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Family Law Governance In Britain

In this essay, I will be looking at how new forms of family law governance in Britain, such as Shari'ah Council, operates, the difference that there is to the current English law and how it might undermine the principles of English family law.

Shari'ah law derived from a combination of the Quran, which is the Holy Book of Muslim, the Hadith, which refers to the tradition as of the life of Prophet Muhammad, and the Fatwas, which is the ruling of Islamic scholars. Islamic law could be said as the religious law which is most widely used alongside with common law and civil law. The Islamic law may perhaps have influenced the development of common law and also on the development of some of the civil law institutions during the Islamic Golden Age. Shari'ah law is a legal framework within which the public and private aspects of life are regulated based on a legal system which is based on Islamic principles of jurisprudence and also for the Muslims who live outside the domain. Shari'ah deals with many aspects of life, such as economics, banking, sexuality, hygiene, social issues, contracts, politics, business, crime and family.

Before we start to determine how the Shari'ah Council might undermine the principles of English family law, let us compare the Islamic law with the common law. The method of legal precedent and reasoning used in the Islamic law, which is by qiyas (the process of analogical reasoning in which the teachings of the Hadith are compared and contrasted with those of the Quran), was similar as of that used in the common law legal system. This means that the Shari'ah have similar proceeding as the English law.

Let us look further into the Shari'ah law when it comes to marriage. According to Shari'ah, marriage is incumbent on Muslim men and women, unless if they are financially or physically unable to lead a married life. Even though Islamic marriage has very much in common with English law, it has its own exclusive characteristics to differentiate themselves. Islam considered marriage as spiritual, and not civil, union. Thus, the Shari'ah rule out certain preconditions to a valid marriage contract, and also prohibits marriage on various grounds. The most important for a valid marriage contract in Islamic is that the Muslim man and woman must be sane and has reach puberty. The age of puberty according to modern law in Islamic countries are that the girls to be at least 13 while the boy should be at least 15 years old. However, much legislation requires that the couples should be older than that. Having fulfilled the condition of marriage, there is various grounds where a marriage will be prohibited, such as religion, kindred affinity and fosterage. While it is permissible for a Muslim man to marry a Jewish or Christian woman, Muslim woman is barred from marrying a non-Muslim man. Having said that, men are forbidden to marry their ascendants or descendants, ascendants or descendants of their wives or the wives of their ascendants or descendants. Muslim men are also not allowed to marry the ascendants or descendants of a woman with which he had committed adultery. The third prohibition on the ground of fosterage is that children who breast-fed from the same woman are prohibited to marry each other when they come of age, although they might not have any blood relation to each other. They are considered as “milk-brother/sister”. The difference between the Shari'ah law and English family law so far is that English law does not prohibit any party to form a marriage. In my opinion, the precondition and prohibitions on marriage might be a good way to prevent just any marriage as marriage is a precious and valuable thing in life and should be considered seriously.

Subsequently, if the conditions and prohibitions are met, we will look into the formation of marriage contract by Shari'ah law. The contract consists of ijab, which means offer, and qabul, which means acceptance. In order for this contract to be valid, both couples must be present in the same meeting to hear and comprehend what the contract would amount to. Except for the Hanifi school, general consensus is that the woman must have a legal guardian to conclude the marriage on her behalf even if she is of full capacity. The marriage, as of the Sunni school, must be witnessed by two male witnesses or one male and two female witnesses. Contrastly, the Shia, does not require any witnesses. Although there is no requirement as to how the marriage contract has to be made in, the Quran recommends that the contract to be in writing, or oral contracts could be enforced as well.

Subsequently, the groom must give his bribe dower, which is a gift that becomes payable to the wife immediately after the marriage but before sexual intercourse. It can be in the form of money or any valuable item such as property or ornaments. This is not a bribe price no matter how you look at it as it is paid to the wife, not the parents. This is to show a token of respect. Having said that it is made payable immediately, Shari'ah allows all or part of the dower to be deferred, and is made payable upon an agreed date by the couple or upon divorce or death, whichever that occurs first. A large deferred dower specified in the marriage contract can operate as a protection for wives against divorce; a husband who wants to divorce his wife may decide to stay married rather than to pay her deferred dower upon divorce.

