Essay Sample Islamic Family Law in English Law

Published: 2022-05-20
Essay Sample Islamic Family Law in English Law
Type of paper:  Essay
Categories:  Law Islam Family
Pages: 7
Wordcount: 1706 words
15 min read

Britain has a history of tolerance of different faiths and beliefs, and its citizens have the right to choose their religion. Several religions are worshipped in the UK such as Christianity, Hinduism, Judaism, Buddhism, and Islam. However, there is a rising problem in the society where there is the existence of societies that relate to something more than the British legal system. The law of Britain is church law, but the everyday action is in the hands of authorities who are autonomous. However, there are several questions as to what is understood or expected by the law. In both the western world and Islamic countries, Islamic family law is highly debated. Using a range of examples from divorce with common agreements (khul') to judicial divorce (talaq), this essay explores how the English law recognizes Islamic law on issues relating to divorce.

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Islamic Family Law

Islamic family law deals with all facets of life ranging from divorce, marriage, and care, and custody, maintenance of rights of property. Most Muslims would prefer to marry in accordance with Sharia law such that in the events of a divorce or any misunderstanding the case will be as per to Sharia. There is more than one form of divorces, however primarily there is an emphasis on striving for a reconciliation either between parties or family and friends. When divorce comes, a husband can pronounce it on three separate occasions while the wife is not menstruating. Once proclaim the wife enters an idea period which takes three menstrual cycles and if they fail to reconcile during this period the marriage ends. The husband can also pronounce all three talaqs at the same time, which makes divorce too easy.

The wife can also ask the spouse to enunciate divorce, however, if he declines she must ask a judge (qadi) to allow her divorce normally recognized as khulla divorce. For instance in the modern UK context Islamic Sharia Council in cases where there is a conflict between UK legal system and Islamic law, they developed a strategy to approve Muslim disputes unofficially. They provide conciliation services to couples in context with Muslim law.

English law About Religion

The English law recognizes religion however laws that affect a certain religious community cannot be enforced as state laws. Citizens can exercise the laws that affect them however the laws cannot be parallel/exclusive religious prerogative in the UK, and they must not deny citizens of those rights that they are guaranteed in the civil law. For instance, Muslims can go by free run their affairs in according to Islamic law values. However, they are not allowed to conflict with privileges granted in the British Legal system.

Laws and policies defend religious freedom, and in exercise, the government imposes these safeties, the 2010 Equality Acts bans any form of discrimination that is based on religion. Those who feel that their religious rights have been infringed have the right to appeal for relief in court. The English law does not define religion or what constitutes a religion it leaves that solely to the courts, all religious holidays are observed as national holidays mostly from main religious groups such as Christian and Islam. Most religious institutions are viewed as charities, therefore, exempted from taxes provided they use their income for charitable purposes. Sharia law is the most debated upon, it is allowed to be used in areas that relate to divorce, marriage, and mediation and finance as far as it does not contradict with the law, and the same case applies to Jews.

How Islamic Family Law is regulated in the UK

Christian marriage celebrated in England cannot, in the eyes of English law be dissolved by talaq. A Muslim couple whose marriage was registered in English Register Office had a Muslim ceremony were the husband agree to pay the wife 9,000 Pakistani rupees (EUR788) in case of divorce or death. A year later, the husband claiming to be domiciled in Pakistan sent the wife a letter claiming, "I divorce you" three times. The wife petitioned that the divorce was invalid and if it would be validly dissolved she was entitled to dower in the sum of EUR788. However, since the marriage was celebrated in a foreign embassy, the court has to determine if they are dealing with extra-territoriality or with immunities to determine the validity of the talaq. This case involved the effect of Indian (Consequential Provisions) Act 1949 and that of Pakistan (Consequential Provisions) Act 1956, although these two countries were not affected provided the British Nationality Act 1948 was concerned. Therefore, considering that both parties were Muslims and they had a Muslim marriage, the wife is aware that she is liable to be divorced unilaterally thus the talaq was declared valid, and the wife was awarded a sum amount she claimed.

A couple married in India moved to live in England, and after a year of marriage, the wife deserted the husband claiming cruelty and adultery. The husband lived in England and acquired a domicile of choice. He petitioned for divorce, and the wife denied desertion and claimed that the husband was cruel. In the eyes of the English law by the husband taking England and his domicile of choice he is subject to a monogamous marriage. However, the marriage in this case never lost its origin, which was the polygamous characteristic. The court determined that adultery took place after the husband had attained a domicile of choice. Therefore, the polygamous union had acquired a monogamous character thus the wife was given a decree nisi on the ground of the husband's adultery.

There have been several cases of Muslim wives being blackmailed in England, therefore this called for a need to empower the English courts to award ancillary relief in circumstances where marriage was disbanded in foreign divorce to acknowledgment under English law. This is because no Muslim marriage can be dissolved without the husbands consent and the husband has to pronounce talaq for it to be dissolved in a religious sense. In one case, both parties had British nationality, and they had a five-year separation with a decree absolute. The ex-husband demanded EUR5,000 and wedding jewelry be returned to grant a religious divorce. In the second case, the couple were married in India. After an unfortunate marriage the husband sent to the home office the wife's passport in an attempt to have her deported since she did not have a British nationality. The husband agreed to a religious divorce if he gets maintenance and the wife returns her wedding jewelry. In the third case, both parties had British nationality, and the matter was settled after a vehement persuading with the wife's family. The family paid the husband EUR4,000 and returned the wedding jewelry for a religious divorce.

Before to 1973, England courts implemented divorce cases based on domicile; however, they have opened more doors of the English matrimonial courts to Muslim spouses who live in England. English courts cannot pronounce Islamic divorce. However, there are Sharia courts that are set up to deal with such issues. However, the English courts are open to Muslim divorce cases; their sharia courts are not allowed to implement rulings that are contrary to English law. For instance, cost of divorce cannot vary depending on the gender of the petitioner since that is contrary to Equality Act 2010. Married couples are encouraged to register their nikah agreements under English civil law so that both parties particularly the wives can acquire all their rights upon divorce that is in agreement with English civil law.


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