Thursday, December 10, 2015

A Comparison between Islamic and Jewish Personal Laws and Their Application – A Response to Baroness Cox

“The Beth Din does not purport to be a legal court. Instead, it offers members of Jewish communities two separate services – civil arbitration and religious rulings – neither of which constitutes a parallel legal system.”
The honourable Baroness Cox, in her recent report ‘A Parallel World – Confronting the abuse of many Muslim women in Britain today’, [Download: http://www.bowgroup.org/sites/bowgroup.uat.pleasetest.co.uk/files/Bow%20Group%20Report%20-%20A%20Parallel%20World%20-%20Confronting%20the%20abuse%20of%20many%20Muslim%20women%20in%20Britain%20today%2024%2003%2015.pdf] 
outlines her arguments in favour of introducing the Arbitration and Mediation Services (Equality) Bill. She maintains that a significant number of women have been victims of discrimination and intimidation[1] as a result of them seeking help from a number of ‘sharia councils’ that have been named in the report. Baroness Cox further claims that these ‘sharia councils’ have created a parallel legal system by operating as quasi-legal courts and applying rulings that conflict with English and Welsh laws and are therefore beyond their remit[2]. This article aims to respond to these claims by clarifying the position, status and procedure of the Islamic Sharia Council and also by comparing it to Beth Din laws and practices.
Status of Islamic Sharia Council
The Islamic Sharia Council was established in 1982 as a response to the needs of the growing British Muslim community particularly relating to personal religious matters such as marriage, divorce and inheritance. Since then, the Council has dealt with thousands of cases mostly relating to divorce where the majority of clients have been women who are in desperate situations and who seek a religious solution to their personal problems.
The Islamic Sharia Council does not operate as an arbitration services provider but offers services through mediation. Mediation is a form of ADR (Alternative Dispute Resolution) and involves a neutral third party who will attempt to help negotiate a settlement between the parties.[3] A condition of mediation is that the two parties must both agree voluntarily to engage in mediation and the details of the mediation are kept confidential and without prejudice.[4] The mediator will suggest options to the parties and if the parties agree then they may sign an agreement setting out their terms and conditions.
The Islamic Sharia Council appoints an Islamic scholar who acts as a mediator between two parties. The consent of the two parties is required and if one party does not wish to engage in
mediation (a joint meeting) or there is a legal impediment which prevents the two parties to be in contact with each other, then they are not required to engage in the mediation. Therefore, the Islamic Sharia Council does not operate under a parallel legal system since arbitration is not used and
On the other hand, a recognised Beth Din of the Federation of Synagogues does operate under the Arbitration Act 1996 and offers arbitration services for people who wish to solve personal and commercial disputes under Jewish law (Halachah). A Deed of Arbitration may be signed to make a decision from the Beth Din binding on the parties under English law. Although it makes clear that its rulings are wholly religious, the procedure of the Beth Din is similar to a civil court procedure in both its language and method.
Terminology
The terms used by the Beth Din are identical to the terms used by a civil court, for example, the person who brings a claim to the Beth Din is known as the Claimant and the person who responds to the claim is known as the Respondent. Similarly, the terms ‘hearings’, ‘pre-trial procedure’, ‘summons’ and ‘Appeals’ are used. When an agreement is reached, this is referred to as a ‘Consent Award’ and as mentioned before, parties may also have the option to sign a ‘Deed of Arbitration’ so as to make the ‘Award’ binding on them under English law.
Marriage
The Islamic Nikah requirements are as follows:
  1. There must be consent from both parties.
  2. There must also be consent from the Guardian (Wali) of the woman. (This is mandatory in the Hanafi school of thought (Madhab))
(A Wali is a male relative of the woman like the father, grandfather, uncle etc)
  1. There must be an offer (Ijab) and acceptance (Qubul)
  2. There must be at least two witnesses to the marriage
  3. A dower amount is also required from the husband to the wife known as the Mahr.
The concept of dowry (Mahr)
The concept of a dower amount is found in both Islamic and Jewish laws where the groom is required to give an amount of money or something of monetary value to the bride.
In both Islam and Judaism, the dower amount is central to the formation of the marriage contracts. In Jewish law it is known as the Mohar, where it is traditionally paid in the event of divorce or death.[1] In Islamic law, the Mahr must be specified in the Nikah Nama and may be paid immediately or at a later date.
Divorce – who pays?
