The Existence of Islamic Marriages in the United Kingdom, and the Problems Pertaining to This Form of Unions
The story of Islamic marriage in the United Kingdom is, at least to some extent, about a clash of cultures: on the one hand, there is the marriage ideal found in traditional English law, based in “Christendom[i]” and a legal philosophy aiming at the “preservation of a Christian-based monogamous culture[ii]”; and on the other hand, there is the Islamic concept steeped in its own religious traditions, where marriage “is a contract and not a sacrament[iii]”, where men are permitted up to four wives[iv], and which is being increasingly practiced in Muslim communities around Britain in a form of weak legal pluralism, despite official condemnation of certain of its aspects. Clearly, the two concepts are not easy bedfellows. In this article, I will examine the contemporary existence of Islamic marriages in the UK and especially their conflict with English law, and will conclude that while conflict exists between the values of Islamic law and English law, progress is possible: in Islamic law, by adopting progressive itjihad in order to improve the situation of women; and in English law, by engaging more with Islamic marriages in order to protect against the power imbalances sometimes apparent in Shariah Councils.
The first point of tension between English law and Islamic marriage is that Islamic marriages are often polygamous. Yet this tension exists not just between Islamic law and English law, but also within Islamic law itself. While it is true that the Qur’an permits Muslim men to take up to four wives[v], Barlas asserts that this “serves a very specific purpose: that of securing justice for female orphans[vi]”, and this is supported by the fact that the divine ordnance permitting polygamy was revealed in the aftermath of the battle of Uhud (625 A.D.), in which many men died and after which many women were left widowed and many children were orphaned. Polygamy’s justification in Islam may thus be strictly contextual, and changes in the social, political and legal environment since the seventh century may have removed that context[vii].
Nevertheless, despite such criticism, polygamy remains part of Islamic law. Although “the articulation of… classical Islamic family laws is… no more than the expression of values advanced by… jurists of the second and third century of the Muslim calendar[viii]”, to modernise Islam’s approach would be an example of ijtihad, whose place in Islamic law is hotly debated by scholars. Some state that ijtihad was abandoned years ago and the role of scholars today is to practice taqlid and imitate established authority[ix]; others argue that ijtihad has continued to occupy an important role throughout Islamic history[x]. Schacht takes the middle ground, asserting that while some scholars saw ijtihad as being continually valid throughout Islamic legal history, those making this claim usually spoke only theoretically, while in practice continuing to support the conclusions of established authority[xi]. Moreover, any progressive itjihad that moves more in line with modern standards regarding women’s rights would not obtain the binding authority of shari’ah unless supported by general consensus; otherwise, it would be no transgression for other scholars to ignore it. Thus while it is possible for Islamic law to integrate with the values of the English legal system, and while it is possible that some mujtahid in the UK may have adopted a progressive interpretation of shari’ah in their dealings with Islamic marriages, it is beyond doubt that the vast majority continue to ordinance polygamous marriages in religious ceremonies.
This inevitably comes up against the provisions of English statute and common law, whose relationship to polygamy is difficult to say the least. On the one hand, it has tried to persuade parties to polygamous marriages to conform to English standards by including them in “the same family rights and obligations as are imposed on other married people[xii]”; on the other hand, it has firmly clamped down on polygamous practices in various pieces of legislation by providing that a party to a subsisting marriage who contracts to a second marriage renders the latter marriage void ab initio[xiii], that a polygamous marriage entered into outside of England and Wales is void if either party was domiciled in England and Wales at the time of the marriage[xiv]; and that a second wife may not use her husband’s right of abode under the Immigration Act 1971 to gain a right of abode for herself as wife if her husband’s first wife has previously been or remains in the UK, whether or not the husband is still alive[xv].
