Divorce in Scots law and Sharia law
The place of Sharia law within the Muslim community in Scotland in the context of marriage and divorce, the Sharia grounds of divorce, and how mosques are responding to changing needs for advice and guidance
There appears to be a widespread public misunderstanding of the principles of Sharia law, and the purpose and involvement of Sharia tribunals and their place within the UK. This misunderstanding is not restricted to non-Muslims. First, it needs to be made clear that there are no Sharia courts in the UK – they don’t see themselves as such and it is not a title they use. They call themselves councils, and see themselves as tribunals or mediation centres with a focus on assisting parties. They play an important role for Scottish Muslims and complement the civil legal system.
These councils consist of selected local elders or wise individuals in the Muslim community who give up their time and draw on their knowledge and experience. They do not deal with child custody or contact disputes. They also do not determine disputes in relation to financial or property matters, deferring such decisions to the Scottish civil courts. Their focus when it comes to family law matters is in fact quite narrow: they deal with religious marriages and focus on reconciliation and mediation when dealing with relationship breakdowns or divorce. They apply Sharia principles in a fair and useful way, focusing on equality and fairness for both parties.
Many Muslim couples getting married in Scotland do so by way of the religious ceremony of “Nikah” under Sharia law. The difficulty is that in Scotland there is no formal register of “Nikah Namas” (Islamic marriage certificates), so if the parties do not obtain a certificate at the time of the marriage, they cannot prove the religious wedding took place. Some of the smaller mosques issue their own Nikah Namas, but there are no records kept, and there is little consistency as things are done differently in each mosque and by each imam.
In Islam there is in fact no requirement that the Nikah be carried out by an imam or someone who has Sharia knowledge – in fact the Nikah can be carried out by just about anyone, and there are occasions when this is done to facilitate a quickie marriage, called “Muttah”. Those who justify this argue that it is better to carry out the Nikah ceremony, thus making the marriage “halal” in Islam, rather than allow two parties to have a sexual relationship outwith Nikah, thus engaging in sin. This justification is wholly condemned by many mosques as making a mockery of marriage, but nevertheless it is recognised that it does happen and it is a problem.
In order to ensure that the marriage is legally recognised in Scotland, many couples now choose to combine the two and carry out the religious ceremony and civil marriage at the same time. They hold the religious ceremony and ensure the celebrant is also registered under Scots civil law to marry. Many mosques in Glasgow are working together with none of them issuing Nikah Namas. They encourage couples to hold the religious ceremony and obtain the necessary documents from the civil registrar so that the marriage which takes place is recognised and registered. Once the religious vows are taken, the couple then sign the civil marriage documents and have these registered. This gives proper and full legal effect of a civil marriage under Scots law as well as Islam.
For some individuals this may not be a concern, if it is enough that the marriage is recognised under Sharia law. However, problems may and do arise when things go wrong and in situations when the marital relationship breaks down and a divorce is sought. This is a consequence of an attempt to juxtapose two legal systems where only one has the force of law of the country in which the parties reside. Whilst we can acknowledge the attempts by Muslim councils/bodies to arbitrate in such situations, we should also be familiar with the problems that arise where one of the parties refuses to be bound by their advice. Further difficulties arise when you consider that the advice of these bodies may be inconsistent or differ depending on which mosque or which imam you go to. In any event, the fact is that the binding law in such situations would be Scots civil law only.
Divorce under Sharia principles
Many of our Muslim clients are subject to both Scots civil law and Sharia law. Being a female Muslim solicitor myself, clients often ask me whether, once they obtain divorce in Scots civil law, that means they are also divorced under Islam or do they need to take any other steps to divorce under Sharia law? If a client were to ask about Spanish law or Dubai law, one can contact a lawyer in that jurisdiction to explain how that law works. Unfortunately there is no such facility for Sharia law, since there are so many different approaches and schools of belief. My advice to these clients is therefore to explain that whilst I could deal with their divorce in terms of Scots law, I would refer them to their local mosque and their local imam who I consider is better placed to advise them in terms of Islam and their options for divorce under Sharia law.
There is a huge focus in Islam on reconciliation and mediation as a first step when a relationship breaks down. Both parties are given the opportunity to air their grievances and are supported in trying to work through their problems in an effort to reconcile. Only where this has been attempted and cannot be achieved does Islam look at divorce.
