Sharia Councils and the impact of the work are being debated in the House of Lords, as a result of curbs on them proposed by this Bill introduced by Baroness Caroline Cox.
Aina Khan has been advising Parliamentarians on this amended Bill and also speaking to Sharia Councils, with whom she works regularly to obtain her client’s Islamic divorces. She has come up with a set of proposals which would immediately address the concerns being voiced about the effect on the lives of Muslim women in the UK:
“I will be in the House of Lords today to attend the Debate on this Bill. Many of us who work in this area agree that the application of Sharia law in this country needs to be examined by an independent body, as proposed by the Home Secretary in March 2015 in order to dispel myths and highlight good practice. It is only right that Sharia Councils should work unhindered if they provide a valuable service, such as Islamic divorce for Muslim women who would otherwise be left trapped in miserable marriages. However in this work can be allowed only if it is transparent and just, and does not contravene English law in any way. ”
There is a wide difference of opinion about the effectiveness of this Bill in achieving this. It is poorly drafted and confusing, being a mishmash of amendments to current legislation, whilst providing no clear overview and definitions as to what mediation and arbitration services should look like – particularly in an age of swingeing legal aid cuts, which are themselves driving increasing numbers to use alternatives to the court process.
I propose the following practical steps that can be taken now to resolve the very real issues that exist:-
1. The Marriage Act 1949 must be updated to require all faiths to register their marriages. This would mean Muslims must register their religious marriages under civil law, just as they do in every Muslim country. There will be no taking issue with one community if all faiths have to obey the same law. This will automatically give couples the right to a civil divorce and a share of the matrimonial finances. This civil divorce can be simply mirrored by an Islamic divorce from a Sharia Council within a few weeks and at low cost. This is already being done by my Islamic Department, which does not charge client for an Islamic divorce if they have already obtained a civil one, and the fee of the Sharia Council is £100. In contrast, if there has not been a civil marriage, the fee of the Sharia Council is £300 because of the extra work needed to investigate the divorce application.
2. An Islamic marriage contract (pre or post nuptial) can contain any term agreed between the husband and wife e.g. that a civil divorce is to be accepted by the parties as an Islamic divorce, so that the wife would not need to apply to a Sharia Council if the husband kept her chained in the marriage. For those couples who did not wish to enter into a civil marriage, the wife could be given an equal right to pronounce an Islamic divorce (known as a ‘Tafweed’ divorce.
3. Imams and Mosques should not only inform the couple that an unregistered marriage does not give any legal rights, they must issue a certificate declaring this, with a waiver signed by the couple that they understand this advice and will not hold them responsible for any loss. The aim is to ensure that the couple makes an informed choice and not to drive any unfair practices underground.
4. If the wife does apply to a Sharia Council, the divorce should become a paper process as in English law and there should be no requirement to attend before a panel of scholars and discuss private matters, unless the divorce is defended (thus reducing the fee payable). If she is required to attend, safeguarding measures must be put in place to protect women from abuse.
5. Sharia councils must become subject to any self-regulatory central body , similar to the Beth Din (Jewish arbitration body) with a transparent Code of Conduct e.g. (a) they are quasi-legal structures, so they must not hold themselves out as courts or judges (b) they must make clear that they have no powers of enforcement (c) they should have women on their panel and administration (d) there must be no discrimination e.g. a witness can be a woman or man (e) they should make it clear that any civil order takes precedence and that they cannot make any decision which goes against English Law (f) women applicants should not be required to cover their hair if they are not in mosques and it shall be their choice if they wish to bring a representative (g) there should be no pressure for couples to reconcile, forgive domestic abuse, to accept a forced marriage or to waive the Mehr Islamic financial settlement and gifts in order to obtain a divorce based on fault of the husband (h) since mediation may not always have good outcomes for the weaker party, any power imbalance must be addressed at the start.
6. A standardised application form, fee, divorce certificate and timescales should be devised, so the service is the same across the UK.
7. To ensure Best Practice, the above quality standards should be maintained by the central governing body and that audited every 3 years.
This Bill is not going to resolve the real everyday issues. Community initiatives are already dealing with most of the concerns raised by this Bill, such as the ‘Register Our Marriage’ campaign launched by me in 2014, which is lobbying for updating of the Marriage Act 1949, as well as holding a nationwide series of road shows which educate the community about the dangers of unregistered marriages. It is concrete measures such as these which have the full support of the Muslim community and that are going to address these problems quickly and effectively.
Read more here.