʿah are available."Three imams highlighted the improbability of Canada's accommodation of Islamic principles because "all secular countries say we have nothing to do with religion."A Québec imam also explained: "the reality is secular law will never accept religious law.It is impossible for three reasons:" 1) legal practitioners' illiteracy in sharīʿah, 2) underqualified imams, and 3) communities' theological and legal diversity, which makes a unified set of rules near impossible.

Procedural Questions: Community-Led ADR Efforts
At least eight participants said they employ collective decision-making in granting faskh, following the classical Islamic law doctrine of communally appointed judges.In deciding whether to grant faskh, they consider factors including the husband's financial commitments, his absence from the matrimonial home or the country itself, and the wife's grounds for repudiation.Nonetheless, faskh decisions are rarely made for two reasons.First, imams are wary of assuming the critical role of a qāḍī, even if it is a collective decision.Second, imams exert considerable effort to contact and convince husbands to settle for _ talāq or khulʿ.Two imams attempted to standardize the number of times a husband should be contacted and define a timed grace period for his cooperation.However, one imam warned that wives might misinform the imam and intentionally provide wrong contact information for their allegedly unwilling husbands.Admitting the scarcity of community legal resources and their unfamiliarity with legal processes, all imams refrain from facilitating religious divorce or annulment in contested divorce cases before a court order is granted.Hence, some imams attach copies of courtordered divorces to their issued religious divorces or annulments.
Despite dealing with everyday scenarios sharing cultural norms and religious rules, the procedures adopted by imams providing mediation services highlight differences in their legal characterization of marriage dissolution in the absence or the contest of the husband.For example, an Ontario imam presented a copy of his institution's standardized forms regarding cases of unwilling or absent husbands.
The form confirms that the wife has been separated from her husband, has obtained a civil divorce, and states, "due to the absence of an Islamic court in Canada and our inability to reach the husband to consent to her khulʿ or divorce… according to the Fiqh Council of North America, this is considered an Islamic khulʿ."The imam said the form is to be attached to the civil divorce order and commented: "I keep a copy in case the husband shows up at any time, so I have something to lean on."While the referenced fatwā is not found in FCNA's public archives, the imam asserted that multiple imams, including imams in his institution, apply the characterization of khulʿ to this scenario, a view that contradicts a fundamental element of the khulʿ contract: the husband's consent.These imams resort to this inaccurate application of khulʿ presumably to avoid the contentious granting of faskh.
Eight imams contributed to establishing local family dispute resolution committees designed to grant faskh or persuade the husband to settle for _ talāq or khulʿ agreements (Figure 3).Further, these committees provide Islamic-compliant corollary relief to be incorporated in domestic contracts and, in a few provinces, examine the potential for Islamic arbitration.

Nova Scotia
A family support committee (FSC) was established in Nova Scotia to unify religious opinions and promote consistent practices across recurring scenarios.The FSC's mandate is to resolve family issues by drafting prenuptial and separation agreements to be filed in court.As a communal project, the FSC consists of three imams, two social workers, a family counsellor, and two administrative representatives of local Islamic organizations who work alongside an advisory group that includes a family lawyer and psychologists.Since it launched in April 2020, the FSC has dealt with ten to fifteen cases.No accounts of judicial enforceability of such domestic agreements have yet been reported.To raise awareness of religious laws and legal rights, the FSC advises community members to include a clause in their prenuptial agreements dictating that disputes are to be brought before the FSC.The FSC plans to expand its services to include granting Islamic arbitral awards and seeks to register one of its members as a licensed arbitrator.

Alberta
Alberta has the second-largest and one of the oldest Canadian Muslim populations.Three of the four Alberta imams described their roles in unique committees and councils that provide religious remedies for "complicated cases."While imams may deal with cases independently, they refer specific scenarios to monthly council or committee meetings for collective decision-making.Two committees established in one city were tasked with a faskh mandate; each consists of at least three imams.
Although they follow consensus-based decision-making, a member of one of these committees said that some cases could be dealt with by a single committee member.At the time this research was conducted, all of these committees were operating pursuant to unwritten rules of procedure and frequently consult legal professionals.
One of the committees seeks to develop an umbrella council approved by most of the province's imams to offer Islamic arbitral awards in accordance with provincial arbitration laws.
To overcome discrepancies in religious opinions and guarantee cultural inclusivity, one of these committees ensures representation of the four Sunni maḏhāhib and employs talfīq to identify the law applicable to the given circumstances.No particular school of thought is consistently adopted.Instead, a practical opinion is reasonably selected based on relevant customary standards.One of the primary considerations in selecting an opinion is the competition with the civil scheme of spousal rights; the opinion that entitles the wife to the relief most comparable with Canadian law is likely to be applied.For example, the committee assigns the husband a responsibility to pay spousal support continuously for two years following an Islamic law opinion also adopted by Egyptian family law.