As far as grounds for divorce under Sharia law are concerned, these can be put broadly into five categories, all of which are discussed in detail below:
1. Mutual consent
The first category is divorce by mutual consent of both parties. Where the parties agree that the marital relationship has irretrievably broken down, and both are in agreement that divorce is the only viable option for them, they can divorce. In terms of Scots law and the simplified divorce procedure where both parties sign their consent to the divorce, or the extract decree states that the order for divorce was granted with consent, that paper is enough to satisfy the requirement of divorce under Sharia law also. There is then no need for any separate procedure to be taken, and the one action covers both legal systems.
2. Talaq (by the will of the husband alone)
The second category is divorce raised unilaterally by the will of the husband. By default under Islam the authorisation to seek a divorce is given to the husband. The basis for this can be found in the Quran. This is also known as the talaq procedure. The talaq procedure of divorce is not a form which is advocated by many mosques. They recognise that such talaq divorces can often be given by the man without fair notice, possibly in the heat of the moment and without any opportunity for the wife to take part in proceedings. Sharia councils recognise this. It is precisely for this reason that the second main role they play is to deal with granting religious divorces to women. This will be discussed in more detail below.
3. Delegated talaq
The third category of divorce is the rarest. It is called “talaq e tofa” or “talaq e isma”. This is where divorce is instigated by the wife with permission is specifically delegated and mentioned in the marriage certificate or Nikah Nama. Since marriage is a marital contract, a women can put down any clause in the marriage contract which is not contrary to Islam or contrary to the teachings in the Quran.
I have seen many Nikah Namas or Sharia marriage certificates, and I must admit that although the question is always contained there, usually it is left blank. I suggest it is the responsibility of the wife-to-be to ensure her rights are covered. I would always advise my clients to ensure that this condition be included in the marriage contract, almost like a pre-nup to ensure that she has the right to seek divorce. It seems parties know little about the importance of this and it is also not an easy thing to bring up at the time of the marriage. However I suggest it is important, and women should be aware of their right to this. They should also bear in mind they can include any condition at all which they wish to include. The woman can even say, for example, “I do not want my husband to take a second wife as long as I live.” She cannot however say that she does not want her husband to pray, since prayer is compulsory in the Quran. She can say, “I too want to unilaterally have the power to give a divorce.”
4. Khula procedure
The fourth category of divorce in Islam is where the wife does not have the right in the marriage certificate to raise divorce proceedings, but where she wants a divorce. She can request a divorce from her husband using the khula procedure. This is where Sharia councils are playing an increasing role in current times. In the normal case, under Islam the husband has been given the authority to instigate divorce. On first blush this seems unfair to the wife. However, on closer examination it transpires that in fact the loser is the husband, not the wife.
During the marriage the wife is on the receiving side. In Islam, as part of the marital vows which are witnessed by everyone at the wedding, the bride receives a marital gift from the groom called mehr (or hak mehr), which is compulsory. The mehr can be in the form of money or possessions paid or promised to be paid by the groom to the bride at the time of marriage that legally becomes her property. It is the groom who gives mehr to the bride and that can be for any amount at all and is completely at the discretion of the bride. She chooses how much mehr there should be and if the groom wishes to marry her then he accepts her chosen amount of mehr. There is absolutely no limit to the amount of mehr a bride can demand, or a husband may wish to give at the time of their marriage – it can be as much as a whole treasure, or it can be as humble as a pair of sandals! Whatever the mehr, it then becomes the property of the bride. The mehr is normally paid in full at the time of the marriage. There can be occasions where only a part of it is paid. In both cases, it is recorded in the Nikah Nama or marriage certificate what the amount of mehr is and whether it was paid in full, or if not, how much was paid and how much is still outstanding.
The thinking behind this requirement for mehr is that the basic financial security of the female should be covered. If the husband gives the divorce to his wife then he loses the mehr (or if only partially paid, he has to pay that in full before he can divorce), since this belongs to and remains the property of his wife. If the wife then chooses to remarry, she retains the mehr from her previous husband and also gets mehr again from her new husband. If the husband divorces and then remarries, he needs to give the new wife mehr and does not recover the mehr he paid to his first wife. Imagine then the scenario under Islam where a woman keeps on marrying and divorcing – she will keep getting mehr and gets to keep this each time, so the loser is the man.
5. Unreasonable behaviour
There is a fifth category of divorce, which surprisingly enough complements Scots law. This is “talaq e fasq”, which is where the husband's behaviour is unreasonable. The fifth category is the only one where when Sharia councils are involved. They recognise that reconciliation is not in the best interests of both parties and the wife should not be persuaded to reconcile. They then encourage the husband to act fairly and divorce his wife. If the husband does not agree to divorce but there has been unreasonable behaviour on his part, in other words he has been ill treating her, does not fulfil her rights or there is domestic abuse involved, then she can seek divorce on these grounds.
