Legal Pluralism in England in Islamic Marriage (Sharia Law on Nikah and Divorce)

Legal Pluralism in England in Islamic Marriage (Sharia Law on Nikah and Divorce)

Introduction

Law exists as state law or as a set of rules of conduct that regulate the peoples’ conduct; it has always been assimilated with culture and history.[1] More than one law governing (its society) in many states: it could be the official law of the state or an unofficial law that a minority legal order (MLO) follows to assert their religious and cultural identity.[2] The co-existence of more than one legal order is known as legal pluralism; “it is the interaction of legal and social fields that could either clash, complement or be isolated from one another.”[3] This research investigates legal Pluralism in England in Islamic marriage, particularly focusing on Nikah and divorce. British Muslims are an MLO in England of a total of 2.7 million Muslims, forming only 4.8% of the population. England is an important case study to explore legal pluralism since it adopted a weak form that does not recognize Islamic marriages, unofficial Muslim family law has found a way to survive in what Yilmaz describes as a legally positivist ‘alien milieu.’[4] Further, England’s position on Shari’a is interesting because it is inconsistent and ambiguous: the legal pluralism model it adopts towards Nikah, the Islamic marriage contract, is non-recognition while it pretends to adopt a transformative accommodation model towards Islamic divorce but in reality, it does not. A transformative accommodation model of legal pluralism is a system of joint governance.[5] This contradiction is confusing as England’s position towards sharia is one of legal positivism and centralism. Hence the need to examine legal pluralism and unpack what seems to be a very complex encounter or intersection.

This essay attempts to answer two questions: Should a liberal state accommodate an MLO—and the rationale? Moreover, can a set of religious norms thrive as law in a centralist and legal positivist state? To answer these, it is crucial to determine whether sharia is an unofficial law or a normative order. The second part compares marriages, that is, Civil and Muslim in terms of requirements and procedure, while questioning English courts’ authority to revoke Muslim marriages in light of important case law.[6] This is ironic since English law does not recognize Islamic Nikah as a valid form of marriage.[7]  Thirdly, Islamic divorce is also discussed compared to divorce in English family law.[8] The following section puts this contradiction into perspective and argues that England, as a liberal state, should accommodate an MLO by creating space for their religious rules within its current legal framework. The justification for this is linked to the criteria Tamanaha has set to discern the law: “law is whatever people identify and treat through their social practices as law.”[9] In the last section, the second research question is explored, and it is found that Islamic family law has already been functioning and thriving in centralist and legal positivist states such as England. In the final part the research gives an informed opinion on the position of legal pluralism and provides an alternative remedy.

Part 1: Is Shari’a or a normative order? How does the West define sharia?

Muslims derive Islamic rules that guide them from Islam’s primary sources: the Quran, Prophet Muhammad’s teachings, and traditions (Hadiths and Sunna).[10] These divine rules and obligations are known as sharia. The term sharia can be understood in various ways; however, the form that this research is concerned with is sharia “as a code of conduct practiced outside state rule.” In general, Sharia in England and the West is an example of that since it is not recognized as official law.

To provide some context before determining the legal nature of sharia, it is important to note that before the emergence of nation-states, religion was the law, whether it is Islam or Christianity. With the emergence of statehood, a single law code that contained legal rules was developed for each nation-state. These marked the beginning of secularism, where religion and state became separated.[11]; however, certain MLOs could not fully adopt a secular regime. British Muslims in England is an example of these; they continue to adopt sharia as a normative social order to govern their social practices while still obeying the land’s law. A normative order means “any [set] of rules and shared expectations governing a particular social situation.”[12] In England, many British Muslims embrace sharia as a normative order and view it as a lived practice to follow in the following domains: religious rules, contractual rules concerning family law, and interactions with both Muslims and non-Muslims. They still undertake some of these activities within the English law framework but mainly through an Islamic lens because sharia still dictates Muslims to obey the laws of the land but after obeying Allah and the Prophet’s words. Hence, according to the Quran, if sharia conflicts with the secular law, then sharia must prevail. This means that sharia is a divine rule rather than a form of state regulation; therefore, labeling it as “Islamic law” is not an accurate representation of what it is in the West. Further, it has been argued that sharia is a personal law as its application only depends on the individual’s practice. Sharia is not capable of becoming law in the traditional sense in England and the West because Muslims are not homogenous, and neither are their Islamic practices.

