The Muslim News - Legal precedents being set for marital disputes

Issue 176, Friday 19 December 2003 - 25 Shawwal 1424

Legal precedents being set for marital disputes

By Our Own Correspondent

In 2000, a Hindu bride whose marriage ended after less than three months, won an unprecedented legal fight to get back her dowry. Bobita Verma, 23, a mortgage consultant from Bradford, successfully sued the groom’s parents for the return of wedding gifts, believed to be worth several thousand pounds. It was the first public judgment in England on an Asian marital dispute and it took a three-year legal battle.
In the United States, in 2002, as reported in The Muslim News, an Islamic marriage contract was upheld, marking New Jersey’s first substantive decision on Islamic Law in the civil courts. Superior Court Judge, John Selser, enforced the mahr set at one golden pound coin and $10,000 US dollars that Houida Saadeh and her husband Zuhair Odatalla signed on their wedding day, finding that aspects of the religious code were acceptable under “neutral principles of law.” The case was felt to have positive ramifications for many other Muslim women in New Jersey and gave Imams ‘court ordered clout’.
British cases such as Salma’s need to be contextualised within previous English precedents which are almost 40 and 30 years old. The most commonly referred to cases were those of Shahnaz v Rizwan (S v R), 1964 or Qureshi v Qureshi (Q v Q), 1971. The lack of knowledge of the validity or even existence of similar claims by many solicitors is one of the biggest problems faced by women like Salma trying to seek redress in civil law when marital rights recognised in Shari’ah are upheld but are difficult to enforce. Many solicitors, including Muslim solicitors have been extremely remiss in researching and reporting such cases and so are poorly placed to provide appropriate guidance to clients, as Salma found out.
This results in the burden of expertise falling on the shoulders of clients themselves. Salma did much of the background research for her case in order to convince her solicitors that there was scope within English law for her marital contract to be recognised and enforced. They were further dependent upon her to seek out an appropriate Shari’ah council to deal with her Islamic divorce. It goes without saying that had she relied on her legal representatives to conduct such research on her behalf, her costs would have increased significantly. Indeed, other solicitors say that the lack of Legal Aid as well as stigmatisation of women often results in them losing the will to stay the course of a long court process to enforce right.
Two years after the publication of Nurin Shah-Kazemi’s ground-breaking Muslim Women, Divorce and Shari’ah (Nuffield Foundation), many of the problems of poor advice and lack of appropriate faith-sensitive services for Muslim women remain un-addressed. Members of Britain’s faith communities are still having to prove the validity of their religious marriage vows and face institutional barriers and ignorance from those who are paid to be more aware than the ordinary person when it comes to securing rights at the interface between civil and religious law.
Part of the problem is that Shah-Kazemi’s Report didn’t receive the attention from policy-makers in family law that it deserves. Why this is so is in itself something to be examined as it seems that there is a form of institutional prejudice against sound, valuable and pertinent research done apparently, and very simply because it originates from within communities - the Muslim community in particular. (Shah-Kazemi’s research was peremptorily dismissed as “not academic” by a then member of the Foreign and Commonwealth Office’s Community Liaison Unit - even though it was research funded by the Nuffield Foundation). It seems that research, which highlights a demand from Muslim women for social and legal services that are faith-sensitive, non-sexist, non-racist and non-Islamophobic, is meeting resistance in some institutional quarters.*
All too often, Muslim women are faced with patronising attitudes from welfare and legal professionals who assume that a Muslim woman, once free from an abusive relationship, is somehow ‘liberated’ from her ‘oppressive religion and culture’. Why then, they wonder, would she want to continue to observe and practice her faith?
Despite this, or indeed because of it, many of the issues Shah-Kazemi highlighted remain significant and in continued need of action as evidenced by current publicity surrounding Muslim marriages conducted in the UK.
On November 24, The Guardian ran an article under the unfortunate headline ‘Islamic marriages fail to protect women’. The article arose out of a claim made by the Leader of the Muslim Parliament that Muslim women were disadvantaged by the increased number of unregistered marriages taking place in the UK as they were left without any protection or rights when such marriages broke down. It featured the civil action being taken by a 23-year-old teacher who only went through a religious marriage (nikah) and found, when her marriage broke down less than a year later, that she held no legal rights to the property or assets even as a common-law wife.
