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Diversity Religion And Families Notes

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6: DIVERSITY, RELIGION AND FAMILIES

1. MARRIAGE (i) RELIGIOUS MARRIAGE AND DIVORCE Enright: The beginning of the sharpness: loyalty, citizenship and Muslim divorce practice Summary: when legal feminists have looked at Muslim divorce practice in CL courts, they tend to measure the difference between anglo-american divorce and muslim divorce in terms of financial outcomes; the author argues there is a danger that our theory of muslim women's legal agency will be reduced to pragmatic matters of choice, money and advantage-taking and this theory seems impoverished when we consider the political background in Britain with Muslim's legal agency on divorce being bound up with deeper questions of belonging/allegiance and feminist work therefore needs to be better advance a theory of citizens' commitment to civil law in litigation which can give a complex account of muslim divorce disputes in civil courts; looking to construct a counterdiscourse to the prominent political discourse favoured by british governments (ie. that Muslims are expected to act out their commitment to state law and choose its courts over other remedies available)
  Muslim divorce practice and English law - connections and gaps o Interest is in the interface of this practice and English divorce law 
arrangements which have been adopted by Muslims who have brought their divorces in English courts which they have describes in a language of Islamic law - together with lawyers and judges who have heard their cases  ie. focus is on an ind. act of legal agency o Consider Mahr: this is the core of the financial provision made for a woman upon divorce (ie. the price of divorce)
 Usually the bulk is not paid upon marriage but is a deferred debt owed to the wide
 If the mahr is relatively small or if the wife has agreed to reduce it or waive the debt or if the husband won't pay it, a wife who hasn't amassed assets/income of her own may be unable to support herself following the divorce bc as a matter of Islamic legal tradition, her husband's obligation to pay her maintenance after divorce is minimal and she won't have property claims  does English law permit this?
 Where parties are civilly married - they need a civil divorce
 Mahr: parties in dispute over a prenuptial agreement
Could be treated as a nuptial agreement but this won't be determinative in English law in all qu's of ancillary relief (cannot oust court jurisdiction) and it seems unlikely that a court would enforce a prenuptial agreement which makes little provision for a wife's financial needs, particularly where she has made a sign. contribution to her husband's success
 Mahr: couple comes to an agreement based on original mahr agreement, perhaps with assistance of a shari'a council
If the couple enter into a separation agreement in adv of the divorce, this will carry weight in later proceedings for ancillary relief and courts are reluctant to allow couples to depart from these agreements without a compelling reason
Could make a draft consent order and court will have obligation to check the agreed arrangements for fairness in line with usual principles
Although the court shouldn't be rubber stamping, where parties are in agreement cf. in dispute, the information available will be less and the court only receives a two page summary of the financial circumstances of the parties and don't investigate unless something puts them on inquiry and the court doesn't need to be informed that the agreement is the outcome of sharia council involvement bc the point of the consent order is to allow for negotiation without interference from courts so the courts cannot really be scrutinizing consent orders
 Whilst the door is closed to contracting out entirely of the core

