Guest contributor Hadeer Soliman counters Baroness Cox’s statement proposing Amernment 219(C) to the Policing and Crime Bill. This bill “would require celebrants of religious marriages to take all reasonable steps to ensure that the marriage complies with the marriage laws of England and Wales.
Baroness Cox, a cross-bench member of the UK House of Lords, recently proposed Amendment 219(C) to the Policing and Crime Bill, which would require celebrants of religious marriages to take all reasonable steps to ensure that the marriage complies with the marriage laws of England and Wales.[1] The Amendment attaches criminal sanctions of up to three years of imprisonment for the failure to comply. Although the law does not specify a religious group, Cox said in her statement proposing the Amendment that it has “specific relevance for Muslim women who are adversely affected by the discriminatory rulings of many Sharia councils.” In her statement, Cox said that she was motivated by “deep concern” for women.
Despite her claims that the amendment does not subscribe to anti-Muslim or anti-Islam sentiment, Cox’s proposal raises concerns about the way public officials approach and understand Islamic law and customs. Cox’s statement does not address how this amendment would solve the problem of unregistered marriages, given that the current language of the existing Marriage Act of 1949 already recognizes marriages only if they are solemnized by authorized individuals, marriages solemnized under the Church of England, practices of the Quakers or of the Jewish faith, or marriages that take place in a registered building.[2] Some mosques have applied to be registered buildings, but they would be subject to the stipulations of the law that also requires the officiant solemnizing the marriage to be registered, (which is presumably not widely available to Muslim officiants).[3]
Thus, current law does not condone Islamic marriages that take place without state registration. In fact, as Cox mentioned in her statement, those who enter into a religious marriage without registering it with the state are left without pecuniary rights during the marriage or in the event of a divorce. Existing law is plain: those who fail to register a marriage will be left without financial rights. It is unclear whether the threat of Cox’s proposed harsh prison sentence will lead to fewer marriages being solemnized Islamically without accompanying state registration. It is even less clear how this law will be enforced without encroaching on the religious freedom of a British citizen to marry and divorce within one’s religious faith tradition.
Moreover, there are questions about the need for the law. Rather than addressing the legal issues and proposing legislation that solves a problem not addressed by existing legislation, Cox uses anecdotal evidence to argue that criminal sanctions are necessary to ensure compliance with national law. The stories she cites from women who found themselves in unilateral divorces or who were forced to stay in harmful marriages based on Sharia Council advice are products of cultures that devalue women’s rights rather than the legal system, Islamic law, that many Muslims choose to follow for personal matters such as marriage and divorce.
Cox’s statement also listed polygamy as one of the issues the amendment seeks to address.[4] By citing problems that face women in polygamous marriages (which are, by definition, unregistered in the UK), Cox conflates Islamic marriages with polygamous ones, contributing to the otherization of Muslims in the UK. As if all Islamic marriages are polygamous, she states that her amendment will afford women greater rights of child custody, finance, and property. Statistics on polygamous marriages in the UK range between the government’s estimate of 1,000 to personal accounts by social workers estimating 20,000.[5] Because the marriages are unregistered, there is no reliable way to verify the numbers. Regardless, focusing on the minority of polygamous marriages capitalizes on current fear of “sharia” and Islam to mobilize people to act against the general right to practice their faith.
To be sure, a problem does exist in the legal system that many see as a requirement to “marry twice,” once in a religious ceremony and once again in a civil ceremony.[6] For many Muslims and other religious minorities, the religious ceremony is important because it confers social and religious recognition of a relationship.[7] Some Muslims do, in fact, forego the civil marriage and simply cohabitate after receiving the Islamic blessing of their marriage, a phenomenon that becomes problematic when the relationship breaks down and a party, usually the woman, is left without financial rights.[8] Similarly, spouses in polygamous marriages are viewed as cohabitants under the law, with no financial rights in England and Wales.
The fact that many couples do not register their marriages civilly because they are under the impression that their Islamic marriage ceremony is sufficient for civil recognition does need to be addressed because it leaves many women vulnerable.[9] However, attaching criminal sanctions for endorsing a marriage or divorce that does not follow current English law is not likely to achieve protection for women because many Muslims will continue to view the Islamic marriage ceremony as the one that legitimizes the relationship.
A better alternative that would afford Muslim women rights during marriage and upon divorce is for the state to recognize marriages solemnized according to Islamic tradition, just as it recognizes marriages solemnized under the Church of England, the Quaker tradition, and the Jewish tradition. The Islamic legal requirements for marriage are similar to the basic ones required by English law, requiring consenting adults, witnesses, and a dower from the husband to the wife.[10] By recognizing Islamic marriages, English law would not necessarily be recognizing polygamous ones. Its law on polygamy can remain as-is, but recognizing Islamic marriages would simply leave fewer women vulnerable. Their divorces could then take place in a court of law, which would keep their civil rights intact.
