Women in Society
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Women Living Under Shariah Law – Part Two
– Choice and Transparency
Dr Wendy Kennett, LL.M Tutor, Cardiff University
Abstract
This article is the second in a two part series that examines the relationship
between shariah law and English law. It explores how far English Law
currently accommodates Islamic principles in relation to marriage and
divorce and considers the impact of shariah law on women. The article
points out that private customs relating to marriage and divorce typically
disadvantage women, since they are often discriminatory and authoritarian.
It concludes by indicating that in order to encourage women to assert their
autonomy, investment in resources is required to improve their knowledge of
the relevant laws, both secular and religious. The transparency provided by
accurate and readily available information is a necessary preliminary to
choice.
Keywords: Women, Shariah Law, Relationship with English Law,
Marriage, Divorce
Introduction
‘Nothing in the law in England and Wales prevents people from abiding by
shariah principles if they wish to do so ... provided that it does not conflict
with the law in England and Wales. If it did, the law in England and Wales
would prevail.’ Bridget Prentice as reported by Rozenberg (2009)
‘Citizenship in a secular society should not necessitate the abandoning of
religious discipline, any more than religious discipline should deprive one of
access to liberties secured by the law of the land, to the common benefits of
secular citizenship’ Williams (2008).
In part one of this article, it was noted that, irrespective of any formal
recognition by English law, religious law is in fact being applied to many
relationships in England and Wales. English and Islamic law on marriage
and divorce essentially operate in two distinct legal worlds. A secular
marriage requires a secular divorce. A religious marriage requires a religious
divorce.
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To some extent this maintenance of two systems may follow from an
increase in fundamentalist forms of religiosity – such that a believer is
determined to have his faith ‘recognised as an integral part of his public
existence, deeming that religion should govern all his personal relationships’
(Roy, 2007 pg.69), but it is also a consequence of cultural habits that may
eventually be eroded or transformed (Shachar, 2001) through contact with
the culture and norms of the host state (see generally Bano, 2004; Bhabha,
1994; Zingsheim, 2011). The extent to which reference is made to English
law by members of the Muslim community varies with the complexity of that
community itself: there is no coherent ‘standardised’ approach.
In the United Kingdom, the state’s involvement in governing the creation or
dissolution of marriage is of fairly recent date. Western conceptions of
marriage have only slowly been emerging from the influence of
ecclesiastical law and from the view of marriage as a sacrament (Shachar,
2001; McFarlane, 2011). Under Islamic law, by contrast, marriage is a
matter of contract. Commitment to a marriage is encouraged, but the
dissolution thereof is not subject to the legal obstacles that have prevailed in
the West for many centuries. The barriers are, rather, financial, social and
cultural. The legal systems of the states from which most members of the
British Muslim community originate have no single state law regulating
marriage. Instead, they explicitly refer matters of status to the ‘personal law’
of the parties, determined by their religion (Pearl, 1987; Ali, 2006: see also
El-Azhary Sonbol, 2009). But this does not mean that no state regulation of
marriage exists. A variety of enactments and other measures have been
adopted to modify the position under the prevailing religious law. Noteworthy
in this regard is the Muslim Family Law Ordinance 1961, adopted in
Pakistan and also still retained in Bangladesh post-independence. The main
purpose of the Ordinance is to discourage polygamy and regulate divorce
(Naz, 2008). It requires the registration of marriages, with penal sanctions
for non-compliance. However, in Bangladesh it is only recently that an
adequate infrastructure has existed for enforcement of this obligation
(Ambrus et al. 2008; Bates et al., 2004), while the status of the Ordinance is
complicated in Pakistan by judicial interpretation and constitutional issues.
According to Pearl (1989) “the Enforcement of the Shari’ah Ordinance 1988
has brought the whole edifice of the Muslim Family Laws Ordinance
crumbling down” (see also Yilmaz, 2005). In India political sensitivities
between Muslims and Hindus have rendered legislative intervention difficult.
With the exception of legislation from the colonial era, Muslims are typically
exempted from the application of legislation in the area of family law.i
Little effort was made to integrate the first guest workers from the above
states into British life. It is not, therefore, surprising that traditional rules and
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ceremonies initially continued to govern their relationships, since they would
not have had any strong expectation that the state should play a role in the
formation and dissolution of marriages. In the 1970s and early 1980s the
Muslim community campaigned to be allowed to apply Islamic law to matters
of status. That argument was not long pursued, however, in part because of
the divisions within the community as to the content of any such ‘personal
law’ (Warraich and Balchin, 2006).
Part two of this article will explore how far English law currently
accommodates Islamic principles in the areas of marriage and divorce.ii
This involves consideration of several issues: first of all, whether compliance
with the requirements of English law is in any way inconsistent with Islamic
principles; second, whether compliance with the requirements of English law
imposes additional burdens on Muslims which may inhibit compliance; third,
whether, conversely, aspects of Islamic law on marriage and divorce and the
operation of shariah councils may interfere with the assertion of rights that
would otherwise be available to the parties to a civil divorce; and finally how
far, if at all, English law provides any protection to parties who have entered
into an Islamic marriage but not an English one.
Marriage
There is no reason as a matter of Islamic law why Muslims should not enter
into an English marriage. Nor is the fact that marriage under English law is a
monogamous union in any way ‘contrary’ to Islamic law. While the Qur’an
permits polygamy it also establishes parameters within which it is
appropriate, and it is noteworthy that some Muslim majority states have
prohibited the practice or have interpreted the Qur’an in such a way that
polygamy is discouraged (Esposito, 2002; Rehman, 2007).
