jaja
15-09-03, 08:52
Viewpoint: Women and Sharia law
Aina Khan, Lawyer specialising in Islamic law
Aina Khan is a solicitor in London. Her family is originally from Pakistan, and she has grown up with a strong commitment to women's rights in Islam. She specialises in achieving solutions using Sharia law principles in the English courts.
In my practice as a Muslim woman solicitor in London, I daily handle cases in which clients wish to have their Islamic legal rights recognised under English law. A common problem is that some Muslim women have never had their marriages registered under English law.
If the Islamic ceremony takes place in the UK, it is essential to also have a civil registration. Otherwise the woman has no matrimonial rights and is left with the much lesser rights of a 'cohabitee'. Although there are moves to increase these rights, at present the view is that marriage should be given a higher status than merely living together.
When my client is a cohabitee, I have to obtain a 'Declaration of Trust' from the court, which decides in what shares the couple intended to hold any assets. This is a complex matter, and it is so much easier to get an equitable settlement under matrimonial rights. It is surprisingly common for even well-educated Muslim women not to register their marriages, deeming it unnecessary, only to face enormous problems on divorce or death. We are living as British citizens - if we register our cars, should we not also register our marriage?
Financial rights
Sharia (Islamic) law states that after marriage, a woman keeps the money and property she owns. This was a startling concept when Islam introduced it 1400 years ago - until the 19th century, women could not even own property in the UK! It belonged either to her male relatives or to her husband. For Muslims, it is a husband's primary duty to financially maintain his wife and children, with any contribution the wife makes being voluntary.
Further, to avoid disputes later on, the wife is given a set financial sum at the time of the marriage, which is written down as a term of the 'Nikah' or marriage contract. This sum is known as 'Haq Mehr', and is intended to give the wife enough to survive on in the event of divorce or widowhood. Often, a husband refuses to pay the 'Haq Mehr', which we then enforce in English law as a contractual right. Also, the use of prenuptial agreements is becoming more common in the UK. The 'Nikah Nama', or Islamic marriage certificate, can be viewed as such an agreement, since it addresses the issue of the financial settlement and is signed before witnesses.
Forced marriages
In Islam, a woman's consent has to be obtained for marriage.
This was a truly liberating right, as it was given at a time when families arranged marriages to align power and fortunes. In spite of being set free by Islam so long ago, many women - from the Indian sub-continent in particular - are still becoming victims of forced marriages today. The family forces a woman to marry a man of their choice, often from 'back home', and her wishes are overridden. The woman is stuck in a loveless, miserable marriage.
Once she becomes aware that such a marriage is not acceptable under Islam, she can obtain a simple annulment from the Sharia Council in the UK. Under English law, we help her obtain a Nullity decree, which declares that the marriage was void from the start because of the 'duress' used. This enables the woman to state that she was never legally married, an important point when divorce can so often be a stigma.
It is essential to state that a common misconception is that if the woman can prove she is a virgin, she can obtain a Nullity decree. Quite aside from the fact that the courts would find it distasteful to subject a girl to providing such medical evidence, there is a legal bar - the marriage can only be void if there is 'wilful non-consummation' by the other party i.e. (usually) the man is refusing to consummate. Since the reality is usually the opposite, this option is not available to many. English law can be extremely accommodating of Sharia law rights.
With the growth in numbers of practicing Muslims in the UK, and more women increasingly proud of their Islamic legal rights, there is an increasing need for UK lawyers who recognise the work that can be done to ensure equality and justice under English law.
http://news.bbc.co.uk/2/hi/talking_point/special/islam/3198285.stm
Aina Khan, Lawyer specialising in Islamic law
Aina Khan is a solicitor in London. Her family is originally from Pakistan, and she has grown up with a strong commitment to women's rights in Islam. She specialises in achieving solutions using Sharia law principles in the English courts.
In my practice as a Muslim woman solicitor in London, I daily handle cases in which clients wish to have their Islamic legal rights recognised under English law. A common problem is that some Muslim women have never had their marriages registered under English law.
If the Islamic ceremony takes place in the UK, it is essential to also have a civil registration. Otherwise the woman has no matrimonial rights and is left with the much lesser rights of a 'cohabitee'. Although there are moves to increase these rights, at present the view is that marriage should be given a higher status than merely living together.
When my client is a cohabitee, I have to obtain a 'Declaration of Trust' from the court, which decides in what shares the couple intended to hold any assets. This is a complex matter, and it is so much easier to get an equitable settlement under matrimonial rights. It is surprisingly common for even well-educated Muslim women not to register their marriages, deeming it unnecessary, only to face enormous problems on divorce or death. We are living as British citizens - if we register our cars, should we not also register our marriage?
Financial rights
Sharia (Islamic) law states that after marriage, a woman keeps the money and property she owns. This was a startling concept when Islam introduced it 1400 years ago - until the 19th century, women could not even own property in the UK! It belonged either to her male relatives or to her husband. For Muslims, it is a husband's primary duty to financially maintain his wife and children, with any contribution the wife makes being voluntary.
Further, to avoid disputes later on, the wife is given a set financial sum at the time of the marriage, which is written down as a term of the 'Nikah' or marriage contract. This sum is known as 'Haq Mehr', and is intended to give the wife enough to survive on in the event of divorce or widowhood. Often, a husband refuses to pay the 'Haq Mehr', which we then enforce in English law as a contractual right. Also, the use of prenuptial agreements is becoming more common in the UK. The 'Nikah Nama', or Islamic marriage certificate, can be viewed as such an agreement, since it addresses the issue of the financial settlement and is signed before witnesses.
Forced marriages
In Islam, a woman's consent has to be obtained for marriage.
This was a truly liberating right, as it was given at a time when families arranged marriages to align power and fortunes. In spite of being set free by Islam so long ago, many women - from the Indian sub-continent in particular - are still becoming victims of forced marriages today. The family forces a woman to marry a man of their choice, often from 'back home', and her wishes are overridden. The woman is stuck in a loveless, miserable marriage.
Once she becomes aware that such a marriage is not acceptable under Islam, she can obtain a simple annulment from the Sharia Council in the UK. Under English law, we help her obtain a Nullity decree, which declares that the marriage was void from the start because of the 'duress' used. This enables the woman to state that she was never legally married, an important point when divorce can so often be a stigma.
It is essential to state that a common misconception is that if the woman can prove she is a virgin, she can obtain a Nullity decree. Quite aside from the fact that the courts would find it distasteful to subject a girl to providing such medical evidence, there is a legal bar - the marriage can only be void if there is 'wilful non-consummation' by the other party i.e. (usually) the man is refusing to consummate. Since the reality is usually the opposite, this option is not available to many. English law can be extremely accommodating of Sharia law rights.
With the growth in numbers of practicing Muslims in the UK, and more women increasingly proud of their Islamic legal rights, there is an increasing need for UK lawyers who recognise the work that can be done to ensure equality and justice under English law.
http://news.bbc.co.uk/2/hi/talking_point/special/islam/3198285.stm