Muslim marriage and divorce practices in contemporary Britain :: Part 7 :: Conclusions and further observations

By Shaheen Ali and Justin Jones

A number of recent academic studies dealing with the marriage and divorce practices of British Muslims have picked up on a number of themes that are hinted at by the speakers quoted throughout this blog: unregistered marriages, Islamic divorces, and shari‘ah councils, to name a few. However, despite their rigour, these pieces of research are often marked by one particular flaw. Notwithstanding the neutrality of the researcher, and however widely the net is cast to identify respondents, it is somewhat inevitable that researchers have to work through personal contacts and rely on snowballing techniques to reach their respondents. This can mean that individual studies are forced to rely heavily upon sets of respondents who are known to each other and can be somewhat like-minded in their views and approach. This blog, of course, shares this flaw. It has picked up five respondents, all of whom are willing to speak to academic audiences and all of whom present themselves as modernisers aiming to facilitate the social integration of British Muslims. Their observations on their experiences within Muslim communities in Britain do, however, offer a few windows into the grassroots realities of how these practices are manifested in reality, and we would like to conclude the series by analyzing a number of themes that run through the reflections that we have presented.

One consistent, blunt observation that runs throughout these contributions is the value that British Muslims place on the nikāḥ contract. All participants seem to indicate that for most British Muslims, the nikāḥ validates their marriage, and gives them the right to be treated as husband and wife by their family, community, and society. Likewise, should their marriage break down, many British Muslims clearly also feel the need for a religious divorce rather than merely a civil divorce. It seems clear from these extracts that British Muslims have maintained a deep sense of their need for Islamic marriages and marital dissolutions; and the assumption that this conviction will somehow dissipate in the face of authoritative civil laws applicable to all citizens seems to be spurious. The overwhelming theme of these extracts, therefore, is not whether civil or religious laws should have precedence over the other, but rather, how these two systems of law can be better brought into mutual accommodation.

Despite the consistency of this conviction, however, in most other ways this blog highlights the plurality and diversity of both thought and conduct on marriage and divorce within Muslim communities in contemporary Britain. The heterogeneity of approaches on view quashes any attempts to draw up simple generalisations about Muslim attitudes or behaviours. To speak of British Muslims as, for example, somehow naturally inclined by their religion to avoid registering nikāḥ marriages, or predisposed to seeking out community forums to handle their family disputes instead of going to court, does not do justice to the number of overlapping discourses and dynamics at play.

For instance, these contributions show that the reasons why many couples take out nikāḥ-only marriages are heterogeneous, and specific to the particular circumstances of the individuals and/or couple in question. In some cases, nikāḥ-only marriage may be the result of a couple’s mutual wish to trial their relationship prior to or instead of a civil marriage; in others it may reflect a misunderstanding about the nikāḥ’s admissibility in English law. It may be the result of an attempt by one partner to evade legal obligations towards another, or the attempt of a husband to keep the door open to a second marriage. Or indeed, as in some quoted cases, a nikāḥ-only marriage might reflect the wish of either partner to protect their own private wealth and assets. These diverse factors at play mean that we cannot identify any one dominant factor behind the existence of unregistered nikāḥs.

Indeed, while it may sound harsh, some of the material that we have covered might also lead us to conclude that the nikāḥ has been combined with the minority status of Muslims in Britain to be used instrumentally as and when it suits individual self-interest. Examples given here include not just the many cases quoted of men avoiding taking out legal obligations towards their “wives” through nikāḥ-only marriages, but also the partners (of either sex) seeking to keep exclusive claim on their independent wealth; and indeed, the Muslim professional woman who as one panellist stated, would not mind being in a polygamous union and in an almost “part-time relationship,” since it allowed her the space to further her career.

Furthermore, the blog demonstrates that these marital practices are being developed within a self-consciously British Islam, rather than being “foreign” cultural norms imported in wholesale from elsewhere. While some speakers indicate that certain attitudes towards marriage reflect a residual “memory” of countries and cultures of origin (South Asia particularly is cited by several speakers), for the most part, all the respondents are keen to emphasise that these communities consider themselves as British and thus need to fashion matrimonial customs and laws that work within the British context.

Indeed, the British context may offer certain prospects for Muslims to devise novel Muslim marital practices that are attuned to their environment. One of the speakers referred (outside of the quoted transcript) to Britain as a “land of opportunity” for the formulation of new, progressive understandings of Islamic marriage. As home to Muslim communities with origins in all parts of the Muslim world and from all Islamic legal schools, and with no authoritative civil regulation of Islamic family laws to work around, Britain can offer a setting for community leaders to pick-and-mix interpretations of matrimonial law from across the Islamic tradition to rethink these laws themselves.