According to the Hanbali school, the couple have the right to add any additional clauses to their marriage contract later on in their marriage, as long as it supplement the object of marriage and not infringing the Shari'ah. For example, clauses that prevent the husband to take in a second wife, or to grant the wife a greater freedom of movement or power to divorce her husband at will, are valid while clauses stating that husband need not maintain the wife or must divorce from previous wife is deemed void. Valid clause is enforceable and that party would have the power to end the contract if the clause is being violated. On the other hand, the Hanafi school normally does not permit additional clauses to the marriage contract. Nonetheless, these days, many of the Hanifi jurists recognize that certain circumstances may be added. The Hanifis accept the clause that gives wife the right to divorce the husband at will but disapprove the clause of stopping the husband from taking another wife. The school of Malikis acknowledge the validity of additional clauses, but limit the wife's right to add a condition which grant her power to divorce by requiring the right to be transferred from the husband in a certain form.

As for the legal formalities of marriage for English family law, notice of marriage has to be given personally to the local superintendent registrar at the Register Office in the district in which the couple reside. The notice of marriage would have the name of the parties involved in the marriage, age, marital status, address, occupation, nationality and also the intended venue for the marriage. It is also a legal document covered by the Perjury Act 1911. Both the couple must lived in a registration district in England or Wales for at least 7 days immediately before giving notice to the Registrar office. If both of the couples live in the same district, therefore both of them should attend the local registrar office to give the notice of marriage. However, if they were living in a different district, the couple would have to hand in the notice of marriage separately into their own district. After giving the notice, there will be a waiting of sixteen days before the marriage can take place. The marriage cannot be proceed unless if the legal formalities have been completed. The notice of marriage must be given in person and cannot be done on behalf. On the wedding day, there need to be at least two witnesses to the marriage and they need to sign on the marriage register. There is also restrictions as to whom one can marry in the English family law system. This include prohibition to of a marriage between persons who are related by blood (relationship of consanguinity) and by marriage (relationships of affinity) as amended in Sch. 1 of the Marriage Act 1949. English law does not permit an uncle to marry his niece.

Next, the Shari'ah sets certain rights, obligations, and duties of the spouses. First and foremost, it is the mutual right and duty of the spouses to treat each other with kindness and respect. In addition, the main duty of the husband is to provide his wife maintenance, such as a must to grant her necessities such as food, medicine, housing and clothing at his own expense. The maintenance provided should be up to the extent which he can afford to according to his financial means. The matrimonial home is a central aspect of maintenance and the wife is expected to follow the husband to the home, which according to the Shari'ah, must be suitable based on the husband's financial capability, habitable, private and must not be occupied by any other people - not even the relatives. The wife's right to maintenance rely on 3 conditions: (i) the validity of the marriage, (ii) wife granting husband access to herself at all lawful times and (iii) the wife obey her husband's lawful commands. If the wife fails to fulfil any one of these conditions, she losses her right to the maintenance.

Under the Shari'ah law, Sunni and Shia schools permit a Muslim man to have up to four wives at a time, proving that the man must treat his wives justly. The verse provides that “Ye shall not be able to deal in fairness and in justice between women however much ye wish.” According to the verse, many countries which adopt Shari'ah family law restricted the men's right to have more than one wife. The laws of Tunisia and the Druzes of Lebanon and Syria prohibit polygamy entirely, while Iraq, Syria, Morocco, and Egypt have limited the right in various ways.

As for the English family law, a marriage bestows rights and obligations on the married parties. This may include giving the husband/wife or their family control over a spouse's sexual service, labour, and property or giving the spouse the responsibility for the other spouse's debts. Other rights would include giving the husband or wife visitation rights when the spouse is incarcerated or hospitalized, giving the spouse control over the spouse's affair when the spouse is injured. These rights and obligations vary considerably between societies, and between groups within society.

The next issue would be divorce. Even though Shari'ah authorizes six forms of divorce, modern legislation in countries that applies Shari'ah in the family law only recognizes three in their systems; (i) talaq, (ii) khula and (iii) tafriq. It should be noted that Islamic divorce did not take into account consideration of separation of marital property or child custody. These main attributes towards the English secular divorce process was not addressed in the Islamic law. The talaq is the act of divorce by a husband or a wife. This divorce may be affected through any form of expression that signifies of the end of the marriage. In most cases, repudiation is revocable until the wife completes a period of iddat, which is the waiting period a wife must observe after her marriage is teminated by divorce or death of her husband. The wife is not allowed to marry other man in the period of iddat. If the divorce is revocable, the husband may resume marital relations with the wife without her consent. The main purpose of iddat is to determine whether the wife is pregnant, thus avoid questions of paternity, and also as a period in which spouses may reconcile. In the period of iddat, the wife is required to stay in the matrimonial home unless she has an acceptable excuse for leaving.