“Without baseline figures to start with”, argues sociologist Fauzia Ahmad, “it is difficult to assess the numbers of unregistered marriages taking place.” She, amongst others, argue that the Muslim community’s concerns around marriage are not new, and encompass a broad range of issues from domestic violence, forced marriages, polygamy and divorce through to child custody.
The regularly produced annual reports of organisations like Muslim Women’s Helpline, have documented such trends and also the increasing willingness of Muslim women to seek civil law remedies when, in their eyes, the dispensers of religious law have failed to meet their expectations.
“It is not”, as The Guardian headline suggests, says Fauzia Ahmad, “that ‘Islamic marriages’ fail to protect women. It is a complex mix of intransigent husbands and cultural stigma; poor practice, advice and support from religious and community representatives; and a lack of awareness and understanding from the legal profession at all levels, that present Muslim women seeking divorce with a number of social and structural barriers that act to marginalise and dis-empower.”
Whilst so much attention has focused on encouraging Muslim women to leave abusive relationships, there is some cause for concern that similar efforts are not channelled into improving the quality of the services received by those vulnerable women from the welfare and legal professions.
Shah-Kazemi’s research in 2001, showed for instance, a number of instances of poor advice on the part of solicitors. Some legal professionals have noted an increase in the number of civil law claims for the haq mahr following divorce. Regardless of the length of the marriage (Shah-Kazemi’s research suggests an increase in marriages ending within a year), civil claims for the haq mahr, if sizeable, can be a valuable tool for women to employ, especially if claims for maintenance fail or are deemed inapplicable as in the case of short marriages.
However, enforcing claims for the haq mahr is a complicated and costly process. Recent cases also suggest some inconsistency in the ways claims based on Muslim marriages are dealt with by solicitors and the judiciary. While some solicitors are prepared to support client’s claims, others will discourage such actions, and without legal aid, yet other clients may come to the conclusion that
they stand to lose more from taking action through the courts than accepting their situations.
In May this year, the Muslim Women’s Helpline held a symposium on ‘Marriage and the Dissolution of Marriage in Shari’ah’, which featured a presentation by Dr Tariq Ramadan. It was organised for Imams, scholars and community leaders and arose in response to a ‘sense of grievance and injustice felt by many as a result of the often iniquitous application of Shar’’ah’.
For instance, some Islamic centres regarded as ‘centres of excellence’ by community leaders, were experienced as ‘centres of humiliation’ by many women contacting the Helpline. The Conference called for, amongst other things, regulation and consultation between Imams and Shari’ah bodies with the formation of ‘benchmarks’ for standardised, equitable practice. It highlighted some of the key difficulties Muslims and women in particular faced in marriage and divorce but failed to attract much publicity in either the Muslim or non-Muslim media.
Fauzia Ahmad has also pointed out that Lord Ahmed, in 1999, in a debate on marriage in the House of Lords, noted that legal professionals often placed the burden of religious expertise on the shoulders of their clients and called for Islamic marriages to be recognised under British law. Also, she says, in the 1995, Noel Coulson Lecture at SOAS (London University), Judge David Pearl discussed some interesting cases and ways in which Islamic law had been received in English courts and barrister Ayesha Hasan similarly, examined the outcome of more recent cases.
There is some hope for the future, in respect at least of better services from solicitors. Recognising some of the problems both Muslim men and women can encounter with family law professionals who, for the most part, are unaware of the best ways to address their clients needs, the Legal Action Group (LAG), an organisation based in London, which aims to improve access to justice through books and training courses for lawyers, is introducing an accredited course called ‘Family Law: Applying English Law to Secure Islamic Matrimonial Rights’. The course, to be launched in the new year, aims to provide legal practitioners with knowledge about the scope of Islamic rights and how these could be secured using English law. It is also hoped the course will encourage practitioners to network and share case information and to recognise legitimate authorities in Shari’ah law.
Describing her motivations in organising the course under the auspices of the LAG’s Training Department, Anji Mouelhi, a Hindu convert of Islam, told The Muslim News, “When I was in practice as a solicitor, I felt frustrated by my own inability to advise Muslim women about what Islamic rights they have and how to secure these under the English Legal system. The LAG course is the first to cover this topic, and we hope it will give lawyers the knowledge they need to redress the injustice that some women suffer.”
Details of the course from Legal Action Group, 020 7833 7429

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