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Muslim religious marriages and divorces – the problems and ways forward

Summary

Posted 21 March 2015. Updated 24 March 2015 with supplemental comments on unregistered marriages.

Marriage is an area where religion and civil law often seem to conflict. Underlying the disputes is a lack of clear thinking and failure to recognise that two distinct things are being referred to by the same word "marriage", namely:

  1. Religious marriage
  2. Civil marriage

The first is a matter solely for the participants to the marriage, and is a matter between them and God. The state has a real interest in the second, since civil marriage gives rise to rights and responsibilities which the state will enforce.

I explained this in more detail in my page "Why the state should exit the marriage business" and my page "The UK Government's consultation on equal civil marriage".

On 17 March, the website Conservative Home ran an article by me about two specific problems faced by Muslim women:

  1. Being divorced under civil law but the husband refusing to give a religious divorce ("talaq").
  2. Having a religious marriage (nikah in Arabic) without a civil marriage, and finding out later that the woman has no financial claims on the man if they split up.

The editor used his prerogative to change the name of the title when publishing it. You can read it below.

Mohammed Amin: Putting religious marriages on firmer legal ground

Mohammed Amin is Chairman of the Conservative Muslim Forum. He is writing in a personal capacity.

When I got married to Tahara in 1978, two separate ceremonies took place on the same day. We had a civil wedding in a registry office which is recognised by UK law, and we had a religious wedding which we both believe is recognised by God.

Thirty six years later we are still happily married. Sadly many people are not so fortunate and there are two problems which are often experienced by Muslim women in the UK.

First

If the marriage does not work out, a civil marriage can be dissolved by the Court which will also order an appropriate division of the matrimonial assets and if appropriate make an order for maintenance. However the Court cannot end the religious marriage.

The standard position in Islam is that the husband can religiously divorce the wife, basically by just telling her three times that he is religiously divorcing her, but she cannot religiously divorce him. (I understand that a similar problem arises in Judaism.)

Accordingly a woman can be legally divorced but unable to remarry because in Islam she is still religiously married to the first husband.

Second

A number of women, which appears to be growing, choose to have religious weddings without having civil weddings. The consequence is that they are not legally married, which leaves them with almost no rights if their relationship breaks up.

This is the same problem experienced by non-Muslims who choose to “live in sin” (to use a phrase which shows my age) either because they simply don’t believe in marriage or because they naively believe there is something called a “common law marriage”, which there is not.

The current solution to the first problem

If a Muslim woman finds that her husband will not grant her a religious divorce, she can go to an Islamic Shariah Council.

The procedures vary from Council to Council, but the fundamental principle is that even if the husband refuses to grant the wife a religious divorce, the Shariah Council can give her a document evidencing a religious divorce which almost all potential future Muslim husbands will accept as evidence that the wife is indeed religiously divorced.

(I understand that in Judaism the procedure is somewhat different, in that a Jewish religious tribunal, a Beth Din, does not directly grant the religious divorce but rather “orders” the husband to grant it. If he refuses, in Britain he is likely to be ostracised by the community. In Israel Rabbinic Courts have more power and can jail a husband who refuses to grant a religious divorce!)

The current solution to the second problem

There is no good current solution to the second problem. Shariah Councils have no ability to require a man to agree to an appropriate division of the family assets. English law may help the woman in certain cases, for example if she can demonstrate a financial contribution to the purchase of assets, but frequently the woman is left with no form of redress.

Baroness Cox’s Private Member’s Bill

Baroness Cox has an excellent three minute video outlining the problems at this link, and for some time she has been trying to get her Arbitration and Mediation Services (Equality) Bill 2014-15 onto the statute book.

Whilst written in studiously neutral language, it is clearly directed at features of Islamic practice which Baroness Cox finds unacceptable, such as (to paraphrase the Bill): treating the evidence of a man as worth more than the evidence of a woman, proceeding on the assumption that the division of an estate between male and female children on intestacy must be unequal, or proceeding on the assumption that a woman has fewer property rights than a man.

Although the Bill is supported by some Muslim women who consider that Shariah Councils discriminate against women, it has caused outrage amongst many Muslims, since the state has no business making rules about religion.

