SHARIA LAW (ISLAMIC LAW) AND MUSLIM MARRIAGES IN THE UK

This is a write-up to the presentation the Pro Bono Streetlaw Group did for Roshni; a charity organisation, concerning Sharia Law and Islamic Divorces written by Nurfatin Nadiah Sanisman. A guidance note is attached.

Islam is the second-largest religion in the UK but there still exists rising hostility towards the Muslim community and multiculturalism.[1] Why?- A lack of understanding of the fundamental values of the faith. [2]

Muslims and Sharia Law

Many of us have seen ‘Sharia Law’ or ‘Islamic Law’ quoted in online articles or hear that phrase thrown around in the media concerning political agendas, terrorism, feminism etc.- but do we actually understand what ‘Sharia Law’ is to the Islamic religion?

Many people, including Muslims, misunderstand Sharia. It is commonly presented in the media as death by stoning, lashes and other medieval punishments. Because of this, it is sometimes thought of as draconian. Paired with the ignorance of the contexts of the Sharia Laws, some people in the West view Sharia as archaic law that encourages unfair social ideas.

Many Muslims, however, hold a different view. In the Islamic tradition, Sharia is seen as something that nurtures humanity and is something divinely revealed.[3]

Sharia Law is ‘Islamic Law’- BUT it does not fall within the general definition of ‘law’ that we are all familiar with. Sharia Law does not come from the state; Sharia is divine and philosophical. It is derived from the religious precepts of Islam, in particular the Quran (the Muslim Holy Book) and the Hadith (sayings and conduct of the Prophet Muhammad p.b.u.h.) which are then interpreted by the rulings of the Islamic scholars, AKA Fatwa.[4]

The manner of Sharia Law’s application and interpretation to Muslims has continued to be the subject of dispute and debate between Islamic scholars. This is because there exists 4 different Sunni ‘legal schools of thought’ (Hanafi, Maliki, Shafi’i, Hanbali) and 1 Shia doctrine (Shia Jaafari) within Sharia Law. These ‘schools of thoughts’ have developed methodologies for deriving Sharia rulings from the religious precepts. Hence, this means the contents of Sharia Law can differ between the different schools of thought.

Sharia law acts as a ‘code’ for living an Islamic life that all Muslims should follow, in the same way, that the Bible offers a moral system for Christians. Sharia is concerned with ethical standards as much as legal standards. This includes religious observances such as fasting, prayer, ritual practices such as halal slaughter and worship in general. Other areas also include family Law and even finance and business. Essentially, Sharia can guide every aspect of life for a Muslim.[5]

Sharia Law and Sharia Councils in the UK

Sharia Law is adopted by most Muslims to a greater or lesser degree as a matter of personal conscience, but it can also be formally instituted as law by certain states and enforced by their courts. Many Islamic countries have adopted elements of Sharia Law, governing areas such as inheritance, banking and contract law.[6]

Some countries have a ‘dual legal system’ where the government applies secular law but practising Muslims may choose to bring any familial and financial disputes to the Sharia Courts which have legal effect in the country. Countries that have incorporated this dual legal system include Morocco, Somalia, Kuwait, Malaysia and Oman. Sharia Law within these countries too differs because each follows their own ‘legal school of thought’. For example, Malaysia follows the Sharia of the Shafi’i school of thought whereas Morocco follows the Maliki school of thought, therefore the Sharia Law of each of these countries will be different.

Today, Muslims now make up over 3 million of the population in the UK. But the UK has not incorporated Sharia Law into the judicial system. Sharia Law has no legal effect in the jurisdiction of England and Wales.

Often, Muslims can face disagreements or conflict with regards to how Sharia Law is applied to certain matters within their lives. Because Sharia Law plays a fundamental role in the lives of most Muslims, they often seek advice from Sharia Councils to help guide them in making decisions accordingly to the Islamic religion.

Sharia Councils in the UK deal with aspects of Islamic Law, however as Sharia Law has no legal standing in the UK, Sharia Councils, similarly, have no official legal authority in England and Wales and so their advice or rulings are unenforceable. Therefore, whilst Sharia is a source of guidance for many Muslims, it cannot be officially implemented. If any decisions made by a Sharia Council are inconsistent with the State’s law, the law of the State will prevail.