However, Western countries refer to sharia as “Islamic law” or “non-state law” rather than religious rules, although they are the ones to continuously renounce parts of it such as Nikah and divorce in the context of England. As Tamanaha states, there is no agreed definition of law in the West, and any form of social or religious control is considered law. Therefore, English courts and academics in Western democracies refer to sharia as law shows that state-law is affected by this non-state law and implies that the former should accommodate the latter. This indicates that the British Muslim definition of sharia as a normative order will have to co-exist with the English law definition of it as a non-state law, which is a depiction of Legal Pluralism.

Part 2: Nikah

To further analyze the legally pluralistic relationship between Sharia and English law, family law is an important angle to explore as it is a significant factor in the emergence of legal Pluralism in England. Family law led to Sharia councils operating as unofficial bodies providing advice on Nikah and divorce to British Muslim women alongside English courts.[13]

In England, all civil marriages must be conducted under the Marriage Act 1949-1994, which requires certain formalities. These are consistent with Christian marriages, which exclude and isolate British Muslims as they go against their religious practices. Further, the requirement for the building to be separate is biased and unattainable for Muslims, considering that mosques in England are neither separate nor registered due to political reasons. Proof of this is that only 282 of 1296 mosques were allowed registration for marriage until 2018.[14] On the other hand, there is so much emphasis on marriage in Islam as the Prophet said that it is half of a person’s religion. The formation of Nikah, the contractual marriage in Islam, is a requirement in order to protect Muslims from adultery (Zina), a severe crime against God.[15] Hence, civil marriages have requirements framed within a legal act, while in Islamic, they are found in the relevant religious sources. In addition to the primary requirement of Nikah, the groom has to offer the bride a dowry (Mahr), a guardian (wali) must be present, as well as two witnesses.

When comparing both processes, it is evident that Muslim marriage is made easier than civil marriage; civil marriage is based on formalization, while many Nikah is concluded without any institutionalized authorities. They often take place at a bride’s home or a mosque. Samia Bano interviewed several British Muslim women about which form of marriage they prefer—a nikah or an English civil marriage and these are some responses:

“Getting married in God’s eyes is more important than getting married for English law” [16]

These testimony among others show that the essence of marriage in England to British Muslim women is the Nikah, and if a civil marriage also takes place, it would still have to be combined with an Islamic nikah.

The conflict between Sharia and English law over the registration of marriage is apparent in recent case law.  Further, what makes the encounter utterly confusing is that although English law does not recognize religious marriages, it still retains the right to rule in civil court whether a religious marriage is valid, void, or a non-marriage. A valid marriage is one that fulfills all requirements under the Marriage Act 1949, and a void marriage fulfills some but not all requirements under the Act and is ‘null’ under s11 of the Matrimonial Causes Act (MCA) 1973; these two types of marriages are granted financial remedies after a divorce.

In the case of Akhter v Khan[17] In 2018 the court held that the couple’s Nikah amounts to a void marriage, thus guaranteeing the wife’s and children’s financial rights after the divorce the wife had filed for under English law. A ‘void’ marriage, under s11 MCA 1973, was granted since they have been together for 18 years, and her husband had promised the wife to register their marriage under the 1949 Act. A non-marriage ruling is a predicament for both the wife and children as it does not provide them with any legal or financial rights. Hence, at first glance, it may have appeared as if English law was finally ready to recognize Islamic marriage (Nikah) in the first ruling in 2018, only to encounter a setback in 2020 as the appeal ruling has essentially established a precedent that Nikah marriages are non-marriages unrecognized by and incompatible with the requirements of, English law. According to Mr. Justice Williams, the law of non-marriage is a violation of Article 8 (The Right to Family Life) of the European Convention of Human Rights (EHCR) as it denies a marriage its validity despite obvious characteristics to make it one. Further, the ruling was also a breach of Article 1 of The First Protocol, “Peaceful Enjoyment of Possessions,” since Akhter’s financial rights were infringed upon by categorizing her marriage as non-marriage.