Shah believes that these measures may ultimately do more harm than good[xvi], especially in relation to children of the marriage. In Zahra[xvii], for example, the Immigration Appeal Tribunal denied a second wife and her son the right to enter the UK on the basis that, according to the ‘dual domicile’ test, her husband was ‘domiciled’ in the UK, and thus section 11(d)[xviii] applied to render their marriage void and, as a consequence, to separate the child from his father. Sometimes, as in Laily Begum[xix], the slightly better result may be obtained whereby the child is granted entry to the UK, but the mother is refused; yet here, although the child gains a father, (s)he loses a mother, so the situation is little improved. Some hope was provided to children of polygamous marriages by the Legitimacy Act 1976, which provided that the child of a marriage deemed void for polygamy would still be legitimate if, at the time of intercourse, both or either of the parties to the marriage believed it was valid; yet the little protection this gave to the idea that children might obtain some stability through gaining citizenship through their father has been put in doubt by Azad v ECO, Dhaka[xx], in which Jacob J stated that such legitimacy would only apply if there had been a reasonable belief that the marriage was valid under English law- making a belief in validity under, for example, Islamic or Pakistani law irrelevant. Thus, while polygamy in Islamic marriages may be anathema to British cultural values, the measures enacted to combat them may be more destructive than helpful.
They may also be ineffective. Shah discusses how the example of the applicant in Zeenat Bibi[xxi], who lied about her marital status to gain entry into the UK, is “indicative… of a wider phenomenon of polygamy moving ‘underground’[xxii]”. Indeed, British Muslims are finding ways to circumvent English law on monogamy: Yilmaz describes how British Muslims are continuing to practice polygamy by taking only one wife officially, but others under shari’ah; or by declaring one marriage for immigration purposes, and actually partaking in polygamy under shari’ah[xxiii]. This can be seen as an example of the weak legal pluralism inherent in many Afro-Asian legal systems, whereby communities see customary law and religious law as the appropriate medium for settling family disputes, rather than resorting to State law. The influence of this pluralism has led to the creation of “angrezi sharia”, a curious mixture of Islamic law and English law which now governs many Muslim communities in Britain[xxiv], and which often creates conflict within the English legal system about how to engage with “angrezi sharia” without appearing to give special favour to Muslim Women seeking, for example, to make claims about mahr[xxv].
Yet it is imperative for English law to get the balance right, for not engaging with Islamic marriages could be detrimental to the rights of Muslim women. Kamali notes an “entrenched patriarchal custom[xxvi]” in many parts of Asian, African and the Middle Eastern legal systems which represents a concern for women’s rights, especially in the area of Islamic matrimonial law; and, although this comment pertains specifically to foreign jurisdictions, Bano notes that many (but not all) Shariah Councils in Britain tailor their services to the local ethnic profile of Muslim communities, for example by drawing on experience working as Imams in Pakistan and continuing to confer with colleagues there about the correct interpretation of Shari’ah[xxvii]. While this does not necessarily mean that harmful cultural practices will be translated into the British context, in many cases they are: for example, in Islamic divorce proceedings before a Shariah Council, many women feel compelled to attend (despite assurances by the Council that the procedure is voluntary) and in some cases women are put in the same room as husbands against whom they have obtained injunctions for domestic violence[xxviii]. This puts women in a very disempowered position, and it may be necessary for English courts to adopt a more welcoming attitude to Muslim marriages in order to provide women the protection of English law.
Having said that, much of the fault here lies with the concept of divorce in Islamic family law, which favours men greatly over women. A Muslim man may obtain a divorce without citing any reason and without involving his wife in the process under his right to talaq, while a Muslim woman requires both the consent of her husband and the presence of ‘irreconcilable differences’ in order to seek a divorce under khula. She may also seek faskh, a judicial rescission of the marriage, which has varying degrees of stringency placed on it according to the varying schools of thought in Islamic law. The Hanafi School, for example, allows faskh only when the marriage has not been consummated or the wife has been deserted for over 90 days, while the Malaki school allows a woman to seek faskh for cruelty, refusal or inability to provide maintenance, desertion by the husband or disease of the husband as well.