Nevertheless, most Muslims participate in a nikah ceremony in addition to or
instead of a civil wedding. The precise relationship between Islamic law and
English law in relation to the formation of a valid marriage is complex and
has led to considerable confusion.iii
The 1949 Marriage Act provides that a building, which has been certified as
required by law as a place of religious worship, may also be registered ‘for
the solemnization of marriages therein’ (s.41). Such a marriage may be
solemnized according to religious forms in the presence of a registrar, or,
under s.43, the trustees or governing body of that building may authorise a
person to take the place of the registrar. It is thus entirely possible for a
mosque to be registered under the Act and for the imam to be certified as an
‘authorised person’ to solemnize a civil marriage. If all mosques made use of
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these provisions, the problem of ‘distinct legal worlds’ in relation to the
marriage ceremony could be resolved. The two legal worlds could coincide.iv
To date, however, limited use has been made of this provision. A written
question on this issue in the House of Lords elicited the response on 24 May
2011 that 208 places of meeting for religious worship in England and Wales
had been registered by the Registrar General for the solemnisation of
marriages under s.41 where the denomination was recorded as Muslim (HL
Hansard, 2011). This is out of an approximate total of 1500 mosques
(Naqshbandi, 2011). There is a movement within the Muslim community to
raise awareness of the option offered by the 1949 Act, and to encourage its
use. Some mosques, in advertising their services, point out that the mosque
is authorised by the Registrar’s Office to hold wedding ceremonies. Others
refuse to solemnize a religious marriage unless a certificate is produced to
prove that a civil marriage has already taken place. But there is more work
to be done.
Part of the problem is fragmentation of the community, which makes
consciousness-raising difficult and leads to a large number of small
mosques that might not consider it worthwhile to obtain the required
registration. Furthermore, until 1990 the 1949 Act itself posed problems
(Yilmaz, 2005). It required a place of meeting for religious worship to be a
‘separate’ building before it could be registered under the Act. Since
mosques are typically multi-functional this meant that they often could not be
registered. An amendment in 1990 introduced a new s.41(7) to the effect
that ‘[a] building may be registered for the solemnization of marriages under
this section whether it is a separate building or forms part of another
building.’ The amendment facilitates the registration of mosques, but has not
had a dramatic impact in practice. Misconceptions about the law abound. A
reliance on ‘imported’ imams, without adequate knowledge of English law, is
probably a factor to take into account, while Thomson (2011) suggests that
the form of words to be used in the ceremony would be problematic for
Muslims, but does not cite the correct form.
In the absence of registration of mosques, an alternative approach to
betrothal and marriage ceremonies has the potential to reduce the number
of unregistered Muslim marriages. Yilmaz (2005) observes that the Muslim
community is ‘reconstructing newly adapted Muslim law rules’ which take
account of the requirements of English law. The English marriage ceremony
is thus sometimes regarded as a formal betrothal within the context of the
Islamic marriage. However, the evidence of large numbers of unregistered
marriages indicates that this is not a widespread practice.
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In these circumstances the question must be posed as to where the onus
lies to improve the correlation between the two legal worlds. There is some
willingness to accommodate Muslim practice on the part of the English legal
system. The major problems seem to be an absence of transparency
coupled with, in some cases, the religious sanctioning of arrangements
intended by the parties to be cohabitation, principally for the benefit of
parents and community (Warraich and Balchin, 2006), and, in other cases, a
cynical exploitation of the room for manoeuvre created by the opaqueness of
the legal position.
Increased transparency might be promoted in various ways, from additional
funding for educational campaigns and more intensive community initiatives
(for comment on this, see Balchin, 2011), through the better training of
imams supported by a structured framework of qualifications (Mukadam and
Scott-Baumann, 2010), to the imposition of sanctions for the ‘misleading
advertising’ of the services offered by mosques, or the prosecution of an
imam for solemnizing a marriage knowingly and wilfully otherwise than in
accordance with the Marriage Act 1949, (giving a purposive construction to
s.75 of the Act)v. The choices in this area should no doubt be determined by
practical and political effectiveness, but in practice a lack of reliable
empirical data is again liable to frustrate policy making.
The current lack of communication between systems thus leaves a space,
which can be manipulated by (mainly) men who wish to evade the
responsibilities of the relationship into which they purport to enter (Bano,
2004). While some may be motivated by a fundamentalist rejection of
English laws, it is hard to avoid the conclusion that in modern society young
men, subject to the conflicting pressures and influences of different cultures,
also operate in this way simply ‘because they can’. While some women
participate in a nikah ceremony, believing that it creates a valid marriage,
many recognise the need for a registered marriage and expect one to take
place after the nikah, only to find that their husband refuses to take this step
(Bano, 2004). These men can satisfy the demands of their family and
community, and yet deliberately avoid the financial consequences of
divorce. They can also terminate the relationship with ease if they so desire,
and can enjoy the freedom to have other Muslim wives without legal
consequences.
Divorce
As noted in part one, if a marriage is valid as a matter of English law –
whether entered into in England, or entered into abroad but recognised
under English conflict of laws rules – it can only be dissolved by means of a
divorce, which is also valid as a matter of English law. Spencer (2011)
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suggests that changes in the English conflict of laws rules, restricting the
potential for recognition of Islamic divorces, have been a spur to the growth
in shariah councils in England.vi
In contrast with the position in relation to marriage, there is no clear point of
contact between English and Islamic divorce procedures. An Islamic divorce
cannot dissolve an English marriage, and views differ as to how far an
English divorce may dissolve an Islamic marriage (Warraich and Balchin,
2006; some shariah councils equate a civil divorce with an Islamic divorce).
Muslims who have entered into a civil marriage therefore often pursue both
types of divorce proceedings in order to comply with their religious
obligations or satisfy community expectations.
Under the Matrimonial Causes Act 1973, English law requires a petitioner for
divorce to satisfy the court that the marriage has irretrievably broken down
based on one of the grounds stated in the Act (adultery, behaviour,
desertion or a period of separation). By contrast, under Islamic law a man
may divorce his wife without having to prove or even provide any grounds
for divorce (see Part One). The position of the wife is different, but varies
depending on the school of Islamic thought followed in the country or
community at issue. There is no need to prove any grounds for divorce in
the case of a khula, but the husband has to agree to the divorce and woman
gives up her right to dower (mahr). In a large number of cases arising in
shariah councils this is the type of divorce sought and women report that
they feel they have to plead for their divorce despite abuse (Bano, 2004).
