10 Mar, 2019 Managing Sharia Marriages in Britain
This post first appeared with the Interface Institute.
In May 2016 Theresa May, then Home Secretary, commissioned an Independent Review of shariah law in the UK, to inquire whether the activities of British shariah councils, sometimes called shariah courts, are incompatible with British law. Included in the terms of reference was the treatment of women, specifically arrangements for divorce, domestic violence, and children. The Review, led by Mona Siddiqui, Professor of Islamic and Interreligious Studies at Edinburgh University’ Divinity School, was released in February 2019.
Despite opposition to the terms of reference and composition of the Review panel from a large number of women’s rights organisations, the core recommendation of the Review, that Islamic marriages should be required to be registered with the state, deserves support.
This straightforward legal action could have an enormous impact in safeguarding Muslim women and in alleviating some of the worst abuses that are suffered in the context of Muslim divorces. However, and this is not adequately discussed by the Review, the implementation of amendments to legislation should take into account distinctive characteristics of Islamic marriages.
The issues addressed by the Independent Review are relevant, not just to the UK, but to all western nations which have Islamic minorities.
The Terms of Reference
The Review’s terms were concerned with whether shariah law is being applied in ways which are incompatible with the law of England and Wales, and whether women are being badly treated by shariah councils, “particularly in divorce, domestic violence, and child arrangement cases”.
The Review was concerned that the “rise of extremism” is facilitated by a lack of social and political integration, and that the activity of shariah councils keeps Muslims isolated and separate from “wider British citizenship and life”. The Review’s strategy was to encourage integration by “seeking out examples of best practice in relation to governance, transparency, and assuring compliance and compatibility with UK law”. A crucial assumption is that the practice of shariah councils can be made compliant and compatible with British law.
What do UK shariah Councils Mainly Do, and Why?
The Review found that more than 90% of cases considered by shariah councils are applications by Muslim women for divorce. It is women who make these applications because, to effect a religiously acceptable divorce, Muslim men need only utter a unilateral declaration of their divorce, a talaq. In contrast, Muslim women are not permitted by Islam to divorce their husbands. They have two options if they want to end their marriage in accordance with religious requirements. One is to persuade the husband to exercise his right to pronounce a talaq divorce, with wife agreeing to pay compensation to him. This compensation is typically part or a portion of the mahr ‘bride price’, originally paid by the husband to the bride to contract the marriage. This kind of divorce is known as khulʿ.
Another option is for a recognised Islamic authority to annul the marriage, a process known as faskh, criteria being established by the shariah for when a faskh can be declared.
In Islamic jurisdictions, a shariah court or judge can get involved in a woman’s divorce process in a variety of ways. It may, under certain conditions, grant a khulʿ without the husband’s consent, or it may declare a faskh, dissolving the marriage. Since there is a preference in the shariah to grant a khulʿ or faskh only after attempting reconciliation, a court or judge may conduct mediation to prevail upon a husband to grant his wife a khulʿ. This can require women to go through lengthy reconciliation processes, which are often abusive.
It is only in non-Islamic countries that shariah law applies to Muslims’ marriages and divorces without the intervention of the state. Islamic countries invariably impose limitations on the application of shariah. For example, some Muslim countries ban the talaq divorce; almost all require marriages to be registered with the state; and all impose regulations of one kind or another which are additional to the shariah. These adjustments are made because it is universally recognised by legislators in Islamic countries that the application of shariah marriage law needs to be regulated. One reason for this is that shariah law is not monolithic or fixed in its application, and there are many conflicting legal opinions concerning the details of marriage and divorce law, so shariah judges and courts do not produce uniform rulings. Another reason is that it is recognised in Islamic jurisdictions that the impact of ‘naked shariah’ on women needs to be mitigated.
The Review had weighty objectors from the start. A large number of women’s rights organisations, many of them led by Muslim women and focusing on Muslim women’s issues, both in the UK and from around the world, denounced the Review’s terms of reference, as well as the composition of the Review panel. Their opposition, in essence, was that the Review’s integrationist agenda was designed “to improve the functioning of systems that are discriminatory in effect and intent”, or, in other words, to welcome shariah councils and the whole shariah project into the fold of British society. The objectors wanted the Review to consider instead whether the very existence of “shariah councils, mediation and arbitration systems undermine access to justice.” Their objection could be summarised as: you cannot turn a wolf into a sheep by asking a task-force to develop principles for best practice in wearing sheep’s clothing.
One concern of the objectors was confirmed by one of the outcomes of the Review, which was a recommendation that the state directly regulate the operation of shariah councils. In apparent agreement with the objectors, one panel member dissented to this point, stating that this would give a “quasi-legal status” to the councils, and “endorse and add legitimacy to the perception of the existence of a parallel legal system.”