It is no more acceptable for the state to tell a Shariah Council how to give a religious divorce than it would be for the state to tell the Roman Catholic Church that it must allow women to become cardinals. Proceeding in a manner that simply offends large numbers of Muslims does not help to solve the real problems summarised above.

The Bill annoys even me, despite my considering that the elements of religious practice that concern Baroness Cox have been superseded by changes in society over the last 1400 years.

How to resolve the first problem

In Islam, marriage is a contract, and the parties are free to agree any stipulations they wish within the contract, provided the stipulations do not involve religious violations. (A stipulation to serve the husband alcohol every Sunday lunchtime would be invalid!)

Accordingly it is straightforward for the intending spouses to agree as a term of their marriage contract that the wife will be able to divorce the husband in exactly the same way that the husband can divorce the wife.

Couples about to marry do not normally negotiate this type of pre-nuptial agreement. However in 2008 a considerable amount of work was done by Muslim community organisations to produce a modern Muslim marriage contract. The model contract included a provision for the wife to be able to divorce her husband.

The document is still on the “Muslim Parliament” website. The document carries many logos, including that of the MCB.

Unfortunately when the agreed text was criticised by some groups, the MCB, obviously wishing to offend no one, withdrew its support and the project collapsed. (I have written before about how the MCB impairs its effectiveness “by trying to please too broad a range of British Muslims.”)

However the model Muslim marriage contract is still available on the web. If its use became standard, the first problem would disappear over time.

Resolving the second problem

The solution is better education. Irrespective of her religion, every girl (and for that matter every boy) growing up in Britain needs to be taught in school that people living together, with or without a religious marriage, have almost no legal rights against each other. Accordingly, they should not enter into such a relationship without a civil wedding.

Imams who are asked to officiate at Muslim religious weddings should refuse to do so unless the couple can provide a civil wedding certificate. At a stroke this would end the second problem for future relationships. While the state cannot compel Imams to behave this way, some sanctions are available.

For example once such a procedural change had been endorsed by a critical mass of Muslim organisations, I would regard an Imam who had performed a religious wedding without evidence that a civil wedding had taken place first as unfit to be granted British citizenship, or to be employed by any part of the state in a chaplaincy function.

Firm action of this sort combined with an educational programme could stamp out the practice of having Muslim religious weddings without civil weddings.

Supplemental comments on religious divorces (the first problem)

I re-read the 2008 "Muslim Marriage Contract" when posting this page. As well as solving the religious divorce problem, it would also solve the problem of the husband entering into a second religious marriage without the first religious wife's permission.

Both provisions are contained in the section "Special Conditions" which is quoted below.

Special Conditions

The Muslim Council of Britain's (MCB's) withdrawal of support led to the project collapsing in 2008. The Model Marriage Contract is done, and all that it needs is a strong effort to publicise it and to bring it into regular use. I urge the MCB to revisit the document and to display leadership on the issue.

Supplemental comments on unregistered marriages (the first problem)

The barrister Neil Addison who writes the Religion Law Blog wrote an article about this issue in 2010, Sharia is not the problem here.

He makes the obvious but very powerful point that there would be far fewer cases of unregistered religious marriages if more mosques were registered as locations for the performance of civil weddings in the way that "Sikh Gurdwaras and Hindu Temples have happily registered under the Marriage Act."

I broadly agree with him. However there is one significant cultural difference. While I have not done any kind of survey, most of the nikahs (Muslim religious marriages) I have seen happen have taken place not in mosques but in banqueting halls and hotels, where the guests have gathered for a celebratory meal. Accordingly it is those locations that need to be registered under the Marriage Act so that the nikah and the civil marriage could take place within a few minutes of each other.

If this was done, it is likely that the number of nikahs that take place without a civil marriage also being entered into would significantly reduce.

However I am not convinced by Neil Addison's other point "The remaining unregistered wedding ceremonies are in fact illegal under s75(2)(ii) of the Marriage Act[1949]and the Imams involved could face up to 5 years imprisonment but it is a crime the Police seem to simply ignore." The whole point about a nikah is that it does not purport to be an effective marriage under English law, and the imam who performed my daughter's nikah was at pains to stress that point.

The imam who performs a nikah in those circumstances is no more committing an offense than is an actor in a play in the role of a vicar who conducts a wedding on stage between two of the actors for the entertainment of the audience. There is no intention to create legal relations between anyone. That indeed is the problem!

 

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