Written evidence submitted by Rehana Parveen

a)      Introduction:

The purpose of this submission is to provide evidence based research regarding the role of sharia councils within the UK and to provide recommendations regarding their future.

b)      Executive Summary

1. Sharia councils provide an important service for Muslim women. The overwhelming majority of applicants to sharia councils are Muslim women who require a religious determination regarding the status of their marriages. Access to a sharia council is an important way for Muslim women to exercise their right to a religious divorce.
2. Muslim men do not have the same need for sharia councils because of the way in which Islamic law provides for differing methods of divorce that are available to men and women. Islamic law allows Muslim men to pronounce a unilateral divorce (known as a talaq) without recourse to any court or other authority.  Muslim women do not have the same method of divorce available to them. Without a sharia council to provide a religious termination of her marriage, a Muslim wife can potentially be left in a very unfortunate position of a ‘limping marriage’.
3. There are a number of improvements that can be made which would enable sharia councils to provide a more efficient service which is more tailored to the needs of Muslim women whilst remaining faithful to normative Islam.
4. There are two main roles for sharia councils:
1. To provide a religious determination regarding the status of the religious marriage.
2. As a forum for mediation, within an Islamic framework, regarding ancillary matters such as children or finances, for parties who consent to this. This will require appropriate training for those who wish to act as mediators.
5. There is potential for greater co-ordination and co-operation between civil courts and sharia councils.
6. Sharia councils should remain as voluntary organisations. However they should be subject to quality assurance via a national code of conduct. 

c)       My personal background:

1. I am a former solicitor who has left private practice in order to teach Law at undergraduate and postgraduate level. I am also a practising Muslim woman.
2. I have completed both an LLB and LLM in Law. My LLM is from SOAS and is in Islamic Law.
3. From 1993 to 2002 I worked in private practice, initially as a trainee solicitor for two years and then as a fully qualified solicitor for seven years. I primarily specialised in English Family Law and was a member of The Law Society Family Law Panel. I worked in both Birmingham and London.
4. From 2002 until 2011 I was employed as a Lecturer at the University of Law in Birmingham (formerly known as The College of Law). I taught postgraduate and vocational courses to students wishing to qualify as barristers and solicitors.
5. In September 2012 I began working on my doctoral thesis, the title of which is ‘Do Sharia Councils Meet the Needs of Muslim Women?’. I am due to submit my thesis within the next academic year[1].
6. I am currently employed by the University of Birmingham as a Teaching Fellow in the Law School, teaching Equity and Trusts and Family Law to undergraduates.

d)      My research methodology:

1. The sharia council which agreed to allow me access to their files and to my observations of them was the Islamic Judiciary Board (‘IJB’). The IJB offices are situated within Green Lane Masjid & Community Centre (‘GLMCC’) in Birmingham. GLMCC is one of the largest mosques in Birmingham and on its website it states that it is committed to providing a service to the community in accordance with the teachings and strict adherence to the Quran and authentic  Sunnah[2]. It caters for both men and women and has a team of staff providing a wide range of regular activities[3]. GLMCC also serves as the head office for affiliated masaajids under the banner of Markazi Jamiat Ahle Hadith UK. This is a nationwide affiliation of mosques and according to the GLMCC website there are forty eight mosques including GLMCC itself who are members of this affiliation[4]. It therefore represents a significant body of Muslims in the UK.
2. The IJB has never previously been the subject of any academic scrutiny. It has been operating as a sharia council for around eighteen years and although its offices are within GLMCC, it operates as a separate entity to GLMCC. The IJB has two administrators and a Board of Members. One of the Board of Members also acts as a Chairman of the Board. Members of the Board are appointed via their affiliations through Markazi Jamia Ahle Hadith UK.
3. My empirical data consists of the following:
1. Data from 100 closed files from the IJB. A standard template was used to record specific data from each file.
2. Observations of meetings conducted by the Chairman of the Board. The Chairman of the Board held meetings with either a wife or husband alone or held joint meetings. I was able to observe both types of meetings.
3. Observations of  Board Meetings where eleven cases were adjudicated upon.
4. Interviews with twenty Muslim women who had been through a sharia council process. Many of these women had also been through a civil court process concerning the breakdown of their relationships and as such were able to offer some comparisons of their experiences between the sharia council and civil courts.

e)      Why would a Muslim woman go to a sharia council in the UK?

