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



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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 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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iENDNOTES
 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.




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