Sharia, divorce and arbitration

by Carl Gardner on January 19, 2012

On Monday the Guardian published this piece about Sadakat Kadri‘s claim that

Islamic law can be compatible with the toughest human rights legislation.

I doubt this very much; and I don’t think my or anyone else’s scepticism is the result of a lack of “sharia-literacy”. In a BBC Radio 3 interview last week with Anne McElvoy (from 28’35”) Kadri complained that Islamic law is too often seen as a monolithic, savage code. He argued that we need to appreciate its nuances, that it’s not simply about violent punishments, and that the claims of Islamists do not necessarily reflect the true sharia. To me this sounds like a hopelessly abstract apologia, and reminds me of those Trotskyists who urged me in the 1980s to stop worrying about the false Marxism practised in the Soviet Union, and learn more about the true revolutionary path. But that’s beside my point.

What interests me is what the Guardian report says about the status of sharia in the UK.

In 2008, Rowan Williams, archbishop of Canterbury, sparked controversy when he appeared to suggest that sharia law should be more widely adopted.

In fact, under the Arbitration Act 1996, the rulings of religious bodies, including the Muslim arbitration tribunal, already have legal force in disputes involving matters such as inheritance and divorce.

But this isn’t the position in fact, as regards divorce.

The solicitor David Hodson has argued that legislation is needed so as to permit binding arbitration in  family matters. That’s a change that would be needed because it’s well established as a matter of common law that the courts will not simply recognise and apply an agreement between wife and husband about what should happen on divorce. In Edgar v Edgar [1980] 1 WLR 1410 Lord Justice Ormrod said

it is common ground that the principle laid down by the House of Lords in Hyman v. Hyman (1929) AC 601, still applies. At page 64, Lord Hailsham L.C., said,

“However, this may be, it is sufficient for the decision of the present case to hold, as I do, that the power of the court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and that the wife cannot by her own convenant preclude herself from invoking the jurisdiction of the court or preclude the court from the exercise of that jurisdiction.”

It’s this rule that has stood in the way of recognising pre-nuptial agreements in this country, as Christopher Sharp QC explained in this 2009 paper.

The position’s sufficiently clear for Jack Straw, when he was Lord Chancellor and Justice Secretary in 2008, to answer a question from Dominic Grieve in these terms:

In the past year the Ministry of Justice has received a number of requests for information and details of policy relating to Sharia law and Sharia councils and their position on family issues …

Arbitration is not a system of dispute resolution that may be used in family cases. Therefore no draft consent orders embodying the terms of an agreement reached by the use of a Sharia council have been enforced within the meaning of the Arbitration Act 1996 in matrimonial proceedings.

The Guardian piece ends by setting out the supposedly “top five sharia myths”. But perhaps the most common sharia myth in this country, and one that’s been developing partly as a result of inaccurate comment, is that sharia decisions on divorce have legal effect through the Arbitration Act 1996.

{ 22 comments… read them below or add one }

1 John Bolch January 19, 2012 at 13:40

There is, in fact, a move to offer arbitration as a form of ADR in family matters – see here. I am not sure, however, how those who will offer it will deal will the issue of it not being binding.

2 Carl Gardner January 19, 2012 at 14:13

Thanks, John. Presumably the idea will be that the decision of an arbitrator will influence the court, if one of the parties tried to “go behind” it. But that would I suppose be applying the Radmacher principle you’ve explained before that

The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.

Could it be fair to hold the parties to any agreement if it was based on a framework of principles that systematically disadvantaged women? I doubt it.

I think the family court considering this would need to think seriously about whether giving any weight to such an agreement would be compatible with the article 6 Convention right to a fair hearing, combined with the article 14 Convention right not to be discriminated against on grounds of sex in that hearing.

3 John Bolch January 19, 2012 at 14:29

I agree. It’s one thing to offer arbitration based upon English law, another entirely to offer it based upon principles that are incompatible with English law. There is also the issue of whether Sharia arbitration is entered into freely.

