A recent occurrence in the recent Islamic legal history of England involves women’s use of Shar’ia law to protect their autonomy, marital security, and property rights. Beginning in September 2008, decisions made by Shari’a councils in Britain became legally binding due to a new application of the 1996 Arbitration Act. Much as Jewish Beth Din courts and Quaker courts, had been doing for over a century, over 84 Shar’ia councils could begin to act as “arbitration tribunals,” making legally binding decisions about issues pertaining to marriage, divorce, inheritance, and custody. Scholars and political observers alike immediately voiced concern that Muslim women would be treated unfairly in these councils, or, alternative, claimed that the continued use of these councils was further evidence of cultural separatism, or an unwillingness to assimilate (See McKinstry). However, Muslim women have actually managed to secure better outcomes from the Shar’ia councils than from English courts; it is thus possible to frame their continued use the Shar’ia councils a rational decision motivated by financial security, as opposed to a disinclination towards assimilation. In order to understand why this is the case, it is necessary to compare salient aspects of English Family Law and Shar’ia law.
First, it is important to realize that England is not a secular country. The link between religious and political institutions is explicit and meaningful, and family law is informed by Anglican values. The official church of England, for example, is the Church of England and 26 Church of England bishops sit in the House of Lords by solely by virtue of their position with the Church. Until the 19th century, the Church, rather than the state, had an essential monopoly on the ability to legitimize a given marriage and although subsequent legislation relaxed the grip of the Church of England on family law, regulations surrounding weddings make it challenging for non-Christian couples to wed. Whereas an American couple can have a friend self-ordain via the internet and conduct a valid ceremony on a beach or in a park, a couple in the UK must adhere to a number of rules about where and how a legally recognized wedding ceremony can take place. Some of these rules are particularly burdensome for Muslim couples: as most English mosques double as community or cultural centers, they violate the The Places of Worship Registration Act of 1855 , meaning that only 25% of mosques were legally suitable venues for weddings as of 1991.
A second hurdle will come in the event of a divorce, given the central place of the Muslim marriage contract in securing the wife’s property and autonomy. A large part of this financial security comes from the mehr, which is sometimes translated to mean “marriage portion” in English. The groom gives the initial marriage portion to the bride at the start of the marriage to signify his interest in providing a foundation for the future; once the couple agrees on the amount, it is recorded in the marriage contract along with the terms and conditions of the marriage. The other part, or deferred mehr, is to be given to the bride if he initiates a divorce (called a talaq) or if the wife initiates a divorce and demonstrates either that the husband has treated her poorly, has abandoned her, or has broken the terms and conditions in the marriage contract. If she cannot demonstrate as such, she forfeits her right to the deferred mehr.
The Anglican position on divorce, however, has meant that Muslim couples have faced significant challenges getting these contracts recognized in English courts. As a presiding justice wrote, and has been cited in many instances wherein a prenuptial agreement is in play, “The attitude of the English Courts to antenuptial agreements …has always been that they are not enforceable…An agreement made prior to marriage which contemplates the steps the parties will take in the event of divorce or separation is perceived as being contrary to public policy as it undermines the concept of marriage as a life-long union.”
In 2010, the UK Supreme Court revisited this decision and concluded that pre-nuptial agreements should be given “appropriate weight” http://www.supremecourt.gov.uk/docs/UKSC_2009_0031_Judgment.pdf , however, this also means that the court still retains the discretion to waive any such agreement http://www.bbc.co.uk/news/uk-11580907.
Muslim couples have therefore learned to strategize very carefully: if the couple has a marriage recognized both under English law and under the Shar’ia, the husband can choose to file for a civil divorce and refuse to initiate the talaq, thus freeing him from paying the deferred mehr as he will not actually be divorced according to the Shar’ia. The incentive for women is thus to marry in the Shar’ia sense, and not the legal one. This incentive is perhaps best illustrated by a case that Professor Werner Menski calls “the case of the missing pound.” The background is that a British Bangladeshi couple named Mr. and Mrs. Ali, both of whom were educated professionals living in London, married both under English and Shar’ia law, setting the deferred mehr at 30,001 pounds. The marriage, however, only lasted three months. The husband refused to give her a talaq, and filed for divorce under English law, claiming that he did not owe her the deferred mehr since he was divorcing her under English law, but not Shar’ia law. Mrs Ali cross-petitioned the court to deny him the divorce until he settled any due entitlements, including the 30,001 pounds. Under English law, she would have been expected to simply move on with her life, given that she was a professional, educated woman with no children, and a marriage that had lasted only three months. Under Shar’ia law, however, she was owed 30,0001 pounds. The judge ended up awarding her 30,000 pounds, thus avoiding any accusations that he had upheld Shar’ia law in his courtroom, but still upholding the Muslim community’s faith in the English court system.
Those lamenting that Muslims are unwilling or unable to assimilate might therefore do well to consider the price that women pay when they do assimilate and marry solely under English family law. Concerns that Muslim women will surrender their rights under Shar’ia law might also wish to consider the fact that divorce in the UK unequivocally favors men: When a father separates from the mother of his children, according to new research, his available income increases by around one third. When a man leaves a childless marriage, his income immediately rises by 25%. Women, however, suffer a sharp fall in income whether the marriage has produced children or not. Their financial position rarely reaches pre-split levels, and maintenance paid by former partners also has little impact, as just 31% of separated mothers receive payment from the father of their children.
Upholding pre-nuptial agreements may be a step in the right direction, however, whether or not English law will be suited protect the welfare of Muslims in particular and women in general remains to be seen.
Kristina Benson is a PhD candidate in Islamic Studies at the University of California, Los Angeles. She is particularly interested in matters pertaining to gender, legal pluralism, and Islam in diaspora. Her dissertation will focus on the issue of Muslim marriage contracts in American and British courts.