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The Sharia Inquiry, Religious Practice and Muslim Family Law in Britain

This timely collection of essays from experts, scholars and legal practitioners provides a critique and evaluation of the Inquiry findings as a starting point for analysis and debate on current British Muslim family law practices in the matters of marriage and divorce.

In February 2018, the ‘Independent Review on Sharia Law in England and Wales’ was published, headed by Professor Mona Siddiqui. The review focused on whether sharia law is being misused or applied in a way that is incompatible with the domestic law in England and Wales, and, in particular, whether there were discriminatory practices against women who use sharia councils. It came about after years of concerns raised by academics, lawyers and women’s activists.

This timely collection of essays from experts, scholars and legal practitioners provides a critique and evaluation of the Inquiry findings as a starting point for analysis and debate on current British Muslim family law practices in the matters of marriage and divorce. At the heart of the collection lie key questions of state action and legal reform of religious practices that may operate ‘outside the sphere of law and legal relations’ but also in conjunction with state law mechanisms and processes.

This cutting-edge book is a must read for those with an interest in Islamic law, family law, sociology of religion, human rights, multiculturalism, politics, anthropology of law and gender studies.

About the Editor

Samia Bano is Reader in Law, School of Law, SOAS, University of London, UK.

Table of Contents

Introduction Samia Bano

This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. The book draws upon original empirical and policy research to examine debates on religious practice and the experience of Muslim family law within British Muslim communities. It examines the question of reform within marriage that focuses on the laws of English marriage but one via a historical lens. The book then shows that many of the earliest Muslim marriages in England and Wales were located within the legal framework, either by being combined with a legally binding ceremony, or, later, by being conducted in a registered mosque. It also draws upon original empirical research including in-depth interviews with British Muslim women, and interviews with professionals ranging from imams and sharia council judges to solicitors and counsellors and suggests reform and regulation of their processes and procedures to provide Muslim women with greater rights and protection.

  1. Religious-Only Marriages in England and Wales: Taking the Long View Rebecca Probert

This chapter takes a long view of religious-only marriages, showing that such marriages are not a modern phenomenon, nor one confined to any single religious group, but have recurred over time within different communities. It discusses how in the 1820s and 1830s Catholic religious-only marriages were identified as occurring within Irish immigrant communities; such religious-only marriages were a catalyst for reform in 1836 but even after its passage some Catholics still had a religious-only marriage. It then goes on to consider how in the late nineteenth century it was Jewish immigrants from Eastern Europe who were thought to be marrying in the form that was familiar to them rather than ascertaining what was required for a marriage under English law. Finally, the chapter shows that many of the earliest Muslim marriages in England and Wales were located within the legal framework, either by being combined with a legally binding ceremony, or, later, by being conducted in a registered mosque. It concludes by reflecting on how the same narratives and explanations have recurred in relation to different religious groups at different times.

  1. Women and Shari’a Law: The Impact of Soft Legal Pluralism in the UK Elham Manea

The concept of legal pluralism has been a contested subject of research. It has attracted attention in Europe. The presence of different groups of immigrants has raised the question of whether they should be treated differently according to their religious or original national laws. At the heart of the discourses taking place currently on legal pluralism lays the question of how to balance equality and difference.

Two theoretical points of view in this regard stand out. The first theoretical orientation advocates legal centralism in the state, considers it to be the basic foundation on which liberal-democratic nations rely on, argues for the state’s monopoly on legal productions and a monistic conception of law and warns all the same of depriving the state of its capacity as a social actor. The second theoretical standpoint argues for legal pluralism, maintains that legal centralism is more relevant within a Western model jurisprudence, that it ignores the experience of non-Western nations.

This discussion, while concerning itself with describing legal and social realities in Western and non-Western states, has rarely touched on the political function of legal pluralism or the actual experience of legal pluralism in non-Western countries specifically with its often grave political and human rights consequences. Based on fieldwork conducted by the author, this chapter presents the context and consequences of the application of Islamic law in the UK Sharia Councils and Muslim Arbitration Councils.