This is true even in cases where a civil divorce has been obtained on the
grounds of the husband’s behaviour, and even where the wife has obtained
an injunction to restrict contact with the husband.
In this context, it is worth noting that in India, Pakistan and Bangladesh
women can also seek a divorce from a court on various grounds recognised
by Islamic law, including mental or physical cruelty, neglect or lack of
maintenance, and the taking of a second wife without following state
mandated procedures (Dissolution of Muslim Marriages Act 1939). The
legislative framework and access to the courts provides a space within
which egalitarian and conservative forces formulate their arguments in their
efforts shape the law. Women living under Islamic law in Britain lack access
to this public space in which their rights can be asserted, debated and
clarified. Rather, through family and community pressure, they are being
made subject to private and typically conservative interpretations of Islamic
law, which bear no relation to the specific law of any individual country
(Warraich and Balchin, 2006).
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The lack of communication between English and Islamic law is compounded
in the context of the consequences of divorce. For reasons of space the
discussion here will be limited to selected elements of financial support,
leaving aside the problems relating to child residence and contact.
The Financial Consequences of an Islamic Divorce: Mahr
One of the fundamental features of an Islamic marriage contract is the
provision of mahr. Although mahr is often translated as dower or dowry it is
neither of these. It is an agreed payment – in any kind of wealth – by the
groom to the bride. It can be immediate or deferred, or a combination of
both. Typically a small proportion of mahr is paid at the time of the marriage
and the remainder is payable in the event of a specific future event,
including, but not limited to, divorce.
Despite its significance to the marriage contract, the precise role of mahr is
contested (see generally Fournier, 2010). Indeed, since it is a contractually
negotiated amount, its intended role can only really be understood within the
context of the particular negotiations. It has been variously perceived as
purely a marriage gift, as ‘payment’ for the marriage (Coulson, 1964; Haeri,
1989), as a sum designed to be a disincentive to the husband if he is
considering divorce (Bano, 2004; Bix, 2011), and as a prenuptial agreement
absolving the husband of any obligation to make further maintenance
payments (Blenkhorn, 2002; Oman, 2011, Hodson, 2011). It may, of course,
perform several of these functions. It is clear that in traditional Muslim
societies there is no expectation that the ex-husband will pay maintenance
to the divorced wife. She is expected to be cared for by her extended family.
In such circumstances mahr may provide interim support and help to ease
the ex-wife’s return to her family. But against the very different background
of Western societies, mahr may perform quite different functions.
In practice, there is evidence that mahr is frequently only a nominal sum
(Charsley, 2006; John, 2004; Bano, 2004), although in middle-class or
wealthy families it may also be a substantial amount (Spencer, 2011;
Hodson, 2011). There is a vast difference in situation between the woman
marrying a cousin from a rural community in Pakistan – where even mahr
that is substantial by the standards of the husband’s family may translate
into a meagre amount in the UK – and a middle-class family, acculturated
into British society, who may choose to structure mahr to fulfil the role of a
prenuptial agreement. Strictly in the context of obtaining a divorce, setting a
low amount of mahr means that relinquishing a claim to mahr in order to
obtain a kuhla detracts less from the availability of that form of divorce than
might otherwise be the case, but similarly the obligation to pay a low sum is
little disincentive to a husband considering a talaq divorce.
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Against this background it is not surprising that attempts by the courts to
subsume mahr within Western conceptions of contract and of financial
settlement on divorce have produced varying results (Fournier, 2010;
Büchler, 2011). The nikah including the element of mahr may be
characterised as a civil contract (for England, see Shahnaz v Rizwan [1965]
1 QB 390vii), giving rise to arguments in various cases as to whether the
contract is enforceable. Enforcement has been ordered in some cases, and
denied in others (e.g. for lack of intention to create legal relations,
uncertainty, lack of consideration, or some other legal defect: Fournier,
2010). Alternatively, the agreement on mahr may be characterised as a
prenuptial agreement, designed to deal with the allocation of the assets of
the spouses on divorce, and may then be required to satisfy the specific
requirements for validity of such agreements (see further below).
“[I]n the context of an Islamic marriage, the mahr constitutes a
contractual obligation, and the trust placed in this obligation deserves
the protection of the law in the European legal context, too. Of
course, payment of a mahr, will have an effect on the financial claims
of the spouses in the event of divorce, by, for example, diminishing
the wife’s material needs when the amount of any maintenance is
determined. In England, what has been agreed between the parties
can be taken into consideration as one of the factors in determining
any ancillary relief, but this is not binding on the judge. However,
whether, over and above that, the agreement of a mahr should be
interpreted as meaning that bride and groom have opted for the
separation of property regime, the view taken by French courts, or
whether indeed payment of a mahr should rule out any claim by the
bride for maintenance after divorce from the groom remain questions
to be determined on a case-by-case basis by assessment of the
agreement itself. Both cannot be assumed to apply by default,
however, since it is not evident that the mahr is functionally
equivalent to these institutions. The mahr is independent of how
assets are accumulated during marriage and of the degree of need
at the moment of divorce. Indeed it is even independent of divorce as
such.” (Büchler, 2011, at pg.68)
As noted in the above citation, in the case of dissolution of a valid English
marriage, the courts have a discretion as to the award of ancillary relief,
which is not, in principle, fettered by party agreement. The following sections
will, however, consider the scope in English law for regarding agreement on
mahr as a prenuptial agreement, and the possibility that negotiations on
divorce and mahr within a shariah council may impact on divorce
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settlements. It also remains important to consider the position of women who
find that their nikah has not resulted in a valid English marriage. The position
of such women is very fragile on the breakdown of their relationship. Bano
(2004) found that women had little if any involvement in negotiating their
marriage contract and failed to understand significance of mahr. As a
consequence they made no effort to negotiate substantial mahr to protect
them in the case of a talaq divorce. Nor do they have any financial protection
under Islamic law if they seek a khula. Indeed, in addition to being required
to give up their mahr they may be asked to make additional payments to
their husband if the shariah council is not satisfied that they have good
grounds for divorce under Islamic law.