Khula, is a mutual divorce through the common consent of the husband and wife. This divorce requires the wifeto give the husband some form of compensation, which may be pecuniary or consist of the wife agreeing to take care of the couple's child. As in talaq divorces, the wife must observe iddat. The third form of divorce is the tafriq, which is where a divorce was obtain through a judicial ruling issued pursuant to a petition by the wife or the husband. Modern law allows a spouse to apply for divorce using this method on the following grounds: injury or discord; a defect on the part of the husband; the husband's failure to pay maintenance; husband's absence without a proper cause; and the husband's imprisonment. As with the other forms of divorce, a woman divorced by tafriq must observe iddat.

In English family law system, there is only one ground for divorce, which is the marriage has broken down irretrievably, which can only be established by proving one or more of the five facts that is set out in s.1(2) of the Matrimonial Causes Act 1973. Proof of irretrievable breakdown without proof of one of the five elements is insufficient as shown in the case of Richards v Richards. The first element that petitioner can rely upon for a divorce is that the respondent has committed adultery and that the petitioner found it to be intolerable to stay with him/her. The second fact is that the behaviour of the respondent was in a way in which the petitioner cannot be reasonably to be expected to live with. Third element is that respondent has deserted petitioner for a continuous period of two years immediately preceding the presentation of the petitioner. Fourth element is that the parties of marriage have lived apart for two years continuously immediately before the presentation of the petition and the respondent consented to the decree being granted. The last element is that the spouses have lived apart for at least five years continuously immediately preceding the presentation of the petition and this does not require the consent of the other party.

There is a big difference between the Shari'ah law and English law when it comes to divorcing in the family law system. In Britain, the Arbitration Act 1996 approves of alternative dispute resolution through the Shari'ah tribunals. On the other end, Shari'ah courts do not recognize divorces attained in secular courts of law. In addition, an Islamic divorce attained outside the home country of the husband may not be recognized by that country's courts. For instance, Egyptian divorce law requires that if one of the parties to a divorce is Egyptian, Egyptian law is the only enforceable law and the divorce action must take place in Egypt. "As for the Egyptian law stated, in relation to the enforced law in personal affairs cases, marriage and divorce, the act 131/1948 civil, article 13, paragraph 1, stated that the law of the husband country, at the date of concluding marriage contract is enforced on the sequences of marriage, and the article 14 of the said law, stated that (in the cases stated in the above mentioned articles, if one of the couples is Egyptian, the Egyptian law is the only enforced law)".

An example of a Canadian case, Bruker v. Marcovitz, shows the problem in divorcing according to religion. A divorce proceeding between Stephanie Bruker and Jessel Marcovitz, a Jewish couple, was initiated by the wife before a civil court. There was a settled agreement that has been negotiated and was signed by both of the parties. The agreement included a commitment for both party to appear before a Jewish beth din, in order to obtain a religious divorce decree. According to Canada's Divorce Act and Ontario's Family Law Act, the secular side of divorce can only be affirmed by the civil court, as the court did in this case, incorporating the terms of the settled agreement between the parties into the final divorce decree. The responsibility to turn to the rabbinical authorities thus became part of the terms that enabled the civil divorce by a public, state entity. Once the husband had the secular divorce decree in hand, however, he failed to honour the agreement he had signed to remove religious barriers to his wife's remarriage. Mr. Marcovitz refused to appear before the rabbinical authorities, leaving Ms. Bruker in the position known as the agunah or "chained wife" for fifteen years. The consequences of this legal situation are severe. Despite being civilly divorced, the woman is unable to remarry or have children that are recognized as members of the faith. If an English family law is adopted in this case, she could have get a divorce by the element of having live apart from each other for five years and this does not need the consent of her husband. Therefore, I think that there should be one law for all and not according to religious view when it comes to divorce as it might be very difficult to get divorce in a religion if one disagrees and refuses to do so.

