Written evidence submitted by Dr Haitham al-Haddad

Dr Haitham al-Haddad is an Islamic jurist and has served as a judge for the Islamic Sharia Council (UK & Eire) for 15 years. He is currently an advisor to many sharia councils throughout the UK and Europe. He specialises in various Islamic sciences and completed his PhD in Islamic jurisprudence concerning Muslim minorities, in the School of Oriental and African Studies (SOAS). His specific research interests include theories for Islamic jurisprudence in the 21st century, and he regularly contribute to academic conferences across the Muslim world.

Executive Summary

• ‘Sharia’ is in fact Islam, and all Muslims refer to it to some extent on a regular basis.
• It is an integral part of Muslims’ identity.
• The ‘Islamic marriage’ (nikah) is a part of the sharia’s guidelines about interaction between the sexes.
• There are many differences between the guidelines for Islamic marriage/divorce, and civil law.
• As a result, an Imam or a recognised Islamic authority is often required.
• If there is no sharia council then individual Imams will be tasked with the various jobs, for which many may not be suitably qualified.
• Furthermore sharia councils allow experts to discuss cases collectively and thus bring about a superior level of competence, fairness, accountability and transparency.
• There are instances in Islam where men and women are recognised as different and thus treated differently (such as dress code, marital rights and responsibilities, etc.).
• For some of those unaware of Islam’s history and ethics, this would automatically denote oppression of women.
• However the overwhelming majority of Muslims would not regard the mere distinction between men and women as oppressive discrimination.
• Those that disagree with Islam and Muslims should live and let live, especially since there is no objective oppression occurring and men and women are completely free to choose to use nor not use the services of sharia councils.
• Sharia councils carry out a vital function for the Muslim community but are regularly and unfairly attacked by some sectors of society, and are a target for Islamophobia.
• Their usage is completely voluntary, and they do not conflict with the law of the land, nor are they ‘courts’ or a ‘parallel legal system’ as some accuse.
• We have seen the absence of sharia councils in some countries cause great concern and many problems, which have even driven some vulnerable people to other countries to have their disputes settled or Islamic marriages dissolved.
• There are many exemplary models of sharia councils throughout non-Muslim majority countries, and the UK is one of them.
• The government should not interfere with the religious running of sharia councils, however could work with the Muslim community to ensure that safeguards are in place to guarantee best practice.

Section 1: Sharia and Muslims

1. Sharia and the use of sharia has been widely misunderstood. In reality, sharia is nothing but Islam. Muslims eat according to sharia guidelines, they also consider sharia guidelines when they trade and carry out financial activities, and they perform their social activities including marriage and divorce according to sharia. Hence, sharia is part of Muslims’ lives and Muslims’ identity. Some Muslims might adhere to sharia guidelines in every single matter and some ascribe to certain guidelines of sharia. However, from my experience even the least observant Muslims are usually very keen to follow the Islamic guidelines for marriage and divorce.
2. It is vital to understand that the procedures for Islamic marriage and divorce are completely different from those of civil marriages and divorces. It is thus more appropriate to treat them as two distinctly separate contracts. Hence, it is neither possible nor appropriate to apply the rulings of one contract on the other. Among the main differences are as follows:
3. Islamic marriage (nikah) is only valid between two people from different sexes who are not closely related. There can be no Islamic marital relationship between two people from the same sex.[1]
4. The purpose of the Islamic marriage (nikah) is to permit the sexual relationship between both sides while the purpose of the civil marriage is to protect certain financial or legal rights. Therefore, any sexual relationship between two people before a valid Islamic marriage is categorically prohibited and is seen as one of the grave sins in Islam.[2]
5. The Islamic marriage needs four conditions in order for the contract to be valid:
1. The acceptance and approval of both parties. The man and the woman.
2. The consent of the closest paternal male relative of the woman. This is known as her wali and in most cases, this is the father. The Prophet Muhammad (peace be upon him) said, “There is no nikah without the permission of the wali and the presence of two upright witnesses.” This ruling is endorsed by the majority of Sunni schools of thought. However, one school of thought would approve such marriages under certain circumstances (the Hanafi school of thought).
3. The payment of a mutually agreed amount of money or assets by the husband to the wife prior to the consummation of the marriage. This is called the dowry or mahr or haqi mahr.
4. The nikah contract has to be witnessed by a minimum of two male Muslims.  
6. The Islamic marriage or nikah can be performed without an Imam and does not need to be performed in a particular place. However, it is the cultural practice of many Muslims for Imams or religious figures to perform the nikah.
7. Ending the Islamic nikah is different from ending a civil marriage. It can be ended by one of three methods:
1. Talaq, which is initiated by the husband. It can be verbal or in writing. Unlike the civil divorce, it does not need to be performed before a judge. However, there are many cases where a Muslim scholar would act as a judge to issue a verdict concerning the validity of the talaq. There is a period of almost three months to be witnessed after the talaq called the idda period wherein the husband is permitted to reconcile with his wife without the need for a new nikah contract. However this can only happen twice and the third talaq is irrevocable. According to some schools of thought, the three talaqs may be given in one sitting. However, a Muslim judge is needed to study the case and conclude the ruling on the validity of the talaq. Finally, a Muslim judge is also needed to conclude the validity of the talaq if the husband uttered it in a state of anger.[3]
2. Khulu which takes place upon the request of the wife to end the marriage. In this case she needs to pay back the dowry (mahr). This can be performed without a Muslim judge, yet it often requires one to arbitrate disputes.
3. Faskh, or marriage dissolution, can take place only by a male Muslim judge. It is needed when the husband refuses to divorce his wife and she will be helpless. The only resort for her is to approach sharia councils. That explains why we see that 80-90% of the attendees of sharia councils are women.

