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

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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 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 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 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 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 post-Christian 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 non-financial 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.

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 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 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. 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.

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 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.

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