Muslim Integration Pluralism and Multiculturalism ... - Chapter Eleven Islamic Inheritance and Sharia Wills

ELEVEN
Islamic Inheritance and Sharia Wills

The Recognition of Muslim Inheritance Traditions
in Australia
Malcolm Voyce, Selda Dagestanli, Adam Possamai,

Joshua Roose, Bryan Turner, and Lisa Worthington
Islamic law has particular rules for the inheritance of family property,
based on the idea of fixed proportions and the view that males should
receive the bulk of the estate. 1 This allocation rests on the idea that female
family members and parents will be taken care of by male members of
the family. Research conducted for this chapter showed that many re-
spondents believe that family property should devolve to family mem-
Copyright © 2016. Lexington Books. All rights reserved.
bers as set out in the Quran. However, this view was found to be increas-
ingly colored by entrepreneurial ideas based on capitalist values and
notions that respect the independence of women. Given this finding, the
current chapter explores the recognition of Muslim notions of inheritance
through a discussion of group rights and through the recognition of cus-
tomary law.
Some academics discussing group rights, or personal family property
laws, have suggested that religious ideas regarding family property
should be recognized. For instance, Shelly Kreiczer-Levy and Mosa Say-
ad both argue, 2 using theorists such as Will Kymlicka and Martha Nuss-
baum, that special accommodation should be given to groups with mi-
nority customs concerning family law.
Research conducted for this chapter found that many Muslims in Syd-
ney consulted imams about the practice of Sharia with respect to family
matters, especially divorce and occasionally inheritance issues. While the
211
Muslim Integration : Pluralism and Multiculturalism in New Zealand and Australia, edited by Erich Kolig, and Malcolm Voyce,
Lexington Books, 2016. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/acu/detail.action?docID=4705709.
Created from acu on 2018-10-22 18:59:55.
212 Voyce, Dagestanli, Possamai, Roose, Turner, and Worthington
research team observed that official law may be seen as a separate sphere
from social life, it noted how “official law” does not take into account
Islamic conceptions of intergenerational family property in cases of dis-
puted wills. Regarding Muslim inheritances, this chapter argues that “of-
ficial law” does not give recognition to Islamic family practices, except
where there are family members left in need. Since it appears that Mus-
lim families do not contest wills, it may be assumed that the general flow
of official law has had little impact on Muslim inheritance practices.
THE ISLAMIC LAW OF INHERITANCE
Islamic law provides guidance on every aspect of life. Muslims under

Sharia law are obliged to make a will and to ensure that it complies with
Sharia. Islamic inheritance is based on the idea of dividing the deceased’s
property according to the particular blood relationships that he or she
had with the beneficiaries. Under Sharia, inheritance law has a strong
religious dimension in that the distribution of an estate is seen as part of a
Muslim’s religious duty and a matter of religious practice. 3
The general approach of the Sunni schools is based on the preference
for male agnates (descendants from a common male ancestor through the
male line) over other relatives. The general principle is that the right to
leave property by will is restricted to one third of the estate and is ex-
tended only to those who do not receive a designated percentage of the
estate. 4 A Muslim only has discretion concerning this share. The purpose
of fixed proportions is to protect family bonds and relationships and to
prevent individuals from making rash decisions that would harm family
unity. Because the family unit is central, the Quran attempts to limit
actions which threaten family solidarity. 5 Thus, every practicing Muslim
must ensure that his or her estate is distributed according to Sharia, since
failure to do so would be considered a failure to fulfill one’s duties. The
allocation of the remaining two thirds is complex, but, in general, wid-

ows are entitled to receive only half of what a widower may be entitled to
under Australian law and similar rules exist to prioritize sons over
daughters. The inheritance laws under Sharia only affect property be-
longing to the deceased at the time of death and testators are free to
dispose of their property as they wish prior to this moment. As such, they
may also transfer assets by means of a gift before their death. 6 The above
rules mean that under Islamic law women generally receive only half of
what men receive. 7 This is due to the social expectation that a son will
support his unmarried or divorced sister, or widowed mother, while a
daughter can choose to spend her inheritance entirely on herself.
It is necessary to mention that the half share rule applies to males and
females in the same inheritance category (husband/wife or brother/sis-
ter). A female’s inheritance will not always be half that of a male benefici-
Islamic Inheritance and Sharia Wills 213
ary. 8 In fact, there are some situations where a female relative can inherit
more than a male relative. Where a childless woman dies, leaving behind
her husband and both parents, the Quran (4/11) assigns one third of the
estate to the mother and the aya 4/12 assigns half of the estate to the
husband, this then leaves one sixth of the estate to the father. In this
instance, the mother’s portion is twice as large as the father’s. 9
It is also established that a believer cannot inherit from an unbeliever
and an unbeliever cannot inherit from a Muslim. One that has killed the
proprietor of an estate is also excluded from inheriting, along with those
whose paternity has been disputed. 10 Since Islam does not allow legal
adoption, adopted children do not receive an inheritance from their
adoptive family. 11
Inheritance rules differ slightly between the four main Sunni schools
of thought, but Shi’a inheritance laws show further distinctive features.
Twelver Shi’i ignore the asaba inheritors (i.e., patrilineal inheritance) and
create a new group of “heirs by relationship” and rely on the criterion of
nearness of relationship. The fundamental difference between Sunni and
Shi’a law is attributed to the saying of Ja’far al-Sadiq, “[t]he estate be-
longs to the nearest relation, and any [remoter] male agnate can eat
dirt.” 12
This chapter uses some important terms in reference to Islamic inheri-
tance processes that are worth discussing at this point. Firstly, this chap-
ter distinguishes between inheritance and succession. “Inheritance” re-
fers to more than just the mere handing over of property (the legal trans-
fer of property) and can, instead, be understood to include a wider social
process involving not only an individual act, but a series of extended
transactions. 13 The term “succession” is used in this chapter to refer to
the transfer of control over family assets and family affairs at the time of a
change of management or the death of a family member. Secondly, “in-
heritance” or the “intergenerational transfer of property” is a system that
reproduces family structures and personal relationships over time. Im-