principles of English law and ancillary relief, it is important to appreciate some muslim women will be effectively excluded from the law
Couples can choose not to divorce in civil courts at all - and can come to a separation agreement on their own or with a tribunal - there it will never come before the courts  this even lines up with government policy to positively encourage nonjudicial settlements
Many won't be married civilly either and a religious marriage is treated as a non-marriage (Gandhi) and an unreasonable mistaken belief in the validity of the marriage will not establish a marriage at English law and neither will a religious belief that the religious marriage substitutes for compliance with state formalities
In these situations, the court has no ancillary relief jurisdiction upon marriage breakdown and the parties will be in the position of ordinary unmarried cohabitees and this is a poor position for wives to occupy
At best in this situation, the wife who doesn't want to fall back on the limited provision to which she in entitled under Islamic law may be able to establish some right in the family hole (eg. trusts law) but a wife who doesn't have savings/earnings is unlikely to be able to do so, assuming her husband even owns the home - the only other option would be to come to court to enforce some kind of private agreement with her husband, acting as a cohabitation agreement (eg. the mahr agreement could do this)
 Issues with relying on shari'a councils:
A council is a tribunal of muslim religious scholars who provide advice and guidance on matters of Islamic law and morality as well as mediating and informally resolving family and civil disputes
Generally divorcing women seek their assistance because only men are empowered to pronounce talaq and therefore councils may be involved in brokering a divorce by mutual agreement (mubaarat - divorce initiated by husband and obtained with wife's consent); khula (initiated by wife and taking effect with husband's consent) which may involve waiving the outstanding mahr obligation in exchange for the divorce
Councils may also dissolve a marriage for an appropriate reason (eg. tafriq where the wife proves her husband's fault or faskh where there is a defect in the marriage contract)
Whilst this divorce won't have effect in English law, as part of the religious divorce process the council may rule on their obligations to one another under shari'a and the ruling is likely to involve the potential waiver of the wife's mahr
Where a couple comes to an agreement with the help of a council, it may take the form of a separation agreement or it might be submitted as a consent order
Financial rulings of the Shari'a council therefore might end up binding in English law
The government's view of religious divorce: o Non-interventionist - if people want to ex. religious freedom and divorce a certain way not going to stop them - if consent is in jeopardy, the person will have access to english courts; no illegality where muslim divorces are concerned bc no english court enforces a practice which runs contrary to english law/public policy o BUT this ignores the fact that in order to vindicate women's rights, they need access to the courts and it assumes failure to come to court is in fact a matter of ind. choice - what about where no civil marriage; what about where religious tribunal involved; or there is a polygamous relationship?  hands off approach frames the legislative discourse in this area; it relies on women being able to challenge an unfair settlement for example o Often the right to exit argument is invoked in response to recognition that some ind's might be bound to arrangements they have not actually chosen (ie. formal option to reject religious dispute resolutions mechanisms and choose civil law)
  Argument: the feminist critique of private ordering is stripped of any significant discursive purchase in relation to the politics of muslim divorce practice o In order to give a useful account of the function which the responsible bargaining subject performs, it is necessary to put government policy on the law of

Muslim divorce practice in its political context  suggestion is that the figure of the responsible bargaining subject does some important work for the state which attention to the purely distributive dimensions of private ordering cannot capture
  Law and loyalty: Britain's Shari's debate 2008-12 o Beginnings of the domestic shari'a debate to deb 2008 where the archbishop of Canterbury called for re-evaluation of the interaction of state and religious law in the UK, exploring the possibility of the state delegating limited jurisdiction over specific matters to shari'a councils
 His argument was that an 'unqualified secular monopoly' was no longer appropriate and that the english legal system needed to adapt to reflect what he understood as the reality of people having multiple affiliations, beyond state allegiance
 This triggered an anxious new british politics of muslim divorce practice but at its heart is a subject quite different to the successful bargaining subject discussed above  instead, the muslim subject in this context is the person whose adherence to shari'a indicates a compromised loyalty placing our world at risk o Law and identity: 'the community thus walls itself in by law' - the cohesion agenda
 After the founding act, the community is known by obedience to a shared body of law and we pass laws as an expression of who we are as a people within borders
 After the initial act of positing the boundaries, these boundaries need to be policed/guarded against challenge and in a plural polity, the self/we which enacted legal norms is always subject to challenge and resistance
 It is telling that in rejecting the Archbishop's proposals, the intervention was cast as posing questions and national identity and sought to emphasise the brutishness of civil law  questions of identity and cohesion; a retreat from multiculturalism born of the assumption that multicultural policies have produced divisions between minority citizens and national group
 Risk flowing from difference  the actions of a they threatened the we and the solution was seen to be a programme of civic renewal - cultivating defective citizens' primary loyalty to shared british values (common values and common purpose)
 This cohesion agenda ENLISTS Muslim citizens as partners with government in securing order and their position within the nation state and in these terms, Muslims' loyalty would be evident in their capacity to articulate and express their difference within the limits of a shared civic culture
The government has aimed to direct Muslim community life and the cohesion agenda has licensed a raft of targeted government projects which produced model Muslim subjects, identifiable by conspicuous lived loyalty to British values o Argument: in seeking to govern Muslim divorce practice (like in other policy contexts), the government distinguished between a responsible, decent Muslim subject, committed to British values and a dangerous Muslim, affiliated with a different values system, cast as threatening as a result of this disloyalty
 The Archbishop's proposal (which was confined to family law) was met with fierce resistance and many responses from both politicians and the media constructed adherence to Shari'a as foreign, barbaric and backward (eg. frequently referring to brutal punishments for criminal acts)
 In this context, Shari's was contrasted with English law, which was presented as a civilized channel for upward progress and the vindication of HR's and women's rights and some even went so far as to connect the Archbishop's proposal as supporting terrorism (a link which the government itself made on previous occasions)
 The point of this: public disourse identified the 'they' who wanted the state to recognise Shari'a councils and it then became open to the government to construct the we who would oppose this and the government fell back on the social cohesion agenda
 The government used the social cohesion agenda to construct the possibility of an alternative, responsible mode of engagement between Shari's and civil law, conditioned by the aim of social cohesion - adherence to a shared law asserted as one of the core British values to which citizens have to commit (cf. the proposal which