4 Richard Gadsden January 19, 2012 at 16:25

It would be very useful in this context to have a summary of what legal situations can be referred to tribunals under the Arbitration Act 1996.

I think some of the confusion comes from the Beth Din, which are both civil arbitration tribunals under the Arbitration Act and religious tribunals in family law cases, granting a get (a religious divorce). Without the get, the divorcing couple are still religiously married and cannot remarry in Synagogue.

The Sharia are the same, and people think that because they do divorces (with their religious hat on) and they also do Arbitration Act work (with their civil law hat on), they do divorces under the Arbitration Act (which they don’t).

There is also the matter of the Divorce (Religious Marriages) Act, which allows a civil court to refuse a Decree Absolute in cases where one party is refusing a religious divorce as part of a bargaining exercise over property. That’s certainly used with the Beth Din – can it be used with Sharia tribunals as well?

Finally, of course, the Sharia tribunal can be used in mediation; if they can come up with a consent decree that both parties agree to, then the civil court will scrutinise it to ensure it is compatible with civil law, and then permit it or refuse it – the same as any other consent decree.

Of course, agreement with the “rulings” of a Sharia tribunal may be coerced to some degree; if someone refuses to accept the Beth Din, then they’ll get chucked out of the Orthodox faith, and probably just become a Reformed Jew; if a Muslim refuses to accept Sharia, they may put themself in physical danger after being declared non-Muslim for doing so.

5 John Bolch January 19, 2012 at 19:22

I don’t think any other religious marriages are prescribed under s.10A MCA, save for Jewish marriages.

6 Carl Gardner January 19, 2012 at 20:10

There’s an awful lot of confusion and misinformation about section 10A of the Matrimonial Causes Act, inserted by the Divorce (Religious Marriages) Act 2002. For some reason the existence of this provision is sometimes used by people to argue that, since the law “recognises Jewish divorces” it should equally recognises sharia divorces. But section 10A doesn’t “recognise” Jewish religious marriages at all in the sense of giving them any legal effect.

Section 10A deals with a particular problem in orthodox Jewish culture: “chained wives”. The problem is that, while a couple can be divorced in law, only the husband can initiate a dissolution of their Jewish religious marriage. His refusal to do so can leave his wife feeling unable to marry again for religious reasons.

Section 10A attempts to remedy that by giving “chained wives” the right to object to a decree absolute dissolving the secular legal marriage, until the husband has taken steps to dissolve the religious marriage. It’s absolutely not a provision that gives effect to religious rules. On the contrary, it’s aimed at tackling the abuse of religious rules by secular means.

If there’s some parallel abuse being committed by Muslim men, I’d certainly support secondary legislation prescribing Islamic “religious usages” for the purposes of section 10A.

7 ObiterJ January 19, 2012 at 20:16

Thanks for this most interesting and enlightening post.

8 Richard Gadsden January 19, 2012 at 20:28

I believe there may be some similar abuse; certainly the normal legal position in Sharia is that a husband can divorce his wife easily (by saying “I divorce you” or “talaq” three times in front of witnesses) but the wife has to apply to a court (qadi) in a process called khul’ which is slow – the husband could easily accelerate it by talaq.

It’s less of a problem than the Jewish one, because refusing the civil divorce is only a meaningful threat if the husband wants one, and it’s not especially difficult to find a qadi who will rule that a man who wants a divorce has performed talaq.

The Divorce (Religious Marriages) Act is of no use to a wife who wants a divorce when her husband has no desire of one, but is useful against a husband who wants a civil divorce but not a religious one. That’s not really practical in Islam, as talaq is much simpler than get.

The existence of khul’ (woman-initiated divorce) means that actual chained wives don’t happen as much, though I suspect there are probably some sects that don’t allow khul’

9 Alex January 20, 2012 at 00:49

“Kadri complained that Islamic law is too often seen as a monolithic, savage code. He argued that we need to appreciate its nuances, that it’s not simply about violent punishments, and that the claims of Islamists do not necessarily reflect the true sharia. To me this sounds like a hopelessly abstract apologia”

With respect, but this is nonsense. I say this as an atheist who believes all religion to be untrue, but you cannot argue that Islam is monolithic. There are well over a billion Muslims in the world. Is the difference between someone like Tawakel Karman and Mullah Omar really “abstract”?

