Dr Wendy Kennett, LL. M tutor, Cardiff University Abstract



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Women in Society Volume 3, Spring 2012 ISSN 2042-7220 (Print)

ISSN 2042-7239 (Online) Volume 1, Spring 2011

ISSN 2042-7220 (Print)

ISSN 2042-7239 (Online)




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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.
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 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 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.
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) 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).
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.
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 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 pre- and 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 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.
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