Mahr and Prenuptial Agreements
In fact, English law has traditionally been hostile to enforcing prenuptial
agreements. Originally this was for fear that such agreements might
encourage separation. Later the courts were given a wide discretion to grant
ancillary relief, and it was considered contrary to public policy to allow the
parties to contract out of that jurisdiction. A further reason for finding such
contracts invalid was the consideration that it should not be possible to
contract out of one’s responsibilities for one’s children (Law Commission,
2011). But more recently there has been a recognition of the equal position
of each party to marriage (White v White (2000) UKHL 54), and at the same
time much discussion about how far marriage is a question of ‘contract’ or
‘status’ (for an overview see Herring, 2009; see also for an international
perspective Halley, 2011). In practice prenuptial agreements have become
more common, and during the last fifteen years the courts have shown
themselves willing to accept that property arrangements on divorce may
influence the exercise of their discretion as to ancillary relief (Radmacher v
Granatino [2010] UKSC 42. See also Sanders, 2010), Nevertheless, the law
still recognises that one party to the relationship – typically the woman –
may be vulnerable and deserving of protection. The Law Commission has
recently completed a consultation exercise to canvas views on whether preand post-nuptial agreements should be valid, and if so what their permissible
scope and effects might be.
The possibility of providing special regulation of ‘religious marriage
contracts’ is addressed by the Law Commission in its consultation
document, but is rejected.
‘[W]e do not accept that anyone should be subject either to more or to less
legal protection, in terms of the financial consequences of divorce, by virtue
of their race or membership of a faith group. To make such a proposal would
be discriminatory. Those who wish to make, and to abide by, religious
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marriage contracts will always be free to do so subject to the constraints of
their legal obligations to each other and to society as a whole.’
The consultation paper does not, therefore, examine the role of mahr in the
context of matrimonial property arrangements, and merely observes that
‘[s]ome – but not all – [religious] contracts make provision for what is to
happen in the event of divorce and amount to marital property agreements.’
However, in fact the consultation paper proposes strict safeguards before an
agreement would be treated as a ‘qualifying nuptial agreement’. These
include a requirement of ‘material full and frank disclosure of the other
party’s financial situation’ and the fact that legal advice should have been
obtained at the time the agreement was formed. If such safeguards were
applied, it seems unlikely that an agreement on mahr would be treated as a
prenuptial agreement except in circumstances where it had been expressly
designed to fulfil that role.
Arbitration, Mediation and Consent Orders
Research on Islamic divorces highlights the significance of family and
religious and secular bodies in trying to negotiate a way through the marital
problems that have arisen (Bano, 2004). The desire to preserve family
honour and traditional habits of extra-judicial resolution of disputes (Yilmaz,
2001) mean that initial discussions tend to be among family members, but
later the local imam, shariah councils, and solicitors may be involved.
One of the reasons that shariah councils have become prominent is that
their mediatory role may produce a result in the form of an Islamic divorce
where solicitors fail, unable to negotiate the maze of secular and religious
laws and the implications of transnational marriages (Bano, 2004; Warraich
and Balchin, 2006). Many women complain of the additional expense
incurred in obtaining legal advice that proves to be erroneous.
Part one of this article stated that family disputes cannot be settled by
binding arbitration. Two somewhat contradictory developments have since
occurred. First, in June 2011, a Private Member’s Bill intended to address
certain issues relating to shariah courts was introduced into Parliament by
Baroness Cox (HL Hansard, 7 June 2011).viii The Arbitration and Mediation
Services (Equality) Bill (HL Bill 72) has a number of objectives, one of which
is to state clearly that ‘any matter which is within the jurisdiction of the
criminal or family courts cannot be the subject of arbitration proceedings’
(cl.4). This is further backed up by cl. 7, which makes it an offence for a
body falsely to purport ‘to be exercising a judicial function or to be able to
make legally binding rulings’. However, second, on 29 November 2011, Lord
Wilson SCJ announced the establishment of a family law arbitration scheme
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under the aegis, essentially, of the Chartered Institute of Arbitrators. This
scheme will begin operation in February 2012. It covers financial and
property disputes arising from family relationships, but excludes matters
relating to status and the care and parenting of children. An article in Family
Law Week (2011) describing the scheme states that:
‘there is nothing in the [Arbitration Act 1996] or otherwise to preclude
arbitration in family law matters. However, there has not until now been any
scheme setting out rules within which family law arbitration could take place.
For practical purposes this had ruled it out.’
This seems slightly disingenuous, since it has not been necessary in other
areas for there to be a ‘scheme’ setting out the rules within which arbitration
might take place. Nor will an award under the scheme in fact be enforceable
under the 1996 Arbitration Act: since the jurisdiction of the family court
cannot be ousted, it will not be bound to make an order which mirrors the
award (Family Law Week, 2011: which also notes that many awards will not
require formal enforcement). The question will therefore be, in cases where
court intervention is required, how far a court will decide to exercise its
discretion despite the existence of an award. In this respect, the distinction
between an arbitration award issued under the scheme and a mediated
agreement is currently one of degree rather than principle.
Realistically, the arbitration scheme is more likely to succeed than the
Private Member’s Bill. Furthermore it has been through a long period of
gestation, follows developments in other jurisdictions (Hodson, 2002; House
of Commons Justice Select Committee, 2011), and involves experienced
practitioners who have become members of the CIArb (Family Law Week,
2011). But whatever the merits of arbitration in family law generally,
acceptance that family issues may be the subject of arbitration will lead to
further uncertainty over the decisions of shariah councils. In practice such
decisions would typically fail to meet the criteria for a valid award on
numerous grounds, such as the absence of a written agreement on
arbitration (s.5 of the Arbitration Act 1996), or failure by arbitrator(s) to act
fairly and impartially (s.68 in combination with s.33). Clarification of the
status, scope and effect of family law arbitration is nevertheless desirable –
whether as an amendment to the Bill, or through separate legislation.
