The atmosphere of political Islamophobia, anti-Muslim hatred and media stigmatization of Muslims and Islam, is something that has become normalised today. Interference with Islam, its beliefs and practices has reached such heights that one wonders whether the vaunted secular distinction of the public and private sphere actually exists. It increasingly represents an arbitrary distinction which moves with the prejudices and hatred of those in power of an increasingly penetrative state.
We now have non-Muslim judges that have become Mujtahid Imams, formulating fatwas on the basis of a single reading of the Qur’an, Sayyid Qutb’s Milestones and a dossier compiled by a half-baked “expert” concerning which beliefs are regarded as “extreme”. The courts have, in other words, regulated the beliefs of Muslims without expressly doing so through the notoriously nebulous “extremism” discourse.
The regulatory colonialism continues into the final bastion of Islam in a post-colonial, legally fictitious world of nation states: the area of Muslim “personal law”. Muslims who wish to accord their faith a centrality in the arena of civil matters often desire to have their marital issues overseen by Islamic precepts. Given the varying conditions for a marriage, intricate regulation of the types of divorce and annulment, as well as the need for a neutral, learned arbitrator(s) when matters become grey or sour, Muslims also seek recourse to Islamic scholars, or panels of Islamic scholars. These panels advise couples concordant to Islam. On the face of it there is no problem with this. Bata’i Din, or Halachic arbitration “courts” have been set up for some three centuries. In fact, according to the London Beth Din website, it is forbidden for Jews to seek a remedy from “secular civil courts”. Yet Jews, far from being framed within the far-right “Trojan Horse” trope of setting up a “parallel legal system”, are welcomed as being an integration success story.
Why are Muslims being treated differently?
Relentlessly working behind the scenes to target Islam is the anti-Islam, pro-Israel, Anglican neoconservative Caroline Cox, who recently lent her alarming support to the Syrian tyrant Bashar Al-Assad. As I have highlighted before, her previous efforts to shutdown Shari’ah councils were pushed because they also targeted the adjudication of the Beth Din.
Tinkering and tweaking her formula to restrict the rights of Muslims, she has recently submitted a Religious Marriages Amendment to the proposed Policing and Crime Bill.
According to the proposed set of clauses, religious marriages must “accord with the law relating to marriages in English and Wales” and must be legally “registered as a marriage with the requirements of the Marriage Act 1949”. Persons who fail to abide by these proposed legal requirements can face up to three years in prison. Yes. The great secular, liberal state of Britain, through the fanatic lens of Cox, wishes to punish those who have not informed the state about consensually living together with religious blessing.
The Basis of the Amendment
The basis for this gross intrusion into the lives of Muslims is the possibility of women suffering disadvantages because they “lack legal protection” and because they “can be unaware that their marriage is not officially recognised by English law”. The Amendment itself relies on a report published by West Midlands-based organisation, “Aurat: Support Women”. Cox herself assisted with the report. The forward, written by Cox, explicitly evidences discriminatory treatment of Islam and Muslims:
“Although women from any faith tradition – or none – may suffer abuse and other problems associated with dysfunctional families, the plight of women in Islamic communities is exacerbated by the application of established Sharia law principles which inherently discriminate against women and girls.”
The conclusions are based on a sample of fifty women whom are users of the support service. This is methodologically unsound, as it sets out to prove the problem, as oppose to taking an unbiased approach to the issue:
“It has been conducted with the understanding that Muslim women in the UK can often be misled as to their legal status and can also face pressure not to seek advice from non-Muslim professionals or civil courts.”
Given the organisation specifically deals with abuse of women, its sample will reflect this particular problem both in terms of the questions asked and answers given and ignore the plethora of testimonials of those who have, for instance, benefited from Shari’ah councils (see here and here). Yet despite only one group being sampled, the conclusion – and Cox’s solution – is being generalised, concluding that the problems are “more widespread than originally anticipated”. Further, the “study” itself accepts these limitations:
“With limited resources, it was never the intention of this qualitative report to garner the exact number of women suffering unjust discrimination within British Muslim communities. Clearly, more systematic research is needed to understand the sheer scale of the concerns raised as well as the social, political and cultural implications for the wider society.”
If we take the female Muslim population of Birmingham alone, the size of the sample translates as 0.041% percent of Muslim women. Conclusions are being made, and laws are being formed on a limited and flawed report that effect Muslims – men and women – nationally.
