There has been plenty in the media about Shariah Councils and what they supposedly do or don't do. As is always the case, there is a need to separate fact from fiction, and so this article (in a question and answer format) is designed to clarify and distinguish between the two. It is based on my previous experience as a pro bono legal advisor to a Shariah Council in the north of England.
What is the primary purpose of Shariah Councils?
Shariah Councils are established and run by qualified Islamic scholars to resolve marital disputes between Muslim couples. Sometimes they are called upon to mediate in an attempt to reconcile a marriage, but usually their services are utilised to Muslim women who are 'stuck' in unsuccessful marriages when their husbands refuse to give Islamic talaq
Simply put, Shariah Councils are used by Muslim women as a mechanism by which they can obtain dissolution of the Islamic Nikah
(Islamic marriage) when their husbands unreasonably refuse to give talaq
Why is a civil decree absolute not sufficient?
Shariah Councils can only dissolve marriages from an Islamic point of view. This because Muslim couples usually perform the Nikah
ceremony, with a lot of couples choosing not to perform the civil registry marriage in accordance with the Marriage Act 1949. Even if both ceremonies are undertaken by the couple, owing to a difference of opinion in Islamic jurisprudence it is best that the Nikah
is formally dissolved. This cannot be done by a civil court.
It it also worth remembering that a Nikah
performed in England is not a valid civil marriage in accordance with the Marriage Act 1949 unless the place where the Nikah
is performed is registered as a place for solemnisation of marriage.
Why are they called 'Councils'?
In truth, it does not matter whether they are referred to as 'council', 'panel', 'board' or anything similar. The main thing is that they are not called or referred to as 'Shariah Court'. This is because they have no jurisdiction in England.
If they have no jurisdiction, why do some Councils make decisions relating to children and/or financial matters?
The Shariah Councils have no legal jurisdiction in England whatsoever. The majority of these establishments are fully aware of this and clearly advise people who use their services accordingly. If there are any court orders in place relating to children, finances or even any injunctions, they must be obeyed and Shariah Councils should do everything in their power to ensure that they are not breached.
Unfortunately, there is an unknown small quantity of Councils who have made headlines in the media due to the fact that they have seemingly breached or told parties to breach court orders. This sort of bad practice must be rooted out, but it is certainly not the norm. The only issue that the Councils can make a decision on is the dissolution of Islamic marriage.
What is the procedure used by Shariah Councils?
The application is usually made by the wife and usually for a fixed fee. Some Shariah Councils sometimes apply fee exemptions depending on the circumstances. The wife is asked to provide a statement or letter detailing her reasons for wanting dissolution in a manner similar to Part 6 of the civil divorce petition.
The husband is contacted by the Council, sent a copy of the wife's statement and then asked to respond within a specified period of time. Depending on the response, options of reconciliation or dissolution of marriage are then explored by the Council. Usually, the parties are called in for a meeting, either separately or together, and an outcome is then reached either by the couple agreeing to consent or decided by the Council itself.
What must be noted here is that no two Shariah Councils have the same procedure, but usually a variation of the general procedure as described above. Readers are also reminded of the Islamic jurisprudence which advocates mediation/reconciliation: hence why the procedure used by Shariah Councils is not just a paper-based process as per the procedure for civil divorce. However, this is where Shariah Councils need to be careful, as in setting up a meeting between the couple in question they may inadvertently be causing the parties to breach court orders such as non-molestation orders. In that past, I have been very clear in advising that all parties making applications to Shariah Councils should inform the Council if any court proceedings were ongoing or if any orders were in force and, if so, that the parties provide copies of these orders. This would then ensure that the Council is aware of and can abide by whatever order was in place, and therefore not undermine the law in any way.