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The Arbitration Act 1996 allowed for
the establishment of arbitration tribunals, including provisions for
faith-based tribunals to resolve civil disputes. Like the Jewish Beth Din, the
Islamic Shariah Council (the oldest shariah council in Britain) was established
under older precursors to the Arbitration Act to deal with family disputes. To
be precise, the ISC was established in 1982 with a very specific purpose in
mind. Under Islamic Law, there are three main ways of dissolving a marriage: Talaq (unilateral repudiation by the
husband, which can be delegated to the wife in Talaq Tafweed), Khul’a (divorce instigated by the wife
and involving a religious scholar or court), and Faskh (judicial dissolution by a court). In normal practice this
means that a man can obtain a divorce without recourse to a third party, but a
woman needs an Islamic court to pronounce divorce. In Muslim majority countries
this clearly poses few problems as structures are in place to facilitate these
procedures. But in a country like Britain, where there were no such facilities
for the early immigrant community, thousands of women were forced to endure
unhappy marriages because their husband refused to initiate divorce. In many
cases, such husbands would take a second wife (under Islamic if not English
law) but refuse to repudiate the first wife, forcing her to live a life of
misery.
To resolve this difficult situation,
several prominent Muslim scholars came together in 1982 and decided that a
religious body that could issue khul’a and provide guidance on issues such as
inheritance law needed to be established urgently. Thus was born the ISC. From
the outset, the mandate of the ISC was to provide a forum for mediation and
counselling for the unhappy parties and also to pronounce judicial divorce. To
this day, the bulk of its work remains in this precise field. The advantage of
arbitration by Muslim scholars is that it provides a culturally and religiously
sensitive environment in which the couple can air their grievances.
It should be noted that Khul’a
proceedings proceed in tandem with divorce proceedings in civil courts. Women
who petition for Khul’a are required to begin civil proceedings at the same
time. However, there are many Muslim couples who continue to marry in religious
ceremonies only and do not have civil registrations. Although this is clearly
not a satisfactory state of affairs, such women have no recourse to civil law
and can only obtain divorce through shariah councils.
The Archbishop of Canterbury, Dr
Rowan Williams, created a furore some years ago when he seemed to suggest that
Muslims could be governed in respect of some disputes by Shariah. It was
however, quite clear that the Archbishop was suggesting that individuals could
opt to resolve certain disputes under their own choice of jurisdiction. This
was not as ground-breaking a suggestion as the media declared, given that many
Muslims had been turning to shariah councils for their marital disputes for
decades.
The furore surrounding Dr. Rowan’s
lecture on shows how difficult it is to discuss the issue of shariah in a calm
atmosphere. Any discussions on widening the scope of shariah in Britain are
usually met with great hostility and dismay. The ensuing debate invariably
revolves around cutting hands and stoning to death as if these form the
parameters of shariah. For a start, the introduction of Islamic criminal law
into English law has never been on the agenda for shariah councils. But more
importantly, it is frankly ridiculous to equate Islamic criminal law (which is only
one branch of shariah) with cutting hands and capital punishment. Islamic
criminal law allows for a host of measures to deal with serious crime,
including financial compensation and prison sentences. The severe hudud punishments are offered as a last resort,
not as a first port of call, and have incredibly stringent evidence
requirements. For example, a couple who commit adultery may only be stoned to
death if there are four, adult, sane Muslims who saw them in flagrante delicto. In the unusual event that such witnesses are
actually available, the punishment will be less for adultery and more for
public order offences.
The Marriage (Registration of
Buildings) Act 1990 allows for buildings of worship to be registered for the
solemnisation of marriages. In theory, Muslims can attend one marriage ceremony
at a registered Mosque and thus have their marriages registered under both
Islamic and civil law. In practice however, it has been observed that very few
of Britain’s Mosques have shown an interest at being so registered. This in
itself is not necessarily a problem, as the Muslim community has long been
accustomed to having two events for their big day: a religious ceremony at a
Mosque, and a white civil ceremony. The religious ceremony is seen as the ‘real’
wedding, with the civil ceremony simply being the state’s stamp of approval.
Cohabitation will be allowed if a religious ceremony only has been conducted,
but not if a civil ceremony alone has taken place.
Unfortunately, recent research
suggests that the number of non-registered marriages (in other words,
nikah-only marriages) is showing a dramatic rise. This has wide implications
for shariah councils as well as for the human rights of women. The Islamic
marriage is potentially polygamous. Most Muslims who live in Britain are
perfectly aware that polygamy is illegal under English law, and so are quite
happy to remain monogamous. However, a small minority wish to practise polygamy
underground. If these marriages fail, the women and children are often left in
very vulnerable positions. Many women who enter into marriages without civil
registration do so because they believe they will be treated as ‘common law
wives’ and so will have rights in court if the marriage fails. Sadly, belief in
the concept of the ‘common law marriage’ is one of English law’s most enduring
myths. Many men who refuse to register their marriages do so either because
they are contemplating polygamy or because they wish to deny their wives a
share in their wealth should the marriage fail. In any event, it is generally
the women who suffer at point of divorce if the marriage is not registered. A
shariah council can award the wife high levels of financial compensation, but
if there is no civil marriage, she cannot pursue these awards in the courts.
The rise in Nikah-only marriages
makes an important point about the attitude of many Muslims to the law. While
the community as a whole seems happy to leave criminal law and financial
disputes to the English legal system, issues of family law are treated
differently. Marriage, divorce and the writing of wills are increasingly being
seen as the sole preserve of faith-based institutions.
Khola Hasan
The Islamic Shariah Council
Published in Per Incuriam of
Cambridge University Law Society, Easter 2011.
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The popular perception of sharia law is one of brutal punishments carried out by hardline states. But, as Dan Bell discovers, the backstreets of Britain are full of Islamic courts ruling on everything from banking and alcopops to forced marriage and divorce
