Shariah Councils

Shariah Councils are quasi-legal or unofficial legal bodies that func­tion to mediate, arbitrate and issue Muslim divorce certificates: the product of transnational networks unique to the British diaspora.³⁸ Other studies in Western countries such as France, Canada, the United States of America and Australia confirm that Muslims there also refer marital disputes to Shariah Councils,³⁹ albeit these institu­tions are not as structured as the Shariah Councils found in Britain.

Ninety per cent of our cases are women-initiated divorce. Women come to us because they want verification that they are divorced because their husband pronounced divorce (talaq), or they started the civil proceedings and want the Islamic divorce. In other cases, women have no civil marriage and come to us [Sharia Council] as they have nowhere else to go to get a divorce.

(SC Judge #1)

There are reports that at least 85 Shariah Councils are operating as parallel legal systems, though mainly out of mosques around the coun- try.⁴¹ Bano reports a more conservative figure of 30 Shariah Councils and concludes that these councils do not desire to replace civil law, and claims of forming a parallel legal system are unfounded.⁴² The imams commented on the perception of Shariah Councils and their role in society.

When you hear of Sharia courts [i.e. councils], the perception is there are many operating out there, yet there are only a few main ones across the country. The rest are one or two people in the mosque dealing with cases, I do not think they are genuine courts.

(Imam #2)

All the Sharia Councils operate in an advisory capacity, they have no legal remit, and they can’t enforce anything.

(Imam #1)

The imams reiterated two issues: firstly, that in reality there are proba­bly a small number of organisations genuinely set up to act as Shariah Councils operating in Britain, and secondly, the modus operandi of these councils is only in an advisory capacity. Furthermore, the Sha­riah Council’s documentation - application forms and information sheets - clearly demarcates their limitations with respect to civil law, for instance, they state that all civil marriages including overseas marriages require a civil divorce for dissolution, and refer clients to solicitors for civil divorce cases. The Shariah Council explained that they do not adjudicate on matters concerning child arrangements and financial relief.

We deal with religious divorce and mahr only. Anything else the parties have to go to family courts or small claim courts for set­tlement, we cannot deal with this.

(SC Judge #1)

Another concern raised against Shariah Councils is the oppression of women with religiously sanctioned gender discrimination⁴³ and the application of Shariah law which contradicts universal human rights.⁴⁴ Norton argues that religious tribunals support religious freedom, as they are a source of religious knowledge and guidance; and religious expertise is an important aspect of religious freedom.⁴⁵ The Islamic divorce process with the Shariah Council differentiated between male- and female-initiated divorce. In talaq applications, the council’s role was one of administering the process. Whereas the khula application was more arduous, applicants had to justify their reasons for divorce, the process could take longer to complete and involved more fees than the talaq. One participant with a nikah-only marriage explained her frustration with the Shariah Council.

He [the husband] said he was never going to give me a divorce.

(Jahanara)

The necessity for an authoritative Shariah body to proclaim faskh leads British Muslims to approach mosques and Shariah Councils who have a panel or Shariah board to consider their divorce cases. Qureshi’s study of marital breakdown among British Asians found the bulk of the cases dealt with by Shariah Councils were faskhs, i.e. dissolutions, and believes it is a sign of the unwillingness of men to

ShariahCcuncilsinthe 1 71 recognise the authority of Shariah Council.⁴⁶ However, in this study, the Shariah Council often declared faskh due to the unwillingness of men to release women from the marriage, not because the husbands rejected the Council’s authority, a subtle difference. The Shariah Council provided further explanation.

To men it is an affront if a woman remarries; it is like how dare she moves on. Men are withholding talaq when they have every right to give the wife talaq. The man gets annoyed that someone else can give a divorce certificate so that he cannot be spiteful anymore.

(SC Judge #1)

For this function alone, faskh, Shariah Councils provide an important role among the British diasporic Muslim community which the civil authorities are unable to provide, i.e. religious divorce. In general, the experts viewed Shariah Councils contributed positively to secur­ing Islamic divorce for Muslim women; though they accepted not all Shariah Councils processed divorce efficiently and there was scope to improve their procedures and infrastructure.

There is nothing wrong with the motive of the existing services [Sharia Councils], but maybe they lack the appropriate measures and appropriate application, it is quite challenging.

(Imam #2)

The Shariah Council explained how they worked in cohesion with other services such as the police, solicitors and counsellors; though their services face constant scrutiny by the media and government, the Shariah Council argued there is a need for the specialist services they provide to the Muslim community. The experts agreed Shariah Councils could improve practices by addressing gender-related issues such as the disparity in application fees for talaq and khula and hav­ing female caseworkers and female members on the Shariah board. The Shariah Council responded on the issue of fees.

[Sharia Council] judges give decisions according to the situation. No woman is refused a divorce, rather it takes time to process an application. And where there are financial difficulties, women receiving [welfare] benefits are entitled to concessions on the fees.

(SC Judge #3)

Whilst Shariah Councils are imperfect in their current form with room for improvement, they fill a void in civil law by resolving reli­gious divorce. The findings of this study suggest the need to establish a ‘standard of practice’ to ensure equality and justice among forums that resolve Islamic divorce. Firstly, Shariah Councils that recognise a civil divorce as sufficient and issue an Islamic divorce accordingly represent the best option for women seeking religious divorce. Sec­ondly, there needs to be equality in the application process for Islamic divorce, whereby fees charged to men and women are the same, and the length of time to process the application is consistent. Thirdly, Shariah Councils need to incorporate a complaints procedure and ap­peals system concerning decisions given to ensure justice and trans­parency. Fourthly, female representation is required at different levels of the application process, from female caseworkers to female mem­bers on the Shariah board or decision-making panel. Adopting these recommendations would ensure Shariah Councils and other similar forums safeguard and empower women and address any imbalances arising from norms that disadvantage Muslim women.