Clause 5 of the Arbitration and Mediation Services (Equality) Bill is also
concerned with the effect that may be given to the outcome of proceedings
in a shariah council. It provides that a court ‘may issue a declaration setting
aside any order based on a mediation settlement agreement or other
negotiated agreement if it considers on evidence that one party’s consent
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was not genuine’. The desire that more disputes arising from divorce be
settled by mediation has been a recurring policy theme in the last two
decades, and has most recently found expression in Practice Direction 3A to
the Family Procedure Rules 2010 and in the findings of the Family Justice
Review (Family Justice Review Panel, 2011), which advocate, at the very
least, information about mediation services being provided to potential
applicants for a court order. While mediation with a specifically ‘Islamic’
perspective may be beneficial to those with a genuine religious commitment,
the Bill reflects a concern that pressure may be placed on women in the
course of discussions with a shariah council so that, in order to obtain the
desired Islamic divorce, they agree to forego financial provision to which
they might otherwise be entitled,ix and that the agreement thus achieved
under duress may then be presented to a court and form the basis for a
consent order.
It is unclear how far this is a genuine problem. For example, Douglas and
Sandberg (2011) provide a positive assessment of the way that the Shariah
Council of the Birmingham Central Mosque positions itself in relation to the
civil lawx, whereas Bano (2004) identifies cases in which financial
concessions made by the wife in order to obtain a khula form part of an
overall civil divorce package being negotiated by solicitors. Addison (2009)
too draws attention to the confusion between arbitration and mediation that
appears to be rife in this context and warns of the danger of decisions
imposed through the application of religious law masquerading as mediated
agreements. Empirical research has certainly found that judges rarely have
sufficient information to evaluate a proposed order (Davis et al, 2000).
While Practice Direction 3A specifies that an intending applicant for an order
in family law proceedings (or their legal representative) should contact a
family mediator to arrange for the applicant to attend an information meeting
about family mediation and other forms of alternative dispute resolution, it
contains a variety of exceptions – which include situations of domestic
violence, and where the respondent would refuse to attend. In the light of
Bano’s research (2004), these exceptions may constitute significant limits in
Islamic divorce cases.
The Family Law Review also encourages mediation ‘where necessary’ and
stresses that such mediation should be undertaken by accredited mediators.
The requirement of accreditation may be relevant in the development of
formal mediation services geared to Muslim clients, but it is doubtful whether
it would change practice in shariah councils. The councils do not purport to
be ‘mediation services’. They offer their services from an entirely religious
perspective. The personnel of the council combine any mediation function
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with the additional functions of giving advice, witnessing, promoting
reconciliation, and providing pastoral care. They are in no sense neutral
facilitators – still less impartial and independent arbitrators. Nevertheless,
their intervention does appear to be taken into account by solicitors (Bano,
2004), and the solutions they negotiate or impose may therefore be
incorporated into party ‘agreements’. The existence of such an agreement,
or of ongoing negotiations before a shariah council, may simply prove to be
a factor in assessing whether further mediation is ‘necessary’ under any new
family law arrangements that are introduced following the Review (for the
conciliatory and pro-settlement attitudes currently often adopted by
solicitors, see Wright, 2007).
Rights of Cohabitants
In cases in which there has been no civil marriage, there is no question of
shariah councils being consciously or unwittingly involved in the process of
financial settlement on divorce. But the position taken generally means that
in the absence of a talaq or an agreed divorce, the wife is obliged to
relinquish her mahr in order to regularise her status within the Muslim
community. To the extent that the mahr was of any significant value, this
leaves her without any means of support as a matter of Islamic law. Nor
does English law provide very satisfactory protection: a woman in such a
position is a mere ‘cohabitant’.
The law in relation to the distribution of assets of married couples on divorce
is currently based on the principles of needs, compensation and sharing
(Miller v Miller, McFarlane v McFarlane [2006] UKHL 24), with there being a
presumption of equal sharing of the ‘matrimonial’ property once both parties
needs have been met.xi This is irrespective of whether both parties made
any economic contribution to the relationship. In the case of cohabitants,
however, economic contribution remains important. If the matrimonial home
is in the name of one of the parties, and the other party made essentially
non-financial contributions to the relationship, such as raising the couple’s
children, the latter party will ‘struggle to obtain any share in the family home
on separation, unless there is evidence of an express common intention to
share’ (Law Commission, 2007, citing Burns v Burns [1984] Ch 317). It is
true that in the case of joint ownership of property by cohabitants, where
there is an initial presumption – in the absence of any express statement –
that the property is to be held in equal shares, the law is evolving so that
there is a greater willingness to rebut that presumption, even in the absence
of clear evidence of intention, by reference to what seems reasonable and
fair (Jones v Kernott [2011] UKSC 53); but the parameters of this new case
law are unclear, and it is also highly uncertain how it may impact on sole
ownership cases (Bailey-Harris and Wilson, 2011). The current position is
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thus extremely unsatisfactory for those with limited assets and no taste for
litigation.
