Family Disputes and Islamic Divorce

In fact, cases involving matrimonial disputes or other personal or family mat­ters are solved in procedures the institution calls mediation^{[64] [65] This label de­termines that the outcomes of family dispute resolution at mat are not legally binding and thus not enforceable in the English courts under the Arbitration Act 1996.}

Like shari^ta councils, mat offers a service for ending Islamic marriages through divorce or dissolution, using similar procedures to do so ^{[66] [67] Siddiqi explains that Islamic law gave them “the power [...] to do that”, to “give the woman relief’^8 Here he uses the Islamic terms: khulc, i.e. a divorce at the re­quest of the wife, given by the husband and thus obtained through negotiation or mediation with the help of mat, as Siddiqi puts it;[68] andfaskh, the dissolu­tion of an Islamic marriage “through findings”,[69] [70] [71] [72] [73] [74] [75] [76] which would - in classical terms - be decided upon and pronounced by a Muslim judge. In the absence of an Islamic court system, sharita councils and mat have made Islamic divorce and marriage dissolution their business and offer it to Muslims in the UK. The chairman of mat and his colleague estimate that they do more khuΓ proce­dures than faskh, probably amounting to a ratio of 60% khuΓ and 40% faskh?1}

Siddiqi stresses that if “reconciliation has been attempted”/² there is no need to prolong matters by insisting on any further discussion about saving the marriage.

While the mere issuing of the khuΓ or the pronunciation offaskh are a reli­gious act and as such not recognised by English law, there may be mediation involved prior to a divorce or marriage dissolution by mat in case, “the people [had not yet] given themselves the right opportunity and forum to consider reconciliation”/⁵ and the scholars see the possibility of solving the dispute and saving the marriage.

In the case of a divorce application being filed and where there is no pos­sibility of reconciliation between the spouses, mediation remains an option for settling organisational questions around the clients' separation/6 Siddiqi explains that at mat they cannot perform “court mediation”, however, and were not registered to hold, “mediation information and assessment meetings” (miam).77 For parties to family disputes about child arrangements, parental responsibility, guardianship as well as financial disputes, for example about maintenance provisions or questions relating to property or pension sharing, attending a miam is mandatory before a court order can be obtained.^{[77] [78] [79] [80] [81] [82] [83] In such a meeting an authorised mediator informs the disputants about adr, including mediation, and evaluates whether mediation or another form of ADR is suit­able for the case.79 Exemptions from the miam requirement include domestic violence, child protection concerns and urgency, as immediate access to court is important in such cases, 8° but also the participation, “in another form of non-court dispute resolution relating to the same or substantially the same dispute”81 during the four months prior to or at the time of making the appli­cation to the court. This means that disputants who went through mediation before - which should not exclude a mediation procedure at an Islamic insti­tution - and in the aftermath desire a court order to be made, would not have to attend a miam anymore.}

Facilitating this, every mediation process at mat ends with writing up the results, Siddiqi says. He confirms that questions around the separation of a couple, like money, property, care and maintenance of children (these, as mentioned above being exactly the applications listed in the English family procedure rules) can be agreed upon by the parties at mat through media­tion. A “joined consent order” can then be presented in the presence of both parties' lawyers in front of ajudge who may or may not approve of the ar­rangements and accordingly declare them legally binding and enforceable or not.8³ Siddiqi claims that getting such a consent order was a common outcome of mediations at mat and that judges usually agreed with the arrangements the parties arrived at.8⁴ A solicitor working for mat, however, told Bowen in an interview that at least in divorce cases consent orders were in fact rarely made, because the parties to such disputes were usually angry, not prepared to agree on matters in a mediation procedure - and thus eventually went to court for litigation.^[84]

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