Aug 17th 2018
HOW should the state respond when the law of the land points in one direction and social reality, as experienced by a segment of society, in quite another? That dilemma is especially sharp for anybody involved in adjudicating questions of marriage and divorce among Muslims in Britain.
A clear majority of the British Muslim couples who settle down together today opt for a religious ceremony, known as a Nikah, but choose not to complement it with a civil ceremony. This can place a Muslim woman in the worst of all worlds in the event of a marital breakdown. Her marriage has no obvious standing in law, so there is nothing to dissolve and no chance to claim joint assets. In Islamic law, meanwhile, the unilateral dissolution of a religious marriage is a male prerogative. So the female partner in such a failed marriage may find herself chained to her husband (from an Islamic viewpoint) and also financially disadvantaged.
But the situation shifted on July 31st with a High Court ruling that offered a chink of light to women in such circumstances. The case concerned Nasreen Akhter, a lawyer herself, and her estranged partner Mohammed Shabaz Khan. Both now 46, the couple were married by an imam in a London restaurant in 1998. She had tried to persuade her husband to contract a civil marriage as well, but he was reluctant.
In a careful ruling, the judge opined that their marriage was procedurally defective but could not be described as non-existent. For nearly two decades the pair had been treated by their extended families, by their community and even by the state, in some contexts, as a married couple. They had received documentation allowing them to live as a married couple in Dubai. The judge also found it significant that Ms Akhter had repeatedly proposed a civil ceremony.
“In every sense save for the issue of legal validity this was a marriage,” the judge ruled. It therefore followed that the marriage could be declared void, clearing the way for her to claim a share of the couple’s assets. The court stressed that this did not automatically recognise all Islamic-only marriages; each case would have to be judged on its own merits.
Yet this week secularist campaigners complained about the fact that, in their view, British officialdom gives inappropriate standing to religious marriages. Though they welcomed the verdict, they argue that more fundamental reform is needed, arguing that “the application form for a divorce actively encourages women to turn to religious bodies.” The form warns people that civil proceedings “may not dissolve the religious part of your marriage” and “it is important that you contact the relevant religious authority if you are unsure.” To campaigners, this sounds very much like an invitation to consult the informal “Sharia tribunals”, dozens of which have sprung up in Britain, to adjudicate the affairs of Muslim women whose marriages have failed. In an open letter, campaigners write that:
Our research shows that the power and control of Muslim fundamentalist networks has grown enormously over the last 30 years. This has led to a widespread belief that a civil marriage is not necessary; that women must have a divorce certificate issued by a Sharia “court” in apparent judicial procedure; and that they must get this “certificate” even if they already have a civil divorce...If the government is serious about gender equality and ending violence against women, why is it undermining the validity of a civil divorce under English law? Why is it pushing women towards religious courts?
There is one simple answer to that rhetorical question. Women turn to Sharia tribunals because the present situation leaves them with little choice. But if it were made compulsory to have a civil procedure in addition to any religious nuptials, then women would always be able to turn to the secular courts to obtain a decent settlement in the event of marital breakdown. That would become the norm, not the exception.