You would not say this about, say, Christianity. Look at the differences between Michael Moore and General Franco, Tolstoy and Olive Cromwell, John Shelby Spong and Michael Pearl. Is pointing out those differences really just “abstract apologia”?

10 Asad January 20, 2012 at 11:39

Thanks for clearing up the Guardian’s reporting

11 Vivek January 22, 2012 at 11:13

Have the read Sadakat Kadri’s book? I have – it’s an excellent account of the complexity of Shari’a law and well worth a read.

12 Carl Gardner January 22, 2012 at 14:59

No I haven’t, Vivek – though I may well. It does sound an interesting read. I have read a fair amount about Islamic law, though, and realise it’s not one single “monolithic” set of rules.

Alex, you say I can’t argue that it’s “monolithic” – I agree, and never did argue that. What I say is that its complexity and nuance is beside the point.

First, there’s no reason to think that, if their family law decisions were given legal force, sharia councils would act only according to the most liberal, egalitarian and fair streams of thinking within that complex and nuanced tradition. If a remarried woman’s children are sent to live with her ex-husband automatically because of their age, it’s really no comfort to her to know that some other strand of thinking not applied in her case might have allowed the child to stay with her.

Second, I’m yet to come across any stream of thinking in Islamic law that gives a man and woman equal rights to divorce. I know women can be granted a divorce: I’m not ignorant about that. The question is whether she has an equal right to divorce (in other words, the right to divorce her husband unilaterally, if he has that right, or else to be protected from unilateral divorce if he has that protection). If sharia councils were to give wives equal divorce rights in each and every case (unlikely, I think) then the complexity of Islamic law in Britain on that point would be reduced, and its acceptability accordingly increased.

So it’s not that I say the differences between Muslim thinkers are abstract. What’s abstract is an argument one strand of which is that the complexity of the tradition is the friend of human rights.

Thirdly, I certainly would say the same things about Christianity. In some respects traditional Christian thinking may be less problematic in terms of rights and equality than are traditional Islamic law principles (for instance I’m not aware of any Christians thinking a man should be more easily able to divorce his wife than she has to divorce him). But if you think I’ve any sympathy with the idea that the law should compromise with Christian thinking, then you’ve mistaken me for another blogger. I think the law should entirely reject Christian thinking on homosexuality and abortion, for instance, I welcome the government’s suggestion that we may soon have gay marriage.

I know some Christians are committed to sex equality and equality for gay people, more deeply than most other people are. One or two of these people are my friends. But they’re outnumbered and outgunned on their own side, and the less influence the bishops of Canterbury and Rome have over anyone’s lives, the happier I think the world is.

13 Lucy January 23, 2012 at 11:33

I found this article in the Guardian interesting, because like Carl I have doubts about how compliant Sharia law can be with equalities provisions of the Convention and domestic law. I recognise that my assumption is, however, largely based on media depictions of Islam which are doubtless biased and often ill-informed, and so I’d like to read Kadri’s book to explore the issues in more detail. I have tried to find out more online and there is surprisingly little good quality and detailed information about the Sharia arbitration process out there (even from the arbitration websites themselves). There are general assurances about equalities, but little detail about the principles that would be followed – whether a more ‘liberal’ or ‘traditional’ line of reasoning. Now, it’s quite possible that this information is available offline, but given how much is invested in ‘informed consent’ to the process, is does seem problematic that parties could potentially agree to partake in the process with little understanding of the details. To give an example, one of the Sharia myths that Kadri did not dispel in his article, and so one that I was interested in finding out if was applied by arbitration panels, is that a woman’s testimony is worth half that of a man’s. It’s quite possible that this wouldn’t be applied in a modern arbitration process, but I certainly couldn’t find out from the websites of the various arbitration organisations. I also wonder who would advise people before consenting to Sharia adjudication? Before it became legally binding there would need to be assurances that people understood what the potential advantages and disadvantages of the process would be. I would have similar concerns about *any* parallel and voluntary system of arbitration that could be legally binding, whether religious or not.

