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Islamic Law Solicitors

Islamic Law in Family Cases: Solutions not Problems (6 November 2013)

Date: 06/11/2013
Duncan Lewis, Islamic Law Solicitors, Islamic Law in Family Cases: Solutions not Problems

Aina Khan is Head of the Islamic Department at Duncan Lewis Solicitors. She has become the leading specialist in the field of Islamic family law in the United Kingdom. She runs regular seminars nationwide to help lawyers deal with this relatively new issue.

These seminars provide lawyers with an overview of key Islamic legal solutions compatible with English law, using case studies to give concrete illustrations of how legal translation operates in practice. Below is a summary of one such seminar:

Aina Khan started by saying that over the past decade, law firms have faced an increasing demand for expertise in the field of Islamic law. She has been a specialist for over 15 years. Aina explained that she was drawn into this field by her clients: "If you are from a Pakistani background and you are a Divorce lawyer, clients assume you will know how to deal with their case. It became awkward to answer 'I don't know'. I started to study under the expertise of my father who is also a lawyer and has a good library of Islamic legal literature. I would then apply Islamic legal solutions to cases conducted under English law'.

Aina spoke about some of the areas she deals with daily:-

1. The rise of Unregistered Muslim Marriages amongst British Muslims

Because the Marriage Act 1949 does not provide for standard registration procedure for faiths other than Christian, Jewish and Quaker, it is up to other faiths if they wish to register their marriage. Many British Muslims believe that because their Nikah Islamic marriage was conducted by an Imam it is legal, until it breaks down and they realise that this is not the case (unless they were married in a Muslim country abroad).

Some of these couples deliberately choose not to have their marriage registered for fear of commitment or in order to avoid expensive English law divorce and financial settlement. Other reasons are naivety and trust that the legal marriage would take place soon, or the pressure from the fiancé(e) or his/her family not to register. Contrary to the common idea that women are the primary victims of such marriages, legal cases demonstrate that it is the wealthier party who is reluctant to have the marriage registered. In Aina’s cases, as many as 80% + of clients under 30 find their marriages are not registered – and this number is growing.

Aina is currently working with the Government to address this issue in a series of nationwide road shows. Aina’s Islamic law Department is conducting formal research on Muslim marriages and will be publishing the findings in 2014.

2. Recovery of Mehr under English law

The fact that an Islamic marriage is a contract and not a sacrament, opens room for having the terms of this contract recognized under British law. An Islamic marriage always involves the provision of Mehr to the bride. Mehr is something of value paid either on the day of marriage or deferred to a trigger event (divorce or death of the husband). When a significant sum of money, property or costly wedding jewelry is involved, it may be worthwhile for the wife to initiate legal proceedings to recover her Mehr. This is particularly so for those women who find they have no matrimonial rights because their marriage was not registered. British law cannot help them but Islamic law can. Mehr claims have become an increasing part of Aina Khan's legal practice. She is waiting for a strong case to be fought all the way to court, so that new case law becomes available. "It would be a positive development for the Muslim community to see that a just solution, only available under Islamic law, is recognised under British law", she says.

3. Islamic divorce

Many clients ask Aina to obtain an Islamic divorce from the Sharia Councils when the husband is refusing them this. This is specially so for those whom British law cannot help, as they are not legally married.

4. International law

This area is growing due to more and more people leading international lives:

Being born in one country
Marrying and having children in another
Working in a third
Purchasing properties or running businesses in a fourth

When there is a divorce, massive complications can occur leading to great expense if not resolved quickly. In some of these countries, Islamic law may apply and when a dispute occurs, expert advice is needed to work out which law prevails i.e. 'conflict of laws'.

Interest in Islamic family law is growing globally. Both Islam and British law can benefit from such a smooth integration: Not only because Islam has encouraged mediation for 1,400 years, along with ‘no fault’ divorce, but also because British law offers opportunities for Shariah to evolve by returning to the equitable principles that originally gave many rights to women who had no status in society. Aina’s niche legal practice demonstrates that Shariah can peacefully co-exist with secular law and bring a much needed system of justice to those who are left vulnerable.

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