plicit in this process is the maintenance of family loyalties and their relig-
ious heritage. In this sense, inheritance, as shown by Pierre Bourdieu, is
“the perpetuation and endurance of dominant forms of social control,”
which should be regarded as more important than their “atemporal in-
tensity.” 14 Thirdly, this chapter finds that the comparative study of inher-
itance shows that inheritance ideologies deal with intimacy and emotions
as well as marital interests. Shelly Kreiczer-Levy and Meital Pinto argue
along these lines that inherited property is an important social and per-
sonal symbol as it shapes meaningful connections and ties. It also sym-
bolizes a connection to a heritage or cultural group and family continu-
ity. 15 The current chapter also notes that inheritance structures regulate
the sexuality of women 16 and a gift of property imposes obligations, since
a donee is under a duty to maintain the asset bequeathed. 17 Fourthly,
there has been no universal notion of Muslim family property law. This
chapter takes Sharia as a template that may or may not be actualized in

any locality. Thus, while Sharia is often referred to as a universal code, it
is not applied in this manner and is instead implemented or concretized
in the hands of particular jurists. 18 This chapter acknowledges that sever-
al Muslim majority countries have reformed family laws, particularly
with respect to the shares that women receive through inheritances. 19
Fifthly, concerning Islamic inheritance, this chapter makes two observa-
tions concerning the family. These are, firstly, that the immigrant Islamic
family in Australia is usually in a wider social network than what is
normally called the ‘nuclear family.” 20 The membership of this extended
family is important, as each generational transfer of property reproduces
and contests the values of a group. While this group is not dynastic, in
the sense of one member acting as a head in perpetuity, it does have
qualities which reflect the idea of a continuum of inherited group values.
Further to this, bequests under the calculation provided in the Quran
tend to distribute wealth to a larger number of individuals than average
Australian wills do, meaning that family members receive a smaller share
than they would under state intestacy laws. 21
METHODOLOGY AND DATA
The fieldwork for this chapter was conducted in the western suburbs of
Sydney, Australia, in 2014–2015. The interviewers started the fieldwork
by tapping into their various networks and then followed a snowball
sampling method to seek informants. All researchers had a list of ques-
tions and conducted semi-structured interviews. The questions were
about the respondents’ experiences living as Muslims and applying Shar-
ia in Australia. Afterwards, all of the themes that emerged from these
interviews were coded. The data was presented in a report and an accom-
panying spreadsheet. This served as the basis for the qualitative analysis
of the data. The data was also quantitatively analyzed using statistical
software (SPSS).
Altogether there were 57 respondents. One facilitator (30 interviews)
had strong links with the Bangladeshi community and another (11 inter-
views) had ties with the Lebanese community. The third facilitator con-
ducted 16 interviews with people who had links with the Australian-born
community. A total of 33 percent of the sample were born and/or raised
in Australia and 67 percent were born and/or raised overseas. This broad-
ly reflects the composition of the Australian Muslim community, where
just 38 percent of Muslims were born locally. 22 Only one interviewee had
been living in Australia for less than a year and 46 interviewees (81 per-
cent) claimed to have only one cultural background. The sample was
dominated by the Bangladeshi cultural background (n=29, 51 percent of
the sample), Lebanese (n=8, 14 percent), and Australian (n=10 as their sole
cultural background, and n=3 as part of a mix). In the 2011 national

census, Bangladeshi Muslims constituted 5 percent of the Australian
Muslim population and Lebanese Muslims constituted 7.1 percent. 23
Other cultural backgrounds in the sample (as sole or part of) included
Palestinian (2), Turkish (1), Singaporean (4), South African (1), and Paki-
stani (1).
To analyze the information gathered, several models from the litera-
ture on “bequest motives” were adopted. These models on inheritance
strategies were found to fit in with the aims of our interviews and helped
explain the social reproduction of Muslim families. These three models
helped clarify family commitment models, particularly parent-adult rela-
tionships and the transfer of intergenerational property. 24 These three
models are outlined in the next section.
ATTITUDES OF MUSLIM FAMILIES TOWARD FAMILY PROPERTY
Muslim immigrants, like other immigrant communities in Australia, seek

to uphold, to some extent, their traditional way of life and religion
through a retention of their religion, culture, and family property. Mus-
lim families, like other ethnic and sectional groups, have particular ideas
about property accumulation and distribution. In general, the idea is to
keep property in the family for successors. Sebastian Poulter claims that
family law embodies “the quintessential culture of a distinct group,”
which extends to a shared belonging to a worldwide community of Mus-
lims (Umma). 25 While this claim may have some universal resonance,
research for this chapter found that local factors, such as house prices,
longer life expectancy, and socio-economic challenges, had a significant
role to play in the lives of Sydney Muslims.
The idea of Muslim family law is based on the obligations of joint
responsibility. Responsibility falls on men or agnatic relatives who are
regarded as carrying greater responsibility toward females. Suhaili

