Sharia councils and the question of legal plurality
UK divorce law should be fit for purpose for a multicultural society so that British Muslims can seek the right solutions to their legal problems, writes Nazmin Akthar
On 1 November 2016 the home affairs committee heard evidence from a range of individuals and organisations regarding its Sharia councils inquiry, amid calls for all such bodies to be immediately shut down.
The inquiry has been set up to consider, among other points: services offered by Sharia councils and the reasons why they are used; the extent to which Sharia law is compatible with the principles of British law; and the role the government has, or could have, in overseeing or monitoring Sharia councils.
Calls to abolish the councils have generally been made on the basis of two arguments: that they discriminate against women, and that we should not allow parallel legal systems in UK. While there is some merit to the former argument, the latter does require some questioning.
Irrespective of the use of the popular term ‘Sharia courts’, these bodies do not have any legal standing nor are their decisions legally (or even personally) binding. If a party or parties approach a council to resolve a dispute but are unhappy with the outcome, they are free to ignore it. The councils operate (or at least are meant to) from an advisory perspective only, unless parties have specifically agreed to use their services for arbitration. Even then, the majority of councils operate outside of the Arbitration Act 1996, which again means their decisions have no legal standing. If the Arbitration Act is applied, they automatically fall within the scrutiny of the UK courts and any unfair decisions can be set aside. There is, therefore, no question of legal plurality, though there is a case for regulation to ensure they act within their remit and in accordance with UK laws.
It is important to remind ourselves why Sharia councils exist in the first place. UK law does not recognise the religious marriages British Muslims enter into on a daily basis (either with or without a civil marriage) and, therefore, while they may approach the family courts for a civil divorce for their civil marriage, they have no such recourse for an Islamic divorce. There is scope to argue that a civil divorce can also be taken to be an Islamic divorce but it will require a strategic campaign for acceptance by the community, and until then Muslims will continue to want the reassurance of a certificate confirming they are religiously divorced.
Although some good practices may be seen, an overwhelming amount of evidence is available of the discriminatory practices being levied by some councils, which are neither compliant with UK law nor Islamic principles of equity and justice, and this needs to be addressed.
However, shutting down councils without first providing appropriate alternative mechanisms to address the issues of Islamic marriage and divorce is not going to help; it will only make Muslim women more vulnerable as they will be unable to escape from their unwanted Islamic marriages.
For example, an amendment to the Divorce (Religious Marriages) Act 2002 to include Muslims would assist as it would stop Muslim women from being coerced into agreeing to financial settlements or to custodial arrangements they are unhappy with during the course of their civil divorce proceedings, in return for an Islamic divorce from their husbands.
It must be noted that there are also Muslims who only have a religious marriage, perhaps not realising the consequences of not having a civil union. One solution is to amend the Marriage Act 1949 so that in the case of a marriage solemnised in accordance with Islam, the duly authorised person can register the marriage. At present Islamic marriages can only be registered under law if performed in a registered building by an authorised person; simplifying the process may encourage more registrations, which in turn would bring them under the remit of UK law.
The other is to make civil marriages compulsory prior to a religious marriage – and advocating that a civil divorce can be taken to be an Islamic divorce. Legislative steps can therefore not only be taken to regulate Sharia councils, but to potentially make their need redundant or, at least, less relevant in the future.
Ultimately, allowing British Muslims to seek solutions in these matters is not a question of allowing legal plurality; it is about making UK laws fit for purpose for a multicultural Britain.
Nazmin Akthar is a chartered legal executive at Blake Morgan and the vice-chair of the Muslim Women’s Network UK