Another concern was that the Review might not adequately engage with and critique the abuses suffered by women in sharia processes. The unequal status of women in Islamic marriages has long been a neglected issue in the UK. The Review made the telling observation that the Charity Commission and the Equality Commission, despite their enforcement powers, have not addressed inequalities faced by Muslim women in marriage and family arrangements. The oversight is systemic. A decade ago, in 2008, both the Archbishop of Canterbury, Rowan Williams and Nicholas Phillips, Lord Chief Justice of England and Wales had suggested that the United Kingdom could consider, in the words of Phillips, “embracing shariah Law”. Phillips argued that “there is no reason why principles of shariah Law, or any other religious code should not be the basis for mediation or other forms of alternative dispute resolution,” and Williams commented “it’s not as if we’re bringing in an alien and rival system.” Apparently it did not occur to these eminent figures that their incoherent and ambiguous comments about shariah could entrench the inequalities faced by Muslim women under shariah conditions.
What are the inequalities for women under sharia conditions? The organisations which objected to the Independent Review submitted a comprehensive list of inequalities and human rights violations which shariah-compliant bodies could be complicit in. The wording of their concerns below is in italics, and my explanations, where needed, follow:
* women’s testimony being worth half that of a man’s,
* marital rape – in shariah law a wife must make herself available for sexual relations whenever the husband wants it,
* sexual violence and domestic abuse – shariah law permits a man to beat his wife in some circumstances (Surah 4:34), so wife-beating might not be considered wrong by a shariah tribunal; moreover there is a tradition of Muhammad that “a man will not be asked as to why he beat his wife” (Sunan Abu Dawood), which can mean in practice that the onus placed on a woman who reports domestic violence to explain why she is being beaten, while the husband is not required to give an account of his actions,
* the age of consent – Islamic law has no minimum age for a girl to marry, based on the precedent of Muhammad himself, who married Aisha when she was six, and consummated the marriage when she was nine,
* guardianship – men are guardians of women, exercising legal authority over them including in relation to their marriages: an Islamic marriage is a contract between the groom and the guardian of the bride, and Islamic law does not permit a woman to give herself in marriage,
* forced marriage – in Islamic law, fathers and grandfathers, known as a walī mujbir ‘forcing guardian’, have the right to compel a virgin daughter to marry without her permission,
* honour based violence,
* ritual abuse – compelling a dependent to participate in Islamic rituals, including, in some versions of the shariah, female genital mutilation,
* child custody and child protection – Islamic law gives fathers guardianship over children, and only temporary custody of children to mothers up to a certain age,
* polygamy – Islam permits a man up to four wives, but a woman no more than one husband,
* divorce – a man can divorce a women irrevocably by saying ‘I divorce (you)’ three times, known as the triple-talaq, but for a women to obtain a divorce is difficult and time-consuming, and normally involves the payment of compensation to the husband, which may requires the intervention – and expense – of a shariah judge or tribunal,
* inter-religious relationships – Islamic law rejects the marriage of a Muslim woman to a non-Muslim man, and if a spouse leaves Islam the marriage is automatically annulled,
* female dress codes – the veiling of women but not of men,
* abortion – sharia schools vary considerably in their regulation of abortion.
To this list could be added the Shiʿah practice of temporary marriage (mutʿah), which is technically rejected by Sunnis, although misyar marriages serve the same purpose.
While this list does cover a wide variety of inequalities faced by women under the sharia, it is not clear that UK shariah councils concern themselves with all these issues. What is clear is that they engage with issues concerning marriage, including divorce, guardianship, child arrangements, and domestic violence.
A Difficult Balancing Act
Someone who wanted to gain an in depth understanding of inequalities faced by Muslim women would not glean this from the Independent Review’s report. The Review was an exercise in political tight-rope walking. One of its aims was to diffuse anxiety about Islam and prevent “extremism” by encouraging “best practice” of integrating Muslim religious institutions into British society, but its subject matter concerned the implementation of Islamic rules and legal processes, many of which are unjust to women, being arguably contrary to principles of equality and justice, and which also contravene the European Convention on Human Rights. Yet to critique these inequalities rigorously could not only trigger pushback from the very Muslim communities that the government is seeking to integrate, it could also undermine the government’s integrationist dogma. Perhaps it was for this reason that the Review did not refer to studies which have drawn detailed attention to the disadvantages faced by Muslim women in the shariah councils, such as Tanya Walkers’ Shari‘a Councils and Muslim Women, and it does not offer a systematic account of the harm done to women by shariah councils.