However, certain trends indicate that this gender imbalance is not inherent in Islamic divorce law and, if itjihad is practiced in the Shari’ah Councils of Britain, it could be eradicated. Esposito notes that the Qur’an and Sunnah actually present a negative attitude towards talaq, and that it is only present in all schools of Islamic thought due to the influence of social, economic and political conditions which favoured granting significant advantages to husbands over wives[xxix]. It is in this spirit that, in a “dramatic assertion of the right of ijtihad[xxx]”, the Supreme Court of Pakistan has adopted a reformist attitude to view the woman’s right to khula as similar to the man’s right to talaq[xxxi]. If the Shari’ah Councils of Britain could adopt such a progressive attitude, perhaps the problems inherent in Islamic divorces regarding the status of women would be reduced. Moreover, the growth of takhayyar (the idea that one may select the most appealing and appropriate doctrine from among the existing Islamic schools) may mean that a wife could choose her divorce to be governed by the doctrine of faskh under its more progressive conception in Malaki thought, or perhaps under the more radical reformist attitude embodied by the Supreme Court of Pakistan.
Thus progress is possible. In this article, Islamic marriages in Britain have been surveyed and found contrary to the values of English law in that they are polygamous and contrary to women’s rights in their conceptions of divorce. English law’s relationship with Islamic marriage has not been spotless, either. Yet none of these represent irreconcilable differences between the two systems: rather, it is perfectly possible for Shari’ah Councils to begin innovating progressive itjihad on womens’ rights; it is perfectly possible for English immigration law to reform and recognise the harm done to child welfare by breaking up families with multiple wives; and it is perfectly possible for English law to allow a weak form of legal pluralism to develop, thus recognising the normative differences in the values of Muslim communities, and foster a good relationship with it, thus allowing English law to be called upon to intervene when Shari’ah doesn’t adequately protect the rights of weaker parties. Indeed, English courts have already shown their willingness to take up disputes when Shari’ah has failed[xxxii]. Therefore, while conflict exists, Islamic marriage may be able to successfully find its place within English law.
[i] Lord Penzance, Hyde v Hyde (1886) LR 1, P&D 130 at 133
[ii] Reid, K 1998, A Practitioners’ Guide to the European Convention of Human Rights, London: Sweet & Maxwell, p. 277
[iii] Khurshid Bibi v Muhammad Amin (1967) PLD SC 97
[iv] The Qur’an, IV:3-5
[v] ibid
[vi] Barlas, A 2002, ’Believing Women’ in Islam: Unreading Patriarchal Interpretations of the Qur’an, Austin: University of Texas
[vii] 2007, ‘The Sharia, Islamic family laws and international human rights law: examining the theory and practice of polygamy and Talaq’, International Journal of Law, Policy and the Family, 21(1), pp. 108 – 127
[viii] ibid
[ix] Mir-Hosseni, Z, 2000, Marriage on Trial: A Study of Islamic Family Law, London: I B Tauris; Vogel, F E 1993, ‘The closing of the door of Ijtihad and the application of the law’, American Journal of Islamic Social Sciences 10, pp. 396 – 401
[x] Hallaq, W B 1997, A History of Islamic Legal Theories: An introduction to Sunni usul al-Fiqh, Cambridge: Cambridge University Press
[xi] Schacht, J 1964, An Introduction to Islamic Law, Oxford: Clarendon Press
[xii] Law Commission, Family Law. Report on Polygamous Marriages (London: HMSO, 1972), p. 14; see also the Matrimonial Proceedings (Polygamous Marriages) Act 1972