was seen as allowing separate parallel legal systems in one territory) o This all then plays out in government policy on Muslim divorce practice:
 ie. Muslims can resolve their marital disputes in accordance with religious laws at their own risk, accepting the responsibility for any inequality which results  it's all about social cohesion and about break down barriers between communities; accommodating difference and diversity rather than just tolerating it
 The government's policy does not deny the existence of the dangerously disloyal other but constructs an alternative Muslim subject in contrast  the government policy on Muslim divorce contemplates a responsible, cohesion-minded subject who accepts the supremacy of English law
  Argument: government construction of the responsible divorcing muslim subject cannot be understood apart from the government's construction of the disloyal other because the responsible divorcing muslim is constructed and engaged precisely in order to govern the threat posed by the second
  The contractual and the colonial: o Government policy is exclusionary (even though doesn't ban councils) and gendered exclusions form the heart of the policy o Neglect of these exclusions is the price to be paid in order to keep the responsible bargaining subject dialogue afloat o Many Muslim women find themselves adrift from the law as a result of this government process of separating law's "we" from the dangerously disloyal other so that although muslim women are subject to law, they cannot make effective claims on it o As Shari's law has trespassed into the domain of family law, the government has responded not by expelling it but by drawing a new line - the state is withdrawing from this area and it becomes more concerned with the distribution of power between private interests (cf. legal regulation) o This means that who who were already at the margins of the law, bc of their associations with shari'a, are now strangers to law, even as they dwell in the middle of the 'we' o 'They inhabit a messy, disorganized and ambivalent legal territory' as the government's policy has been to repeatedly state the simplicity of acceptable, responsible and contractual engagement with Shari's without admitting to the shortcomings of this
  Claiming disloyalty - beyond financial outcome?
o Disloyalty emerges as a charge which might be leveled against women affiliated with religious groups, used to justify their exclusion from law o Shachar: wants to hold the state responsible for women's oppression, even in circ;s where the woman might be holding themselves at a distance from the state
 She downplays the sign. of disloyalty - by emphasizing the state's role in producing and supporting groups which make competing claims on women's loyalties and by insisting on the primary importance of supported access to the key state institutions as a fund. aspect of citizenship
 She also gives a limited account of the demands women might make on law and her concern is for women not to be deprived of access to practical benefits bc of group membership
 It is key that these women aren't of trouble to the state - although acknowledging some disputes may have symbolic dimensions and may raise broader political questions about membership in the polity, she seems to contemplate these qu's being answered outside of courts as part of institutional design and builds her legal imaginary around women who are only concerned with distributive outcome of judicial decisions in their own cause, and who desires can be calculable in monetary terms
 So these women are not seeking to challenge, defy, transgress or remake English law but are seeking to take from it on its own terms - they may indirectly spark reform by choosing civil law over religious law but the actual business of transforming legal principle is left to judges and these women are willing objects of judgment, not a

threat to law
 She therefore conceptualises women's legal agency as limited by her depoliticized sense of the content of citizenship o Karen Knop:
 The beginnings of the alternative, clearly political conception of women's legal agency can be found here
 Her theory of legal agency addresses the proper conditions of women's access to law and the purposes and desires which shape that access
 1. Access  access to civil law and remedies as a citizenship question but she explicitly refers to contested questions of membership (cf. Shachar - implicit reference)
Membership in a polity - legal citizenship - are held apart from one another o One may be a legal citizen and claim access to law, even if one's membership of the polity is precarious (ie. foreigner or suspected enemy of the state)
 2. Purpose in accessing civil law:
Shachar represents state and religious law as separate entities in defined spheres but Knop goes further than this
She emphasises that civil courts are a space where religious and civil law may encounter one another, albeit on civil law's terrain and suggests women might exercise legal agency which goes beyond access, strategy and bargaining, beyond submission to the law's protection and which might extent to the use of the civil court as a dislocated experimental space within which Muslim divorce practice can be contested
Muslim litigants she argues can make arguments about competing interpretations = possibility of transformative legal agency
 Although Knop provides a more politically engaged model of legal agency, it is still lacking (ii) POLYGAMY CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN Article 5 States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; (b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases. Article 16

1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; (c) The same rights and responsibilities during marriage and at its dissolution; (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; (f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount; (g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;

(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.

