What is really wrong with Shari’a courts


Sharia-2You might, or perhaps might not, be aware that there is a thriving system of alternative courts that serves the Islamic community in the UK. They operate under the banner of “Arbitration” and so are enabled via the 1996 Arbitration act. It might on the surface appear to be of no consequence, especially if what it was really all about was the simple arbitration between two parties by an independent unbiased 3rd party, but the reality is that 95 per cent of the cases (hundreds per year per council) relate to divorce settlements, so the claim that these are all about arbitration between two parties when often one party is often absent is quite frankly absurd, and it then becomes even more bizarre when you begin to realise that the supposedly independent arbitrator, the Shari’a council itself, has a very specific religious agenda and it not a truly neutral party at all.

Appalling as all of this is, none of it is the core of what is really wrong about Shari’a councils, so stick with me and let us take a quick tour that gets to the real issue.

Shari’a in the Independent

I am perhaps inspired to write a bit about all this by a recent article in the UK’s Independent that popped up a few days ago. The article entitled “Sharia courts in Britain lock women into ‘marital captivity’, study says“, and in that story the journalist explains …

Sharia courts in Britain are locking women into “marital captivity” and doing nothing to officially report domestic violence, according to an academic who gained unprecedented access to Islamic divorce hearings.

Judges at the courts “uphold the theory and practice of the strong hold men have over women”, and set out to frustrate women whose husbands do not want them to leave, according to the study seen by The Independent.

The findings, which are to be unveiled in the Houses of Parliament next month, are based on the most detailed and informed analysis of the workings of British sharia courts ever undertaken by an independent researcher.

Machteld Zee, a legal scholar at Leiden University in the Netherlands, secured extraordinary access to the secretive courts, attending 15 hours of hearings at the Islamic Sharia Council in Leyton, east London, and the Birmingham Central Mosque Sharia. She was able to scrutinise more than a dozen cases, and interview an array of sharia experts including nine qadis – Islamic judges.

And as you read on you discover there is some truly morally repugnant stuff going on …

  • A case where a woman who claimed to be married to a physically and verbally abusive man is told by a “laughing” judge: “Why did you marry such a person?”
  • A woman “ready to burst into tears” is sent away without an answer after saying that her husband took out a loan in her name on the day they married and is denying her a divorce until she gives him £10,000.
  • A married couple asking for advice on whether the woman had been religiously divorced from her former husband were told “the secular divorce counts as nothing”.

Is The Independent Story really true, is all this actually happening?

It turns out that the answer to that is “yes” and also “no”.

So to get into it all this and bypass the Independent story we can turn to the blog written by Machteld Zee, the author of the study.

What she encountered at the Sharia council operating in Leyton, East London, is more or less exactly as described by the Independent …

If the husband wishes to divorce his wife, he can unilaterally – without permission of his wife –  do so by pronouncing the talaq. However, if the woman initiates divorce, known as the khul, both parties have to agree to the wife’s release from the marriage contract, and in most cases she is expected to refund the sum of the dowry to the husband. Also, the qadi may rule a divorce without permission of the husband, when he deems one of the Sharia grounds for divorce to be proven, for example when the husband harmed the wife.

It is not uncommon for a man to refuse cooperation until he feels enough money has been paid by his wife

… The Leyton Sharia council does send out letters to the husband to come in and tell their version of what happened. Yet, husbands are known to stall the procedure by not showing up when invited.

Divorce proceedings can thus take years if the husband is unwilling to cooperate, leaving women in marital captivity. This ‘split-status’ position occurs when a woman is divorced under civil law, but is still married under religious law. And not only husbands are stalling. As shown above, the qadi’s can be very reluctant to cooperate as well, leaving women under the whims of their, not seldom, abusive husbands, and dependent on a religious council which is not on their side. 

Now this is where things will take a rather surprising turn for many, because that is just one Shari’a council. There are others out there that have a distinctly different policy and do things very very differently. An example of that was illustrated by the researcher’s visit to review what went on at the Shari’a council associated with Birmingham Central Mosque, and there …

The Birmingham Central Mosque stance, I am told, is that marriage requires mutual love, trust and consent: “In Islam you live in happiness. Religion is for ease, not for hardship”. Divorce procedures here take about two to three months, which is a relatively fast procedure. They do not wait for the husband to respond.

I ask the panel what they think of the Leyton approach (see previous blog) where the qadi’s keep women from getting a divorce by stretching the procedures and thus leaving them in a situation of marital captivity. The white-robed qadi Muhammad Talha Bukhari (picture right) tells me that such a split-status position would mean doubt, and that “marriage should be based on clear facts. You cannot be husband and non-husband at the same time.” They believe in fast procedures, as “the Qur’an has made talaq and khul easy on purpose. Sharia has made very easy grounds for marriage and divorce.”

I tell them about the Leyton case where the qadi told a couple that kaffirs cannot rule on Islamic matters and that the woman’s civil divorce means nothing under Islam. They seem to be appalled. “We totally disagree. We cannot have two laws. This is totally wrong. We live as British citizens and accept the law of the land. Religious law can work with the civil courts on the basis that the law of the land is supreme.” At the Birmingham Sharia Council a civil divorce is deemed sufficient grounds for a religious divorce, and they often do not even have to see these women before granting them a religious divorce. Also, police statements on abuse or a stay in a refuge counts as hard evidence, as opposed to the council in Leyton where any information not confirmed by the husband remains an allegation.

