Diversity Religion And Families Notes

Muslim divorce practice and English law – connections and gaps

• 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

• 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 non-judicial 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...