In Islamic law, if a husband divorces his wife through Talaq, she is entitled to keep the Mahr. However, if the wife initiates the divorce through a Khula or Fusk procedure, then she is required to return the Mahr. There is a further method of Mubarat, which involves the mutual consent of the parties where an agreement is made as to who should keep the Mahr.
The Right to re-marry?
In both Islam and Judaism, a woman can re-marry following certain conditions:
Islam
  1. The Iddat period lasts for a woman’s three menstrual cycles (around three months) and this must pass before she can re-marry.
  2. During the Iddat period, a husband is allowed to take back his wife (known as Rujoo) either by saying verbally “I take you back” or by having intimate relations with her.
  3. If the Iddat period has passed and the couple decide to get back together, then they must perform a new Nikah. This concession is allowed after the first Talaq or the second Talaq
Judaism
  1. A woman must wait for a period of 90 days before she is able to remarry.
The condition that re-marriage only takes place after the waiting period is to ascertain whether the woman is pregnant or not.
Is civil marriage enough?
A civil marriage consists of the consent of the two parties, the offer and acceptance regarding the proposal and the requirement of two witnesses. These conditions are all required by Islam, however, there are two further conditions which are not included in civil law:
  1. The Mahr – This may be agreed before the marriage in a pre-marital contract.
  2. The consent of the Guardian (Wali) – The Wali of the bride is usually the father, brother or uncle, however in the event where they are not available, then a respected and authoritative Muslim may act as her Wali.
    1. Note – The Wali is not always a requirement in the Hanafischool of thought, therefore the Islamic Sharia Council adopts this opinion if there is no objection shown by the Guardian (Wali).
    The right of divorce
    In Islam there are three types of Talaq (divorce):
    1. First and second Talaq which are revocable within the Iddat period
    2. Third Talaq which is irrevocable
    3. A divorce or dissolution by the Qadi
    In Jewish law, a Get is required to validate a divorce. It is a document which is dated and witnessed and contains the husband’s intention to divorce the wife. The Get is usually written in Aramaic and the procedure is overseen by a Beth Din consisting of three Rabbis.[1]
    In civil law, there are three main documents when filing for a divorce: the Petition, Decree Nisi and Decree Absolute. The Petition may be filed by either spouse giving basic personal details. If the Petition is not defended, a spouse can apply for a Decree Nisi detailing one of the five grounds for divorce. After a period of six weeks, the spouse can then apply for a Decree Absolute which will end the marriage.
    By man – both laws
    1. A man can divorce his wife. But before pronouncing divorce, both parties should try to resolve their differences through mediation. If it fails, the man should pronounce the divorce once only. It is to be followed by an Iddat period (three menstrual cycles of a woman, approximately a period of three months). If he takes her back, as mentioned earlier within the Iddat period, the divorce becomes void. In Jewish law, divorce is vested in the hands of the man only as well. If no reconciliation takes place within the waiting period, then the Talaq is deemed complete and irrevocable.
    2. A woman cannot divorce her husband through the sameTalaq procedure, however there are other avenues she may take. If the Talaq Tafweed is inserted into the Nikah Nama contract then she is able to divorce herself in accordance with the conditions stated in the marriage contract.
  1. Faskh or dissolution by a Qadi (Muslim judge).In case the husband is untraceable or refuse to grant her Khula, a Qadi can dissolve the marriage on grounds of valid reasons like domestic violence, non-maintenance, desertion, impotency etc. On the part of he husband, this type of dissolution amounts to an irrevocable Talaq i.e. the man cannot revoke the divorce but he is allowed to re-marry her if they both agree. Therefore it is essential that the Islamic Sharia Council continues to exist as many woman are unable to obtain a divorce from their husbands and so they require the assistance of an Islamic judge through the council which enables her to go through the proper procedure.
Role of Guardian
In both Islam and Judaism, the father plays the role of the Guardian in the event that a minor girl is to be wed. However, since minors are unable to marry within English law (with the exception of having the consent of parents if aged 16 or over), this rule does not apply within the context of the British Muslim and Jewish communities.
Misconceptions about three divorces
There is a misconception about the three divorces or Talaqs (given at one time) that may be given by members of the British Muslim community, as cited by Baroness Cox in her Report. It must be made clear that the Islamic Sharia Council has adopted the opinion that three Talaqs is equal to just one Talaq.