Of course, this is not a problem restricted to Muslim families. In postChristian Britain, cohabitation has become both prevalent and accepted. In
the light of the substantial numbers affected, the current lack of any coherent
legal remedies addressing their financial and property disputes on the
breakdown of the relationship has become a matter of concern. The Law
Commission proposed reforms to the law on financial relief for cohabitants
on relationship breakdown (Law Commission, 2007), advocating that such
relief, as further elaborated in its Report and based on financial and nonfinancial contributions to the relationship, should be available to cohabitants
who have a child together, or where there is no child but certain
requirements as to the minimum duration of the relationship are met (the
Report suggests between two and five years). The government welcomed
these proposals but has not taken any steps to implement them, in part
because of arguments that a system of relief for cohabitants would
undermine the institution of marriage (Douglas et al. 2009). One strand in
this argument is that the parties chose not to marry and thus chose to forego
the protections of the law of marriage. Irrespective of the merits of this
argument (see Douglas et al., 2009 as to a general ignorance of the relevant
rules of law), it clearly does not meet the situation of Muslim women who
believed that they had contracted a valid civil marriage.
In reality, however, given the deprived circumstances of a large section of
the Muslim community, and the fact that many of the women who seek
assistance from shariah councils in cases of Islamic divorce have lived with
their ‘in-laws’, it can be assumed that the more significant financial questions
relate to the interplay of child support and benefits, which lie beyond the
remit of this article.
Taking Stock
The foregoing brief review of the law suggests that although some effort has
been made by legislators and courts to accommodate Muslim practices, this
has been unsystematic and limited. The rules relating to the validity of
marriage, the effect to be given to mahr, the wider financial consequences of
divorce/separation, and the appropriate mechanisms for dispute settlement
are not clear cut. To a significant extent, private arrangements which do not
represent the law of any jurisdiction are being applied within the various
Muslim communities – whether through family negotiations or at the more
formal level of shariah councils.
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This is justified as the application of religious law. The quotations from
Prentice and from the Archbishop of Canterbury at the head of this article do
envisage the permissible application of shariah law, where there is no
conflict with the law of England, but they also contemplate a genuine desire
to comply with religious obligations. That desire cannot lightly be assumed.
It is therefore worth posing the question how far the shariah councils are
operating as ‘religious courts’ rather than in a cultural capacity, in so far as
the motivations of their clientele relate to regularisation of their position in
the eyes of the (transnational) community rather than before Allah (Charsley,
2006; Bano, 2008).
Religion remains much more important to the Muslim population of Britain
than the non-Muslim population. A survey conducted by Policy Exchange (a
centre-right think tank: Mirza et al., 2007) indicated that religion was
important to 80% of Muslims, compared with only 7% of non-Muslims
questioned. But it is apparent that for a certain proportion of Muslims, resort
to a shariah council to resolve a marital dispute is perceived as a necessary
evil and an incident of culture rather than a matter of conviction.
Furthermore, those with strong religious commitments may well espouse
interpretations of the Qur’an that are more egalitarian than those of the
decision makers in a shariah council. It is not, therefore, their assent to the
religious principles applied that is the motivation for approaching the council.
Protection of Rights and Multiculturalism
In such circumstances, it is reasonable to enquire as to the scope of the
state’s responsibility to ensure that its citizens are able to live free from
discrimination and oppression. A cursory investigation of Islamic family laws
provides examples of unequal treatment of men and women – such as the
distinction between talaq and kuhla, unequal treatment of women in the
context of inheritance, and the rules on the residence of children. But the
balance between the right to equal treatment and other human rights, such
as the right to freedom of religion, and also a respect for cultural rights,
remains an area of lively debate. And indeed the question of how the
concept of equality itself should be defined is capable of a variety of answers
(Westen, 1982; Clifford, 2008; O’Connell, 2008; Koohestani, 2011).
There is a real tension between protection of minority religious and cultural
rights, and protection of women against discrimination. Shachar (2001)
describes this as ‘the paradox of multicultural vulnerability’, whereby rights of
individuals inside a group are violated by the policies that are designed to
promote their status as members of a cultural group. There may be intense
pressure for women to conform to the discriminatory traditions and practices
of their religious or cultural community, and an assertion of the rights
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protected by secular legislation which conflict with those traditions and
practices is liable to lead, at the very least, to friction with family and
community. Loss of financial support, or physical violence, may be possible
consequences. Women are thus often faced with a stark choice between
their culture – which forms a fundamental part of their identity - and their
rights (Okin, 1999; Shachar, 2001).
In fact, there is a wide spectrum of views as to the deference to be given to
cultural claims (Kymlicka, 1995; Taylor, 1994; Parekh, 2000; Kukathas,
2003; Okin, 1999). Cultural communities may be regarded as relatively fixed,
resistant to change and deserving of preservation, or seen as part of a
constant process of evolution and adaptation to new circumstances
(Bhabha, 1994; Husan, 2003; Zingsheim, 2011). Despite David Cameron’s
assertion that multiculturalism has failed (Cameron, 2011), multicultural
dilemmas persist (Meer and Modood, 2009; Modood, 2011). In terms of
interaction between state and faith communities, there are stark differences
between those who consider that a strict separation between church and
state should be maintained (a ‘secular absolutist model’) and who prioritise
non-discrimination policies in the public sphere, and those who argue that
religious and customary communities should have the authority to pursue
their own traditions in the family law arena (a ‘religious particularist model’:
see further Shachar, 2001).
Theories of cultural relativism, and a fear of being considered racist have
played their part in inhibiting critique of practices within minority communities
in Britain during the last decades of the previous century (Husan, 2003), but,
in so far as sex discrimination is concerned, women have increasingly
mobilised to challenge that reticence, and the strengthening of feminist
movements in Islamic majority countries is now facilitating debate about
discrimination within Muslim communities (Mir-Hosseini, 2004). Warraich
and Balchin (2006, pg.32) comment that:
‘[M]ulticulturalism, which tends to essentialize and homogenize communities
internally while emphasising visible external diversity, instead of producing a
healthy soup may have almost frightened communities into coalescing
around a more fixed identity. Those who have experience of both majority
and minority Muslim contexts, find that the space for challenging monolithic
visions of Islam and confidence in accepting diversity are generally greater
in Muslim majority countries.’