CEDAW: general recommendation 21 Polygamous marriages: 14 States parties' reports also disclose that polygamy is practised in a number of countries. Polygamous marriage contravenes a woman's right to equality with men, and can have such serious emotional and financial consequences for her and her dependents that such marriages ought to be discouraged and prohibited. The Committee notes with concern that some States parties, whose constitutions guarantee equal rights, permit polygamous marriage in accordance with personal or customary law. This violates the constitutional rights of women, and breaches the provisions of article 5 (a) of the Convention. Matrimonial Causes Act s 11(d): a polygamous marriage entered into outside of England and Wales will be void if either party at the time of the marriage was domiciled in England and Wales Rehman: The Sharia, Islamic Family Laws and International Human Rights Law: Examining the Theory and Practice of Polygamy and Talaq Summary:
 There is a lack of comprehensive understanding about Islamic family laws and social values which is a bad thing because it is very significant for the legal/judicial system in the UK
 Arguing it's relevant to law in the UK - pluralism and ref to sharia norms always cited in domestic court judgments
 Focus of the article is on aspects of Islamic sharia that relate to Islamic family laws and the qu is whether or not it is compatible with the intl HR regime  looking specifically at polygamy and the talaq (unilateral divorce by husband)
 Articulating the sources of the sharia and Islamic family laws: o Islamic family laws = areas of sharia dealing with marriage, divorce,

maintenance, custody of children and succession o Because this constitutes a sign. branch of the sharia need to understand the sources and composition of the sharia principles in order to understand modern application of Islamic family laws = quran and the sunna (fund. sources of sharia law) o Difficulty for subsequent Islamic societies was that often reviewing established norms was treated as tantamount to heresy (ie. sharia norms) and for considerable periods muslim scholars remained reluctant to rely upon the doctrine of Ijtihad since this exercise implied questioning the time-honoured (though static) sharia principles o Raises challenging qu's about the apparent inconsistencies between sharia law and modern HR law
 Contextualising the principles of the sharia and Islamic family laws o Principle sources of sharia and Islamic family laws (quran and sunna) represent progressive values and the legal regulations extrapolated from these sources seek to advocate welfare of women and children
 Both the quran and sunna introduced substantial improvements in the standing of women
 EG. Awarding legal personality to women - indp right to enter marriage (as a civil contract) o But sharia permits polygamy and it is legitimized under the quran and the sunna - raising issues of equality and non discrimination
 *Note: this is why Islamic states have had to make reservations to the convention on the elimination of all forms of discrimination against women
 Muslim males can marry women of the book but females can only marry muslims
 A valid marriage can be contracted from the age of puberty
 Islamic schools granted parental authority to enforce child marriages, with the option of puberty (ie. the marriage is rescindable when the child attains puberty)
 Women cannot have more than one husband o What were the reasons for legitimizing polygamy and can it still be justified (given the fact it is prohibited in intl law)?
 Instant response is to argue that sharia has been insensitive to women's rights and that continuation of such practices as polygamy is discriminatory and contrary to modern human rights law but author argues this hastiness in the condemnation of historic Islamic principles fails to take account of the contextual and flexible nature of the sharia and rules of Islamic family law
 Argument: the quran and the sunna provide a reformist and enlightened code of family values to a society which was engaged in substantial violations of womens and children rights
 In terms of the classic sources of sharia, monogamous relationships are seen as the ideal form of association
 EG. Quran: the purpose of polygamy is securing 'justice for female orphans' and the verses of the quran should not be interpreted as granting unrestricted licence for continuing the institution of polygamous marriages because if you actually look at the text polygamy within sharia is highly restrictive and has caveats and conditions
 But given the changes in social, political and legal environments, the fact that the practice is continuing requires substantial explanation bc the historic reasons for justifying polygamous marriages (eg. surplus of women and loss of men through armed conflict) are no longer tenable
 However it is still the case that there is a huge socio economic imbalance between the position of men and women in Islamic societies and there is an absence of a social security network within contemporary Islamic states to prevent the exploitation of economically dependent vulnerable divorced women
 Until complete equality between men and women is reached, polygamy as an institution could arguably serve to protect these women who would otherwise be condemned, discarded or abandoned as a result of the operation of divorce laws
 Important to note that reliance has been placed on the legal doctrine of takhayyar (eclectic choice - selecting the most appropriate doctrine from existing

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