Certainly, the religious practitioners quoted here all indicate how they are developing new ways of thinking and talking about Muslim marriages on their own terms, in ways that might seem most appropriate for those among whom they work. For instance, several voices here show themselves to be speaking creatively about the agency of women in Islamic history, and looking to Qur’ānic principles of gender complementarity to promote equality within marriage. We also see community leaders interpreting the language of the Qur’ān to speak of marriage as a “space of safety,” and re-evaluating the legal concept of “guardianship” (wilāya) in terms of trust and protection rather than male dominance. And we see some creative borrowing across Islamic legal schools, for instance,  in the case of Ḥanafī-educated, South Asian-origin community leaders borrowing from Mālikī tenets to provide women with religious divorces and to authenticate the creation of panels in shari‘ah councils. All of these are constructive attempts to remodel British Muslim matrimonial practices from within the Islamic tradition.

Another striking feature evident from these discussions is the sense that some British Muslims are reaching new definitions of what constitutes a Muslim marriage. They are developing a number of “new” marriage practices and are moving far beyond the definition of marriage as rendered in fiqh as a contract between partners to legalise the procreation of children. One could argue, for example, that taking out a nikāḥ-only marriage as a means of validating a dating relationship in the absence of an official marriage infringes the traditional understanding of the Islamic marriage contract, for which legal recognition and intended permanence are compulsory conditions according to most understandings. Moreover, a nikāḥ­-only marriage is, under British law, treated as a practice akin to unmarried cohabitation; and non-married cohabitation is considered as illegitimate and effectively akin to fornication under Islamic law. The kinds of Muslim marriage being practiced in the UK, therefore, illustrate how Muslims in Britain, and perhaps in other Muslim minority contexts, are redeveloping the traditional form of the nikāḥ in new ways, perhaps pushing definitions of Islamic marriage to their very limits in the process.

We pledged in the introduction to this blog to offer some possible responses to the considerable challenges in accommodating Muslim and civil laws of marriage as they exist in Britain today. Of course, bringing nikāḥ-only marriages into the fold of the English legal system via compulsory registration could take away some of the manipulative uses of Muslim family law as discussed, and could resolve some of the “nikāḥ horror stories” of women being divested of their rights and homes after the dissolution of their nikāḥs. Attempts to promote the parallel signing of civil and religious marriages has certainly been a theme highlighted in some recent policy reviews. However, as some speakers point out, the state is in no mood to introduce any substantive legislation on the matter. The issue is perhaps too communally sensitive and, as one contributor notes, the state has come to rely increasingly on extra-judicial arbitration mechanisms to resolve disputes outside a crowded court system, especially in the aftermath of cuts to legal aid since 2012. State involvement, therefore, seems incapable of providing the main initiative in solving some of these difficulties.

Instead, it is clear that the more lasting solution lies in a multiplicity of options. For instance, there are perhaps gentle shifts in debate at the judicial level, thanks to some recent court cases. For example, the recent court case of Akhter v Khan (2018) resolved that a nikāḥ-only marriage should be considered a “void marriage” rather than a “non-marriage,” which would subject a Muslim marriage to laws of financial reparation in the case of marital breakdown, akin to a regular marriage. The verdict may yet be repealed, but it does indicate movement in legal thinking, in ways that could ultimately bring unregistered nikāḥs into the purview of the legal system.

But major moves to resolution also have to come from within the community itself. And contrary to some portrayals, the contributions in this blog reveal that there is obviously considerable will from within the community to do this, including from its religious leaders. All five of our contributors, who include two imāms and a panellist on a major shari‘ah council, instruct Muslims that they should register their marriages with the state, and should remain cognisant of their rights and duties before the law. But they make this argument not just on practical grounds, but religious ones: since the nikāḥ’s fundamental status in Islam is that of an official contract, so a marriage needs to be legally recognised if it is to be legitimate under Islamic law. And they are finding ways to align the parallel issuing of civil and Islamic marriages, and civil divorces and Islamic khulʿ separations. We might remind ourselves of the imām quoted previously, who has registered his mosque to provide nikāḥs and civil marriages simultaneously, and whose shari‘ah council issues a khulʿ divorce upon the presentation of a civil divorce certificate. These are just a few examples of how some community leaders are seeking to facilitate the engagement of British Muslims with the legal system.

The contributions given thus hint at various possibilities for aligning Islamic and civil laws, finding ways to make them work together as mutually compatible systems of value for one of Britain’s largest minority communities. It seems to be a debate that is only likely to continue, and we hope that this blog might add something constructive to discussion of these complex and contentious issues.

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