The Council is usually run by a panel of scholars and provide rulings and advice to Muslims in accordance with their interpretation of Islamic law based mainly on the four Sunni schools of thought. These Councils primarily handle cases of Islamic marriage and divorce. A recent review found that the vast majority of people seeking advice from Sharia Councils are women who want to seek an Islamic divorce- this will be discussed further later.

However, Sharia Councils have been widely criticised and there is documented evidence of bad practice amongst them and discrimination against women. The service many Sharia councils offer women is often without formal procedure or due process. This is particularly problematic in cases of domestic violence or abuse, where knowledge of public service referrals and risk assessment is key. [7] Unfortunately, Sharia Councils are not regulated by the state because of their lack of legal status, leaving women and other vulnerable members of society exposed to the risk of exploitation by the Council.[8]

However, despite the criticisms and the many shortcomings of Sharia Councils, they still provide a crucial service to the Muslim communities they serve.

Getting a Legal Marriage in the UK 

There are 2 main routes of solemnising a marriage in the UK and these are governed under the Marriage Act 1949: You can either get a ‘Civil Marriage’ or a ‘Religious Marriage’.[9]

The Act includes ‘Wedding Laws’ which covers the formalities a couple is required to go through to gain a legally recognised marriage in the UK.

To have a ‘Civil Marriage’, the couple must either hold the ceremony on approved premises by the State or in a Registrar Office. There is no religious service, there must be 2 witnesses present and the Law prescribes the vows that have to be said.

For a ‘Religious Marriage’, there are 4 different State-recognised ‘religious’ procedures: Society of Friends, Jewish, Church of England or Church in Wales and ‘Other Religions’. Each of these requires different procedures under the law.

For Muslim couples to then have a legally recognised ‘Religious Marriage’ they would have to follow the wedding procedure under ‘Other Religions’.

I personally (along with many others) believe that the section of ‘Other Religions’ is discriminatory because it gives the impression that other faiths and beliefs are not important enough to be given separate recognition under the law- only the Jewish, Quaker and the Christian religion are recognised under the current wedding laws.

Jewish and Quaker weddings are permitted to take place anywhere the couple chooses and have fewer procedural requirements. Whereas the procedural requirements for ‘Other Religions’ are complex and similar to that of a Christian wedding- whereby it requires there be witnesses, an authorised person and the ceremony to be held in an authorised building, all of which Jewish and Quaker couples are not restricted to.

Furthermore, the Law does not accommodate interfaith weddings nor have weddings according to non-religious beliefs. For example, for couples who want to be married under the traditions of Humanism, the ceremony will not be legally recognised unless civilly registered as well.

Even for a ‘Civil Wedding’, many couples only realise upon planning that they are limited as to the options they have available to personalise their ceremony as a result of the restrictive laws put in place. For example, the venues to get married in are limited to the approved premises by the state. Hence, if you have plans to have a beach wedding- that is out of the picture (unless there is a civil registration of the marriage in addition).

Obtaining a legal marriage in the UK is often described as ‘bewildering’ because of how outdated, restrictive, and exclusionary to minority religions and beliefs the wedding laws currently are which neither accommodate nor reflect the multi-cultural makeup of the modern UK.[10]

The Issue of ‘Muslim Marriages’ in the UK

Muslim marriages are known as a ‘Nikah’ and, following Sharia Law, the marriage may take place anywhere and at least two witnesses should be present when the marital agreement is drawn up- it is a simple procedure.

The issue of ‘Muslim Marriages’ in the UK stems from the fact that many Muslims will get a Nikah but then fail to have a separate civil registration of their marriage OR they fail to follow the proper procedure under the State’s wedding laws for ‘Other Religions’.

This means that their Islamic marriage ceremony (the Nikah) is a ‘non-qualifying’ ceremony and they are not legally recognised as married under the eyes of the state. Instead, the state treats them as just cohabitees, which does not provide them with the same protection as marriage, which can potentially cause issues upon divorce.

