Family Law

Caroline Bowden
Anthony Gold

No less an imposing a setting than Court 1 of the Supreme Court was the venue for Anthony Gold’s Faith Seminar on 29 June 2017. The aim was to examine the potential hardships facing Jewish and Muslim women going through a religious divorce.

Kim Beatson hosted the evening on behalf of Anthony Gold, in part as a celebration of Eid ul Fitr and in part to welcome Nazia Rashid into their family department. Eid was marked at the start with a recited verse from the Quran, from the beautiful voice of Hassen Rasool: surely a first for the Supreme Court. Nazia had organised the evening and brought together the panel of committed speakers, including her own insightful thoughts as an active contributor on the policy issues and family law dilemmas currently facing the Muslim community.

The evening covered the issues that all family lawyers need to know as part of their diversity and legal knowledge. There were also areas of interest to all lawyers who may wish to look beyond the headlines, to acquire a reasoned understanding of the intersection of civil law with practices coming out of the Islamic Sharia Councils (they are not courts) and the Jewish Beth Din.

David Frei, a former property litigation solicitor, spoke as the legal advisor at the London Beth Din for the orthodox Jewish community. Both he and Nazia pointed out that the law of the land had to be respected in all circumstances. Both faiths have arbitration services that are compliant with the Arbitration Act 1996. Appeals from these bodies can be made to the civil courts. However the Jewish arbitration service only covers civil, not family, matters.

So other than these provisions, everything that comes out of the Sharia Councils and the Beth Din relate to private, faith-related ordering, in a non-legal setting. If Jews and Muslims are not observant, and do not seek a faith marriage as well as a civil one, these practices simply do not touch their lives. However, for those who are deeply committed to their beliefs, these religious bodies hold great power and influence over them. It would be essential for them to have a religious marriage and, if applicable, a religious divorce. So the way that the faith marriages and faith divorces are handled matters greatly. The suggestion by both Nazia and David is that, in many circumstances, women of faith are likely to encounter more problems than men.

Nazia talked about how the Talaq divorce is a simple procedure that can be performed by the husband alone. The woman also can obtain a divorce, but has to follow a much more complex procedure. This forces her to engage with her local Sharia Council in a way that the husband need not. Both Nazia and then later Zahra Shah, who spoke as the CEO of the British Pakistan Foundation, described the very patchy treatment that women will receive. There is an unknown number of Sharia Councils, and each operates entirely according to their own procedures. So whilst some women report having received good support, others say that they are treated badly.

In particular, some women report being under pressure to enter into what is called ‘mediation’ (though not what family law would recognise as such) as part of their request for a divorce. The third party ‘mediator’, most likely an Iman or a community leader, is unregulated in this role and so may put wives under pressure to reconcile or enter into discussions about matters, including finances, with an abusive husband. The third party is also not neutral, as they have the power to grant or deny the woman’s divorce, and may also have an ongoing relationship with the parties and their families through the local Mosque. Nazia mentioned that the Muslim Arbitration Tribunals have also been criticised for not being impartial and exceeding their mandate. Women may not know that they can appeal a decision, or do not feel in a position to do so.

The main problem for Jewish women is that, unlike Islamic marriages, only a man can instigate a divorce, the ‘Get’, and then the woman must agree. Both parts must be in place, and without that, or the leverage of the courts, or the successful persuasion of the Beth Din, a ‘limping’ Jewish marriage will persist.

It is vital for all family lawyers to know about the leverage afforded by s 10A of the Matrimonial Causes Act 1973, which came into law about 15 years ago. Denise Lester, herself a Jew but speaking as a member of the Law Society’s Family Law Committee, explained how it worked. Either party, but typically the wife, can apply to prevent the court from pronouncing Decree Absolute until the Get is obtained. The District Judges, Denise reported, are normally good at providing pressure at this stage also.

Denise also mentioned, in a wide-ranging and detailed talk, that solicitors had to look to the regulatory framework and in particular the SRA Code. She made specific mention of the code requiring practitioners to ‘provide services to clients in a way that respects diversity’. The Law Society gives a further steer in its Family Law Protocol, setting out how the cultural and/or religious implications of divorce should be considered.