There is also a huge different when it comes to adultery in marriage. The Shari'ah law have several provisions that are barbaric, bloody and contradictory with any advanced society. This includes stoning to death the adulterers, flopping the unmarried, and etc. Let us examine one of the case which involve stoning to death in Iran in 2007. This case concerns the stoning to death of Jafar Kiani and Mokarrameh Ebrahimi. Although they consider themselves to be husband and wife, their relationship were deemed to be unlawful. Jafar Kiani had been stoned to death on 5 July 2007. It is then where the case was known by more people. Mokarrameh was forcibly given into the marriage with her cousin in the early age. After having two child and having moved to the city, her husband would often leaves her for months without giving any money to her, she decided to get divorced. However, her dad opposes with her decision. This is when she met Jafar and fell in love with him. They ran away together. They were then caught for adultery. They were released after a 13 years of imprisonment but they continued to be together, thus getting arrested for the second time. However, Mokarrameh had a newborn child with her in the prison. The judge said that this is the proof of them continuing the “unlawful” relationship. As we see from the situation in this case, the punishment was so cruel. Whereas in the English family law, the wife/husband can be divorced if the situation is intolerable for the partners to continue staying together and there is no harsh punishment for adultery.

Looking from the Human Rights' point of view, there is an agreement within the international community that the punishment of stoning violates the fundamental right to freedom from torture and/or cruel, inhuman, or degrading treatment or punishment. The United Nations Convention against torture define torture as “an act which causes severe pain or suffering, whether physically or mentally, which is inflicted intentionally on a person for reasons that include punishment for an actual or suspected crime inflicted by a person acting in an official capacity”. Stoning, from my point of view, fits well into the description as it takes time and a very painful process where the victim dies slowly from the blunt force damage and blood loss. Many U.N. agencies had confirmed that the stoning is a form of torture. The following committees has all recognised stoning as torture as it is cruel, inhuman and is a degrading punishment; Convention on the Rights of the Child, Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights, as well as the Special Rapporteurs on Violence against Women, Extrajudicial, Summary or Arbitrary Executions, and Freedom of Religion or Belief, and the United Nations General Assembly. In one of the Special Rapporteur for the Human Rights in Iran, it states that “there is no doubt that stoning is a cruel, inhuman, or degrading punishment as discussed in the international instruments”. Moreover, there is a view that “even if the sentence [stoning] is never carried out, the mere possibility that it can threaten the accused for years until overturned or commuted also constitutes a form of cruel, inhuman or degrading treatment or punishment”. Finally, the respected international human rights organisations, such as Amnesty International, have long considered stoning as torture. “Stoning to death is particularly cruel and constitutes torture, which is absolutely forbidden under all circumstances in international law".

Article 6(2) of the International Covenant on Civil and Political Rights and the 1984 Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty both indicate that the “capital punishment may be imposed only for the most serious crimes”. Philip Alston, U.N. Special Rapporteur summarise that:

“Moral sanction is a matter for the consciences of individuals and the beliefs of religious groups. Criminal sanctions are an entirely different matter and when the threat of execution is involved, the state cannot stand idly by and permit the two types of sanctions to be conflated in a way that violates international law.”

This is supported by the European Union who strongly claims that adultery does not deserves the death penalty and opposed the criminalisation of consensual adult sexual relations conducted in private (which is known as zina). The way in which the Shari'ah would look into the case of adultery of a family shows a big difference in which the law operates. It infringes the Human Rights policy as of the freedom from torture in which Britain adopts.

The next concern that I have over the Shari'ah law is related to the cases of rape. There have been many incidents in Islamic countries that adopt Shari'ah law have unfair trials toward women that leads to dubious sentencing. An example would be a case of gang-raped victim which happened in 2009 in Saudi Arabia. Unfortunately for this 23 years old woman, she got gang-raped by 5 men after accepting a lift. She later discovered that she was pregnant and attempted to go for abortion. She was then brought to the District Court in Jeddah. The judge ruled that she had committed adultery - despite the fact that she is not married, and sentenced the woman for a year of prison sentence and 100 lashes once she deliver the child. Saudi adopts a strict medieval law which does not allow women to drive. The only sin that she had committed according to my understanding would be accepting a lift from a stranger, which I think, does not deserves 100 lashes whereas the raper roams free. This shows that the Islamic law is being unfair towards the women and have no respect for them. As compare to the English law, if a woman is raped, it does not amount her to commit and adultery.