Recognising these issues, recent multicultural theory has sought to find a
middle way that both respects religious and cultural diversity and at the
same time ensures or facilitates the protection of individual rights. The
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Archbishop of Canterbury referred to one such theory in his controversial
Temple Church lecture (Williams, 2008). Shachar (2001) has proposed the
possibility of a kind of joint governance. She starts from the perspective that
people have multiple identities, and that both the religious or cultural
community and the state have claims over the individual. When a dispute
arises and the state and the community would resolve that dispute in
different ways, each should compete for the loyalty of the disputant(s).
Neither should have a monopoly over the process of dispute resolution.
Thus the relationship of a state to any multicultural group within it should be
organized so that negotiated and pre-defined exit, and re-entry options allow
‘vulnerable group members’ the option of moving in and out of the
community. This arrangement confers power on individual community
members – since the community must accommodate their interests if it
wants to retain their participation. In order to continue to exist, the
community must make concessions. Where particular changes in community
custom and practice are desired by a sufficient number of members, the
survival instinct of the community leadership will cause it to introduce the
desired changes. Shachar refers to this process as ‘transformative
accommodation’. Accommodation of the demands of (an aggregation of)
individual community members will lead to the transformation of community
practices.
The reference to this theory in the lecture by the Archbishop of Canterbury
has prompted further discussion of the idea, and an examination of the
extent to which it might operate in connection with religious courts (see e.g.
Jackson, 2009; see also Peled, 2009), but Shachar’s theory has been
criticised as too idealistic (Pierik, 2004) and as privileging ‘legal regulation at
the expense of political-cultural dialogue’ (Mullally, 2004 pg.689). It does not
recognise the difficulty of conducting the negotiations that would be
necessary between the state and religious/cultural community in order to
establish exit and re-entry points (Mitnick, 2003), nor take account of the
practical plausibility of individuals making use of the exit and re-entry options
– notably in the light of the previously identified family pressure, social
deprivation, limited education and inadequate legal advice (Mookherjee,
2005; Baumeister, 2011; Ahmed, 2010).
Furthermore, Shachar’s theory fails to give sufficient attention to the
richness of the intersecting communities in which an individual may
participate. The choice is not necessarily purely between state and
community. What of the varied interpretations of Islam within the Muslim
community? Shariah councils offer different approaches and allow forum
shopping (Douglas et al, 2011). Furthermore, the conflict between modernist
and traditionalist interpretations of Islam exists beyond the nation state.
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Some of the disadvantages from which women suffer in Britain could in
principle be resolved purely within the framework of Islamic law (e.g. through
greater use of a standardised Muslim Marriage Contract, promoted by the
Muslim Institute). And what of the overseas dimension of transnational
communities? Suitably well advised and financially independent individuals
may find that a solution to their marital dispute is offered in a foreign forum
(Warraich and Balchin, 2006). Pakistan, for example, reformed its law on
nationality with a view to maintaining intergenerational links with its emigrant
population.
More recent liberal multicultural theory rejects Shachar’s legal and
jurisdictional approach. A ‘third wave’ of theory (MacDonald, 2009) seeks to
address the challenge of balancing sexual and cultural justice by ‘positing a
deliberative democratic solution to the impasse’ – reflected in the work of
Song (2007), Deveaux (2000 and 2006), and Mookherjee (2005 and 2009).
The principal differences between these authors relate to the extent to which
they provide a critique of the liberal project itself and therefore how far they
demand respect for an individual’s cultural and emotional values as part of
their autonomy as citizens. However, they each focus on the meanings and
implications of specific practices, as opposed to cultures as a whole, and
emphasise the democratic, rather than the rights based, aspects of
multiculturalism (MacDonald, 2009). Mookherjee (2005), for example,
argues that the state’s institutional arrangements should facilitate both group
representation – aiding the expression of different cultural values – and ‘the
democratic communication of reasons across different meaning-generating
communities’, such as to allow full expression of hybrid identities – formed
through family, religion, nationality, gender and other connections. An
advantage of this approach is that individuals cease to carry the burden of
choice and ostracism. Attention is instead focussed on the creation of
institutional structures that will permit a deliberative democratic approach to
the identification and accommodation of rights and interests (Mullally, 2004).
Theory and Practice
So much for theory. But if individual citizenship is to be asserted through
deliberative democracy, it is still necessary to identify those who will
represent the various aspects of a person’s hybrid identity. Naqshbandi
(2006) paints a depressing picture of the Muslim community: dislocated
youth, impoverished imported imams with limited English language
capability, intense factionalism, and self-appointed community leaders with
little connection to their supposed constituency. This is a low starting point
for any meaningful debate to take place.
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Baumeister (2011) emphasises the need for education before individuals
can make use of the legal and political opportunities available to them,
although Warraich and Balchin (2006) note that even well educated women
‘for reasons that require sociological examination, are willing to go along
with social practices that obstruct access to their rights or even optimistically
hope that they can negotiate between the systems to their advantage.’ It is
important that women in Muslim communities should have access to
accurate information both as to the state of the debate in Islamic law, and as
to their position under English law. Bano (2004) comments on the way that
clarification of Islamic law, whether through individual study or the
intervention of an imam, has helped some women to negotiate their way
through the breakdown of their marriage as a result of the discovery that
Islam e.g. allows divorce, permits women to initiate divorce, and expects
certain standards in a marriage. Nevertheless, from a legal perspective
Muslims also need to realise that Islamic principles do not operate in a
vacuum and to understand how English law and the law of their community
country of origin necessarily impact on their family relationships. Further
attention also needs to be paid to the continuing education of lawyers,
notably in areas with a significant Muslim community, to ensure that they are
equipped to deal with these issues. Too few solicitors are able to offer
adequate advice to women who seek their assistance.