[xiii] Section 11(b), Matrimonial Causes Act 1973
[xiv] Section 11(d), ibid
[xv] Section 2, Immigration Act 1988
[xvi] Shah, P A 2003, ‘Attitudes to Polygamy in English Law’, International and Comparative Law Quarterly, 52(2), pp. 369 – 400
[xvii] Zahra and another v Visa Officer, Islamabad [1979-80] Imm AR 48
[xviii] Supra note 14
[xix] R v Secretary of State for the Home Department, ex parte Laily Begum [1996] Imm AR 582
[xx] [2001] INLR 109
[xxi] R v Secretary of State for the Home Department, ex parte Zeenat Bibi [1994] Imm AR 326
[xxii] Supra note 16
[xxiii] Yilmaz, I 2002, ‘The Challenge of Post-Modern Legality and Muslim Legal Pluralism in England’, Journal of Ethnic and Migration Studies, 28(2), pp. 348-9
[xxiv] Bano, S 2007, ‘Islamic Family Arbitration, Justice and Human Rights in Britain’, Law, Social Justice and Global Development, 2007(1)
[xxv] Menski, W 2010, ‘Muslim Marriages in Western Courts: Lost in Transplantation’, Journal of Immigration Asylum and Nationality Law, 25(1), pp. 84 – 86
[xxvi] Kamali, M H 2008, Shari’ah Law: An Introduction, Oneworld Publications: Oxford
[xxvii] Supra note 24
[xxviii] ibid
[xxix] Esposito, J L 1982, Women in Muslim Family Law, New York: Syracuse University Press, p. 31
[xxx] Carroll, L 1996, ‘Quran 2:229: “A Charter Granted to the Wife?”: Judicial Khul in Pakistan’, Islamic Law and Society, 3(1), pp. 91 – 126
[xxxi] Khurshidd Bibi v Muhammad Amin (1967) PLD SC 97
[xxxii] Al-Madini v Al-Madini [1999] C.L.C. 904
BIBLIOGRAPHY
Books
Barlas, A 2002, ’Believing Women’ in Islam: Unreading Patriarchal Interpretations of the Qur’an, Austin: University of Texas
Esposito, J L 1982, Women in Muslim Family Law, New York: Syracuse University Press
Hallaq, W B 1997, A History of Islamic Legal Theories: An introduction to Sunni usul al-Fiqh, Cambridge: Cambridge University Press
Kamali, M H 2008, Shari’ah Law: An Introduction, Oneworld Publications: Oxford
Mir-Hosseni, Z, 2000, Marriage on Trial: A Study of Islamic Family Law, London: I B Tauris
Reid, K 1998, A Practitioners’ Guide to the European Convention of Human Rights, London: Sweet & Maxwell
Schacht, J 1964, An Introduction to Islamic Law, Oxford: Clarendon Press
The Qur’an
Journal Articles
2007, ‘The Sharia, Islamic family laws and international human rights law: examining the theory and practice of polygamy and Talaq’, International Journal of Law, Policy and the Family, 21(1), pp. 108 – 127
Bano, S 2007, ‘Islamic Family Arbitration, Justice and Human Rights in Britain’, Law, Social Justice and Global Development, 2007(1)
Carroll, L 1996, ‘Quran 2:229: “A Charter Granted to the Wife?”: Judicial Khul in Pakistan’, Islamic Law and Society, 3(1), pp. 91 – 126
Menski, W 2010, ‘Muslim Marriages in Western Courts: Lost in Transplantation’, Journal of Immigration Asylum and Nationality Law, 25(1), pp. 84 – 86
Shah, P A 2003, ‘Attitudes to Polygamy in English Law’, International and Comparative Law Quarterly, 52(2), pp. 369 – 400
Yilmaz, I 2002, ‘The Challenge of Post-Modern Legality and Muslim Legal Pluralism in England’, Journal of Ethnic and Migration Studies, 28(2), pp. 348-9
Reports
Law Commission 1972, Family Law. Report on Polygamous Marriages, London: HMSO
Cases
Hyde v Hyde (1886) LR 1, P&D 130 at 133
Khurshid Bibi v Muhammad Amin (1967) PLD SC 97
Zahra and another v Visa Officer, Islamabad [1979-80] Imm AR 48
R v Secretary of State for the Home Department, ex parte Zeenat Bibi [1994] Imm AR 326
R v Secretary of State for the Home Department, ex parte Laily Begum [1996] Imm AR 582
Al-Madini v Al-Madini [1999] C.L.C. 904
Azad v ECO, Dhaka [2001] INLR 109
Legislation
Matrimonial Proceedings (Polygamous Marriages) Act 1972
Matrimonial Causes Act 1973
Immigration Act 1988