British Columbia and Quebec
In British Columbia, a Sharīʿah Advisory Panel functions under the board of one of the oldest Islamic organizations in the province.The panel consists of a minimum of three members and only deals with faskh cases.No mediation resulting in domestic contracts or arbitration is provided.In Québec, a provincial imams' council established a "Fatwā, S ̣ul _ h, and Dispute Resolution" committee, in part to deal with cases of faskh, khulʿ and contested divorce.Currently, the committee is seeking to institutionally define the roles of its members and document some of its adopted procedures.As a member of this committee described, "it takes tremendous effort and months to find the man… The woman might have to wait for up to eight years to solve her issue.An institutional solution will make these things a lot easier and will be more protective of those providing the service."

Evaluative Questions: Inadequacies and Suggestions
In assessing the impact of their ADR services, imams highlighted several concerns about how they operate, primarily the absence of uniformity, the lack of legal or religious enforcement authority, and the fear of personal liability upon intervening in private matters.

Non-uniformity
Imams unanimously expressed dissatisfaction with the current ad-hoc dispute resolution structures because they rely on ambiguous religious or legal authority: "because there is no clear authority, every Islamic centre does whatever it wants to do."They believe such undocumented services lead to inaccurate decisions, explaining that the lack of administrative oversight allows under-qualified or self-appointed imams to rule on life-changing decisions: "Some imams are default imams.Somebody's father owned a centre, then he becomes the imam after him.He has absolutely no background or knowledge… or certification in sharīʿah studies… Anybody can be an imam." This statement was confirmed by a Manitoba imam, stating that "there is no clear criteria [for] who becomes the imam."Many imams offer these services free of charge and outside of their formal job duties, which further reduces oversight of their actions.
Three imams shared accounts of individuals taking advantage of the unregulated profession by offering covert paid services of granting religious relief to community members without proper qualifications or oversight.Those individuals are accused of abusing their informal or formal religious positions and assuming the role of a Muslim judge to grant verdicts.All participants affirmed such unchecked authority is fertile ground for potential religious, social, or emotional abuse.It also runs the risk of making decisions based on cultural traditions rather than Islamic law or in contravention of Canadian law (e.g., cases involving minors, polygamy).
Another factor contributing to the non-uniform outcome of ADR services stems from the ethnic and religious diversity within the Canadian Muslim community.A dominant characteristic of modern Muslim societies is the irregularity of following a particular school of law or modern religious authority.Given the abundance of procedural differences across the maḏhāhib and the various legal methodologies individual imams adopt, imams mentioned that disputants frequently seek the simultaneous involvement of multiple imams belonging to different legal schools to obtain particular religious opinions they find favourable to their interests.Disputants, unsatisfied with one imam's suggested resolution, may thus fall into "fatwā shopping" for their desired resolution.To avoid this, a Québec imam offered that "the community needs to agree on certain rules and codify some of the Islamic laws on how to deal with different cases."

Lacking Enforcement Power
All imams expressed frustration with the lack of enforceability of their suggested or mediated resolutions, which take significant time and effort to reach.An Alberta imam said, "we do not have any binding authority in this area [of law], and we have to admit that."A Manitoba imam added, "we do not have any legal authority … just moral authority."As such, the religiosity of the parties was identified as a strong indicator of parties' obedience to resolutions reached through faith-based mediations.An Alberta imam estimated that in 80 percent of the cases he dealt with, parties ended up abiding by the agreement after receiving independent legal advice.The reason, according to him, is that he would always remind parties of the Islamic principles of keeping promises and honouring one's agreements.An Ontario imam confirmed that "people who are religiously oriented are the ones who usually abide by it.Otherwise, they do not.They end up seeking a lawyer… or go straight to the court." However, relying on the religiosity of parties, such moral authority does not make up for the lack of legal and religious power to bind disputants to their Secular Court-Ordered Divorces 83 negotiated resolutions: "we do not have any enforcing power.All we can do is try to reconcile between people… I do not think any imam has the [religious] authority of the [Islamic] judge."A Québec imam also confirmed that "most couples do not abide, and they go to court."A British Columbia imam explained that the voluntary nature of the mediation processes might be the reason why disputants do not abide by their resolutions, adding that imams are not typically involved to conduct courtrequired mediation, which may be taken more seriously.
Other imams encourage couples to add their resolutions to legally binding and enforceable separation agreements.An Alberta imam explained the merit of being involved in drafting domestic contracts: "I have done this many times… The only way I push it to be binding is to have it notarized and certified by the legal representatives of both parties.Other[wise], I don't think people will take it seriously."A British Columbia imam described his more limited means of participating in domestic contracts, which is to only draft a memorandum of understanding between the parties so that they can submit it to their lawyers upon drafting the agreements.
Although imams often encourage couples to enter into prenuptial agreements to guarantee the enforcement of religious rulings, none of the participants encountered parties with such domestic contracts.Some participants try to provide provisions for separation agreements to ensure compliance with Islamic law and achieve effective results from their mediation services.An Alberta imam described that he and the couple collectively draft the agreement according to Islamic law and the couple's situation, and the parties are then instructed to sign it, witnessed by their lawyers, prior to the imam signing it himself.Some committees even facilitate access to lawyers to provide required legal services.Due to the unenforceability of religious arbitration in Ontario and Québec, imams in these provinces are uncertain as to whether their negotiated agreements are ultimately filed in court and doubt their enforcement as domestic contracts even if they are filed.