It therefore appears that under the Sharia legal system the wife has various options available to her for divorce. The default position is that the husband instigates divorce proceedings, but in the circumstances where the husband is acting unreasonably and his behaviour is such that the marriage has broken down, the wife can request he consent to divorce, which failing she can involve the Sharia councils/tribunals and with their assistance obtain the religious divorce she requires. In some respects therefore, Sharia law has even been much more progressive than Scots law, since it recognised the need for divorce on the basis of “unreasonable behaviour” before it was brought into Scots law.
The need for reform in Sharia councils
There is therefore a clear place in Scotland for Sharia councils or tribunals and they can and have existed for many years without any controversy or difficulty. Indeed a comparison can be made with Catholic tribunals or Jewish tribunals, which seem to provoke less controversy and discussion albeit their purpose is similar for the people they represent and assist. Having said this, there are difficulties which do exist and which are in urgent need of reform. The first is the makeup of Sharia councils and their visibility to Muslims and non-Muslims alike.
There are no female members of any Sharia councils or tribunals and this needs to change. There are many female Sharia scholars in Scotland but none who are part of these councils. The involvement of female members would certainly bring a fresh outlook which would be welcome. The difficulty also is the lack of uniformity or structure in the local mosques for giving clear guidance or advice. Each mosque has its own procedure and each imam gives his own advice. There is no register of imams and no regulation of them. Indeed an imam does not even require to be qualified in Sharia matters to a specific level before “qualifying” for the title of imam. An imam is simply one who is appointed by the mosque members to lead the congregation in prayer.
Many mosques recognise this and also recognise the changing needs and requirements of Scottish Muslims. What first generation Scottish Muslims required, and the problems and solutions they sought, are not necessarily those now shared by third generation Scottish Muslims. There is a move away from close knit community and decisions made by elders. Where previously three generations often lived together this is not the case now. The problems they experience now and the solutions they seek are definitely not the same. The Sharia councils need to recognise the changing environment in which they exist, and adapt to ensure they remain relevant to Scottish Muslims and their increasingly diverse ways.
There also needs to be more consistency in approach and better marketing and advertising of their services so people know they are there. Whilst many people are aware that mosques in Birmingham or London deal with Sharia divorces, not many people in Scotland are aware that mosques in Glasgow are working together and have a consistent approach. In 2013, in clear recognition of this problem, a group of Islamic scholars in Glasgow got together and set up a service to deal specifically with these issues. Mudrasa Islam ul Taleem in Nithsdale Road offers a free service to all Muslims. They offer guidance to men and women on a wide range of religious matters including Sharia divorce, and take great care and keep careful records of the advice they give and decisions they make.
Maulana Aslam, who is a highly respected and very approachable Islamic scholar, met me to explain about the daily issues which they are asked to deal with. They provide a confidential and approachable service which is very impressive, but this has grown without any marketing being done. What started out as a service to sit alongside Islamic teaching is now becoming a full time service with increasing demands on both time and resources, all of which are being provided by members on a pro bono basis. This is also not something all mosques and Sharia councils are equipped or resourced to provide. Shaukat Ali is the first point of contact at this organisation and he works tirelessly and takes great care and attention of anyone who seeks Sharia advice and guidance. The organisation and its members are very approachable and have done great work in this area.
They are often inundated with queries and requests for advice. They have done well to cover an increasing number of mosques (including Glasgow Central Mosque), all of whom now refer their members to this organisation to assist in dealing with advising and granting Sharia divorces. However it is a massive undertaking to roll this out throughout Scotland, or indeed to involve and bring all mosques to work together to ensure consistency of advice, but this is something which is being recognised and worked towards.
The Home Secretary, Theresa May, recently set out her plans to commission an independent investigation into these organisations. She indicated that this review was part of a package of comprehensive measures to tackle Islamic extremism. An investigation should be welcomed so that a proper understanding can be obtained as to their role and purpose, thus providing clarity and highlighting the problem areas.
However, doing so in the context of talking about Islamic extremism is dangerous and careless. It is unhelpful to fuel misconceptions and misunderstandings further. The Government should therefore take care and understand these organisations and their place before making any comments. They ought to assist these organisations and work with them to help them grow, rather than criticise and undermine them. There is no reason why they cannot work with each other to the benefit of both structures, and provide clarity and consistency which will not only help Muslims but also promote understanding of Sharia principles to everyone. An investigation is therefore to be welcomed so that a proper understanding can be provided, giving clarity to Muslims and non-Muslims alike.
Khalda Wali is principal solicitor with LKW Solicitors, Glasgow
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