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David Hodson on International Family Law: Features of Islamic family law
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Nov 3, 2011, 04:50 AM
Article ID :97165
The Institute of Advanced Legal Studies held an informative evening presentation on 27 October on Islamic family law and practice given by Aina Khan, a family lawyer with a distinctive Islamic based practice at Russell Jones and Walker. She spoke about the challenges with Islamic families in England today and the interrelationship of the civil law and Islamic faith. There were extensive questions and discussion. Some statistics were very revealing.
Aina said that there are approximately 2 million Muslims in England of which 1 million are in London and of which 70% of those in England are presently eligible for legal aid. This is a substantial area of demand on public services. Many look to the Sharia Councils for help and 95% of applicants are women seeking rights in respect of domestic relationships. Aina thought anecdotally that in some areas as many as 80% of recent Muslim "marriages" are not in fact registered under English civil law, although the couple and their community consider them as married. They are therefore only in cohabitation relationships, in law, and on any breakdown are left with the inadequate remedies of TOLATA and similar. She described this as a time bomb in that community. In a great number of instances, assets are held by other family members and many cases involve intervenors and third parties. Unofficial polygamy is significantly more acceptable in England than in many countries such as Pakistan, Bangladesh, Morocco etc. This is most often because the men are told to marry (in a religious ceremony) rather than keep a mistress. She referred to a number of instances where a man may be married under English civil law yet take additional wives under Islamic ceremonies.
There was discussion about this parallel community within England whereby very many tens of thousands, possibly hundreds of thousands, are marrying and divorcing without any reference to local, civil, English law. A number of explanations were given including dissatisfaction (presumably mostly by men) with English financial outcomes on divorce. It transpired that in fact only 10% of mosques in England are registered to conduct weddings which count as English civil marriages. In part this is because weddings often occur in places unsuitable for registration such as private homes and Wedding Halls, with the Imam in attendance being regarded as sufficient. Nevertheless the lack of registration of English mosques to conduct wedding services contributes significantly to the very many members of the Islamic community who regard themselves as married and yet are not married in the eyes of the law.
There was a discussion about the nature of the "hearings" before the Sharia Councils and whether it was in the form of mediation, roundtable negotiations or even arbitration. The last has been strongly criticised by Baroness Cox in her Private Member's Bill and many lawyers are critical of the Sharia Council outcomes being described as arbitration because it does not accord with the Arbitration Acts and the members of the Sharia Council are not qualified arbitrators. Aina said leading Sharia Councils were working towards more transparency, an appeals system and having more women on the panels
Aina spoke about the importance of the "Mehr", the financial settlement without which a "Nikah", the Islamic marriage contract, is invalid. In her experience this was given inadequate treatment by the family courts. She spoke about similarities with Radmacher. She said the Nikah was a simple contract for which the consideration was the Mehr, a financial settlement in favour of the wife and which had to be an amount of value to be paid on any divorce, or death. There was much debate on this topic. On one level, it is entered into according to the cultural expectations of the Islamic community with the outcome being considered fair in those cultural expectations. However on another level, there is a worry about the pressure placed on women to accept these agreements, the amounts paid are often perceived as very low with concerns about the fairness of the outcome. Aina said that in her experience the Mehr can range in many cases from £10,000 to many hundreds of thousands of pounds. She had success enforcing these marriage contracts as civil contracts especially in cases where the couple are not married under English civil law. She expected developing case law on this.
DJ Robinson of the PRFD spoke of the full support of the PRFD for the Islamic traditions and culture before the family courts. He assured those present that the PRFD respected the Nikah. He was pressed to say that it would be automatically upheld in its own right. He reiterated there would be respect however enforcement would be a matter for the court to decide what is fair in accordance with case law.
He also said that there were mediation schemes in operation at the London family courts and it would be very beneficial for there to be more Muslim qualified mediators to help in Islamic cases. Denise Carter OBE spoke about the importance of openness and transparency in the mediation process and expressed concern that there was nothing public about work within the Sharia Councils. Aina said that the more confident Sharia Councils do invite observers but Denise felt there should be much more in the way of records of processes and outcomes. Some delegates observed that quite possibly over the past five years or so, there has been a return to more chauvinistic tendencies and outcomes, which is a source of worry for some within the community.
It was an excellent evening, with a very good, open and forthright presentation and discussion. There is concern at the prospect of parallel "marriage" communities within our society, one based on civil law and the other based on cultural, religious laws. There must be more encouragement for Islamic weddings also to be registered under civil law with more mosques to be registered. The outcomes from Sharia Councils cannot be arbitration or any part of the court based system without very significant changes. More openness and transparency is needed. Respect for separate religious traditions is very important.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on firstname.lastname@example.org.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.