The awkwardness of negotiating this balancing act led to a glaring inconsistency in the report. Shariah councils in the UK perform a function normally performed in Islamic jurisdictions by shariah judges and courts. Despite this the Review objected to the use of legal language to refer to the councils. It is, the Review insisted, a “misrepresentation” to refer to the shariah councils as ‘courts’ or their officials as ‘judges’, and it is a “misconception” that they represent a parallel legal system. Such linguistic practices are claimed to undermine integration. However the Review saw no problem in referring to the Roman Catholic and Jewish institutions and processes using terms such as ‘law’, ‘court’, ‘tribunals’, ‘decree’ and ‘court cases’. Britain has had separate ecclesiastical courts since the 12th century without any sense of threat to the civil legal system. The fundamental issue is not the use of legal terminologies for Islamic institutions and processes, but that shariah law as a legal framework competes with secular law, and many of its advocates have been seeking, not complementarity, but legal pluralism.
The Key Recommendation
The Review observes that Christian and Jewish marriages must involve civil registration, and that it is inconsistent for Islamic marriages to be treated differently. Under English law it is a offence, punishable by up to 5 years in prison, for a Christian or Jewish celebrant to conduct a wedding and not follow the legal requirements, which include registration of the marriage. In contrast, Islamic marriages in the UK are completely unregulated, and the same is true for Islamic divorces. The Review concludes that registration of Islamic marriages would “promote equality between religions”.
The Review recommends that the onus should be placed on Islamic celebrants and upon couples to register their marriages civilly, either before or simultaneously with a religious ceremony, to ensure that women have the full protection of civil family law. This move would also have the effect of making Islamic polygamy illegal.
This proposal is reminiscent of the decision of the English parliament in 1753, to introduce ‘An Act for the Better Preventing of Clandestine Marriages’. This law targeted the clergy, imposing upon celebrants who solemnised secret or ‘clandestine’ marriages, the penalty of transportation to hard labour for 14 years. For a cleric to forge, alter or destroy a marriage register became a hanging offence. The reason given at the time for the requirement that marriages be publicly registered, and be staged as well-advertised public events, was to protect the rights of women and their children from unscrupulous men. In the famous 1748 case of Creswell v Creswell a wealthy heiress, Anne Warneford, discovered that her husband had been clandestinely married twice before, which rendered her public marriage to Thomas Creswell void and their several children illegitimate, with no entitlement to their father’s estate. For the same reasons today – to better protect women and their children – Parliament should require all marriages, including Islamic marriages, to be registered.
The Review also suggests that registration of Islamic marriages could make the decision processes of shariah courts simpler and easier for women, because they could use a prior civil divorce as evidence to help secure an Islamic divorce. It was reported that at present a majority of shariah councils accept a civil divorce as sufficient grounds to be granted an Islamic divorce. However this seems overly optimistic, as not all shariah councils take this approach, for example, the Islamic shariah Council, one of the most prominent UK councils, often contradicts civil divorces, requiring women who have had a civil divorce to go through attempted reconciliation before granting a sharia divorce. Also the government has plans to make divorce easier, and this could affect the willingness of shariah councils to accept a pre-existing civil divorce as grounds for granting an Islamic divorce.
Taking the Islamic Marriage Contract into Account
Changes to the Marriage Act should take into account the distinct features of an Islamic marriage contract process. UK marriage law has been built upon the scaffold of Christian marriage, assuming, for example, that an officiant or marriage celebrant is involved. Although the traditional approach in English law has been to control marriage by regulating the actions of celebrants, for sharia marriages this will not be enough.
An Islamic marriage is not a religious ceremony solemnised by a celebrant, but a verbal contract (which may be written down) enacted between two men: the groom and the bride’s walī or male guardian. It requires a payment of money or property, the mahr, by the groom to the bride. There is also a requirement that the marriage contract have two male witnesses. There may also be additional written conditions agreed to by the parties.
The law should engage with these realities. For example, it would not be sufficient to regulate Islamic marriages by placing legal liabilities on celebrants, since, under shariah law an Islamic marriage does not actually require a celebrant to be valid. Although it is customary to use a ‘celebrant’ in Islamic marriages, as this lends legitimacy to the process by helping to ensure that Islamic requirements are followed, this role is non-essential.
Laws to regulate shariah marriages need to take this into account. To ensure uniformity, the law should make the involvement of a state-registered celebrant in shariah marriages obligatory. It should also, as for Christian and Jewish marriages, impose significant penalties upon Islamic celebrants who do not conform to legal requirements, for example by omitting to register the marriage, by acting as a celebrant without being registered, by marrying someone against their will, or by marrying an underage person. If there is no celebrant to an Islamic marriage, penalties for non-compliance with civil marriage laws should be placed upon the two principal parties to the marriage contract, the guardian and the groom, as it is these two men who have the power in Islamic law to formalise the marriage contract. In such cases the groom and guardian should be considered to be the ones who have (purported to) ‘solemnise’ the marriage for the purposes of the Marriage Act, and be made subject to penalties for non-compliance at least as heavy as those which apply to celebrants.
