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Sharia Councils - A Parallel Legal System For Women Or A Requirement Of Faith?

22/09/2016 11:59

A friend of a friend is trying to separate from her husband. Actually, she is already separated. She pays her own rent, utility bills and food as well as solely providing for her three children, all under the age of ten. Her peace of mind and happiness are all on hold as she tries to obtain a divorce through the Sharia Council because he refuses to grant her one.

Like most things associated with Muslim women in the media; burkinis, forced marriages and being murdered in the name of so-called honour, the Sharia councils are under the spotlight. They are currently the subject of two easily confused enquiries, one by the Home Office and the second by the Home Affairs Select Committee.

There are arguments for and against them. Some would argue that the councils are relegating women to a second class legal system. Others would argue for their existence due to demand by these very women.

For a Muslim man, it is simple. He merely has to say 'I divorce you' (talaq) three times over a period of separation and the divorce is legitimate. The commonly misused 'triple talaq' is in fact an innovation prevalent in certain Muslim countries and frowned upon by Islamic scholars. A Muslim woman cannot say the words. She has to go to an Islamic Judge in a Muslim country, or a Sharia council in non-Muslim countries to seek a judicial decree on specific grounds to be free. If she does not have any grounds for a divorce, she has to waive her 'Mehr' - a compulsory financial gift by her husband.

I remember my friend's friend at social events ten years ago when she was dating her husband to be. She was so happy. He was so charming. He was the type of man who insisted on paying for all her friends at the table if they were single, or unaccompanied by a husband. We all thought he was a gentleman and she revelled in the knowledge that he was all hers. They tied the knot with an Islamic ceremony, the Nikah, and didn't bother with a civil one. They were happy until the pressures of married life and children brought a whole different reality to their lives. He cheated ... several times. She forgave and tried to adjust her life, her views, and her tolerance levels over and over again. It went on for a while until something changed. She became more spiritual and in doing so reached the conclusion that she did not have to tolerate his behaviour. She was worth more. Her faith taught her that she was an equal human being who was worthy of respect. He tried to twist her new found spiritual learning. 'God rewards wives for their patience and obedience in the hereafter.'

She was not having any of it. Something had stirred in her. She had re-discovered her self-esteem, despite his best efforts to thrash into tiny pieces over the years.

Her answer was simple: 'I want to be happy in this life.'

He took her rejection of him in his stride and re-married after the separation. Not a civil ceremony, mind, but an Islamic one. He's clever enough not to want a paper trail following him under the country's laws. Due to the fact that he won't grant her a divorce, she is left hanging in limbo whilst he is free to build a new relationship with another woman and perhaps have more children.

Most people would wonder why my friend's friend doesn't do the same. Why does she need a religious person or certificate to tell her that their marriage is over? Surely his lack of financial contributions to their children and her household proves that he has ended his relationship with her. Why go to a 'parallel law system' to obtain a 'divorce' she does not legally require.

The Director of Southall Black Sisters, Pragna Patel has this to say: "Sharia codes like all discriminatory religious codes are very much a part and parcel of the continuum of domestic and gender based violence and other abuses that BME women face in their daily lives. They reinforce discrimination, deny exit and prevent women from accessing justice or from asserting their right to equality. We must resist right wing fundamentalists who want to remove BME from the protection of the rule of law just as we must resist the state from fobbing us off with second rate justice systems. We cannot and must not allow injustice in the name of religious freedom to prevail. For these reasons and more, parallel legal systems must not be allowed to exist."

Despite struggling to obtain her divorce, my friend's friend will pay no heed to Pragna's words. In her mind, she is a Muslim woman who entered a religious marriage contract with this man. It is the Nikah and in the eyes of her faith and her community she is married to him. And in order to be free from him, she needs to be granted that divorce. The civil law courts under which she should have been protected cannot grant it because she was naive/foolish/ignorant/bullied of her rights. Not undergoing a civil ceremony was one of the biggest mistakes of her life. She gave up her own rights willingly. She fully understands how she has allowed herself to become a victim, but she still wants a religious end to her religious wedding. Legally, this means nothing but spiritually and culturally, she believes she will be committing a sin if she marries another man without obtaining a divorce first.

It is this belief and the lack of protection for these women under the country's law that has led to Sharia councils springing up in the UK. According to the thinktank Civitas, there are about eighty five in existence. Some are informal gatherings of 'authoritative figures', others are formal setups attached to mosques.

For my friend's friend the pursuit of the divorce has been soul destroying. It has been a longer process than she would have liked. He has thrown a spanner in the works by disputing the custody of the children, then claiming that perhaps they would be better off with their mother, but refusing to commit to maintenance if he can't have them full-time.

The man is mocking her, and despite the rage of her family and friends, there is nothing anyone can do. They have to wait for the Sharia council to issue the decree when the latter is satisfied that the couple's marriage should officially end.

So how do we compromise? How do we make the law better and offer protection to women of faith?

Aina Khan, Head of the Islamic Department at the law firm Duncan Lewis and campaigner for better protection for women believes she has the answer. She launched her campaign 'Register `Our Marriage' in 2014 to lobby for a change in the law and to spread awareness of lack of rights. "The Marriage Act 1949 must be updated to require all faiths to register their marriages. This would mean Muslims must register religious ceremonies under civil law, just like they do in every Muslim country. (For decades, Imams abroad have faced criminal prosecution if they carry out an unregistered marriage and the husband is declared on a woman's ID card. There are also civil systems in place for divorce). This change in our law will give British Muslim women the right to a civil divorce and a share of 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 a 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-£400 because of the extra work needed to investigate the divorce application. Plus I am increasingly hearing complaints of one year plus delays and misogyny, which causes deep distress to women who are already suffering."

But what about the backlog of women who have not entered civil ceremonies and still need an Islamic divorce. What of them? Aina has her proposals ready: "If there has been no civil ceremony and 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. There must be a central governing body to ensure Best Practice including astandardised application form, fee, divorce certificate and timescales, so the service is the same across the UK."

I am sure my friend's friend will be granted her decree by the Sharia council one day. The procedure has dragged and cost her money and non-stop stress. Yet it is a path she has insisted on because of her faith. She wants to break the religious contract with the father of her children. Only then will she believe herself to be free to marry again if she wishes.

Aina Khan's proposals hold weight. It's not often we can say that British Muslim women's rights should match those of the women in Muslim countries.

Sufiya Ahmed is the author of Secrets of the Henna Girl

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