14 John Bolch January 23, 2012 at 19:29

Hi again Carl. When I commented earlier, I had completely forgotten this article, that appeared in Family Law Week last month (now recalled thanks to Marilyn Stowe mentioning it in a blog post today). As you will see, there is actually nothing to to preclude arbitration in family law matters, and as to enforceability, see the last section of the article.

15 Carl Gardner January 23, 2012 at 20:00

Thanks, John.

I find this extraordinary, I must say. I’ll need to have a close look at and think about the Arbitration Act 1996 to see how this scheme fits in with the Act.

What I’m wondering is, if common law does not rule out family law arbitration after all, on what basis Lord Wilson can imply (as I think he does) that family law arbitration can only take place within this scheme. Does anything in the Act, or any secondary legislation being made to support this scheme, exclude arbitration outside the scheme? If not, I’m wondering if there will be any basis (other than human rights grounds) on which to prevent sharia tribunals acting as binding arbitrators in private law children disputes as from next month.

16 Gillian Douglas January 24, 2012 at 10:58

This very interesting discussion may be informed by reference to research recently conducted by myself and colleagues at Cardiff University into the workings of a shariah council, a beth din and a Catholic marriage tribunal.
Do have a look at
http://www.law.cf.ac.uk/clr/research/cohesion.html
for full details of the research and answers to some of the questions posed by commentators above.

17 Carl Gardner January 24, 2012 at 11:26

Thanks, Gillian!

18 Julie January 24, 2012 at 16:16

Apparently the scheme is to be launched on 22 February by Resolution and is regulated by this organisation –

http://www.ciarb.org/

The website says it is appropriate to financial disputes only and therefore uses principles of commercial arbitration.

19 Lucy February 8, 2012 at 12:24

Hi Carl,

I’ve been pondering arbitration as the Centre for Justice tweeted me yesterday to say that disputes in the context of the deprivation of liberty safeguards could be resolved through arbitration (whose settlements would apparently be legally enforceable). Like you, I’m unclear about the scope of legal issues that are open to arbitration are under the 1996 Act. I’ve got lots of concerns about this proposal, which they’ve argued for in the Guardian in the past (they said that the Neary case was amenable to arbitration), in particular:
1) Could a dispute over liberty and detention really be settled by resort to arbitration not the courts? Would that satisfy Article 5(4)?
2) What are the qualifications and experience of the arbitrators? DoLS and community care law are horrendously complex, even judges struggle, so what would the requirements be for an arbitrator? In many DoLS cases, new law is being made, so how would you weed out those cases?
3) How can a person who lacks capacity enter into an arbitration agreement, or in the alternative how, when his liberty is at stake, could his family and professionals have the authority to make an agreement which is binding upon him? My understanding is that arbitration can’t bind third parties, so what would be the meaning of such an agreement?
4) Is an arbitrator legally bound to give effect to the human rights act?
5) If the agreement is legally binding, and the detainee or their family disagrees with it, how is it appealed? Because if it can’t still be appealed against through the s21A MCA appeal mechanism (appeal against detention under the DoLS), then you’ve lost your legal aid…

I saw in Wilson LJ’s speech and the Family Law Week article that issues around liberty and welfare were excluded from this new scheme – but I’m unclear whether that’s a practical decision, or there are legal reasons for it? If anyone’s got any thoughts on this I’d be really interested!

20 John Bolch February 22, 2012 at 11:39

Hi Carl Thought you would like to know that the family law arbitration has been launched today. For details, see here.

21 John Bolch February 22, 2012 at 11:45

…note that only English law can be applied!

22 Carl Gardner February 22, 2012 at 13:00

Thanks, John!

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