Written evidence submitted by Muslim Women’s Advisory Council (MWAC)

Introduction

MWAC is a women’s group, created by women for women and operates under the umbrella of Aanchal, Women’s Aid (AWA), a registered charity. AWA supports women and their children who are affected by domestic abuse. AWA helps in their rescue and rehabilitation and provides them with tools to rebuild their lives.

MWAC was established as a response to the needs of a very specific group of Muslim women who are vulnerable and have suffered domestic abuse. MWAC complements the holistic services provided by AWA for that group of Muslim women who seek a divorce but who have only been married through a Nikah ceremony (Islamic marriage).

Our unique Approach

1. MWAC is very different to other organisations that may promote themselves as traditional Sharia Courts or Councils. We purposefully did not adopt the title of a sharia court or council so as to differentiate ourselves from other services. We provide solutions entirely consistent with sharia law through processes which are respectful of women’s rights and recognises the specific challenges they face. For example:

i. We start from a simple proposition that justice and fairness underpins sharia law. Therefore, the evidence of a woman is received on the same basis as that of a man and given equal weight.

ii. We recognise the harm which can result through the use of mediation in situations of domestic abuse and will not refer victims.

iii. We have implemented processes adopted by the English Courts to support women in the giving of evidence such as women not having to give evidence in the presence of their husbands.

iiii. We avoid further confrontation between the parties by the tribunal undertaking the task of exploring disputed evidence rather than the husband himself.

v. The women only panel includes a qualified English lawyer whose role is to ensure that the process does not offend English law in terms of the public interest.

We have no formal links to any mosques nor are affiliated with any Islamic organisations and are perhaps, the only organisation set up specifically to deal with Islamic divorce where initiated by the woman. However, in accordance with Islamic law, our panel includes an Imam from an established London mosque.

2. We accept that in some circumstances a Sharia Council or adjudicating Imam is necessary. Only they can, where the husband does not agree, make a ruling / formal declaration of the end of marriage. This is an issue because some women are not married under English civil law and therefore, there can be no decision of an English Court on point. Muslim women, must have a means of formally recording the end of their marriage. Central to supporting woman and their rehabilitation is closure. Formal recognition of the end of their marriage is essential for both parties to move on.

3. The scope of the work of MWAC is to make a declaration of divorce only (Talaq, Khula, Faskh). This is mostly undertaken through written applications and less commonly, oral hearings.

4. In relation to any other issues, in particular, financial settlement or matters relating to children, we signpost women to the domestic courts and invite applicants to seek advice of their rights under English Law.

5. MWAC is comprised of four panel members, two of which consider cases and declare a divorce. One of those is always an English qualified lawyer and the other is an expert in Sharia law.

6. All our staff undergo domestic abuse training. Referrals to MWAC are received from AWA, DSV agencies and some are through self referral. At our core, however, is co-ordination between MWAC and access to domestic abuse services through AWA.

7. We enclose extracts from AWA’s internal data:

In 2013, 145 women reported they had negative experiences with current UK Sharia courts. 98% of women in a consultation with Aanchal Women’s Aid reported that they would prefer a woman only Council. 52% reported when they approached Sharia Councils they were told that they were more likely to go to hell for separating from their husbands and they should mediate, putting them at further risk of domestic abuse. Hundred percent of women in this consultation reported that they preferred to approach a Sharia Council whilst making important decisions in their lives, because it made them accept their decisions with a sound mind and have the ability to move forward without fear. Whilst Aanchal Women’s Aid are not involved in any political activity on Sharia courts, Aanchal Women’s Aid acknowledges that women are turning to sharia courts and turned away from receiving support, and that they should be able to access the same laws to protect them within an approachable structure.”

The Future

8. We believe the following would be appropriate measures to address current issues;

A. Mandatory registration of Islamic marriages with criminal sanction on those persons who perform such marriages for non-compliance.

B. A change in the civil law to afford rights to those who have celebrated only an Islamic marriage.

C. A voluntary accreditation scheme for sharia councils.

Mandatory Registration

9. We propose that any person who performs a ceremony of Islamic marriage be required to register the ceremony in a register akin to that held by the Registrar of marriages.

10. We use the term ‘any person’ rather than imam, firstly, to impose personal responsibility rather than institutional responsibility on mosques and also to avoid any difficulty as to defining who may or may not be performing such ceremonies.

11. Mandatory registration is in our view, essential to create rights and obligations arising from such marriages.

12. We use the term marriage to describe such ceremonies but we recognise that under English law a man may only be married to one woman. We do not suggest that the state recognise the status of any second or third wife under English law or in any sense grant it equivalent status.

13. We deal with two distinct scenarios; firstly, where the first and only wife does not have benefit of a civil marriage. Secondly, a group of women who have undergone Islamic marriage where the husband is still legally married to another woman. For example where he has married a woman abroad and the wife remains abroad but he marries again under Islamic law in this country. It would also cover the situation where a Muslim man has more than one wife at the same time.

14. All women in the above paragraph are completely without protection save perhaps under inheritance law if they have been maintained by their partner.

15. We also believe that there ought to be a requirement to notify the register of any divorce under Islamic law. Ultimately the parties may have to resort to a shariah council if there is difficulty in the grant of an Islamic divorce.

Civil law rights

16. Women who are only islamically married abroad eg. In Pakistan, India etc already enjoy full rights as a wife when they arrive here in the UK. This is because the law has long recognised marriages celebrated abroad, where done so in accordance with the law of that foreign country. To say otherwise would mean that those living in this country, but married abroad, would not enjoy the status of marriage, or have the protection of the consequences of marriage under English law.