The Islamic practice of male guardianship should also be limited by law, especially the right of a guardian to give or withhold consent for a woman to marry. The shariah even gives the right to a father or grandfather, known as a walī mujbir or ‘forcing guardian’ to compel a ‘virgin’ daughter or granddaughter to marry without her permission. The compulsory involvement of a registered celebrant would address this issue, because the Marriage Act already requires that the celebrant ensure the bride has given her own independent permission for the marriage to take place.
Another issue arising from the shariah is the marriage of under-age girls, which may constitute a forced marriage. If a man acts as guardian or celebrant for an Islamic marriage contract involving an under-age girl, both the guardian and celebrant should be subjected to severe legal penalties. (The groom can already be charged with child sexual abuse or statutory rape.) In Australia an Islamic cleric, Sheikh Muhammad Tasawar, officiated at an Islamic marriage of a 12 year old girl, for which he was fined a mere $500, which was the maximum penalty the Australian Marriage Act prescribes for an unauthorised person solemnising a marriage. This is a paltry price to pay for what should be a serious crime. The girl, who had just completed primary school, fell pregnant after three weeks of marriage and had a miscarriage. The father, a convert to Islam, who acted as the guardian for the Islamic marriage, was found guilty of procuring a person under 14 for unlawful sexual activity, and was sentenced to 8 years in gaol, and the husband was convicted of child sex abuse and given a 10 year sentence. In addition to the procuring charge, Australian Marriage laws should also have made the father liable to prosecution for his role as the girl’s guardian in an unregistered shariah marriage.
An Islamic marriage can involve particular conditions written into the marriage contract. For example, in a misyar or ‘traveller’s marriage’ the wife may renounce some of their rights, such as the right to housing and maintenance. This possibility should be taken into account in legislation, with a view to putting some limitations upon these conditions where appropriate. Certain aspects of Islamic marriage contracts could, for example, be made subject to laws which govern pre-nuptial agreements.
The financial aspect of shariah marriage contracts also needs to be considered. An Islamic marriage is structured like a contract of sale, including a transfer of money to the woman – the bride-price, or mahr – for her services to her husband. Thus, The Reliance of the Traveler, a shariah manual, states that the legal conditions for the spoken form of a marriage contract are ‘the same as those of a valid sale’. The connection between payment of the mahr and sexual access is made explicit by the shariah, for example a woman may refuse to have sex with her husband until he pays her the mahr, and this money has to be refunded if she later seeks a khulʿ divorce, rather like getting a refund for returned goods. (The issue of the division of assets in a civil divorce is quite different from the one-sided ‘compensation’ payment by the woman to the man in a khulʿ divorce.) In light of this, and in the interests of equality, it would be preferable if both the mahr payment and the wife’s having to compensate the husband for her divorce, were made illegal, or if the amounts transferred were limited to a merely symbolic amount.
It should also be made illegal for Islamic charities, such as mosques, to facilitate the enacting of unregistered marriages. Withdrawal of charitable status could be one of the penalties available to the courts in such cases.
Once legislative changes to regulate shariah marriages are introduced, the authorities will need the will to apply the laws consistently. Even in Muslim countries, governments have mixed success with requiring registration of sharia marriages: hence the well-known phenomenon of nikah urfī or ‘customary marriage’, which is a clandestine marriage not registered with the authorities. It will take time to change the culture, and a degree of non-compliance should be anticipated. The sharia marriage horse bolted in the West decades ago, and it will take time to rein it in. The Review’s recommendations for awareness campaigns and educational programs are essential if legislation is to be effective.
Those who objected to the Independent Review did so with good reason, but the principal recommendation of the Review, that Islamic marriages should be registered as civil unions, is sound and should be supported by all. This legislative change should be implemented, not only in the UK, but by all governments. It should also be applied systematically, in a way which is informed by a good understanding of the Islamic marriage contract.
Muslim women should not be afforded merely second-class ‘shariah-compliant’ rights in relation to their marriages and divorces, while governments turn a blind eye to their disadvantage. It is reverse racism to consider the inferior status afforded by the Islamic shariah to be ‘good enough’ for Muslim women. It is high time for turning a blind eye to Islamic marriages to end.
Dr. Mark Durie is an academic, human rights activist, Anglican pastor, a Shillman-Ginsburg Writing Fellow at the Middle East Forum, and Adjunct Research Fellow of the Arthur Jeffery Centre for the Study of Islam at Melbourne School of Theology.