Further, a Talaq is not counted if it is:
  1. Given in her menses or in her clean period during which intercourse has taken place.
  2. Given in such an extreme anger when the person doesn’t know what he has said.
  3. Given under coercion
These three exceptions to a Talaq safeguard the couple’s marriage and ensures that a man cannot divorce his wife so easily and in an irrational way.
Custody law
In both Islam and Judaism, the laws on custody of children are similar where the daughter usually stays with the mother until she reaches the age of majority and the boy stays with the mother until the ages of six and seven, for Judaism and Islam respectively.
However, it must also be noted that the interest of the child is taken into consideration in both religions similar to the position that English family law hold. Under s. 1(3) (a) of the Children’s Act 1989[1], the wishes and feelings of a child must be considered in light of their age and level of
[1] S.1(3)(a) Children’s Act 1989
understanding. In the case of Re S (Contact: Children’s Views)[1], the children’s ages of 16, 14 and 12 were considered appropriate to having their views on contact heard and respected. Ultimately, the child’s welfare must be taken into account and residence and contact arrangements must be considered in light of this.
It is important to note that the Islamic Sharia Council does not rule on custody matters, it is left to the court as it is a civil matter. However, if there is no legal impediment, it is required for the mother to sign a Solemn Declaration confirming that she allows her husband to have access to the children (as determined by the family court).
Maintenance
In both Islamic and Jewish law, maintenance is provided for the wife:
  1. During the Iddat/waiting period, and;
  2. For children until they reach the age of majority and are able to financially support themselves.
Witnesses
  1. One woman is enough in matters related to female specific issues such as child birth and her menses.
  2. Two male witnesses in a marriage. In divorce, two witnesses are recommended as well.
  3. One male and two females. The second woman is there to remind her as a way to make the testimony stronger. In a case of adultery, four male witnesses are required. The general principle is that the more serious the case is, the more witnesses are required.
Inheritance
Jewish Law
Traditionally in Jewish law, females do not inherit and the first born takes the double share.
Islamic Law
The Islamic laws of succession are referred to as ‘fara’id‘ and further clarifications of its principles may be divided into three characteristics:
  1. Specific shares to specific individuals
  2. Agnatic and uterine heirs are left with remaining residue
  3. Bequests can only be made from one third of the estate
Differences between English and Islamic succession laws
Within the succession laws of both systems, there exists major differences which sometimes results in both being at completely the opposite ends of each other where the secular and religious natures of both means that the objective and intent of laws differ within their contextual limits.
Major differences include:
  1. Domicile/habitual residence – there is no concept of domicile or habitual residence within Islamic succession therefore a deceased Muslim’s estate applies everywhere.
  2. No distinction between moveable and immoveable property in Islamic succession. Heirs will inherit shares in all assets.
  3. Division of assets – a major difference is how the assets are divided and who receives the assets in the event a person dies intestate. Even if a person makes a will to a non-heir, under Islamic law the 1/3 limit applies.
Through a written will, these problems can be adjusted through testamentary freedom.
How to incorporate Islamic succession laws into the will?
Executors and Trusts
Fixed shares to fixed sharers mean that it is impossible to name what percentage of the estate should go to whom until after the death of the testator. Therefore, the executor will need clear instructions as to all the potential beneficiaries and a list of names detailing their relationship to the testator (i.e. parents, brothers, sisters, uncles etc).
The will should include:
– A clause detailing what happens to any residue if there are no surviving relatives.
– A clause detailing what should happen after the testator’s death such as any Islamic burial rituals (i.e. ritual washing, funeral prayer, burial).
– A clause instructing Executors to pay both funeral expenses and any outstanding debts before distribution.
– A clause detailing who the Executors are.
Duration of a case
Civil Law
In civil law, it is required that one year must pass in order for a spouse to apply for a civil divorce.[1]
There are five grounds/facts:[2]
– Adultery
– Unreasonable behavior
– Separation of two years
– Separation of five years
– Desertion
Islamic Law
  • There is no time limit to apply (both)
  • Quick if both agree (both)
  • Man is persuaded to divorce if he is obstinate (Both)
  • Qadi can dissolve (Fask)
  • In a Talaq-i-Tafweed, a woman has the right to dissolve the marriage when this right is delegated to her in the marriage contract (Nikah Nama) which may be an absolute or conditional right.[3]
Jewish Law
  • There is no time limit to apply
  • Quick if both agree to the divorce – conditional on husband giving the Get
  • Husband may be persuaded to divorce
The Divorce (Religious Marriages) Act 2002 inserted a provision in the Matrimonial Causes Act 1973 allowing a Decree Absolute to be stayed if steps are not taken to dissolve a religious marriage – specifically regarding marriages under Jewish law. It is applicable, in general, to the people of other recognized faiths.