Alma’amun argues 26 that an Islamic view of wealth, mal, sees absolute
ownership attributed to Allah and not to individuals. 27 Individuals are
seen as trustees and, as such, each person has the responsibility to man-
age his or her wealth in accordance with divine arrangements.
The aim in using these models was to show how the Islamic view of
family property differs from, and yet still incorporates, mainstream “lib-
eral views of property.” 28 These models were used to examine the trans-
fer of intergenerational property diachronically and synchronically—that
is, over time and in time. 29
The first model of family property will be referred to as the “religious
model.” 30 This model attempts to explain why parents care about the
physical and religious needs of their children. While concern for the wel-
fare of one’s children is universal, this chapter aims to show how, in the
case of “Muslim family property relations,” such altruism is given a relig-

ious rationale.
One respondent who provided information about the “traditional
view of property,” which reflects the respective roles of women and men,
said:
So the woman takes her share of an inheritance so she can put it aside.
She can put [it] in the bank, she can put it in her closet and that will
stay her money. A man takes his share of inheritance and he’s got a
wife that he needs to take care of, he’s got children he needs to take
care of, if he has poor parents even he is obligated to take care of them.
If his parents are incapable of looking after themselves financially he
becomes obligated to help them out. So he has got a lot of responsibil-
ities riding on him and therefore he needs more provisions, he needs
more resources to do that. So it wasn’t in terms of saying men are better
than women and therefore they get a double share, it’s in terms of
meeting their greater responsibility that they were issued with a double
share.
Another interviewee explained that the Islamic inheritance laws provide
protection for women:
The concept, however, 1,500 years ago when women weren’t allowed
to own property and also weren’t entitled to anything from an intesta-
cy perspective, Islamic wills created that right and, having said that,
there are still women in places like Pakistan who, but for having this
automatic availability under the Islamic principles, they would not be
able to own property or be able to inherit anything because if the guys
had their way they wouldn’t get anything. So there is a protection
device somewhat in a sense.
By contrast, some participants argued for the idea of equal inheritance,
particularly in an Australian context, in order to ensure fairness and jus-
tice:
The problem you have here is this. In Australia, people don’t follow the
Islamic obligation of, you know, men looking after their families, not
necessarily. Women work as well … So but in Australia, it doesn’t
happen like that, everyone works, everyone pays everything, and you
pay the mortgage together, you help your father, you know. Then,
when it comes to inheritance, we want to do it the Islamic way. That
then becomes unjust, and everyone—especially the women—starts
complaining. What kind of a system is this? So I would say in whatever
way you have earned the money, that’s the way you should split it,
split the inheritance to make sure it’s equitable.
One interviewee reported the supposed dissatisfaction with the present
scheme and called for reform of the system, stating that:
So, for example, with Sharia if you’ve got a woman like, you know,
somebody who … is a widow or who’s a single mum and who has five
or six boys and she has to bring them up, now if she doesn’t get all of
that inheritance, how the heck is she supposed to bring up five or six
boys? If they are the ones that get more money than she does, what are
they going to do with it? You know, it’s not practical from that point of
view, so it needs to be interpreted in the light of the specific situation.
Another participant explained how to deal with disagreements with Is-
lamic inheritance:
. . . to remind her of hereafter . . . if you’re a practising Muslim you
have to submit to this and this is what it is, you’ve got advantages,
other advantages as a female . . . either she accepts or she goes her way.
On the other hand, this participant also highlighted the importance of
equality and justice as the objectives and outcomes of Islamic law:
A case came to me, this male son wanted, you know, he said Quranic
way of inheritance and the daughter of the deceased felt it was unjust
because she, he went to school you know and got education then got
married, so he had absolutely no financial input to the family estate,
whereas she worked from year ten onwards and whatever she earned
she gave it to the father. So she felt that it’s very unfair if she gets just
half when she, you know, contributed more to the house. And it came
to me for advice, what should we do, and I, I said simply in whatever
way of life or system or thinking that you purchased this house, in that
way you should divide the inheritance, because that’s when it becomes
fair. Ultimately higher objective of Sharia is justice, is equity, you know
you get merciful and beautiful outcomes that people will be happy
with, otherwise you’re doing, something is wrong if you don’t get re-
sults like that.
The second model used to help study intergenerational exchange is the
exchange model. This model claims that financial help or bequests are
payment for goods and services provided by children. Such transfers
need not be reciprocated at the same time or in the same currency. 31 For
instance, bequests may be made in return for telephone calls or visita-

tions. 32
Thirdly, another model involves the notion of serial reciprocity. In this
model, each successive generation is regarded as having both rights and
duties to the next. 33 For instance, some cultures (for example, in the Neth-
erlands) recognize intergenerational contracts where the son and the par-
ents have a formal contract between generations concerning the family
farm. 34
As an aside, it may be noted that, given Australian Muslims’ approach
to inheritance, they tend to regard the mahr (mandatory payment) as part
of the intergenerational sharing of property. While the mahr is usually
seen as part of the marriage process, a wider view may see it as part of
the long-term distribution of property among family members. 35
While research conducted for this chapter found no instance of formal