Fear of Liability and Social Repercussions
Participants consistently stressed concerns about the risks of professionally engaging in legal disputes.Notwithstanding the desire of an Alberta imam to provide arbitration, presumably enforceable in the province, the institution managing the mosque refrained from doing so because of liability concerns.Such fear is not merely hypothetical.One imam reported that he was directly threatened with being personally sued for "spiritual neglect."A second imam was accused of harassing an ex-wife after attempting to convince her to not change her child's name following divorce.To avoid such issues, an Ontario imam mentioned that he sometimes puts disputants under an Islamic oath protecting the confidentiality of the settlement procedures.
Concerns for conflicts of interest or perceived biases, such as favouring large donors to affiliated mosques, are rampant.At least four imams expressed ongoing concerns about having their reputation harmed throughout the community for not reaching a particular outcome.Another Ontario participant shared that some members of a panel formed to grant faskh "were threatened by the husband colonial Islamic legal system," 60 a fact that shapes imams' advocacy for selfregulated ADR forums and informs the socio-political identity of Muslims in modern nation-states.
Although a few dissenting opinions attempt to grant religious legitimacy to contested secular court-ordered divorces, most Muslim scholars and Canadian imams, reflecting the practice of a large segment of the Muslim community, do not automatically uphold civil divorces as Islamic divorces.While the doctrine of necessity can accommodate relaxed qualifications for qāḍīs, it cannot religiously validate secular court orders issued by non-Muslim judges.Muslim jurists across history facilitated access to justice by supporting communally appointed qāḍīs.These two adaptive Islamic law frameworks-the doctrine of necessity and communally-appointed judges-inform the work of the Canadian Muslim community to establish representative entities that facilitate _ talāq or khulʿ and grant faskh.The data presented confirms the need to strengthen community-initiated ADR mechanisms and may serve as a springboard for future research and law reform projects.
Further research may aim to conceptualize the moral responsibilities and legal identities of Muslim minorities.Premodern Islamic jurisprudence affirms certain ethical standards for living under non-Muslim polities, chiefly the insistence on the inviolability of contracts. 61 On the other hand, to what extent can the secular conception of legal pluralism accommodate Muslim community-led adjudication of family matters?Arguments supporting and opposing community-led adjudication draw on conceptions of legal pluralism, equality, freedom of religion, and social contract theory.Proponents argue for accommodating religious minorities by expanding their "jurisdictional autonomy" 62 although not in a way that amounts "to a kind of delegation of state power to an imagined Muslim collectivity." 63Opponents, meanwhile, advocate for one law for all to establish equality and protect the rights of vulnerable individuals.Legislation should permit faith-based resolutions to be enforced akin to other contracts or arbitral awards; the existence of procedural unfairness voids either instrument under existing common law.Specifically excluding faith-based instruments from enforcement does not afford vulnerable parties any added 60 Macfarlane, supra note 1 at 17. Secular Court-Ordered Divorces 87 protection but merely adds barriers for minorities attempting to resolve their disputes outside of court.

Figure 2 .
Figure 2. Number of imams interviewed, number with legal or ADR training and number born in Canada, by province.

Figure 3
Figure3Reported family ADR committees of which some participants are members: three committees in Alberta and one each in Nova Scotia, British Columbia, and Québec.
As such, does Islamic law, by virtue of social contract obligations, morally oblige Muslims to abide by non-Islamic family laws and court orders decided by non-Muslim judges?Construing such ethics and jurisprudence as an abstract social contract, what are the boundaries of accommodating secular adjudicative norms?How does Islamic law characterize Muslim existence under non-Muslim authority and what is the demarcation of a "Muslim minority"?
61 Andrew F. March, "Islamic Foundations for a Social Contract in Non-Muslim Liberal Democracies," American Political Science Review 101, no. 2 (2007): 236.62 Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women's Rights (Cambridge University Press, 2009), 5-6.63 Mohamed Fadel, "Political Liberalism, Islamic Family Law and Family Law Pluralism," in Marriages and Divorce in Multi-Cultural Context: Reconsidering the Boundaries of Civil Law and Religion, ed.Joel Nicholes (Cambridge University Press, 2010), 197.
One out of fifteen global fatāwā-issuing institutions relieves wives of the obligation to secure a religious divorce when they acquire a court-ordered divorce contested by their husbands.