As a PhD Candidate researching Sharia councils in the UK, I was in the fortunate position of gaining access to several hearings at these institutions, which are normally closed to the public. It was a great experience and I am thankful to my hosts for having me as a visitor.
According to my sources, there are currently about ten to fifteen Sharia councils in the United Kingdom. There are two main reasons why such informal religious tribunals have been able to flourish there since the early eighties. Firstly, for decades now the United Kingdom has overtly embraced a multiculturalist ideology, which draws on the acceptance of the equality of cultures and the value of (the preservation of) culture. Secondly, the Arbitration Act of 1996 has provided legal jargon for these councils, and it is under the header of mediation and arbitration that these informal tribunals have been able to function.
Interestingly enough, every interviewee confirmed my professional intuition that these councils do not mediate or arbitrate. Their ‘core business’ consists of dealing with women requesting an Islamic divorce. In fact, 95 per cent of the cases (hundreds per year per council) relate to divorce settlements. And, considering that mediation and arbitration are tools for extra-judicial decision-making for a minimum of two parties, a one-party divorce request surely does not count as any form of alternative dispute resolution.
Take, for instance, the most well-known, or most notorious, Sharia council. That is the one in Leyton, a neighborhood in East London, and the one which BBC’s Panorama documentary 'Secrets of Britain's Sharia Councils’ focused on last April. This one is located in a house with wheelchair access, a reception, and a website with downloadable forms. This is the Islamic Sharia Council which is led by Shaykh dr. Al-Haddad, whose visit to the Netherlands caused a stir in 2012.
There I spoke, among others, with Khola Hasan, daughter of Shaykh dr. Suhaib Hasan - who is a judge (qadi), as well. Ms. Hasan is a ‘judge in training’ at the Islamic Sharia Council. She tells me that women want a religious divorce because their community expects them to get one, regardless of a civil divorce – if there ever was a civil marriage at all. Otherwise, the members of the community will ostracize the woman. “If a woman is not (religiously, MZ) divorced, they feel you don’t take religion seriously”.
If the husband wishes to divorce his wife, he can unilaterally – without permission of his wife – do so by pronouncing the talaq. However, if the woman initiates divorce, known as the khul, both parties have to agree to the wife’s release from the marriage contract, and in most cases she is expected to refund the sum of the dowry to the husband. Also, the qadi may rule a divorce without permission of the husband, when he deems one of the Sharia grounds for divorce to be proven, for example when the husband harmed the wife.
It is not uncommon for a man to refuse cooperation until he feels enough money has been paid by his wife, nor is it uncommon for women to plea before the qadi that she is a victim of domestic abuse, hoping that the ‘judge’ will agree with her divorce request. I have witnessed these hearings. Women testify there has been emotional and/or physical abuse, that huge loans are taken out on her name which she will need to pay for, that the husband hasn’t been seen for years, that he has other wives besides her. No qadi acted surprised when a woman told about abuse, and the police are never mentioned.
Regarding their ‘core business’, the Leyton approach is clear. In between cases, ‘judge’ Shaykh Abu Sayeed tells me that “We don’t break the marriage. As long as marriage is sacred, our job is to reconcile the marriage”. (Arguably, an arbitrator or mediator would not have an agenda of its own.) He is fully aware that most of the women requesting divorce are on the receiving end of violence. However, testimonies by these women remain ‘allegations’, if not confirmed by their husbands. The Leyton Sharia council does send out letters to the husband to come in and tell their version of what happened. Yet, husbands are known to stall the procedure by not showing up when invited.
Divorce proceedings can thus take years if the husband is unwilling to cooperate, leaving women in marital captivity. This ‘split-status’ position occurs when a woman is divorced under civil law, but is still married under religious law. And not only husbands are stalling. As shown above, the qadi’s can be very reluctant to cooperate as well, leaving women under the whims of their, not seldom, abusive husbands, and dependent on a religious council which is not on their side.
On the website of Leyton’s Islamic Sharia Council it clearly states that the ‘ISC has nothing to do with the civil marriages which are dissolved by the British Courts and not by the Council’. This was made clear to a married couple when they came in and asked Furqan Mahboob, another qadi, whether her civil divorce of another man, several years ago, constituted a religious divorce as well. It is important, because if that is not the case, she would still be married to her first husband. The conversation went as follows:
Qadi: Of course not. A civil divorce is a ground for divorce, and the woman needs a Sharia council to pronounce the religious divorce. Who told you a civil divorce would be enough?
Wife: My friends and family.
Husband: But I thought Muslims in a non-Muslim country need to abide by the laws of the land of the country they live in.
Qadi: We have Islam. Secular courts do not have Islamic laws. Can a kafir (non-Muslim, MZ) come in and judge Islamic matters?
Qadi: Is marriage an act of worship?
Qadi: Can a non-Muslim, “I, John, who don’t believe in God, I grant you divorce”, can he?
The young qadi told me afterwards that according to Islamic laws, the couple may need to be separated: “If the first marriage stands, then the current marriage is void and it is considered adultery.” They have children.
This case, as any other case at the Islamic Sharia Council, will be discussed at a monthly meeting of the fifteen members of a panel, consisting of senior Islamic scholars, among which are Abu Sayeed, Suhaib Hasan and Haitham Al-Haddad. The couple’s fate is now in their hands.