or informal contracts, in the European sense, some interviewees ex-
pressed a religious (or even secular) ethic that extolled care for the elder-
ly, as exemplified in this quote:
Islam says you have to look after your parents because, after Allah,
parents come first. So it’s your obligation to look after them, even
though in some surahs, like in Al-Ishlah and Luqman, they say it’s the
rights of your parents that you have to look after them. Doesn’t matter
which situation you are in or how you’re going to do it. It might be
physical, it might be financial, mental.
There is a tension here between the religious ethic and the elderly’s desire
not to be taken care of in the family home. This preference derives from a
variety of sources, such as the desire for personal autonomy and concern
for the children’s freedom. The present study found that, even in families
where elder care seemed to be characterized by harmony and trust, there
was tension around this issue. While it is possible to see a filial ethic of
care arising from a number of discourses, this study suggests that there is
a discrepancy between this ethic and actual family behavior.
In summary, the present study found that the majority of interviewees
expressed a belief in the religious duty of care for the elderly and the
view that family intergenerational transfers should be adjusted to take
care of the aged. This belief was accompanied by another set of values—
namely, that women’s place is in the home, that women should receive
less than the sons, and that women’s proportion should be less because
they do not have to contribute to the family by engaging in outside work.
Thus, it was accepted that domestic work, while of value, may be down-
graded in light of the need to provide help for the sons as overall family
managers of wealth.
At the same time, some interviewees regarded Islamic family law as a
bastion against corrupting secular values. It was felt that families that
adopted Muslim family values would be better able to cope with so-
called “dysfunctional Western values.” 36 A few respondents thought that
Muslim laws should be constantly reinterpreted according to time and
place (ijtihad) so that they could continue to reflect basic values in differ-
ent kinds of societies. 37 Along these lines, other interviewees expressed
more liberating ideals for women, such as the idea that women cannot
expect to be supported by extended family and that most women prefer
to be independent in any event.
SHOULD ISLAMIC NOTIONS OF INHERITANCE BE RECOGNIZED?
The question of whether Islamic notions of inheritance should be recog-

nized in Australian law may be considered in different ways. Firstly,
some scholars have argued that the right to inherit property assists in
maintaining personal identity and helps cement social bonds. 38 This ar-
gument has found expression in the idea of group rights and the view
that different cultural groups ought to have their group rights recognized
as a form of customary law. For instance, Michael McDonald argues that
people can be considered a group for moral purposes when they have a
shared understanding that they are “normatively bound to each other.” 39
A shared understanding may refer to shared characteristics, such as a
common language or shared history, a common social condition or sys-
tem of belief. According to Dwight Newman, an essential feature of a
group capable of possessing rights is a group identity that survives
changes in individual membership. 40 Proponents of group rights tend to
identify features that groups share with human individuals. They argue
that if we accept that individuals are endowed with rights because they
possess certain features, we should also accept that groups with those
same features also have those rights. For instance, Will Kymlicka can-
vasses the idea that group rights need support as a culture supports
individual autonomy. Such people make sense of their own narrative and
fashion their own lives—their culture is of instrumental value for their
own self-respect. Also, because their members are disadvantaged, they
are entitled to special protection. Kymlicka sees group rights as a means
of enabling minority groups to protect their cultural values from the
influences of the dominant culture. 41 He defends the essential value of
minority identities and, thus, the rights of groups to protect them. Kym-
licka attempts to ground the value of group rights in liberal-democratic
ideals and respect for the rights of individuals. 42 In his view, group rights
are tenable when they are able to preserve existing cultural identities and
existing minority cultures.
Martha Nussbaum argues that there are moral reasons for the ad-
vancement of religious group rights. She concedes that group rights can
create illiberal practices, but argues that secularism removes the “intrin-
sic value of religious capabilities.” 43 Nussbaum stresses that religious

practices impact other human capabilities apart from religious practice
and, hence, have a negative effect on the rights of individuals. She also
points out that religious practices have the potential to influence other
aspects of human functioning apart from religious expression itself. Secu-
lar humanists sometimes attempt to protect these other human capabil-
ities by placing restrictions on those religious practices that promote the
illiberal treatment of women, children, or minority groups. Nussbaum’s
framework explains that the secularist will seek to change some religious
expression to protect other human capabilities and rights. 44
Some writers have sought to advance the position of minority groups
in dominant cultures in another related way, through the argument that
“customary ways” ought to be accepted through the recognition of custo-
mary law. Claims for the recognition of customary law have been found
both within colonized societies and, increasingly, within Western states
themselves. 45 This argument, in favor of a situation of legal pluralism,

allows for immigrant integration and for the protection of group autono-
my.
Legal pluralism is the system of law, which allows for more than one
legal system to operate within one jurisdiction at the same time. 46 One
expression of legal pluralism conceives that separate personal laws may
operate in the areas of family law. A personal law system may be defined
as a system in which each individual is subject to the jurisdiction of his or
her own religio-legal norms and institutions in regard to matters of mar-
riage, maintenance, custody of children, and inheritance. 47 In such a sys-
tem, a Muslim may be subject to Sharia law, or a Jew may be subject to
Halakhah.
In Australia, the Australian Law Reform Commission recommended
that Indigenous laws be recognized in the family law area, but stopped
short of recommending separate legal mechanisms for Indigenous com-
munities. 48 However, the government ignored this report and its recom-
mendations were not implemented. A later report, from Western Austra-
lia, on the recognition of customary law, warned against the recognition
of customary laws, concluding that the operation of two separate systems
of law would end in a divisive outcome. 49
High-ranking former members of the judiciary, including former Aus-
tralian High Court Chief Justice, the Honourable Sir Gerard Brennan, 50
and former New South Wales Chief Justice, Jim Spigelman, 51 have been
outspoken in dismissing the need to recognise Sharia. These perspectives
have also been reflected in political discourse and the rejection of legal
pluralism by successive Australian prime ministers.
SHOULD AUSTRALIA ADOPT MUSLIM INHERITANCE CUSTOMS