1. In order to answer this question, a brief explanation of Islamic law of divorce is needed. First, however, just to clarify, the IJB does not, as an organisation, conduct marriages. It therefore has little involvement with parties when they get married. I would expect this to be the case for all sharia councils. The IJB only becomes involved in a case when a party makes an application to it and this is normally for a termination of the marriage or matters related to termination. As has been well documented in research carried out by other academics, the overwhelming majority of applications made to sharia councils are by women who wish to obtain a religious divorce.
2. Islamic law differentiates in the methods of divorce available to men and women. For the sake of brevity I will set out only the main methods of divorce used by Muslims to terminate their marriages in a manner which conforms with Islamic law.
3. At a basic level, normative Islam provides a Muslim man with the right to pronounce a unilateral divorce and this is without recourse to any court, tribunal or other body. A Muslim man can simply state that he is divorcing his wife and this is known as a talaq. On the pronouncement of this talaq, the wife enters into a state known as iddah, which normally lasts either three months or three menstrual cycles. During this period of iddah the wife is not free to remarry, the husband is obliged to maintain her, and provided this is not the third time the husband is pronouncing a talaq, the husband can choose to revoke the divorce and resume his marriage with his wife. The husband’s right to revoke the talaq is his unilateral right, just as his right to pronounce the talaq was his unilateral right. If the husband does not revoke his talaq during the iddah period, the divorce becomes effective and each party is free to re-marry (even to one another if they so choose) as far as Islam is concerned.
4. If this is the third occasion on which the husband is pronouncing a talaq, he no longer has the right to revoke that divorce during the period of iddah, nor can the parties simply marry one another after the iddah has ended. Should the husband wish to reconcile with his wife, this can be done only after a new marriage with another man has been entered into by the wife and then terminated[5]. This requirement for a fresh marriage and divorce is to prevent husbands from repeatedly divorcing and reconciling with their wives.
5. It is entirely possible that Muslim couples are religiously divorcing without the matter ever coming before a sharia council. The sharia council would have no involvement where a husband pronounced a talaq and no party made an application to it. If a husband exercises his right to a talaq the wife is entitled to her mahr[6].
6. Muslim women have no such similar power to divorce, as of right. It is possible for a Muslim man to delegate his right to a divorce to his wife, but otherwise there is no similar power. Instead, Muslim women who wish to end their marriages will normally use either of the two most well-known and accepted methods of divorce available to them. First, a wife may attempt to negotiate her way out of the marriage. This is known as a ‘khula’, whereby the husband consents to the ending of the marriage and this can be with or without consideration, depending on the agreement reached by the parties[7].
7. Secondly, if the husband will not consent to the ending of the marriage, the wife must apply to an authority for a judicial termination of that marriage. This is known as a faskh and this is where a sharia council becomes very important for Muslim women[8].

f)        My research was conducted with one specific sharia council and I will seek to explain the manner in which that council operated. The process at the IJB is as follows:

1. A standard application form is completed and a fee of £150.00 is paid. This fee can be waived at the discretion of the IJB. The IJB will carry out some identity checks.
2. A letter is sent to the Respondent informing him of the application and inviting him to get in touch with the IJB in order to put forward his account.
3. The Applicant is called in for an interview and a more detailed account of her circumstances is taken. This step can be taken either before step 4 below or after step 4, depending upon how much information has been provided by the Applicant.
4. If there is no response from the Respondent the IJB will continue to attempt to contact the Respondent and will attempt to satisfy itself that the Respondent is at least aware of the application. The IJB will give the Respondent at least three opportunities over a period of three months to get in touch with them. If the Respondent still fails to respond and the IJB has exhausted all reasonable methods of contact, the file is presented to a Board Meeting.
5. If the Respondent gets in touch, the IJB will enquire from the Respondent what his views are.
6. The IJB then decides whether to hold individual meetings with parties or a joint meeting. Issues concerning the breakdown of the relationship, its consequences and the possibility of reconciliation are explored with the parties. Also the impact of any civil proceedings are considered and the husband is asked if he will consent to a khula. If no agreement can be reached the file is sent to a Board Meeting.
7. The Board sits every 6 to 8 weeks. Normally a whole day is set aside and all the files where either the Respondent has failed to respond or no agreement has been reached, are presented to the Board. Only Board Members and administrative staff attend Board Meetings. On each file a decision is made regarding the religious status of the marriage and parties may also be given other advice, for example, parties may be advised to commence civil proceedings if they have not already done so.
8. Parties are notified in writing of the Board’s decision. If the marriage is judicially terminated, a certificate confirming the same is sent out with the reasons set out on the certificate.
9. The foregoing may be considered to be the standard process of an application before the IJB. However, the IJB does maintain a flexible approach and considers specific requirements on a case by case basis.