Another recent happening which occurs in January this year in Dubai shows a very good example of where women were treated badly according to the Islamic law, which the Shari'ah is based on. When a 23 years old woman, a Muslim of Pakistani origin from London, and his fiancé, 44, reported that she was attacked and raped on New Year's Eve after drinking with her fiancé to celebrate their engagement during their three-day holiday in Dubai. Instead of giving trial to the alleged attacker, the police arrested and jailed the woman and her partner for sex outside marriage, which is illegal under the emirates law. The couples were also charged with being drunk outside the allowed premises. The alleged attacker is charged for sex outside marriage although he denied that it was a rape and that it was consensual. According to a report, which is dispute by the legal source in Dubai, instead of following the standard procedure in alleged rape cases, the police were focusing more on the woman's drinking and her sexual preferences. A blood test was taken and proved that the woman was drinking and thus she and her partner were arrested and jailed overnight and released on bail the second day and had their passports being confiscated. The most terrible thing about this case is they couples were only released from the charges, as the woman claimed, on the condition that she signed on the papers stating that she was never raped. This illustrates the Islamic law is not consistent with Article 6 of the Human Rights Act 1998 - rights for a fair trial.

Lastly, let's talk about the child custody following a divorce. According to the Shari'ah, the father is the natural guardian. A mother normally only have a right to physical custody, not legal. This means that the child will only be in the custody of their mum until s/he reaches the age of custodial transfer before the child is returned to the custody of his father. In order for the mother to have physical custody, she must not be married to a stranger or not allowed to marry any other man so long the child's father is still alive. The other condition is that the mother must remain a Muslim in order to be able to have custody over a Muslim child. A mother would lose her right to custody if there is a reason to believe that she would influence the child's religious beliefs, i.e. taking the child to church.

According to s.1 (1) of the Children Act 1989, in English law, whenever a court considers a question of the upbringing of a child, the paramount consideration is the welfare of the child. S. 1(3) of the Act provides a checklist of factors for when the court must take into account what is best for the child's interest. The English law does not gives priority of the custody to the father of the child and gives to the one who is more suitable to give happiness to the child.

Before I go into my conclusion, let's look at the gender relation and the restriction on women by the Shari'ah law. Some of the more conservative Islamic societies require women to be escorted in public at all times by their husband, or a mahram (a man with whom the woman is prohibited sexual relations, i.e. her father, brother or son when he reaches adulthood). In certain traditional societies, women cannot travel alone. In Saudi Arabia, this restriction extends to the prohibition on women driving cars and travelling within the country without official permission. There is one occurrence from Dhahran, Saudi Arabia, which involves two working professionals, both educated in the United States, and both holding advanced graduate degrees. The husband was travelling in a remote part of the Kingdom when his wife received word of her father's hospitalization in Bahrain. Bahrain is a small island nation on the Persian Gulf, approximately fifteen minutes by airplane from Dhahran. Although her brother, an appropriate mahram, was at her father's side and able to travel to the Kingdom to escort her, tedious entry visa requirements called for the brother to be sponsored by her husband, a Saudi citizen. The Saudi husband could not be reached, and their son was too young to escort the mother or to sponsor the uncle. The woman was not allowed to exit the country, and her father died the following day. Even if the husband had provided his wife with written permission in anticipation of a family emergency, she could not have left the country without the physical presence of a mahram. This violates Article 13 of The Universal Declaration of Human Rights which states that everyone has the right to freedom of movement and residence within the borders of each state and to leave any country, including his own, and to return to his country.

As a conclusion, although there is some similarity in the Shari'ah -based family law system and the English family law, there is a few points where the law is totally opposite, such as stoning to death adulterers. Although the Lord Chief Justice Lord Phillips signalled approval for the Shari'ah principles, as long as the punishment compile with the law of the land, in his speech at an East London mosque in 2008, I would still argue that there is still great disadvantage to the women. The fact that so many Shari'ah rulings in Britain relate to cases concerning divorce and custody of children is of particular concern, as women are not equal in Shari'ah law, and Shari'ah contains no specific commitment to the best interests of the child that is fundamental to family law in the UK. Under Shari'ah, a male child belongs to the father after the age of seven, regardless of circumstances. Therefore, I would suggest that we should stay with the current English family law as it is fairer to all the party involved in the family dispute. The emergence of new forms of family law governance in Britain such as Shari'ah Councils will definitely undermine the principles of English family law.

Bibliography

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