IN SHARIA LAW?
For Islamic inheritance customs in Sharia law to be adopted in Australia,

the decisions of religious tribunals would need to be recognized and state
or federal legislation would need to be enacted in the area of family law.
It is now recognized that religious tribunals are operating in Australia
and that imams are determining matters regarding family law issues. 52
The debate overseas, especially in the United Kingdom, has revealed
that religious tribunals work to the disadvantage of women, since they
involve a power imbalance. In fact, tribunal decisions may give women
less rights than they would otherwise enjoy under legislation. 53 In one
Sharia tribunal case in England, 54 which concerned an intestate estate, a
woman received only half the property that the male beneficiary re-
ceived. 55 On the positive side, some have suggested that such tribunals
provide a further option for women, without blocking subsequent access
to the civil courts. In addition, others have noted that negative views
concerning the values of such tribunals tend to ignore the extent to which
individuals evaluate their own religious doctrine when using such fora.
Such evaluation may be considered an exercise of a woman’s autonomy.
While there are legitimate concerns for vulnerable women, the policy of
non-interference with such tribunals, promoted by Farrah Ahmed and
Calderwood Norton, should be maintained. 56
Regarding the introduction of legislation to recognize principles of
Sharia law concerning inheritance, it should be noted that the dominant
cross party opinion is strongly against such a move. However, it is also
important to note that not all Muslims want such recognition. Finally,
there is a further problem, which results from the fact that there is no
single inheritance regime that is representative of these groups on which
Muslims could agree. 57
CONCLUSION
Interviewees for this study showed how Muslims work out the issues in
their lives within a framework of religion, family, and personal economic
circumstances. On most occasions, their actions related to their under-
standings of Sharia law as regards family property and inheritance.
Some reflections on the role of law and customary Islamic practices
may be offered. Firstly, there is strong reason to suggest that law is a
separate sphere from social life. 58 This claim rests on a number of as-
sumed ideas stemming from legal positivism and from the assumption
that the law applies equally to all subjects. 59
Therefore, it is contended that, in some contexts, “official law” ex-
cludes popular ways of doing things, 60 like forms of testamentary prom-
ises 61 or communal understandings about property transfers, 62 and a
Muslim to claim mahr from her ex-husband. 63 It is worth noting here that
“official law” does not take into account Islamic conceptions of intergen-
erational family property in the case of will disputes. 64

However, the law is slowly recognizing other cultural ideas. In reality,
this is the way that the common law has always developed—growing as
it does like coral in the seabed, adapting and modifying ideas from a
variety of sources. For example, the common law in Australia has incor-
porated ideas of native title and the notion that, for religious reasons,
Sikhs do not have to wear crash helmets. In the same way, Australians
have recognized Islamic marriages, burial places, finance practices, and
so on. In the case of Muslim inheritances, this chapter argues that “official
law” does not give recognition to Islamic family practices, except where
there are family members left in need. However, since it appears that
Muslim families do not contest wills, it may be assumed that the general
flow of official law has had little impact on the inheritance practices of
Muslim families.
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NOTES
1. The authors of this chapter are part of a group of scholars working on a project
funded by the Australian Research Council, which examines legal pluralism and Shar-
ia law.
2. See references below.
3. Mosa Sayad, “The accommodation of minority customs in Sweden.” European
Journal of Law Reform 12/3–4 (2010): 319–339; p. 321. A full discussion of the complex
area of Islamic succession law is beyond the scope of this chapter, see Raffia Arshad,
Islamic Family Law. London: Thomson Reuters, 2010; Jamila Hussain, Islam: Its Law and
Society. Sydney: Federation Press, 2011; David Pearl and Werner Menski, Muslim Fami-
ly Law. London: Sweet and Maxwell, 1998; Noel J. Coulson, A History of Islamic Law.
London: Aldine Transaction, 2011.
4. Sayad, “The accommodation of minority customs.”
5. Omar T. Mohammedi, “Sharia compliant wills: principles, recognition, and en-
forcement.” New York Law School Law Review 57 (2012–13): 259–285; p. 262.
6. David S. Powers, “Islamic inheritance system: a socio-historical approach.” The
Arab Law Quarterly 8/13 (1993): 13–29.
7. Quran 4/11.
8. L. Clarke and P. Cross, Muslim and Canadian Family Law: A Comparative Primer
Canada: Canadian Council of Muslim Women, 2006; p. 12.
9. Powers, “Islamic inheritance system: a socio-historical approach.”

