Profiles of Women Turning to Shari’a Courts

The classification below is based on two sources. The first is a six- month examination of cases that went to trial conducted by Salma Dean, a survivor of a forced marriage and a barrister working on human rights; she worked on Baroness Cox’s team on the Equality Bill.

First Type of Case: Religious Divorce

A woman whose marriage is forced or arranged seeks a religious di­vorce because she believes that a civil divorce does not suffice, as peo­ple have told her that under Muslim law she is not divorced.

Within this category is another subgroup: mainly first- or second- generation Muslim women, who were born and brought up in Eng­land and often have a strong Muslim identity. Others are women who converted to Islam and took on an Islamic mantle. For this group it is crucial to have a religious divorce, just as they desired a religious marriage.

Sonia Shah-Kazemi and Samia Bano each conducted studies on shari’a councils, interviewing 20 to 25 women each. They both high­lighted how important it was to these women to get a religious divorce, as they consider that doing so is ‘part of their religious identity’.¹⁷

SecondTypeofCase: Ma rageOutsrfeofle UK

These marriages may be either forced or arranged. The ceremony may have taken place in Pakistan, Bangladesh, or India, and no civil

Womewawd Shait a law 33 marriage followed in the UK. Under international private law, the UK recognises a marriage conducted outside of the country and considers it legally binding, and therefore it is legally possible to dissolve it. Many women do not know this and think that the only place they can get help ending their marriage is a shari’a court.

Within this category are those who come to England on a spousal visa, often marrying a cousin or a member of a clan living in the UK. Usually they do not speak English, they have little if any formal education, and they are not aware of their legal rights in England. They live under the patriarchal regime in the family household, often in poverty in a ghettoised area of England. Women in this category ‘genuinely believe that the community is the only option they have in England; they are not aware of the wider society in England’.¹⁸

Tld-TypeofGase: UKMatage NotuwderCtwiilEaw

Women in this category had a religious marriage but failed to regis­ter it. Such marriages, called nikahs, are not recognised under civil law, so these women must go to a shari’a court to get a divorce. This category is prevalent among British Muslim women, with dire legal consequences.

In 2017 Channel 4 conducted the largest survey to date on Muslim un­registered marriages.¹⁹ The survey covered 923 Muslim women and was

carried out by 20 female Muslim community researchers between December 2016 and September 2017 through face-to-face and phone interviews. Four fifths of those interviewed were born in the UK, and 99 per cent had a religious ceremony. 60.1 per cent of those said that they did not have a civil marriage ceremony in addition to their religious marriage. Over one quarter (28.2 %) of those in religious-only marriages believed, incorrectly, that they were legally married in the UK and therefore had the legal protec­tions that entails.²⁰

The failure to register an Islamic religious marriage is considered a widespread problem in the UK - alarming to the extent that the BBC reported on it and women’s organisations launched campaigns to alert women about the consequences of not registering their mar­riages. Cassandra Balchin, the late president of the Muslim Women’s Network, explained that nikahs are a matter of concern because the woman has little recourse to justice if she experiences discord in the relationship or her husband dies.²¹

There are many reasons why women fail to register their marriages.

In her study Untying the Knot, Sonia Shah-Kazemi examined a to­tal of 287 case files in one shari’a council in Ealing, West London. She found that 57 per cent of the women had a religious Islamic marriage but did not register it in the UK as required by civil law (not all of these religious marriages took place in the UK); 27 per cent who had religious marriages in the UK did not register them.²³

Samia Bono also examined cases in various shari’a councils in the UK for her Muslim Women and Shari’a Councils. Most of those cases involved women whose religious marriages were not registered. This was not a matter of the women making a deliberate decision. In fact, the majority of these women expected that their religious marriages would be registered after they completed the religious ceremony and consummated the marriage. But some husbands simply refused to reg­ister, and thus formalise, the marriage as required by civil law. Bano concludes that it would be difficult to ignore the ‘relations of power and the gendered cultural norms and values’ that underline the deci­sions made by many husbands not to formalise the marriage. These women are left with a violation of their trust and a loss of decision­making and autonomy in the marriage.²⁴

Sometimes the husband has another motive for refusing to register the marriage: he is entering into a polygamous marriage.

In an interview with the BBC, Dr Ghayasuddin Siddiqui, a British Muslim leader in the UK, and a founding trustee of the Muslim In­stitute and of British Muslims for Secular Democracy, expressed his concern about the exploitation some women are subjected to. Their partners promise them a civil wedding after the religious marriage, and then refuse to go ahead with it after consummating the marriage:

This allows Muslim men to control their wives because they can threaten to leave them and end the Islamic marriage by just saying the words ‘divorce, divorce, divorce’ to her. It also enables some men to commit polygamy. I know of cases where men have taken on several wives because they have just had the nikah with each partner.²⁵

The rise of fundamentalist interpretations of Islam within some closed communities, some of my interviewees contend, has mainstreamed polygamy as part of an ‘Islamic way of life’. It has also led ‘women to be misled’ that a religious marriage, a nikah, is the ‘proper Muslim way’.²⁶ When they face troubles in their marriage they discover that they are left with no protection and are forced to go to a shari’a court.