  1. Shariah Councils in the UK: Reform and Regulation Dr Islam Uddin

According to English law, matters pertaining to marriage and divorce are exclusively dealt with by civil law. Previous studies show that diasporic Muslim communities follow customary laws from their countries of origin in relation to marriage and divorce, thus the place of civil law among such proceedings. Furthermore, as civil law does not resolve religious divorce, Muslim women may turn to Shariah councils to secure an Islamic divorce. Shariah councils are criticised for following Islamic norm and values that marginalise and discriminate against women. Others argue that Shariah councils have a flexible approach providing a religious need, and operate within the bounds of the law. However, some suggest that further empirical research is required to understand the experience of those who use Shariah councils, whilst the recent Independent Shariah Review proposed the regulation of Shariah councils to prevent discrimination against women. In light of such debates, this chapter explores the practices of Shariah councils in the UK and draws upon empirical data from a doctoral study on Islamic divorce. The research involved in-depth interviews with British Muslim women, and interviews with professionals ranging from imams and Shariah council judges to solicitors and counsellors. Shariah council hearings were also observed and their procedural documents analysed. The findings reveal the strong influence of religion and culture in establishing social norms, dictating the need for an Islamic divorce, and the role of Shariah councils in obtaining a religious divorce. The findings inform the positive ways Shariah councils contribute as a dispute resolution forum. Nevertheless, this chapter questions some contemporary understandings and normative practices found within Shariah councils and suggests reform and regulation of their processes and procedures to provide Muslim women with greater rights and protection.

  1. Domestic Abuse: The Dichotomy of Choosing between Informal and Formal Forum for Mediation, Arbitration and Justice Naheed Ghauri

This chapter draws on empirical evidence and feminist legal theory on gender equality and power to examine Muslim women seeking mediation from English or Islamic religious forum at Shari’a Councils particularly in domestic abuse cases. Against this backdrop, this chapter focuses on power imbalances and gender inequalities in mediation. Muslim women encounter power imbalances, they suffer discrimination within Shari’a Councils because there are no safeguards or adequate intervention models for Muslim women. This prompted a Home Office independent review to investigate, among other things, whether Islamic arbitration and mediation conducted by them are contrary to English law, particularly by discrimination against women. The absence of safeguards could render mediation more harmful in the presence of power imbalances between parties. The findings suggest that, as Muslim women’s autonomy and agency are exercised, Islamic arbitration and mediation hold important meaning for Muslim women in the UK: to obtain an Islamic solution; it creates religious observance and to obtain an Islamic divorce which is not available under the English family justice system. This chapter provides empirical evidence undertaken on the experiences and narratives of Muslim women as victims of domestic abuse and it helps to develop interventions, innovative models and safeguards in the mediation fora.

  1. Sharia Councils and Muslim Family Law: Analysing the Parity Governance Model, the Sharia Inquiry and the Role of the State/ Law Relations Samia Bano.

In February 2018 ‘The Independent Review into the Application of Sharia Law in England and Wales’ was published with a focus on whether Sharia Law is being misused or applied in a way that is incompatible with the domestic law in England and Wales. In particular it raised questions as to whether there were discriminatory practices against women who use Sharia Councils and came about after years of concerns raised by academics, lawyers and women’s activists. The British Muslim identity reveals important insights into the ways in which community formation and legal regulation and the rights of minority religious communities have taken shape over the past five decades and this chapter draws upon the Inquiry findings to consider whether religious tribunals can be reformed from within and if so whether the parity governance model is a useful model of application.

Bibliographic Information

Title: The Sharia Inquiry, Religious Practice and Muslim Family Law in Britain

Editor (s): Samia Bano

Publisher: Routledge

Length: 142 Pages

ISBN:9780367547318

Pub. Date: February 1, 2023

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