10. Powers, ibid.
11. Clarke and Cross, Muslim and Canadian Family Law, p. 14.
12. Coulson, A History of Islamic Law , p. 108.
13. Ruth Gasson and Andrew Errington, The Farm Family Business. Oxford: CAB
International, 1993; p. 183.
14. Remi Clignet, Death, Deeds and Descendants: Inheritance in Modern America . New
York: Aldine, 1992; p.31. Pierre Bourdieu, ‘Marriage strategies as strategies of social
reproduction.” In Family and Society: Selections from the “Annales,” Économies, Sociétiés
and Civilizations, R. Forster and O. Ranum (eds.). Baltimore: Johns Hopkins University
Press, 1976; p. 117. Pierre Bourdieu and Jean-Claude Passeron, The Inheritors: French
Students and their Relation to Culture. Chicago: University of Chicago Press, 1979.
15. Shelly Kreiczer-Levy and Meital Pinto, “Property and belongingness: rethinking
gender-based disinheritance.” Texas Journal of Women and the Law 21/1 (2011): 119–152;
p. 129.
16. In the nineteenth century, English legislation was concerned with the smooth
transition of property to lineal descendants and with irregular sexual activity, which
was seen as a threat to orderly transmission of property; see Rachel Harrison and
Frank Mort, “Patriarchal aspects of nineteenth-century state formation: property rela-
tions, marriage and divorce and sexuality.” In Capitalism, State Formation and Marxist
Theory, P. Corrigan (ed.). London: Quartet Books, 1981; p. 79. As regards Muslim
society, see Mohammed Mazher Idriss and Tahir Abbas, Honour, Violence, Women and
Islam. London: Routledge, 2011. Foucault’s insight is instructive. He argued, through
his concept called the “deployment of alliance,” how sexuality was tied to the signifi-
cance of blood, rather than the constitution of identity. In this situation, the perma-
nence of marriage and the patrimony under the system of primogeniture would be
threatened should the bloodline be diluted. See Michel Foucault, The History of Sexual-
ity. London: Penguin, 1978.
17. Henk de Haan, In the Shadow of the Tree: Kinship, Property and Inheritance among
Farm Families. Amsterdam: Het Spinhuis, 1994; p. 178.
18. Malcolm Voyce and Adam Possamai, “Legal pluralism, family personal laws,
and the rejection of Sharia in Australia: a case of multiple or ‘clashing’ modernities?”
Democracy and Security 7/4 (2011): 338–353; p. 331.
19. For a convenient collection see Lynn Welchman, Women’s Rights and Islamic
Family Law: Perspectives on Reform. New York: Zed Press, 2004.
20. Khurshid Ahmad argues that the structure of the family has several layers. The
closest layer consists of the husband and wife, their children, and servants. The next
group consists of the central fold of the family, who may move freely inside the
family. Importantly, marriage is forbidden within this group (mahram). In terms of
inheritance shares, these groups have prior claim on the family wealth. Khurshid
Ahmad, Family Life in Islam. London: Islamic Foundation, 1974.
21. In Australia, bequests are usually made to immediate family members. This
pattern is, to some extent, reflected in the intestacy schedules laid out in the succession
legislation in the various states. See Cheryl Tilse, Jill Wilson, Ben White, Linda Rosen-
man, and Rachel Feeney, Having the Last Word? Will Making and Contestation in Austra-
lia. Brisbane: The University of Queensland, 2015.
22. Australian Bureau of Statistics, Census of Housing and Population. Canberra:
Australian Bureau of Statistics, 2011.
23. Ibid.
24. This study has adapted these models from the literature on bequest motives; see
B. Douglas Bernheim, Andrei Shleifer, and Lawrence H. Summers, “The strategic
bequest motive.” Journal of Political Economy 93/6 (1985): 1045–1076. For an adaptation
of these models in an Islamic context, see Suhaili Alma’amun, Islamic Estate Planning:
Analyzing the Malaysian Perceptions of Wasiyyah (Will) and Bequest Practices. Durham:
Durham University, 2010.
25. Sebastian Poulter, “The claim of a separate Islamic system of personal law for
British Muslims.” In Islamic Family Law, C. Mallet and J. Conners (eds.). London: Gra-
ham and Trotman, 1990; p. 147.