g)      My findings:

1. From the closed files:
1. I created a template and took data from 100 closed files. Some of the important trends and findings are as follows:
2. All applicants were women and all were applying for a termination of their marriages. The majority of the women identified themselves as Pakistani (64 files). Other ethnicities included Bangladeshi, Yemeni, Somalian, European/Converts, Afghan, a range of African and Middle Eastern countries. So although the majority of women are from a Pakistani background the IJB does deal with a range of other ethnicities.
3. All applicants were eventually granted dissolutions of their marriages. However a dissolution can come about in a number of different ways:
4. Of the 100 files examined, 56 marriages were terminated by a faskh via a Board Meeting. Another 39 marriages were terminated by a khul which required the husbands’ consent. In one further case the husband pronounced a talaq during the course of the application and in 4 additional cases the Board issued a fatwa: a ruling which confirmed that the husband’s actions had amounted to a talaq. It is clear that the majority of marriages were only dissolved by the IJB giving a ruling to this effect. Even in the 39 marriages that ended by agreement, it is reasonable to assume there was some reluctance on the part of the men to end the marriages, as they could have simply pronounced a talaq, rather than going through the process of a khul.
5. A significant proportion of Respondent Husbands seemed to be reluctant to engage with the IJB and at times some questioned the authority of the IJB to pronounce a dissolution of a marriage. Notwithstanding this, in most cases the IJB were able to elicit some sort of response indicating that the husbands were at least aware of the application. In 44 cases the husbands responded almost immediately and engaged with the process, in another 30 cases they responded after a number of attempts had been made to contact them. From the files it can be seen that the IJB used a variety of methods to satisfy themselves that husbands were aware of the proceedings[9].  For the rest of the cases either the husbands did not respond to the IJB at all or they responded to inform the IJB they were not willing to participate in this process. 
6. An issue that has received increasing attention in recent years is that some Muslims enter into religious marriages (a nikaah) but not civil marriages. As a consequence they are not considered by English law to be married. From the closed files which I analysed, 68 couples had entered into marriages recognised by English Law. Another 29 couples had entered into nikaah-only marriages. A further 3 couples had married abroad and the IJB had doubts as to whether the marriage would be recognised by English law. Those who enter into nikaah-only marriages are treated as cohabitees for English law purposes.
2. From the interviews and observations:
1. Muslim women are not one homogenous group. In the interviews the women expressed a range of divergent views regarding, inter alia, sharia councils, their experiences of sharia councils and civil courts, Islamic Family Law and English Family Law. There are however some trends which can be identified.
2. All of the women that I interviewed expressed the importance to them of their religious marriage and religious divorce. They considered themselves to be married from the time when they entered into a nikaah and divorced  when they received a religious termination of the marriage. This was irrespective of whether they had entered into a civil marriage or not.
3. Family support in obtaining a religious divorce was important to the women. Most of the women felt that their families supported them throughout the divorce process. Some women stated that although their families were not initially happy with their decision to divorce they did ‘come round’ eventually. None of the women said they had been pressured to go to a sharia council, rather, if their families were unhappy with the ending of the relationship, they would be more likely to try and dissuade them from trying to obtain a religious divorce.
4. Many of the women commented on the lack of female staff at the IJB. They said they would have felt more comfortable speaking to a woman about personal or intimate matters. Access to suitably trained and qualified female support staff needs to be given consideration as a priority by the IJB.
5. The IJB appears to consider issues of vulnerability or safety of women on a case by case, ad hoc basis. Whilst it does take some sensible, practical steps on individual cases to ensure any risks of harm are minimised, the IJB needs a more systematic approach for identifying vulnerability and addressing it. It needs to be more proactive in this regard and not simply wait for the women to request additional support. The service that the IJB provides does ultimately meet women’s needs in providing them with a religious dissolution of their marriages, but the service needs to be tailored to the needs of women better.
6. Many of the women seemed confused regarding the purpose of meetings. Sometimes meetings are convened to gather information, sometimes in order to consider reconciliation, other times to ‘persuade’ the husband to consent to a khula. The objectives of meetings need to be made clear at the outset and preferably in writing.
7. Some of the women expressed a desire for discussions regarding children and finances to be undertaken within an Islamic framework and felt sharia councils could do more in this regard. Other women were happy to leave these issues to a civil court to decide.
8. Generally speaking the women who had been through both a civil court process and a sharia council process, felt there were aspects of the civil process which were more professional and efficient. One of the key reasons for this was that they were kept well informed and up to date regarding the progress of their cases, usually by their own solicitors. The main criticism of the sharia council process appears to be the delay involved and having to continually ‘chase up’ for updates. However when it came to the outcome, the women viewed their marriages as formed primarily by the nikaah, so the termination of this by the sharia council was of greater significance to them than the civil divorce.