While some may argue that Baroness Cox’s proposed amendment is simply a way to follow the example of France, where it is illegal for anyone to conduct a religious marriage ceremony without a prior civil marriage,[11] the comparison of England to France is misguided. In the UK, certain religious traditions are specified in the outdated Marriage Act of 1949, and banning all religious marriages without civil marriages would require banning those currently specified in the English Marriage Act.
Cox’s attempts to criminalize Islamic marriages based on the stories of unacceptable injustice that she cites are an unfair generalization of Muslim marriages. In fact, she has a history of remarks expressing anti-Islam and anti-Muslim sentiment. After her work in many Muslim majority countries, she has noted that she has become concerned with the “creeping implementation of Sharia law,” which she describes as having entered the UK “without any public debate.”[12] Of course, Islamic law is not binding state law in the UK, and even Sharia Councils, panels of religious figures who issue advice mostly on religious divorce in Muslim communities,[13] do not have legal authority. In debates supporting the Arbitration and Mediation Services (Equality) Bill in 2015, Cox discussed gender discrimination, polygamy, and Muslim marriages almost interchangeably without attention to the factors, neutral to religion and in fact similar in many other communities, that may lead to such discrimination.[14]
The solution is certainly not to ignore the injustices that may occur within Muslim marriages, but to tackle them as problems of domestic violence or inequality between genders in certain relationships rather than as Islamic problems or problems unique to Muslims. It is unacceptable for men or families to use financial inequality, unilateral divorces, or the lack of legal validity of a marriage to leave women vulnerable or abused.
In short, Cox’s statement relaying stories of Muslim women and their interactions with Sharia Councils in the UK reflect a false notion that Islamic law inherently endorses these injustices. Legislation recognizing Islamic marriages civilly will go farther in protecting those women who intend to enter into state-recognized marriages but are not aware of the law. Scotland has led the way in providing some maintenance and property rights to cohabitants, a step that England and Wales have not yet taken.[15] England and Wales would do well to go beyond recognizing religiously married couples as cohabitants with rights and recognize them as spouses under the law. This will give parties to the marriage greater rights upon breakdown of the relationship. In the meantime, a significant campaign for education on personal rights under English law will better arm women and families so that they insist that their marriages are registered with the state in order to protect their rights.
Hadeer Soliman is a California-based attorney. She holds an LLM in Islamic Law, and her research interests include Islamic legal history, gender and Islamic law, and constitutional law.
[1] “Policing and Crime Bill – Committee (5th Day)” accessed January 1, 2017, https://www.theyworkforyou.com/lords/?id=2016-11-16b.1436.0&s=speaker%3A13559#g.
[2] Marriage Act 1949, s 26.
[3] See MA v JA [2012] EWHC 2219, finding that although a marriage ceremony in an authorized mosque did not follow the requirements of the Marriage Act 1949 and did not qualify for a presumption of marriage, a marriage was created because it was of the kind contemplated by the Marriage Act and was conducted in an authorized building by an authorized person.
[4] “Policing and Crime Bill – Committee (5th Day)”
[5] Shaista Gohir, “Media Scares About ‘Sharia Marriages’ Miss the Point,” The Guardian, July 6, 2015, accessed December 30, 2016, https://www.theguardian.com/commentisfree/2015/jul/06/sharia-marriages-muslims-religious-civil-marriage-ceremonies.
[6] Ralph Grillo, Muslim Families, Politics and the Law: A Legal Industry in Multicultural Britain, (Surrey, England: Ashgate, 2015), 41.
[7] Samia Bano, “An Exploratory Study of Shariah Councils in England with Respect to Family Law,” University of Reading (2012): 11, accessed December 29, 2016, https://www.reading.ac.uk/web/files/law/An_exploratory_study_of_Shariah_councils_in_England_with_respect_to_family_law_.pdf.
[8] Myriam Francois-Cerrah, “Sharia Marriage in the UK Is Not Toxic – Polygamous Men Are,” The Telegraph, July 3, 2015, accessed December 30, 2016, http://www.telegraph.co.uk/women/womens-life/11715461/Muslim-Sharia-marriage-in-the-UK-is-not-toxic-polygamous-men-are.html.
[9] Samia Bano, “Exploratory Study of Shariah Courts,” 11.
[10] Averroës, “The Book of Nikah” in The Distinguished Primer, trans. Muhammad Abdul-Rauf and Imran Ahsan Khan Nyazee, Vol. II. (Garnet Publishing, 1996), 3, 20.
[11] https://www.theguardian.com/commentisfree/2015/jul/06/sharia-marriages-muslims-religious-civil-marriage-ceremonies
[12] Grillo, Muslim Families, 136.
[13] Bano, “Exploratory Study of Shariah Courts,” 12.
[14] “House of Lords: Arbitration and Mediation Services (Equality) Bill [HL],” accessed January 2, 2017, http://www.publications.parliament.uk/pa/ld201516/ldhansrd/text/151023-0001.htm#15102333000414.
[15] “Family Matters: Living Together in Scotland,” accessed January 2, 2017, http://www.gov.scot/resource/doc/113318/0027450.pdf.