17. We suggest that a person resident in the UK ought to have the same protection wherever the Islamic marriage ceremony took place. To say otherwise, would be to deny legal protection in particular to vulnerable women in terms of financial settlement upon Islamic divorce.

18. We recognise that Islamic marriages celebrated abroad that do not accord with the civil law of that other country would not be recognised as a valid ceremony of marriage under English law. Eg. An Islamic marriage performed in France. 

19. We therefore propose that the rights discussed in this paper be afforded to any person ordinarily resident in England and Wales wherever the Islamic marriage has taken place. This is important so that the rights and obligations proposed cannot be circumvented by tourism abroad, thus avoiding mandatory registration discussed above. There will of course be implications in terms of evidencing an Islamic marriage in the absence of mandatory registration.

20. English law now properly recognises rights and obligations to those in permanent relationships other than through marriage. It recognises the validity of those relationships even though they cannot be married under English law. Civil partnerships enjoy the same protections as those who are married. Whilst it not appropriate for English law to formally recognise an Islamic marriage, it is wholly necessary for the parties to be afforded the protection of English law from a relationship which in the parties’ eyes is akin to marriage.

21. We therefore propose that English law affords the parties to an Islamic marriage those rights and obligations which are granted under civil partnerships. We suggest this be the default position unless the parties prior to such Islamic marriage agree in writing to forgo their legal rights and this be supervised through independent legal advice. Such a mechanism is already commonplace in for example, prenuptial agreements and separation agreements. We believe that waiver of such rights is essential as parties may chose not to have a civil ceremony for a variety of reasons. The important point is that waiver could only take place if the parties have had full legal advice. Such process would stop men taking advantage of women who may be unaware of the significance of not having a civil registry.

Criminal sanction

22. The Marriage Act 1949, (the Act) sections 75 to 78 create criminal liability upon persons, including the superintendent registrar, in relation to various acts as regards the celebration of marriage in England and Wales.

23. We propose an extension of the Act to create a new offence of performing an Islamic marriage and not registering the same on a register.

24. We do not believe for a variety of reasons that there ought to be any obligation to have a civil registry in accordance with the Act. Such a move would interfere with the freedom to practice religion. Muslims are entitled to marry only under Islamic law which for them creates ‘marriage’. Further, it would also potentially criminalise vulnerable women who are often required to succumb to cultural and religious norms. The responsibility must therefore fall on those who perform such ceremonies.

Voluntary Accreditation

25. We propose that there be a voluntary accreditation scheme for Sharia Councils with oversight by an independent body. Such a body could be drawn from British Muslim society with legal and theological contribution, perhaps appointed through the public appointments commission to ensure transparency and high standards. Whilst there can be no single theological approach to the interpretation of sharia law, there can be oversight in relation to the process and fairness of proceedings.

26. We are, sadly of the view, that self-regulation thus far, has been insufficient to universally safeguard the vulnerable that use their services. There is no one reason for this, but it is inevitable as there is no single entity equivalent to, for example, the synod of the Church of England which can decree a commonality of approach. Nor does the Islamic faith have a structured leadership in perhaps the way the Jewish faith has the Chief Rabbi. We would however argue that the state must take care not to interfere with the autonomy of religious practice. Voluntary accreditation would, however, define parameters in which they would operate.

27. Accredited Sharia Councils would have to demonstrate adherence to universally acceptable principles of equality, respect and protection of the parties. There ought to be an English qualified lawyer on any such Sharia Council.

28. Accreditation would have significant advantages.

i. It would instill confidence to users and the public at large.

ii. It would allow third party referrers to direct users to organisations that met minimum service standards.

iii. It would also allow resources and funding to be directed towards those particular organisations.

iiii. In the longer term, such Advisory Councils would thrive and become the dominant providers of services to the Muslim community.

29. We believe that a key feature would be training in relation to domestic abuse, focusing on awareness and responses. There is a real risk of conscious or sub-conscious bias against women as cultural issues are often intertwined with religion. Specific training is vital to highlight dangers. It is only in recent years, that considerable training has been undertaken in domestic abuse courts here in England & Wales. We believe that the same is needed for those adjudicating in Sharia Councils. Other criteria might include:

i. Standards of service.

ii. Training standards within the organisation and demonstration of agreed competencies.

iii. Adherence to universally acceptable standards of fairness and justice.

iiii. Facilities, premises and access to all users.

v. Any framework would generally respect religious freedom subject to practices which are deemed contrary to public policy. (Awards made through arbitration in England and Wales are subject to challenge in the High Court if contrary to public policy)

30. We believe that Sharia Councils ought to have no jurisdiction in relation to children’s matters or financial settlement arising from divorce. These are issues that are properly resolved through the domestic courts. The critical distinction is that divorce in the circumstances described in this paper simply cannot be adjudicated upon under domestic law.

31. We express no view on whether Sharia Councils ought to have a wider remit, for example, commercial disputes or wills and intestacy. They are, of course, able to operate under the scope of the Arbitration Act and, in that wider sphere, are open to review by the High Court. Thus users have the protection of oversight of the English courts. 

32. The reality is that Sharia Councils exist and will continue to do so. Government is faced with a situation where they either allow the sector to continue unregulated and as it is, or seek to create change through education, training and influence from experts within the Muslim, legal and welfare sectors.

33. In our view, Sharia law has a legitimate role in British society as long as it does not offend domestic law. The two are not mutually exclusive.

Hina Rai

         On behalf of MWAC

            30th October 2016.