Under (s10A (2), (4) MCA 1973), the court can order that a decree nisi should not be made absolute until the parties have made a declaration that they have taken such steps as are required to dissolve the marriage in accordance with those usages where a ‘relevant religious authority’ may declare a religious divorce.[1]
Unfortunately, this does not extend to Muslim divorce laws, despite a number of parliamentary debates that have taken place to discuss an extension.[2] The fact that this important provision exists demonstrates that English civil law allows for the operation of religious personal laws within a community who depend on these laws in accordance with their right to freedom of conscience and religion under Article 9 of the ECHR.[3] Therefore, it is perplexing that Baroness Cox is so against the application of Muslim personal laws where a Muslim requires and consents to it being applied, as is done within the Jewish community.

The status of civil divorce
It does not meet the Jewish requirements as a Get is needed to complete the religious aspect of the divorce. However, in most cases it meets the Islamic requirements, and in cases where it doesn’t the Islamic Sharia Council can deal with the religious requirements of the divorce specifically relating to the status of the Mahr. The Islamic Sharia Council can decide whether it is appropriate for either the woman to keep the Mahr or for it to be given back to the man depending on the circumstances of each individual case.
Cost
Civil Law
When a spouse applies for a civil divorce, they will usually employ a solicitor to handle their case. The solicitor’s fees can be extremely costly as well as the initial court fee of £410 when applying for a divorce. Solicitors fees can go from hundreds of pounds into the millions, particularly if proceedings are stretched out and the couple have a complicated financial settlement.[4]
Beth Din
The Beth Din charges its clients around £450 as an initial fee with the cost divided equally among both parties. This may be increased to £800 if members of the bench is increased and the proceedings become more complicated and drawn out.
Islamic Sharia Council
The Islamic Sharia Council charges £200 for both men and women as an initial fee for around five hours of overall work on the case. If more work is needed to be done then the maximum charged will be up to £400. Therefore, this demonstrates that the Islamic Sharia Council’s payment procedure costs significantly less than both the civil legal system and the Beth Din. Further, there is no discrimination based on gender, all costs are balanced on the amount of work and hours consumed in each individual case,
Islamic divorce v. Civil divorce v. Jewish divorce
Both the Islamic Sharia Council and Beth Din offer independent divorce routes that do not depend on the civil proceedings. However, when a spouse applies for an Islamic divorce, they are required to have obtained/applied for a civil divorce in order to follow English civil laws demonstrating that the Islamic Sharia Council actively ensures that no parallel legal system exists.
Procedure
The procedures for both the Islamic Sharia Council and the Beth Din are similar in that they both require the party to apply for the religious divorce and there case would then be reviewed. Both procedures allow for three letters/summons to be sent to the opposing party before the case is continued without that opposing party.
The Islamic Sharia Council will attempt to reconcile the couple first where they consent to mediation and there is no legal impediment to both parties attending a joint meeting. This is similar to the requirement that a couple attend a MIAM (mediation information and assessment meeting) particularly in cases where children are involved. Further, the FPR 2010 encourages the parties to resolve their family dispute without recourse to the court where possible. This is to ensure that both parties can solve their difference and disputes in an amicable way that is best for themselves and their children, although in some cases it is better to go to court depending on the complexity of the case.
Conclusion
As demonstrated in the above article, there is little difference between the practices of the Islamic Sharia Council and the Beth Din, specifically to policies regarding women and procedure. It is concluded that the Islamic Sharia Council does not operate an arbitration service and is not engaged in creating a parallel legal system since both the Islamic Sharia Council and the Beth Din follow civil legal procedures relating to divorce, custody and other personal matters such as inheritance. All mediation that is conducted is dependent on the consent of both parties and it is a condition that before an Islamic divorce is proceeded, the parties must have either obtained or applied for a civil divorce. The recommendations that Baroness Cox sets out in the Report are already well established within the Islamic Sharia Council, such as the requirement to give details on any domestic abuse that a spouse may have suffered and the parties have every opportunity to request access to legal advice when needed. It is hoped that this article has demonstrated that the practices and procedures of the Islamic Sharia Council are similar to that of the Beth Din’s, and that no quasi-legal system exists.


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