Results and Findings

The primary data collected here is valuable as personal testimonies enrich our understanding of lived experience and law in action. Some interesting results emerged on Islamic plurality and spiritual loyalty towards egalitarian principles and these women defined this as ‘gender-j ust’ narratives based on classical female scholars such as A’isha Bint Abi Bakr (Prophet Muhammad’s wife), ‘egalitarian justice’ defined in the Qur’an (Kadivar, 2013).

Most participants provided a strong critique that Islamic arbitration and mediation offers greater justice if egalitarian principles are adopted. We can learn from narratives that make use of Shari’a Councils that these women seek to cultivate an ethical self by actively engaging with values, norms and codes of conduct they perceive as essential to the nurturing of their faith. They strive to take part in a moral universe in which Islam is the discursive terrain upon which believers collectively struggle to define alternative conceptions of justice. The abuse of ‘religious authority’ was something English law was deemed to safeguard women against as these are non-binding. South Asians and other Muslim women claimed to follow Islam observed by the early Muslims in Prophet Muhammad’s time. There were 12 women in unregistered (religious- only) marriages, and this was higher than expected in the sample of 25 and were both British and immigrants. This also represents a vulnerability problem which the government is trying to address based on Law Commission’s recommendations, ‘Outdated weddings laws to be overhauled under new reforms’.⁹ The recommendations are both timely and long overdue in the present circumstances, such as the pandemic rules allowing preliminaries and even the ceremonies itself to be carried out remotely. Therefore, reforms of the antiquated laws are required, for example, to the Marriage Act 1949.

Of the 25 women, 13 were British and in both civil and religious marriages; of the 13 British women, four were in polygamous religious-only marriages (these women’s husbands had another religious wife). For example, one such woman was a successful family law solicitor with one child from her ten-year marriage and did not care what her husband did because she had a successful career. Of the 25 women, six were British women in religious-only marriages; 12 were immigrants and without valid leave and unable to marry legally and therefore, they were in religious-only marriages (only five were South Asian Muslims) who did not hold formal qualifications such as a degree. The 12 immigrants had entered the UK on student visa and this expired, visitor visa (seven women) and this expired and are remaining as over-stayers, immigrants entering with an agent at a UK port without a valid passport and claiming asylum (there were five women) and had exhausted all the appeal process. These women had entered the UK between 2012 and 2014. As these women did not have permission to stay in the UK, they were advised by solicitors, family friends and community friends that if they marry a settled or a British person then they can settle on human rights grounds or discretionary leave to remain under immigration rules, mainly Article 8 (right to private and family life). These women were aware that if they legally attempted to marry, then they face the possibility of being detained by immigration authorities and face removal.

Of the 25 women, four were in the UK on a spouse visa which had expired and did not have possession of their passports and/or their marriage certificates, they had validly entered the UK (spouse visa) with both civil and religious marriage ceremonies taking place abroad. All four had applied to the Home Office under domestic violence provision of the immigration rules.¹⁰

Of the 25 women, 17 considered egalitarian Islamic justice was fairer than the present system adopted by Shari’a Councils and they did not consider that the English family justice system treated them fairly.

For example, immigrants have no access to legal aid or the justice system and there are no special interventions for Muslim victims of abuse because these women require different treatment to the non-Muslim victims who seek, for example, fatwas (religious rulings they abide) from local imams, Shari’a Councils and online. One common theme among the interviewees was that they all voluntarily approached Shari’a Councils because, of the 25 women, 17 wanted egalitarian justice (based on the Qur’an, Sunna and cited A’isha’s (gender-just) narratives from ahadith, sayings of the Prophet). Participant one in the focus group said, ‘we are Muslims and want a religious remedy based on “gender-just principles” (egalitarian justice) since the Qur’an was revealed to liberate the oppressed women, orphans and the poor’. The second participant said, ‘religious remedy cannot be overlooked and therefore, English remedies are for those women in extreme violent marriages’. Women wanted to exercise their autonomy and choose egalitarian Islamic justice. These women had confirmed that migrant and gender discrimination also exist under the English justice system and only in the case of extreme violence would women resort to the police and the English family courts. These women appeared to be happy to use Shari’a Councils but suggested reforms to adopt the English mediation principles.

The five participants in the focus group were not referred to mediation but had attended MIAMs. Of the 25 women, 12 attended mediation and one of them said, ‘mediators do not pick up on body language and they need to play an active interventionist role to remove power imbalances relating to finances’, and the other 11 agreed. Of the 25 women, 10 confirmed that inequalities/injustices are greater for Muslim women and English mediators need specific or special training to deal with these cases (interviewed in 2016). There were also concerns raised about financial agreements where some English mediators did not request men to disclose financial evidence and unsatisfactory outcomes were reached.

Women had very little confidence in English mediation and 16 women confirmed that there should be an Islamic mediator working with an English mediator (this would be a co-mediation model) to point out the financial rights of a wife particularly for an abused wife.

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Sobia said:

I felt that an Islamic mediator will understand issues from an Islamic perspective and not the English culture. I attended a simultaneous mediation session, but we were seen separately. My husband told me to apply for khula (divorce instigated by wife and she loses mahr) I just wanted my Islamic mahr but due to khula the religious mediator cited a verse of the Qur’an and told me that I lost my right for mahr even though I was forced to apply for khula (initiated by wife) as a consequence of violence.¹¹

The above participant attended mediation and was referring to a single session. This participant was seen separately and to some extent this addressed to eliminate power imbalance. The main reason for divorce was ‘domestic abuse’ and the wife was pressured to apply for a divorce with mutual consent of her husband. However, this participant’s bargaining position was compromised due to domestic abuse. There are three common divorces taking place at these Shari’a Councils, talaq (initiated by the husband and mahr is not required to be returned to the husband); khula (on mutual consent or known as nonfault divorce, wife instigates divorce and loses mahr or the husband can give up the return of the mahr) and faskh - instigated by the wife and obtained from a religious authority in the absence of the husband if he refuses to divorce her and mahr is retained, if paid at the time of marriage or not recoverable (Esposito and DeLong-Bas, 2001). The religious mediator did not attempt to correct this power imbalance relating to mahr and he should have recognised the fault of violence on the husband’s part to advise the wife to retain her mahr.

Religious sources were used to undermine the woman’s right to mahr in a domestic abuse case. Mediated agreements arising from a climate of intimidation or violence involving two unequal parties was likely to produce an agreement that was neither just nor equitable (Astor, 1994).

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Legal Aid Fuudiug

Annie said:

I was an overstayer (visa had expired) and I went to see several solicitors who said without legal aid they could not help me because I did not qualify due to my immigration status. I called one Islamic Shari’a Council and a female scholar told me she will assist me. I went to a joint mediation session and my husband was only prepared to give me one thousand pounds out of my 5,000 pounds mahr and my husband said I might be removed by the authorities as I am reporting to an immigration officer. I accepted one thousand to pay to legalise my immigration status.¹²

In this case, the Shari’a Council agrees to assist and told Annie to pay later and therefore filling the gap left by the English justice system. The immigration status of one party should not be used against the other. The mediator should have steered the direction of the negotiations to focus on making the full payment and at least a greater portion of the sum. The imbalance of power triggered by the immigration status weakened the bargaining position of the wife. As Islamic mediators have a greater interventionist role, he should have informed about other options such as referring the wife to a legal aid mediator, a solicitor and/or English family courts. In this case, the immigration was also used against her under English law as she was excluded from legal aid.

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Source: Bano Samia (ed.). The Sharia Inquiry, Religious Practice and Muslim Family Law in Britain. Routledge,2023. — 143 p.. 2023

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