So what is the real problem?

Clearly the folks over at the Leyton council are (and this is the polite version) a bunch of misogynistic tossers, and are a complete contrast to the folks in Birmingham who are far more clearly focused on serving those who come to them as best they can, so what is the real problem here then?

The key is that while almost all Muslims endorse the idea of embracing Shari’a as a good thing, there is no agreement on what that actually means at all. Islam is a collective term that describes rather a lot of distinctly different beliefs relating to the Qu’ran and various Hadiths, and so when it comes to the idea that Allah has laid down specific guidance that should then be implemented, if nobody can actually agree on what that guidance should be, and there is no consensus ever in all of Islamic history on this, then those that turn to such courts are simply submitting themselves to the specific variation of Islamic belief embraced by the Qadi (Islamic Judge) who happens to be preceding over the proceedings that day.

This complete lack of any solid ground is quite frankly rather alarming.

There is much within the many variations of Shari’a that is clearly a relic from the 7th century, namely the idea that the testimony of a women is only worth half that of a man, turning a blind eye to domestic violence, enabling child marriage of very young girls to far older men, unequal inheritance rights for women, etc… and much much more, and all that should face appropriate criticism, but under the covers beyond all that, if nobody can actually work out what Allah is supposedly decreeing and it is all down to religious opinion, then none of this has any business playing any decisive role or influence in human lives … ever.

It is perhaps about here that each and every religious Muslim might leap in with … “Ah yes, but my specific variation of Islamic belief is the true one and everybody else is wrong”. In response, I can only point out that every religious person makes the exact same claim, and that actually confirms the point I m making here.

We need one law for all, one that is blind, totally impartial, and evidence based. If we truly care and wish to see an end to the on-going abuse of basic human rights that takes place within many of these councils, than a Shari’a legal system that sneaks in under the radar and then goes way beyond its official remit of being just Arbitration, needs to be reigned back in.

Know your rights under the British family law

Are you in an abusive relationship (mentally or physically) or thinking of getting a divorce?
Your rights are protected under British law and you are not legally obliged to follow any Sharia Tribunal or Council ruling.

Here’s what you should do first:

a) Collect your passport, copies of your marriage certificate, and details/passports of any children involved.
b) Call the One Law for All Free Advice Helpline on 0800 046 7303.

What you need to prove in order to get a divorce:
You must satisfy the court that one or more of the following is true:

a) Your husband has committed adultery (had sexual intercourse with a person other than yourself);
b) Your husband has behaved so badly that you can not reasonably be expected to live with him. For example, your husband has been violent towards you or regularly upsets you;
c) Your husband has left you and this was more than two years ago;
d) You have been separated from your husband for more than two years and he consents to a divorce;
e) You have been separated from your husband for more than five years;

But what if you have children?
The Children Act 1989 sets out a welfare checklist, which contains factors that the court must consider when deciding who gets to keep the children. These factors include:

a) The wishes and feelings of the child concerned;
b) Their physical, emotional, and educational needs;
c) The likely effect on the child of any change in circumstances;
d) The child’s age, sex, background and any characteristics which the court considers relevant;
e) Any harm which the child has suffered or is at risk of suffering;

For all proceedings under the Children Act 1989 when the court considers a question of the child’s upbringing, the child’s welfare is the court’s main consideration.

Are you worried that your husband might take the children out of the country?
There is a court order which prevents anyone changing the surname of, or removing from the UK (for more than 1 month), any child who is the subject of this order, without the agreement of the other parent. This is known as a residence order.

What if you don’t have children and simply want a divorce, what are you entitled to?
The court would look at all your circumstances and would not grant the husband sole rights over the matrimonial property and assets. If you are married, you will have automatic rights in the matrimonial home, and may be allowed to continue living there. However, it is strongly advisable that you register your interest in any property you share with your husband or partner (especially if you are not married in accordance with British civil law) in order to secure your share. Even if the property is only in one name, you can make sure that it cannot be sold or have further charges placed on it. Visit the Land Registry website: www.landregistry.gov.uk or you can seek advice from a solicitor or a local Citizens’ Advice Bureau. You can find a Citizens’ Advice Bureau near you by visiting www.citizensadvice.org.uk.

Is your partner violent towards you or your children? You can get an injunction to protect you and your family:

Non-Molestation Orders can be granted to stop physical assault – punching, slapping, kicking, pushing, spitting etc or other sorts of intimidating and upsetting behaviour such as abusive telephone calls or threats. Breach of a non-molestation order is a criminal offence.
Occupation Orders require the abuser to keep away from your home, or to allow you to occupy your home without being threatened, harassed or assaulted. This includes requiring him to allow you to re-enter your home if you have been excluded from it. This type of injunction can include a power of arrest.

For more information, contact:
One Law for All
[email protected]
www.onelawforall.org.uk

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