In the context of legal Pluralism, Akhter v Khan (2020)[18]  It is a disappointing ruling as it places Sharia in England as a subordinate normative order to English law rather than a socio-legal system on an equal footing. There is an evident pattern of weak legal pluralism in English law accommodating sharia in marriage: several authorities such as Gereis v Yagoub.[19] AM v AMGanhi v Patel[20] have all ruled that an Islamic marriage can become either void or a non-marriage under English law if it does not fulfill the Marriage Act 1949. EL Gamal v Al Maktoum,[21] Another case where a Nikah marriage was denied English courts’ validity and considered a non-marriage, although the Muslim ceremony took place. English law’s position on Muslim marriages remains ambiguous since it does not recognize Nikah but provides court rulings on its validity.

 

Part 3: Divorce

“If good relations between the spouses become unbearable and impossible it is advisable to rescind the contract which bound the two parties together.”[22]

In sharia, divorce cases can either take the form of judicial proceedings or extrajudicial proceedings. Judicial proceedings involve courts’ use to decide the divorces, while the latter include non-judicial proceedings such as Talaq. English law has failed to provide a framework to accommodate religious law to administer divorce proceedings. This has led to all divorces granted under Muslim law being void ab initio resulting in Limping marriage.[23] The current English law provides an irretrievable breakdown of marriage as the only basis for divorce; thus, most women continue to be ransomed by these retrogressive laws. These are because those who have been divorced through civil law are still married per the Muslim law resulting in an awkward conflict of laws. This rationale can justify why 37% of British Muslims support the implementation of some form of Shari’a in England, as per a report.[24] This is in tandem with the most Muslim belief that Western secularism’s authority and legitimacy are unacceptable and in conflict with Muslim law, and they, therefore, purpose to settle disputes through their non-adversarial methods.

In 2007 Shari’a councils were given jurisdiction to settle disputes between Muslims, and they were subsequently empowered by having their decision being legally recognized as binding.[25] The Shari’a Council, in turn, has three core duties, mediation and reconciliation, the issuance and processing of Muslim divorce certificates, and reports of expert opinion on Muslim Family issues. In sharia, divorce is recognized with four different Surahs of the Quran articulating on the matter. Shari’a has three kinds of divorce; Talaq, Li’an, and Khul’i. In Talaq, the husband is the one who repudiates the marriage contract and need not have a substantial reason for ending the marriage. The husband must pronounce Talaq; how he does it when he does it, or in what he does, is not very essential.[26]

In Sharbalty v Shagroon [27]considered once more the validity of a purported Islamic ceremony of marriage in London. It confirmed that Dukali v Lamrani[28] was correctly decided. In Sharbalty, the wife wished to apply for a financial order following the pronunciation of Talaq in Saudi Arabia by her husband. The Court of Appeal held that in order to claim an overseas divorce, there must first be a valid marriage. The couple’s original marriage was held to be a non-marriage; the hotel ceremony had not conformed with the Marriage Act 1949, and there had been no attempt to follow it with civil marriage.

Further, it is not surprising as 95% of applicants to a Sharia council are women seeking a religious divorce.[29]. A 2018 independent review commissioned by the Home Office on the

application of Sharia law in England and Wales again put the number of Sharia councils in England and Wales between 30 and 85, although it noted the lack of accurate statistical data. It also concluded that “there are no sharia councils in Scotland to the best of its knowledge.”[30]

The review observed that the overwhelming majority of those using Sharia councils were women, of which more than 90% had sought an “Islamic divorce.”

The Shari’a system classifies divorces based on gender, and in some, it acts as a disadvantage to the woman, while in English law, divorces are not classified and are granted on the grounds provided by the law.

Part 4 (A): Should a liberal state accommodate an MLO and why? (Tamanaha)

The ‘liberal’ essence of the government implies that it is bound by constitutionalism standards that protect all of its citizens’ human rights. Liberal political philosophists such as Kymlicka accept that cultural participation for the well-being of individuals and religious groups are essential to a liberal state, and it may legitimately provide space and their rights and for their groups and association with which they identify to. Therefore, an individual has the freedom to choose to belong to any group and can rescind that decision out of their own free will. Their different interactions bring this about. This versatility could be the foundation for providing greater choice for individuals within a minority legal order who can ‘forum shop’ in different institutions within the society to find a solution that suits their personal preference.