Section 2: Sharia councils

8. As we said in Section 1, sharia is nothing but Islam and hence whenever there are Muslims, there is sharia. And subsequently, whenever there is sharia, there is a need for a Muslim judge to issue opinions or verdicts and carry out judgments between Muslims on many of their issues, some of which are listed below. It is important to note that these functions may be carried out by individual Imams, however, individual Imams may not be qualified for the range of activities required of them. And more importantly, it is far better for transparency, accountability, neutrality and fairness for these functions to be performed by a panel of Imams and scholars that sit in a body that is registered and established. Such panels are nothing other than sharia councils. The functions and services required of them include:
1. Conducting Islamic marriages (nikah).
2. Issue rulings on the validity of Islamic divorces (talaqs). This includes a wide range of rulings of different scenarios of Islamic divorce (talaqs). These scenarios include:
1. Divorce in anger.
2. Three divorces in one go.
3. Divorce during the wife’s menses.
4. Divorce while intoxicated.
3. Provide marriage counselling.
4. Facilitation of khulu (divorce initiated by the wife).
5. Carrying out faskh or marriage dissolutions.
6. Helping women to get married against the will of their parents. As mentioned in section one, the consent of the wali (closest male relative) of the woman is necessary for the validity of the Islamic nikah. However, he might abuse his right and refuse to approve her nikah to the man she wishes to enter into the nikah contract with. She will be helpless and that might cause tension between her and her family. Sharia councils are the best bodies that can help her by replacing the wali for another or acting instead of the wali.
7. Arbitrate disputes such as those over dowry (mahr).

Section 3: Sharia councils and ‘discrimination against women’

9. Muslims believe that Islam and sharia are divine systems. Muslims believe that God is the best one to decide, generally speaking, how people should live and judge their disputes. It is true that Islam distinguishes between the rights of men and women.[4] Therefore, Islam and Muslims do not view this distinguishing as discrimination against any particular sex.
10. However, some non-Muslims, due to their own paradigm and societies’ history of sexism and misogyny, might force their history and paradigms upon Muslims who do not share them. As a result, some may see the sharia’s distinguishing between men and women as discrimination or oppression. Such people should be educated about Islam because, whilst it is true that some non-Muslim societies historically distinguished between men and women in order to oppress women, it is unfair and problematic to superimpose such a presumption upon Islam and Muslims.
11. At the end of the day, the Islamic divine system is based on the Quran, Prophetic guidance and the consensus of Muslim scholars. It has been there for over 1,400 years and hundreds of thousands of scholars have discussed all possible interpretations and authored millions of books on Islamic Jurisprudence. That cannot be changed, so it should rather be dealt with. Furthermore, Muslim men and women are willingly and happily referring to it on a daily basis. Those who do not want to refer to it are free not to do so. No sharia council has ever forced anyone to use its services.
12. As the world now is nothing but a small village due to modern communications technology, Muslims are becoming more aware and devout towards their religion and identity. Hence, their need to act according to their own faith is increasing and the need for bodies that facilitate their religious needs is rapidly increasing. The absence of such facilities will cause them much grief and many social problems.
13. Whatever anyone’s personal like or dislike about Islam or sharia councils, the most important issue to consider is: what is the alternative? If we banned sharia councils in the UK, Muslims would find other ways to solve their Islamic problems. Either they would use undercover bodies, go to individual imams who might not be qualified to deal with such problems, or they would travel to sharia councils in other countries, as many Muslims that live in Norway, Holland and many other European countries do.

Section 4: Costs involved in using sharia councils

14. Most sharia councils charge applicants to cover their running costs. They charge between £400-£800 per faskh case, as that is the one that needs a lot of work and follow up. Other cases may be charged differently. It is unlikely that these prices will cover their cost. Hence they might carry out some fundraising activities.

Section 5: Sharia in non-majority Muslim countries

15. Non-majority Muslim countries have responded to the need for sharia councils in different ways. Canada for example, assigned certain Imams that are approved as sharia Imams where their decisions are accepted by the authorities. Australia used to have an official Mufti who approves the decisions carried out by a number of Imams. Singapore has an official sharia court. More information can be seen here.[5] 
16. The government should work together with credible, mainstream voices within the Muslim community. It could work with the community to approve certain bodies to act as sharia councils without interfering in theological and jurisprudential issues. Furthermore, it can also approve an independent body for appeals. There might also be a need for multiple sharia councils to fairly represent different sects and schools of thought among the Muslim community in the UK.
17. A further step at ensuring justice and fairness could be for elements of Muslim personal law to be incorporated into English law, which would allay some of the fears of a “parallel legal system” that some may have.