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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.

Secondly 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.

35 comments for: Mohammed Amin: Putting religious marriages on firmer legal ground

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