26. Alma’amun, ibid.
27. The Arabic term mal may be translated as wealth or as anything that has eco-
nomic utility, see Colin Turner, “Wealth as an immortality symbol in the Quran: a
reconsideration of the mal/amwal verses.” Journal of Quranic Studies 8/2 (2006): 58–83;
p. 60. Islam makes it clear that each man has the individual capacity to accumulate
wealth, as long as such accumulation is in harmony with man and society, see Afzalur
Rahman, Islam: Ideology and Way of Life. London: Saerah Foundation, 1998; pp. 288–293.
A man’s financial duties include paying taxes, giving dowries, protecting orphans,
making a will and testament, and abiding by matters as to inheritance (Qur’an 4/7, 4/
10-12, 4/176), see Alma’amun, Islamic Estate Planning, p. 85.
28. By the “liberal view of property,” we mean the legal rights that are attached to
property, such as the rights of exclusion, possession, and dispossession. The right of
dispossession includes the right of alienation and the right of testamentary disposi-
tion. The idea of testamentary freedom is seen as the essential element in property, see
Margaret Jane Radin, Reinterpreting Property. Chicago: University of Chicago Press,
1993; p. 121.
29. Franz von Benda-Beckman, Property in Social Continuity . The Hague: Martinus
Nijhoff, 1979; 45–55.
30. This model incorporates the Muslim idea of the family and notions of economic
behavior.
31. Shelly Kreiczer-Levy, ‘Intergenerational relations and the family home.” Law &
Ethics of Human Rights 8/1 (2014): 131–160; p. 150.
32. See Quran 17/23, Abu Hurairah (Companion of Prophet) stated: “a person is
indeed disgraced, who does not earn paradise by caring for his parents during the life
time and old age.”
33. Kreiczer-Levy, “Intergenerational relations . . .,” p. 151.
34. Rajendra Pradhan, “Family, inheritance and the care of the aged: contractual
relations and the axiom of kinship amity.” Unpublished Manuscript. Amsterdam:
University of Amsterdam, 1990. For instances of these types of arrangements in Fin-
land, see Ray Abrahams, A Place of Their Own: Family Farming in Eastern Finland.
Cambridge: Cambridge University press, 1991. As regards the general and the inter-
generational contract in Europe see Marco Albertini and Martin Kohli, “The genera-
tional contract in the family: an analysis of transfer regimes in Europe.” European
Sociological Review 29/4 (2013): 828–840. It may be noted that Australian farmers do not
negotiate definitive contracts concerning the handing over of the family farm. Howev-
er, due to the fact that these arrangements are often made in the form of informal
testamentary promises, they are not usually held to be valid. The significance of this is
that the law as an authoritative discourse excludes some forms of customary arrange-
ments. See, for instance, Vigolo v Bostin (2005) 221 CLR 191, as discussed by Malcolm
Voyce, “Vigolo v Bostin (2005) family provision and farming sons.” Retirement and
Estate Planning Bulletin (2005): 149–153. There are a variety of reasons why such prom-
ises are not upheld—one being that they are not in the appropriate legal form, another
being that they are overridden by the need to support other persons as specified in
family provision legislation.
35. Fieldwork by Ghena Krayem has shown that the mahr may be seen as a symbol-
ic payment as regards the good treatment of the wife or as a gift for her financial
security. It usually comes in two forms, either as an upfront payment or as a deferred
payment. The amounts paid vary significantly, see Ghena Krayem, Islamic Family Law
in Australia: To Recognise or Not to Recognise. Melbourne: Melbourne University Press,
2014; pp. 145–147.
36. These findings also mirrored the comment by Ann Black, Hossein Esmaeili, and
Nadirsyah Hosen, Modern Perspectives on Islamic Law. Cheltenham: Edward Elgar Pub-
lishing, 2013; pp. 108–109.
37. A view reflected in the work of L. Clarke and P. Cross, Muslim and Canadian
Family Law, p. 4.
38. Shelly Kreiczer-Levy, “The riddle of inheritance: connecting continuity and
property.” SSRN Electronic Journal 2 (2011); Shelly Kreiczer-Levy, “Inheritance legal
systems and the intergenerational bond.” Real Property Trust and Estate Law Journal 46/
3 (2012): 495–539; Shelly Kreiczer-Levy, “Deliberative accountability rules: promoting
accountability in inheritance law.” University of Michigan Journal of Law Reform 45/4
(2012): 937–964; Shelly Kreiczer-Levy, “Succession law in Israel: individualism and the
family.” Israel Studies Review 28/2 (2013): 300–313; Kreiczer-Levy, “Intergenerational
relations and the family home,” p. 131; Jack Goody, Death, Property and the Ancestors: A
Study of the Mortuary Customs of the LoDagaa of West Africa. London: Tavistock, 1962;
pp. 273–283.
39. Michael McDonald, “Should communities have rights? Reflections on liberal
individualism.” Canadian Journal of Law and Jurisprudence 4/2 (1991): 217–237.
40. Dwight Newman, Community and Collective Rights: A Theoretical Framework for
Rights Held by Groups . Oxford: Hart Publishing, 2011; pp. 128–129.
41. Gerald Doppelt, “Illiberal cultures and group rights: a critique of multicultural-
ism in Kymlicka, Taylor and Nussbaum.” Journal of Contemporary Legal Issues 12
(2001–2002): 661–692; p. 665.
42. Doppelt, ibid., p. 666.

43. Martha C. Nussbaum, Women and Human Development: The Capabilities Approach .
New York: Cambridge University Press, 2000; p. 178.
44. Doppelt, “Illiberal cultures . . .,” p. 686.
45. Gordon R. Woodman, “Customary Legal Norms.” In Encyclopedia of Law and
Society: American and Global Perspectives , D. S. Clark (ed.). Thousand Oaks: Sage Publi-
cations, 2007.
46. John Griffiths, “Legal pluralism.” In International Encyclopedia of the Social and
Behavioural Sciences, N. Smelser and N. J. Baltes (eds.). New York: Elsevier, 2001; pp.
8650–8654.
47. Archana Parashar, “Australian Muslims and family law: diversity and gender
justice.” Journal of Intercultural Studies 33/5 (2012): 565–583. Farrah Ahmed, ‘Personal
autonomy and the option of religious law.” International Journal of Law, Policy and the
Family 24/2 (2010): 222-244.
48. Australia Law Reform Commission, Recognition of Aboriginal Customary Laws:
Report 31. Sydney: Australian Law Reform Commission, 1986; chapters 12–16.
49. Law Reform Commission of Western Australia, Aboriginal Customary Laws:
Project 94. Perth: Law Reform Commission of Western Australia, 2006. A later report
by the Australian Law Reform Commission did not support the enactment of special
laws constructed around an ethnic identity, since it argued that they detracted from
indispensable qualities of the law, such as “equality and universality,” see Australian
Law Reform Commission, Multiculturalism and the Law: Report 57. Sydney: Australian
Law Reform Commission, 1992; p. 171. In general, Australian governments have re-
jected the adoption of personal laws for religious or Aboriginal groups.
50. Gerard Brennan, Hal Wootten Lecture: Lessons from a Life in the Law. Sydney:
University of New South Wales, 2012.
51. “No place in legal system for Sharia: Jim Spigelman.” The Australian June 2,
2012.
52. Ann Black, “Legal recognition of Sharia: is this the right direction for Australian
family matters?” Family Matters 84 (2010): 64–67; p. 64. Abdullah Saeed, “Reflections
on the establishment of the Sharia courts in Australia.” In Shari’a in the West, R. Ahdar
and N. Aroney (eds.). Oxford: Oxford University Press, 2010; pp. 222–238. Krayem,
Islamic Family Law in Australia.
53. Machteld Zee, Choosing Sharia? Multiculturalism, Islamic Fundamentalism and Brit-
ish Sharia Councils . The Hague: Eleven International Publishing, 2016. Samia Bano,
Muslim Women and Shari’ah Councils: Transcending the Boundaries of Community and
Law . London: Palgrave MacMillan, 2012. Farrah Ahmed and Calderwood J. Norton,
“Religious tribunals, religious freedom, and concern for vulnerable women.” Child and
Family Law Quarterly 24/4 (2010): 363–388.

