How should the law deal with religious marriages?
How should the state respond when the law of the land indicates one side and social reality, as experienced by a section of society, in another way? That dilemma is particularly acute for anyone involved in judging questions of marriage and divorce among Muslims in Britain.
A clear majority of British Muslim couples who settle down together today opt for a religious ceremony, known as a nothing, but chose not to add it with a civil ceremony. This can put a Muslim woman in the worst situation in the event of a marriage breakdown. Her marriage has no apparent standing in law, so there is nothing to dissolve and there is no possibility of acquiring joint assets. In Islamic law, meanwhile, the unilateral dissolution of a religious marriage is a male choice. So the female partner in a failed marriage may find herself tied to her husband (from an Islamic perspective) and also at a financial disadvantage.
But the situation changed on July 31 with the decision of the Supreme Court which gave some light to women in such a situation. The case concerned Nasreen Akhter, a lawyer herself, and her partner Mohammed Shabaz Khan, who is a suspect. Both were now 46, and both were married by an imam in a London restaurant in 1998. She had tried to persuade her husband to have a civil marriage as well, but he was reluctant.
In a cautious decision, the judge considered that their marriage was procedurally flawed but could not be said to be non-existent. For almost two decades the couple had been treated by their extended families, by their community and even by the state, in some contexts, as a married couple. They had obtained documents that allowed them to live as a married couple in Dubai. The judge also considered it significant that Ms Akhter had proposed a civil ceremony again.
“In all respects except the matter of legal validity this was a marriage,” the judge ruled. So it followed that the marriage could be called void, removing the way to claim a share of the couple’s property. The court emphasized that this did not automatically recognize all Islamic marriages only; each case had to be judged on its own merits.
But this week secular activists complained that, in their opinion, the British official is giving an inappropriate position to religious marriages. Although they welcomed the decision, they argue that more fundamental reform is needed, arguing that “the application form for divorce actively encourages women to turn to religious groups.” ” The form warns people that civil proceedings may not dissolve “the religious part of your marriage” and “it is important to contact the appropriate religious authority if you are not sure.” For campaigners, this sounds a lot like an invitation to consult the informal “sharia tribunals”, dozens of which have sprung up in Britain, to adjudicate the cases of Muslim women who have failed to their marriages. In an open letter, activists write:
Our research shows that the power and control of fundamentalist Muslim networks has grown significantly over the past 30 years. This has led to the widespread belief that civil marriage is unnecessary; that women must have a divorce certificate issued by a sharia “court” in an apparently legal procedure; and that they have to get this “certificate” even if they already have a civil divorce… If the government is serious about gender equality and ending violence against women, why does it undermine the validity of a civil divorce under English law? Why is he pushing women to religious courts?
There is one simple answer to that rhetorical question. Women turn to sharia courts because the current situation leaves them with little choice. But if it was made mandatory to have a civil procedure in addition to any religious wedding, women would always be able to turn to the secular courts for a reasonable settlement in the event of a breakdown. marriage That would become the norm, not the exception.