An independent report on sharia law, commissioned by Teresa May when she was home secretary, reported last week on the operation of sharia law in England. The review was set up because of a concern that sharia law was being used as a second legal system in England and potentially sharia councils were discriminating against the women who use the councils to seek a divorce.
Sharia law and councils have no legal standing in England and Wales. It is often reported in the media that sharia law is operating in Muslim communities in England and Wales. It is also said that sharia ‘’courts’’ are becoming a parallel legal system in England and Wales. The report highlights the misconceptions that many people and the media have over sharia law and confirms the fact that sharia councils are not ‘’courts’’ and the members of the council are not ‘’judges’’ and don’t make decisions that are legally binding in English law.
Why the concern then about the operation of sharia councils? The worry that led to the commissioning of the independent report into sharia councils was that about 90% of the people who seek help from the councils are women wanting a divorce. Women are the main users of sharia councils as married men don’t need to apply to the council for an Islamic divorce as they can issue a Talaq – a unilateral declaration of divorce.
Some will question the need for government concern over women securing Islamic divorces through sharia councils but the worry is that women are reaching financial agreements with their husbands over the division of family assets in order to secure their husband’s consent to an Islamic divorce or that when sharia council members are unofficially ‘’mediating’’ agreements with a couple they are applying Islamic law rather than English law to how family assets should be divided and adopting a very different role to a qualified family mediator. That puts Muslim women at a financial disadvantage when seeking a divorce, in comparison to their contemporaries using the British Courts.
So why would a woman go to a sharia council rather than to a traditional family law Court to get a divorce and a financial settlement? The report states that many women resort to using sharia councils because they underwent Islamic marriage ceremonies and therefore aren’t legally married under English law. In general that type of marriage can put women under a real financial disadvantage in comparison to women who have participated in an Islamic marriage as well as a British recognised civil ceremony.
When coming to its recommendations the authors of the report recognised that to stop women being disadvantaged by turning to sharia law and councils the women needed an alternative redress: the family Court system. The report therefore proposes a change in the law to require those going through an Islamic marriage ceremony to have a civil recognised marriage ceremony. That would then mean that married men and women would have to apply to the Court for a divorce and a financial order. The report also highlights the need to educate on the availability of Court remedies even if a couple have used a form of ‘’mediation’’ or arbitration at a sharia council. That is because the ‘’agreement’’ reached at a sharia council may not reflect the financial outcome that a wife would reasonably expect to receive in an English family Court or is unaware of the options open to her after reaching an agreement as part of the package of getting her husband’s agreement to an Islamic divorce.
No doubt it will take a while for the report’s conclusions to be digested and fully considered by all the interested parties and any agreed actions implemented through changes in the law. In the meantime what should you do if you think that your only option is to apply to a sharia council for a divorce? Take legal advice from a specialist family solicitor. The sharia council may not be the only option available to you and getting legal advice on what a family Court would award you in divorce Court proceedings could make all the difference to whether or not you decide to use a sharia council , and if you do , the outcome of how family money and property is divided.
For advice about any aspect of family or children law please call me on +44 (0) 1477 464020 or email me at [email protected]