However that will not help if the husband does not care for a civil divorce and is quite happy entrapping the wife. At this point the Beth Din may step in. They have powers of influence that go beyond mere persuasion: they can even deny Jewish burial rights to the stubborn spouse. Such drastic measures may be needed if the wife wants to form a new relationship and have children. Any children born to her when she is not religiously divorced are regarded as illegitimate, and this is a status that follows them down the generations. Of course, if the husband is immune to the Beth Din’s pressure, having perhaps ceased to be observant, then there is little more that can be done. The woman then becomes an ‘agunah’ (chained woman).

However other than this dilemma, David Frei said that as a longer settled community, many of their previous problems have been ironed out. Other than marriages conducted abroad, there is no distinction between a Jewish marriage and a state one, since the one ceremony by a Rabbi is licenced for both.

The Islamic community, in contrast, still has the separation of the religious and the state ceremony on the whole. Imams and mosques, for reasons which are not very clear, have not taken up the opportunities available, which includes registering their mosque as a registered religious building or becoming authorised officials. This could of course be changed in a way similar to Jewish practice. Indeed Muslims in France have been shoehorned into a law requiring this to happen. The advantage would be to avoid the relatively common predicament of Muslim women not actually being married in the eyes of the law. On ‘divorce’ they then discover that they are treated by the state as mere cohabitees. This is not only demeaning to their Islamic principles, but also results in their rights to maintenance, and possibly asset division, being severely reduced and being denied the spousal rights of inheritance.

So should Muslims go down this route to benefit these women? It is at this crucial point that it must be best to leave the question primarily for the Islamic community themselves to answer. Their reasons for leaving it open, Nazia explained, were varied and perhaps beyond the superficial knowledge of someone outside of the faith. Certainly one reason relates to the right that a Muslim man has to marry up to four wives Islamically. This would be impossible under state law, as he would be committing bigamy.

Nazia said that some Muslims do not have a state marriage as they incorrectly believe that the Islamic marriage is the civil one as well, or stands instead of it. Others do not see the need to engage the state in their marriage, as well as their community. Both Nazia and Zahrah Shah felt that much better education and awareness was necessary so that both men and women knew the implications of what they were and were not entering into. Nazia also said that many Muslim women, as well as Muslim men, may choose only to marry Islamically, either perhaps if they are the wealthier party and wish to protect their assets or perhaps because the Islamic divorce can sometimes be quicker and easier to obtain.

Nazia then looked to the political and policy status of these dilemmas. She felt it would be counter-productive for the Government to impose any solution without the endorsement of the Islamic community. She was however optimistic that the two reviews being carried out by the Home Office and the Home Affairs Select Committee, although they have been closed since before the election and not yet reopened. When or if they reopen, Nazia hopes that they may put forward sensible proposals which involve the regulation of Sharia councils, and also the status of marriage ceremonies conducted by ‘authorised marriage officials’. Nazia’s own suggestion, and not put forward on behalf of the whole Islamic community was for religious bodies to be within a pyramid of regulation. At the top would be a state body that would regulate and monitor the umbrella bodies of religious groups. They in turn would regulate individual bodies such as Sharia Councils who undertake marriages and divorces.

David and Nazia both pointed to practices where ‘prevention was better than cure’. If individuals, or their communities, could look to implementing safeguarding procedures which includes the parties setting out the terms of their marriage, and potential divorce, in documents prepared and signed independently before a marriage, most of the problems might be avoided. With the use of a specific standard faith-based marriage contract, that a husband would entered into freely, certain rights can be shared or equalised either within their marriage or in the event of it ending. Women might then avoid hardships such as: limping marriages; arduous divorce processes; being pressured not to use the civil courts and a failed marital status.

Beyond all of this, it was worth reflecting on how notable it was to see committed individuals in both the Jewish and Muslim faiths coming together to empathise with one another and look at ways to tackle issues that concern them both. The Supreme Court was a suitable setting to remind us all of the motto of the Royal Coat of Arms which hangs in courtrooms across the land: ‘Dieu et mon droit’.

This article was originally published on www.anthonygold.co.uk