#14819 - Diversity Religion And Families - Children, Families & the State

Muslim divorce practice and English law – connections and gaps

• Interest is in the interface of this practice and English divorce law arrangements which have been adopted by Muslims who have brought their divorces in English courts which they have describes in a language of Islamic law – together with lawyers and judges who have heard their cases ie. focus is on an ind. act of legal agency

• Consider Mahr: this is the core of the financial provision made for a woman upon divorce (ie. the price of divorce)

  • Usually the bulk is not paid upon marriage but is a deferred debt owed to the wide

  • If the mahr is relatively small or if the wife has agreed to reduce it or waive the debt or if the husband won’t pay it, a wife who hasn’t amassed assets/income of her own may be unable to support herself following the divorce bc as a matter of Islamic legal tradition, her husband’s obligation to pay her maintenance after divorce is minimal and she won’t have property claims does English law permit this?

  • Where parties are civilly married – they need a civil divorce

  • Mahr: parties in dispute over a prenuptial agreement

    • Could be treated as a nuptial agreement but this won’t be determinative in English law in all qu’s of ancillary relief (cannot oust court jurisdiction) and it seems unlikely that a court would enforce a prenuptial agreement which makes little provision for a wife’s financial needs, particularly where she has made a sign. contribution to her husband’s success

  • Mahr: couple comes to an agreement based on original mahr agreement, perhaps with assistance of a shari’a council

    • If the couple enter into a separation agreement in adv of the divorce, this will carry weight in later proceedings for ancillary relief and courts are reluctant to allow couples to depart from these agreements without a compelling reason

    • Could make a draft consent order and court will have obligation to check the agreed arrangements for fairness in line with usual principles

    • Although the court shouldn’t be rubber stamping, where parties are in agreement cf. in dispute, the information available will be less and the court only receives a two page summary of the financial circumstances of the parties and don’t investigate unless something puts them on inquiry and the court doesn’t need to be informed that the agreement is the outcome of sharia council involvement bc the point of the consent order is to allow for negotiation without interference from courts so the courts cannot really be scrutinizing consent orders

  • Whilst the door is closed to contracting out entirely of the core principles of English law and ancillary relief, it is important to appreciate some muslim women will be effectively excluded from the law

    • Couples can choose not to divorce in civil courts at all – and can come to a separation agreement on their own or with a tribunal – there it will never come before the courts this even lines up with government policy to positively encourage non-judicial settlements

    • Many won’t be married civilly either and a religious marriage is treated as a non-marriage (Gandhi) and an unreasonable mistaken belief in the validity of the marriage will not establish a marriage at English law and neither will a religious belief that the religious marriage substitutes for compliance with state formalities

    • In these situations, the court has no ancillary relief jurisdiction upon marriage breakdown and the parties will be in the position of ordinary unmarried cohabitees and this is a poor position for wives to occupy

    • At best in this situation, the wife who doesn’t want to fall back on the limited provision to which she in entitled under Islamic law may be able to establish some right in the family hole (eg. trusts law) but a wife who doesn’t have savings/earnings is unlikely to be able to do so, assuming her husband even owns the home – the only other option would be to come to court to enforce some kind of private agreement with her husband, acting as a cohabitation agreement (eg. the mahr agreement could do this)

  • Issues with relying on shari’a councils:

    • A council is a tribunal of muslim religious scholars who provide advice and guidance on matters of Islamic law and morality as well as mediating and informally resolving family and civil disputes

    • Generally divorcing women seek their assistance because only men are empowered to pronounce talaq and therefore councils may be involved in brokering a divorce by mutual agreement (mubaarat – divorce initiated by husband and obtained with wife’s consent); khula (initiated by wife and taking effect with husband’s consent) which may involve waiving the outstanding mahr obligation in exchange for the divorce

    • Councils may also dissolve a marriage for an appropriate reason (eg. tafriq where the wife proves her husband’s fault or faskh where there is a defect in the marriage contract)

    • Whilst this divorce won’t have effect in English law, as part of the religious divorce process the council may rule on their obligations to one another under shari’a and the ruling is likely to involve the potential waiver of the wife’s mahr

    • Where a couple comes to an agreement with the help of a council, it may take the form of a separation agreement or it might be submitted as a consent order

    • Financial rulings of the Shari’a council therefore might end up binding in English law

The government’s view of religious divorce:

• Non-interventionist – if people want to ex. religious freedom and divorce a certain way not going to stop them – if consent is in jeopardy, the person will have access to english courts; no illegality where muslim divorces are concerned bc no english court enforces a practice which runs contrary to english law/public policy

• BUT this ignores the fact that in order to vindicate women’s rights, they need access to the courts and it assumes failure to come to court is in fact a matter of ind. choice – what about where no civil marriage; what about where religious tribunal involved; or there is a polygamous relationship? hands off approach frames the legislative discourse in this area; it relies on women being able to challenge an unfair settlement for example

• Often the right to exit argument is invoked in response to recognition that some ind’s might be bound to arrangements they have not actually chosen (ie. formal option to reject religious dispute resolutions mechanisms and choose civil law)

Argument: the feminist critique of private ordering is stripped of any significant discursive purchase in relation to the politics of muslim divorce practice

• In order to give a useful account of the function which the responsible bargaining subject performs, it is necessary to put government policy on the law of Muslim divorce practice in its political context suggestion is that the figure of the responsible bargaining subject does some important work for the state which attention to the purely distributive dimensions of private ordering cannot capture

Law and loyalty: Britain’s Shari’s debate 2008-12

• Beginnings of the domestic shari’a debate to deb 2008 where the archbishop of Canterbury called for re-evaluation of the interaction of state and religious law in the UK, exploring the possibility of the state delegating limited jurisdiction over specific matters to shari’a councils

  • His argument was that an ‘unqualified secular monopoly’ was no longer appropriate and that the english legal system needed to adapt to reflect what he understood as the reality of people having multiple affiliations, beyond state allegiance

  • This triggered an anxious new british politics of muslim divorce practice but at its heart is a subject quite different to the successful bargaining subject discussed above instead, the muslim subject in this context is the person whose adherence to shari’a indicates a compromised loyalty placing our world at risk

• Law and identity: ‘the community thus walls itself in by law’ – the cohesion agenda

  • After the founding act, the community is known by obedience to a shared body of law and we pass laws as an expression of who we are as a people within borders

  • After the initial act of positing the boundaries, these boundaries need to be policed/guarded against challenge and in a plural polity, the self/we which enacted legal norms is always subject to challenge and resistance

  • It is telling that in rejecting the Archbishop’s proposals, the intervention was cast as...