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.