Untying the Knot
This is a sensitive and sympathetic empirical study of matrimonial dispute and divorce cases by an academic barrister in which one or other party, usually the wife, has sought the intervention of the Muslim Law Shariah Council (MLSC), London. It draws on an analysis of about 300 case files, 21 follow-up interviews with women, and interviews with two women's support bodies based in London.
Divorce has always been permissible in the Shariah though it is to be avoided as far as possible, as guided by the saying of the Prophet "among all the things that God has made legal, divorce is most hateful". The author notes that this hadith 'encapsulates the complex attitude towards divorce; on the one hand, it is permissible to end a marriage, that is to say that the hardships of an intolerable life-long union need not be endured. On the other hand, divorce is a final resort, and to be avoided if at all possible". The Shariah permits the nikah or 'aqd (marriage contract) to be terminated by either party. The talaq is the termination of the marriage contract by the husband, while its dissolution at the wife's initiative, and with agreement of the husband, is known as khula. There is also provision in the Shariah for the wife to seek the judicial intervention of a qadi (Islamic judge) to obtain talaq, for a range of common sense reasons. There may also be an agreement in the marriage contract to confer the wife with the right to divorce should she want to, but a qadi must be informed if this is exercised. This is in contrast to rabbinical law, where the man can only initiate divorce.
The Muslim marriage is a contract between the bride and groom which they, or their proxies must freely enter into - a nikah contract is not valid if the parties do not consent, "although there are differences in juristic opinion about exactly how the consent can be manifested". Out of 308 cases examined, this research study identified 28 forced marriages. Forced marriages are an unfortunate and ugly blot which will only be addressed if the matter is taken up by mosque imams.
The study highlights cases of women who have only gone through a nikah ceremony without being married according to English civil law. When such a relationship breaks down, the wife is left without the protection that would normally be available if the marriage had been registered according to civil law. The situation is exacerbated if the husband refuses to give talaq and also does not agree to make financial provision. The author only gives a few examples of this injustice, but even one case is a case too many. Here again is an issue that can only be tackled by clear leadership from the mimbar.
The research establishes that even where women have been through a civil marriage and civil divorce proceedings, they still seek legitimacy from the rulings of the MLSC because of a keeness to have matters resolved according to the Shariah. In the author's view, "for the majority of the women, religious idealism also incorporates the notion that the talaq divorce is superior to the civil divorce . perceived religious identity motives the women to seek redress within the framework of the Shariah, and to adhere to its guideline". These women knock at the MLSC door because their primary self-identity and point of reference is a Muslim one.
It is amazing that even in conditions of such emotional duress, what matters most to them is their religious affiliation.
Given this strength of feeling, the author is surprisingly ambivalent on the issue of whether Shariah courts warrant official recognition: "it is generally agreed that formal recognition of the Shariah system of laws in the UK would be problematic, and such recognition is not sought by members of the MLSC nor by the majority of Muslim community organisations .the co-existence of the Shariah alongside the civil law is currently preferable to the imposition of encumbrances upon its operation, but not at the cost of lawyers and the judiciary remaining ignorant of the different needs of Muslims in the UK. While all agree on the need for wider dissemination of the impact that the Shariah has upon the family lives of [these] women, the empirical evidence of this research demonstrates that the demand for any official recognition of the Shariah is a minority one, because the general consensus is to continue to act independently, in the same way that a semi- autonomous legal field co-exists amidst the presence of an over-arching legal superstructure. It is not recognition of the Shariah that is deemed the necessary means of alleviating the difficulties that Muslim women are facing, rather, it is argued that rectification of the wide spread ignorance of the Shariah in the broader social context will lead to an improvement in legal and social-care service provision for Muslim women in the UK".
There is an undoubted groundswell amongst Muslims to seek recognition as a distinct faith community - this research provides supporting evidence at a 'micro' level, while the popular campaign for a religion question in the Census demonstrates it at the 'macro' level.The strategic issue is this: should Muslims be content with essential institutions like the MLSC remaining private and informal, or should their role be formally recognised within mainstream society? This is part of a wider debate that is required within the community on the vision that we hold for the future - do we envisage a Britain in which Muslims are a semi-autonomous community (along the lines of the Ottoman 'Millet' model'), or would we, and society, be better of with a fully integrated society sharing a common set of civil institutions? How far are the fundamentally held secular values of British society negotiable? Civil Law cannot stand isolated from the operative laws of its faith communities, and a case to point is the recent legislative debate in both Houses of Parliament on provisions under which a UK judge should have discretionary powers to withhold the grant of a civil divorce until a Jewish divorce has been obtained.
Whatever the outcome on the broader framework, the British Muslim community has cause to be grateful to the MLSC, chaired by Professor Zaki Badawi, for providing Muslim communities in the West with an unofficial parallel legal system, and to the author, for drawing attention to issues that are too readily swept under the carpet. While the author may be criticised for not putting her head over the parapet, as a researcher she has clearly been able to enter the personal world of the researched and 'give voice' to previously unheard and marginalised experiences. Given the nature of the subject, it is no mean feat to have won the trust of those involved.
If this work is to be a point of reference for the future, then it would be useful for a future edition to include further references to UK law. For example, mention ought to be made of provisions of the Marriage Act 1949, in particular section 41 that enables the trustees of a mosque to apply for the building to be registered for marriages. Once registered, marriages can take place there according to Islamic rites and ceremonies, and in accordance with the provisions of the Marriage Act 1949, without the need for a separate ceremony. Perhaps a future edition can also make reference to the efforts of Dr Aziz Pasha of the Union of Muslim Organisations to seek recognition of Muslim Personal Law within UK law, following the precedent established in British India.
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