Law is posited in the quote; the law is whatever people identify and treat through their social practices as “law.”[31] To decide how individuals should behave, laws may be said to arise, as well as to define the implications of non-compliance. A minority legal order may not be consciously structured as a structure with a centrally centralized mechanism to impose authority and implement penalties, in contrast to the state legal system. The recognition of this diverse nature of laws as per the groups only justifies that an MLO should be recognized and accepted by all. Therefore it would be right to posit that the UK should adopt an MLO.

A liberal state faced with the MLO might respond to it by making an informed decision based on the following approaches:

  1. Prohibition of MLO, given the liberal nature of the state, would not be a feasible choice. These are because of the principles of liberal states, such as providing room for people to express their personality and religious beliefs. These include religious divorce, an indispensable service element of religious liberty that the state
  2. Application of cultural voluntarism and mainstreaming on a realistic base basis, this design on existing legal frameworks and make it possible for minority groups to operate their legal order among themselves, without giving them the approval of the state’s law.
  3. It is mainstreaming as a way of supplementing Cultural voluntarism. The state can actively endorse and incorporate a norm of the MLO within its legal system. For example, this can be by adopting some Islamic mediation procedures to be followed by the disputing parties before seeking judicial intervention.
  4. The state must help those religious women who, on their own accord, choose to use an MLO but are caused harm and want a better service.
  5. As a future policy, The Equality and Human Rights Commission should adopt a benchmark provision to collect and record the experiences of women who are MLO. The results should be published as part of the Triennial Review, which monitors progress on equality, dignity, and respect for UK citizens. These could form the basis for considering whether the EHRC has a role in supporting religious women who are users of minority legal orders, as suggested by the EHRC’s recent research on understanding equality and human rights concerning religion and belief [32]

 (B): Can a set of religious norms thrive as law in a centralist and legal positivist state such as England?

Diverse religious norms can thrive under a centralist state only by putting in place a raft of measures to accommodate the different legal systems. To achieve this, I recommend that; legislative measure is put in place by amending the Marriage Act 1949 and the Matrimonial Causes Act 1973 to ensure that civil marriages are conducted before or at the same time as the Islamic marriage ceremony bringing Islamic marriage into line with Christian and Jewish marriage in the eyes of the law, and creating mass awareness campaigns to educate Muslims on their rights under English Law.

In the exercise of their authority, the Sharia councils should ensure that their decision is in conformity with the common law and they are not in any way repugnant to justice. A re-evaluation of the state’s position should be done, with increased attention to the state’s role and its policies’ influence on the growth of Islamic law. I would recommend a reassessment of the qadis’ position and their contribution to Shari’a’s growth. MLO can survive if, in addition to the recommendations’ provided herein, the state can sanction the options; (1) full accommodation: the secular state delegates legislation and jurisdiction to religious tribunals; (2) partial independent accommodation: religious tribunals may deviate from state laws, and its rulings are enforced in secular court; (3) partial dependent accommodation: when not conflicting with state laws, the rulings of religious tribunals are enforced in secular court; (4) no accommodation, no intervention: the state does not accommodate, nor intervene; e.g., Muslims can have functioning Sharia councils, whose rulings are recognized by the community, but are neither recognized nor enforced by secular courts; and (5) through State intervention: the state does not allow religious tribunals to compete for legislation nor jurisdiction, and the state actively safeguards its monopoly  .[33]

Conclusion

The introduction of legal pluralism was meant to create a modeled equality system through creating space and legitimizing alternative world views. However, it has not served its intention as pre-meditated and has to a larger extent be said to have brought about more evil than good. In England, legal pluralism is restricted because it does not take into account the influence of

Control that is not fairly shared within and within legal frameworks.[34] Cultural voluntarism would serve better in that it identifies that one can become a citizen while at the same time retaining his/her inherent religious identity. This phenomenon is a post-modern response to the challenges brought about by legal pluralism. The law is what is determined by the individuals in their social arena through their common usages, not in advance by the social scientist; thus, cultural voluntarism should be emphasized as a solution by recognizing this. Cultural voluntarism avoids the problem of classification of normative social regulation as a minority legal order. It would allow the accommodation of the social norm even if the normative social regulation of the minority group lacked the qualities that allow it to be classified as a minority legal order; this would be beneficial to a liberal state such as the UK that is faced with a minority legal order and can choose from either. Cultural Voluntarism allows the minority legal order to function but maintains the right of state law to intervene at any point to enforce its norms.

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