One of the BBC’s articles today concerns Jewish women stuck
in broken marriages where their husband refuses to give them the necessary religious document enabling a divorce. In some cases, the wife can remain trapped in the situation for years, unable to remarry or move on.
Similar situations exist within Muslim communities. One way to avoid this problem is for both spouses to sign a pre- or post-nuptial agreement to settle marital disputes through voluntary binding arbitration. The American Jewish community has used prenuptial agreements with great success for many years. They have also established institutions for handling family law, divorce, and personal status.
I touched briefly on the issue of Muslim women trapped in broken marriages in Alternative Dispute Resolution: Arbitration & Mediation in non-Muslim Regions. There I recommended that Muslim couples sign pre- or post-nuptial agreements to settle marital disputes through voluntary binding arbitration which would be carried out by experts in Islamic law, and in a way that is harmonious to local alternative dispute resolution laws. I also recommended that experts in Islamic law seek opinions within the legal texts which address circumstances where it is not possible to seek justice through an Islamic court. My paper included an example from within the Shāfiʿī school concerning situations where a husband has disappeared and is no longer providing obligatory support, and it is not possible for the wife to take her case to a Muslim judge.