A poll undertaken for Channel 4 found that 1 in 10 Muslim women in the UK who have undergone a Nikah ceremony have not had a separate civil ceremony to register their marriage. It is evident that this is a widespread and significant problem.[11]

The Muslim couples who have not registered their marriage are deprived of the rights and protections that are provided by the state to married couples. If the marriage breaks down, the couple would not be able to go to the family courts to seek help in the division of their assets because they are not considered to be legally married and so not able to obtain a civil divorce.

This is especially concerning for some women as they are often the primary bearers of passing on religious traditions and upholding family honour instead of focusing on working and finding a job, so their autonomy and freedoms can be overlooked or denied.[12] Instead, the husband would usually be the bread-winner with the assets the couple share being under his name which can put the woman in a financially vulnerable situation upon divorce if the husband is not willing to co-operate by rightfully splitting their shares.[13]

In this situation, the wife can only seek an Islamic divorce to dissolve the Islamic marriage, so that at least ‘in the eyes of God’, the wife is seen as divorced.[14] The wife would usually seek help from the Sharia Council where they would guide her through the process of obtaining the Islamic divorce.

As previously noted, Islamic divorce is not an alternative to a civil divorce because the guidance and ruling of a Sharia Council lack any legal status. Unlike the civil courts, Sharia Councils do not usually handle issues concerning children and asset distribution upon divorce but deal more with issues of Islamic marriage and divorce processes. The distinction between a legal and religious marriage is exemplified by the fact that where a couple has had a civil marriage, the Sharia Council emphasises that it is as important that the couple seek a civil divorce too.

So, why don’t Muslim couples just take the additional step to civilly register their marriage OR follow the proper procedure required to have a ‘Religious Marriage’ that is recognised by the law?

Many of the formalities of the wedding laws in the UK are irrelevant according to Sharia marital requirements. As previously mentioned, a Nikah only requires two witnesses to the marital agreement and can be held anywhere. Traditionally, the ceremony will usually consist of recitation from the Qur’an and the exchange of vows in front of the witnesses for both partners. No special religious official is necessary, but often the Imam (the Islamic community leader) is present and performs the ceremony.[15] Furthermore, Muslims consider themselves to be married after the Nikah and some are satisfied with that legitimacy without the need for state approval that comprises of long and complex procedures that some are unaware of.

For some, it is a choice not to be bound by state regulation. If state recognition of a relationship is unimportant to many British non-Muslims who cohabit rather than get married or be in a civil partnership, why would the legal recognition of marriage be any more important to Muslims?[16]

It is worth mentioning that Muslim couples who have only undergone a Nikah marriage would greatly benefit from also civilly registering their marriage with the state so that they are afforded the extra layer of protection. No one wants to think their marriage will come to an end but the sad truth is that some do. The civil registration of the marriage provides both spouses with legal protection which ensures that, if the marriage does end, both parties are treated fairly and that the financially weaker spouse — often the woman — is not left in financial difficulty.[17]

The ideal situation would be that the simplicity of a Nikah would be recognised by the state as a legitimate marriage so that the couple would also have the benefit of gaining access to legal divorce proceedings if needed. However, that situation is at best only ‘ideal’ because, in reality, it would be hard to take effect. This is plainly due to the fact that the simplicity of a Nikah marriage would be difficult for the state to regulate because of the absence of any sort of official registration of the marriage. Those who oppose the recognition of religious marriages in England say that recognising religious marriages here could blur the lines between what is and isn’t legally valid which could consequently cause even more problems.[18]

For now, it is highly advisable that Muslim couples who have undergone a Nikah ceremony in the UK, should also civilly register their marriage.

So, where are we now? 

It is important we know how best to support all the communities in the UK and this includes the Muslim community.

A few principles of the Sharia have been incorporated in recent cases into English common law by reframing these principles within pre-existing English legal concepts. For example, in the recent case of Uddin v Choudry, the wife was able to enforce her Mahr payment (a gift made by the husband to the wife upon marriage) after the Islamic divorce under the law of contract.[19]

In 2018, the ‘Independent Review into the application of Sharia Law in England and Wales’ recommended that there should be a creation of a body by the State that would set up the process for Sharia Councils to regulate themselves and design a code of practice to protect the Muslims who seek assistance and guidance from the Councils.[20] This recommendation was rejected by the Government on the basis that regulation could add legitimacy to the perception of the existence of a parallel/dual legal system even though the outcomes of Sharia Councils have no standing in civil law.

