Prenuptial agreements may help enforce sharia law on divorce, says Emily Brand

On 26 July 2012 the Court of Appeal ordered Dr Al-Saffar, a hospital consultant, to pay his ex-wife maintenance, having lost his argument that under sharia law he owes her nothing.

Following the breakdown of their marriage, Dr Al-Saffar was ordered by a county court judge to pay his wife £60,000 per annum by way of maintenance. Although he complied with the order for a few months, he ceased doing so after he claimed that his wife had inherited £250,000 from her father and no longer needed the money from him.

Equal division

Finding against Dr Al-Saffar, the court told him that “the rule in this country is that you share and the starting point is equal division... You came out of the marriage without having made your wife any substantial capital payment”.

Dr Al-Saffar had assumed that, in accordance with Islamic practice, his former wife’s family would support her after their divorce. His former wife had already signed away her share of the couple’s home as she had received a gift from her husband on their marriage in accordance with Islamic tradition.

According to press reports, Dr Al-Saffar said after the conclusion of the hearing that: “Family law in this country is biased against Muslim people.” In fact, the court demonstrated that it is not prejudiced either against or in favour of anyone and that it is blind to religion, colour, race and gender.

It simply applied the law of this country to a familiar problem: namely that of a spouse - who is unwilling to pay maintenance for the benefit of his or her former partner, despite being ordered so to do. This drama (and the arguments brought to bear by the non-paying party) is played out repeatedly in courts across this country on a daily basis.

Sharia court

The Al-Saffar family could have chosen to resolve its dispute in one of the many sharia courts now operating in this country. Although the precise number is unclear, there are apparently 85 working tribunals in the UK handing out judgments compliant to sharia law. Presumably, this is why Dr Al-Saffar’s wife sought to bring her claims in a UK court.

It is always open to Muslim couples, wishing to retain the spirit of Islamic rules, to enter into a prenuptial agreement before they marry. A prenup, if agreed by both parties having first taken independent legal advice, can set out the couples’ wishes on separation and can reflect Islamic laws. Such a contract will only be upheld though if it is fair and it is clear that neither party has agreed to it under duress.

Emily Brand is a partner in the family team at law firm Winckworth Sherwood www.wslaw.co.uk. She can be reached by email on ebrand@wslaw.co.uk.