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Equality in Divorce

Equality in Divorce

Issue 67 April 2010

Reconsidering the traditional Shari’ah views on divorce in the United Kingdom.

 

Recently, I have been researching the role of Shari’ah courts in Britain, particularly their role in matters of divorce, which understandably is an emotive subject for both Muslims and non-Muslims.

Some opponents of Shari’ah courts in the UK base their views on their perception that Shari’ah law and/or Shari’ah courts place the rights of men over those of women. But I question the relevance of this for the average Muslim woman trying to extricate herself from a dysfunctional or abusive marriage. Such victims are often trapped by their own understanding of Shari’ah, as well as that of the community. Even the best educational initiatives can take generations to change some entrenched ideas. When you suggest that their problems would be solved if they and their families changed their understanding of the Shari’ah or abandoned it in favour of a liberal-secular view of marriage, you are like the old man who, when asked directions by a passer-by, replied “ ah well, you see, you don’t want to start from here...”

Traditional supporters of Shari’ah rejoin that it is not Shari’ah that is the problem but the failure of the British establishment to incorporate it into civil law. I would agree that this is an issue but at the same time, we need to acknowledge the magnitude of the change being demanded. Religious divorce has never had a role to play in the UK. Contrary to popular understanding, divorce was not brought in under Henry VIII, he was in fact never divorced but his marriage was annulled. The Church of England has never had a procedure for divorce and until as late as 2002 refused to marry divorcees in church. Divorce was actually introduced by Oliver Cromwell and has always been secular in nature.

To return to my point, while such debates go on we are ignoring the fact that there is injustice and oppression taking place here and now. To best serve our community, we need to recognise the real issues that are affecting it and address them now. Some conditions require long term treatment but the same patients may also require urgent first aid.

The most pressing issue has to be those women who are already in dysfunctional or abusive marriages. Many of our sisters marry through the local Imam in good faith, but when their marriages fail they are left with no-one to turn to. The nikah that these women trusted to protect them, in fact, turned out to be a barrier to them freeing themselves from their partner and no Imam has the power to enforce her rights.

Undoubtedly, we should be insisting that all marriages are registered by the State as this is the only way women and children can demand the protection implicit in the nikah but even with a state registered marriage and subsequent divorce most Muslim women and their families will not feel they are truly free of her marriage unless this verdict is also given by a Shari’ah court.

Birmingham Shari’ah court has facilitated the divorce of more than 1000 women from broken marriages and freed them to find new partners, to have another chance at a stable and loving family life. Like all the Shari’ah courts in the UK today their work is unsupervised and unregulated, which leads to accusations from all sides: traditionalists claim their preferred opinion is not adhered to; modernists claim they maintain a culture of inequality; and non-Muslims are afraid that their existence undermines the principle of one law for everyone. However, we must remember that for many women, the Shari’ah courts are all we have got and rather than pulling them down for whatever deficiencies we perceive them to have, I believe we should be giving them our support and helping them to do better.

 

Dawud Bone is the Stone Ashdown Director of the Centre for the Study of Muslim-Jewish Relations at the Woolf Institute of Abrahamic Faiths in Cambridge.

 

To read more of Dawud Bone's articles in emel, click here

 

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Comments

1 Comment

1

1R4M

30 Jun 10, 14:56

Great article, I always look forward to your opinions and I agree 100%

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