54. Al-Midani v Al-Midani [1999]1 Lloyd’s Report 923.
55. Ahmed and Norton, “Religious tribunals, religious freedom, and concern for
vulnerable women”; 381.
56. Ahmed and Norton, ibid.
57. Saeed, “Reflections on the establishment of the Sharia courts in Australia,” p.
236.
58. This issue is an old chestnut within legal scholarship, see especially the debate
over legal morals and legal positivism following in from the work of H. L. A. Hart, The
Concept of Law (2nd ed.). Oxford: Oxford University Press, 1994. The authors of this
chapter regard law as a professional discourse because of its rationality, its procedure,
and its ability to claim the truth of events. Carol Smart, Feminism and the Power of Law.
London: Routledge, 1989; pp. 10–11.
59. It is implicit in the Western understanding that law is a series of propositions
which are universal and which aim to promote social community. At the same time,
“law” is expected to operate in the territory (rather than for specific people or castes)
where it is applied and is applicable to a community of rights-bearing subjects.
60. Chris Dent and Ian Cook, “Stare decisis, repetition and understanding common
law.” Griffith Law Review 16/1 (2007): 131–150.
61. Malcolm Voyce, “Testamentary promises, family provision and family farm-
ers.” Elder Law Review 8 (2014): 1–12.
62. In one case, the court did not take into account an oral understanding that
certain property was held on trust; see Re Galea and Secretary, Department of Social
Security (1994) 34 ALD 673. In another case, the court refused to acknowledge that
those involved in a cooperative form of arrangement were “working,” see Re McKen-
na and Director-General of Social Security (1981) 3 ALD 219.
63. Family provision legislation concerning will disputes prioritizes claimants in
need of support. In the instance of a large gift to a son, testamentary freedom will only
be restricted when other children and spouses are in need. In many respects, family
provision law, as with the law concerning family farms, does not support patriarchal
ideas of keeping land intact for male farmers; see Voyce, “Testamentary promises,
family provision and family farmers.”
64. In Mohamed v Mohamed [2012] NSWSC 852 (31 July 2012) the Supreme Court
of New South Wales allowed a wife to claim mahr for Aus$50,000 from her ex-hus-
band. The court held that this was enforceable under the common law as a valid
agreement between the parties; see Krayem, Islamic Family Law . . ., p. 147.

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ELEVEN

Islamic Inheritance and Sharia Wills

Malcolm Voyce, Selda Dagestanli, Adam Possamai,

THE ISLAMIC LAW OF INHERITANCE

Islamic law provides guidance on every aspect of life. Muslims under

allocation of the remaining two thirds is complex, but, in general, wid-

reproduces family structures and personal relationships over time. Im-

chapter takes Sharia as a template that may or may not be actualized in

METHODOLOGY AND DATA

cultural background, and n=3 as part of a mix). In the 2011 national

ATTITUDES OF MUSLIM FAMILIES TOWARD FAMILY PROPERTY

Muslim immigrants, like other immigrant communities in Australia, seek

regarded as carrying greater responsibility toward females. Suhaili

case of “Muslim family property relations,” such altruism is given a relig-

instance, bequests may be made in return for telephone calls or visita-

While research conducted for this chapter found no instance of formal

SHOULD ISLAMIC NOTIONS OF INHERITANCE BE RECOGNIZED?

The question of whether Islamic notions of inheritance should be recog-

sic value of religious capabilities.” 43 Nussbaum stresses that religious

themselves. 45 This argument, in favor of a situation of legal pluralism,

SHOULD AUSTRALIA ADOPT MUSLIM INHERITANCE CUSTOMS

For Islamic inheritance customs in Sharia law to be adopted in Australia,

erational family property in the case of will disputes. 64

da: Canadian Council of Muslim Women, 2006.

Harrison, Rachel, and Frank Mort. “Patriarchal aspects of nineteenth-century state

Powers, David S. “Islamic inheritance system: a socio-historical approach.” The Arab

9. Powers, “Islamic inheritance system: a socio-historical approach.”

ham and Trotman, 1990; p. 147.

42. Doppelt, ibid., p. 666.

Family Law Quarterly 24/4 (2010): 363–388.

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