h)      Nikaah-only marriages

1. From the files it was not possible to ascertain why couples chose not to enter into civil marriages. Although this issue was not the main focus of my research, I did raise it in the interviews. The general response was that the women did not consider the civil marriage to be important to them, other than to satisfy the legal system. None of the women that I interviewed felt ‘married’ by the civil marriage and all stated they only considered their relationship as legitimate from the nikaah. In many respects it could be argued Muslims are behaving in exactly the same way as the rest of British society. As increasing numbers of non-Muslim couples are choosing not to marry but rather to cohabit, Muslims are behaving in the same manner but with an Islamic version of cohabitation. A Muslim couple who enter into a nikaah that is not valid for civil law purposes are co-habitees and no different from any other cohabitants as far as English law is concerned.

i)        Relationship with English Law

1. Most of the women were not asking for sharia councils to be given the same recognition as civil courts. Neither was the IJB itself asking to be given recognition as a court.
2. The IJB was making use of aspects of English law in order to pronounce a religious termination of a marriage, for example, if a husband had either petitioned for a civil divorce or had consented to a civil divorce, then the IJB took that as consent to a religious divorce also[10].
3. The IJB encouraged parties to obtain civil divorces and there were occasions where the IJB withheld a religious divorce until a civil divorce had at least been applied for. The IJB were concerned parties might obtain religious divorces and then be lax in obtaining a civil divorce.
4. The women who had been through both a civil process and a sharia process  felt that going through two separate processes to fully terminate their relationships was emotionally draining. At the very least they asked for greater co-operation between local civil courts and local sharia councils, so that both were aware of what was happening with each process. The IJB expressed a desire that civil courts be given powers to withhold the granting of a civil divorce or put in place measures (such as financial penalties), until a husband had enabled a religious divorce to take place.
5. Whilst most of the women were not advocating for sharia councils to have the same status as a civil court, they did express an interest in having the opportunity of discussing issues concerning children or finances within an Islamic framework. They felt this should be voluntary and allow them the option of going to a civil court, if they were unhappy with the outcome.
6. Many of the women felt that sharia councils lacked the ‘professionalism’ of civil courts and needed to be run in a more efficient and professional manner.
7. I did not observe the IJB making any ‘orders’ concerning children or finances as it recognised it had no power to do so. However, it did encourage parties to discuss these issues, particularly with regard to children and advised them to apply to civil courts where parties were in dispute. One aspect of finances which has limited recognition in English law and which the IJB did discuss with parties where relevant, was the payment of mahr. Mahr becomes important on the pronouncement of talaq and also in negotiations for khula.

j)        Recommendations on the way forward for the IJB and sharia councils in general.

1. My observations and interactions were with one sharia council. From this I have attempted to extrapolate more general recommendations regarding the future of sharia councils.
2. Sharia councils are important for Muslim women. They perform a function which is particularly important for a Muslim woman in providing a religious determination on the status of her marriage, when her husband will not agree to the ending of the marriage. A Muslim man does not need access to a sharia council in order to dissolve his marriage. So it is appropriate that sharia councils consider the needs of Muslim women as they are the primary users of their services.
3. There have been a number of criticisms of sharia councils, some of which are legitimate and echoed by the women that I interviewed. However the answer is not to ban sharia councils and indeed this is not what the women that I interviewed asked for. Banning sharia councils will be to the detriment of Muslim women who practise normative Islam and accept the differing methods of divorce available to men and women.
4. One of the ways in which to improve the service that sharia councils provide is to identify a code of conduct which would allow for a quality assurance benchmark. Particularly as the women’s main criticisms of sharia councils were concerned with the quality of the service provided rather than the outcome.
5. There is potential for greater co-operation between sharia councils and civil courts, whether on a local or national level. This is an area which needs further research and needs the expertise of English and Islamic legal scholars.
6. For those who wish to negotiate any disputes concerning children and finances within an Islamic framework, there is potential for sharia councils to operate as approved forums providing mediation services.

Rehana Parveen
Teaching Fellow at The University of Birmingham

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