In March 2018, the Government published its Integrated Communities Strategy green paper where they express the shared concerns surrounding the lack of legal protections available following an unregistered marriage and about the allegations of discrimination, stating that they would consider limited law reform but have not explicitly mentioned how they would go about it.[21] The Government have also agreed to support awareness campaigns.

However, it seems like Sharia Law will continue to be very much separate from the legal jurisdiction of the UK.

In relation to the outdated Wedding Laws, the Law Commission has recommended a new legal framework that will allow couples a greater choice in personalising their wedding ceremony while also being recognised by the state and afforded legal protection. The Commission proposed a simple, consistent and fair wedding procedure so that all couples may have a wedding that is meaningful to them. This would remove the different ‘types’ of wedding ceremony one can choose to undertake and instead just have one consistent legal structure to the ceremony that applies to every couple regardless of faith or beliefs.[22]

The proposal of restructuring the wedding laws could potentially help with the issue of unregistered Muslim marriages if state marriages would allow for more personalisation of the ceremony and there would be no miscommunication when advising about the proper wedding procedures if the requirements are the same for everyone.

Therefore, if the Commission’s proposals to the Wedding Laws successfully reach the Government, there is hope that future reforms can accommodate the diverse culture present in the UK today!

 

Sources

[1] ONS, ‘Muslim population in the UK’ (Office for National Statistics, 2 August 2018) https://www.ons.gov.uk/aboutus/transparencyandgovernance/freedomofinformationfoi/muslimpopulationintheuk/

[2] Independent, ‘Third of British people wrongly believe there are Muslim ‘no-go areas’ in UK governed by sharia law’ https://www.independent.co.uk/news/uk/home-news/uk-no-go-zones-muslim-sharia-law-third-poll-hope-not-hate-far-right-economic-inequality-a8588226.html

[3] BBC, ‘Sharia’,  https://www.bbc.co.uk/religion/religions/islam/beliefs/sharia_1.shtml

[4] Ibid

[5] BBC, ‘What is Sharia Law and how is it applied?’, https://www.bbc.co.uk/news/world-27307249

[6] The Guardian, ‘Sharia Law’,  https://www.theguardian.com/world/2002/aug/20/qanda.islam

[7] Each Other, ‘How Can UK Law Help Islamic Sharia Councils Promote Gender Equality?’

‘ <https://eachother.org.uk/how-can-uk-law-help-islamic-sharia-councils-promote-gender-equality/>

[8] Secretary of State for the Home Department, The Independent review into the application of sharia law in England and Wales (Cm 9560, 2018)

[9] Marriage Act 1949, https://www.legislation.gov.uk/ukpga/Geo6/12-13-14/76/contents

[10] Law Commission Report, Solemnization of Marriage in England and Wales, Law Com No 53 (HMSO, 1973), Annex, at para 6.

[11] The Guardian, ‘Most women in UK who have Islamic wedding miss out on legal rights’, < https://www.theguardian.com/world/2017/nov/20/women-uk-islamic-wedding-legal-rights-civil-ceremony-marriage> accessed 22 April 2021

[12] Ibid (n 6)

[13] Ibid (n 6)

[14] Ibid (n 7)

[15] BBC, ‘Muslim Weddings’ <https://www.bbc.co.uk/religion/religions/islam/ritesrituals/weddings_1.shtml#:~:text=The%20actual%20Muslim%20wedding%20is,of%20witnesses%20for%20both%20partners.>

[16] Rajnaara Akhtar, Patrick Nash, Rebecca Probert, Cohabitation and Religious Marriage (Bristol University Press 2020)

[17] The Muslim News, ‘When is and when isn’t a Nikah recognised in English law?’ < https://muslimnews.co.uk/newspaper/home-news/isnt-nikah-recognised-english-law/>

[18] ibid

[19] [2009] EWCA Civ 1205

[20] Ibid (n 6)

[21] HM Government, Integrated Communities Strategy Green Paper (2018) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/696993/Integrated_Communities_Strategy.pdf> accessed 2 May 2021

[22] Law Commission ‘Getting Married: A Summary of the Weddings Law Consultation Paper’ [2020]