The possible regulation of Muslim institutions by the state has been
suggested as a way forward, but this is a delicate matter, both at the level of
principle and as a political project. Any regulation of shariah councils, for
example, risks allegations of discrimination – because a particular faith
group is being singled out – and of public meddling in matters which fall
within the private sphere, while at the same time potentially provoking media
hysteria about the recognition of Islamic law. Similar criticisms can be made
of proposals to regulate the training of imams. Despite concerns expressed
for more than twenty years within the Muslim communities about the need
for imams to be more responsive to multicultural and youth issues, and to
have better English language skills, it is still the case that the majority of
imams are low paid and were educated in South Asia, and that Islamic
seminaries in Britain follow an extremely traditional curriculum which focuses
on Islamic theology rather than pastoral, interfaith or legal issues (Mukadam
and Scott-Baumann, 2010).
Any platform for a broader discussion of the interplay between Islam and
other religious, social and cultural values thus tends to be located outside
the mosque. Ways need to be found to encourage public discussion of
principles and values within the Muslim communities themselves, and in
particular to consider the possibility of a context specific interpretation of the
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Qur’an (taking account of modern education, employment and welfare
provision, for example). The scope for such interpretation deserves to be
considered in comparative perspective. The absence of a genuine public
space for such debate in Britain means that Islamic principles are frozen in
time to a greater extent than is occurring in many Islamic majority states.xii
And in Islamic majority jurisdictions, even if Islamic theology remains
traditional, legislative intervention has ameliorated the position of women in
relation to e.g. the grounds of divorce, or maintenance obligations following
divorce.
Such discussion needs to recognise and make explicit political and
theological divisions within the Muslim communities. While recognition as a
‘Muslim’ may be an important part of an individual’s identity, it is only one
element among many in identity formation. Muslim consciousness has been
useful in arguing for certain rights (e.g. for the Muslim contribution to the
Equality Act 2010, see DeHanas et al., 2010), but the characterisation of
Muslims as a dangerous ‘other’ is counterproductive. The desire on the part
of government or media to identify a representative spokesperson in a
deeply divided community, or series of communities, has focussed too much
attention on those with the eloquence, motivation or financial resources to
engage in self-promotion. A refocusing on politics, which attends to specific
issues and values, in addition to multicultural problems, seems indicated
(Mookherjee, 2009; MacDonald, 2009) and desirable. Disaggregation of
Muslim identity to reveal specific beliefs and values, or to expose conflicts
over political affiliations and aspirations, may also facilitate the building of
coalitions across community and faith groups (Koohestani, 2011).
Furthermore, it represents the approach already pursued by many Muslims,
whose participation in politics and society is not defined by their Muslim
identity. For example, differences in approach within the Muslim
communities to issues of equal treatment could be identified. At the same
time, in a discussion of what is meant by equal treatment and of the
distinction between formal and substantive equality, a faith-informed view of
the meaning of substantive equality as between men and women might
potentially, for women from a variety of faith communities, lead to different
conclusions from a purely secular view.
Conclusion
The practice of marriage and divorce for women from Muslim communities is
located at a complex intersection of religious principles, secular laws (both
English and foreign), cultural practices and transnational affiliations.
Insufficient effort has been made by the state to understand and regulate the
interaction between these elements, with the result that private and local
customs and understandings of the law, under the radar of the secular legal
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system, have become entrenched. These private customs typically
disadvantage women since they are often discriminatory and authoritarian.
Nevertheless, any effort to improve the position of the women affected is
hampered by (i) the social and educational deprivation of certain sectors of
the community; (ii) the politics of multiculturalism; and (iii) the defensive
stance into which Muslim communities have been driven. In order to
encourage women to assert their autonomy, a first step must be to invest the
necessary resources to improve their knowledge of the relevant laws – both
secular and religious – and thus provide them with the information, which will
increase their power over their own lives. The transparency provided by
accurate and readily available information is a necessary preliminary to
choice: including, to return to the main themes of this article, personal faith
choices about interpretation of Islamic law in family matters, choice as to the
form and location of a marriage, choice as to whether it is necessary to
approach a shariah council to obtain a divorce, and a choice between
councils based on their approaches to shariah. Greater transparency will
highlight where law and faith based decision making end, and discrimination
and cultural oppression begin.
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ENDNOTES
i
But cf. the Muslim Women's (Protection of Rights in Divorce) Act 1986. For
the story behind this legislation and its subsequent fortunes, see Mullally
(2005).
ii
Examining the position from the point of view of domestic law. The
transnational dimension, although of practical importance, will be ignored for
present purposes.
iii
The Forced Marriage (Civil Protection) Act 2007 will not be discussed in
this context, since it deals with cultural rather than religious problems.
Islamic law does not condone forced marriages.
iv
However, in practice Islamic marriages often take place in homes and
other premises away from the mosque.
v
But cf. Warraich and Balchin, 2006, for the moral dilemmas that may be
faced by imams who are well aware of the legal position.
vi
See also Warraich and Balchin, 2006, for a detailed analysis of the (slow)
development of English conflict of law rules in response to contact with the
Muslim community.
vii
It is noteworthy that this case enabled the wife to obtain financial support
at a time when the English courts did not have jurisdiction to grant her
ancillary relief because of the polygamous nature of her marriage. The law
on jurisdiction in this respect was changed by the Matrimonial Causes Act
1973.
viii
There have been some criticisms of the Bill, on the basis that it
misunderstands both the current law and the current practices of shariah
councils (see for example in relation to certain provisions of the Bill, Douglas
and Sandberg, 2011; Addison, 2011), but others have expressed the view
that clarification is welcome and the hope that the initiative may encourage
shariah councils to implement good practices (Balchin, 2011).
ix
Concessions may also be made in relation to child custody and access
which fall beyond the remit of this article.
x
Advising clients that ‘only the civil courts may give binding rulings in
relation to the consequences of the divorce’.
xi
In practice, in most cases the assets available are limited and the
emphasis is on meeting needs – particularly the needs of any children of the
union.
xii
There is a question here of whether the ‘doors of ijtihad’ (or contextual
reinterpretation) were closed in the tenth century CE, and if so whether they
can be reopened – points of dispute between traditionalists and modernists.