The Amendment seeks to address three major concerns.
The first concern relates to the disparity in the divorce process between male and females. Where the husband can utter “I divorce you” (talaq) three times, the wife has to seek recourse to an Islamic scholar or a panel of scholars to have the marriage annulled (Khul’/Faskh). This process usually entails a fee. The fact remains however, that established mainstream Islamic view is in conformity with these two processes. Both processes, concordant to the moral ideal of the Shari’ah, where the proper method of issuing talaq is followed in the case of the husband, are intended to ensure adequate time is given for couples to reconcile. In fact, the specific processes of talaq, and khul’ are, as classical jurists have explained, specifically designed to maintain equity between the interests of the husband and the wife and afford greater protection to the woman at the same time. Combined with the moral legal restrictions of rendering three talaqs as legally reprehensible (as noted in Fn. 2), as per the Shari’ah, men bear to lose more in a marital dissolution: they bear the burden of paying the delayed Mahr (dower), alimony, and costs of child custody – costs which incidentally also constituted a sufficient deterrent for men to not undergo such measures. Further, consideration was also taken that were husbands to bring his grounds for divorce before a court, it would involve divulging information about wives which could result reputational harm and social stigmatization. This protection mechanism in the case of a wife bringing her complaints of her husband before a court is not afforded to men, constituting a further deterrent for the husband against ill treatment of women.
In the modern context, where the husband makes a divorce application to be managed by a panel, he too must bear an administration fee. In fact, those familiar with the workings of Shari’ah councils will know that, where possible, councils have urged husbands to pay the cost overall. However, due to husbands in such cases being unwilling to even submit to the council to discuss the issue, coupled with the lengthy process of tracking down the husband and opening lines of communication to establish facts – something the formal process in the civil courts results in the case being prolonged – the process entails cost. In other words, the cost associated with marriage annulment is not intrinsic to it. Incidentally, Shari’ah council’s will point to the fact that it is precisely because they are not a “parallel legal system” they are unable to swiftly coerce men to comply.
Looking at the proposal, Cox’s Amendment can in fact make matters worse. Where a wife seeks a divorce, she will not only have to bear potential costs of an application for a decree nisi/absolute in a civil court, but also establish religious annulment and therefore bear the entailed administrative cost. A further point is that where the council secures the Mahr payments (sometimes into the tens of thousands of pounds) for women, nothing from the amount is taken. In contrast, a disputed legal case would result in women redirecting their Mahr into accruing legal fees.
The focus on polygynous Muslim marriages is not without an agenda. Consensual polygyny, rather irrationally, was made the cultural fault line of alienation in neocon Trevor Phillips’ documentary, What British Muslims Really Think.
Regarding concerns related to being a co-wife, there are cases where Muslim women prefer to live in polygynous set ups due to the convenience in the lifestyle. As the UK’s first female Sharia council judge Amra Bone explained in the documentary, What British Muslim Really Think,
“In my experience, it’s not the men that have demanded it, it’s the women. I personally have met women who have said to me I do not want a full-time husband, I don’t want him under my feet…” (at 19 minutes)
With the growth and demand of consensual polygyny have come online services to facilitate this with thousands registering. Placed into a context, the concerns seem distinctly one-sided, feeding into the othering of Muslims.
A couple of months ago, Channel 4 documentary, Sex, Lies and Cyber Attacks sought to determine the impact of the infamous hack of the Ashley Madison website – an online service dedicated to actively promoting adulterous relationships. It was found that nearly all of the users were male. The fallout from the cyber-attack meant broken families and mainly wives suffering the consequences of their partner’s infidelious escapades being exposed. Given there is practically no concern regarding something which inherently causes social instability, infidelity, pain, and a rising infidelity crisis, the concerns around polygyny, which is grounded in a contractual relationship and supported through the moral force of religion consequently stabilising relationships and ensuring emotional and financial security, seem tendentious and opportunist at best.
The liberal ideas surrounding the decriminalisation of the behaviour of “consenting adults” are conveniently defenestrated in the context of Muslims. Muslim lifestyle choices are ignored and subsequently banned by the Amendment. With heterosexual “polyamorous” set ups on the rise, and evidence of polygynous relationships in the Jewish context too, Cox’s measures would potentially constitute discrimination against the Muslim minority and an infringement of a right to family life.
The second concern is somewhat disjointed and badly written. A close analysis reveals two contentions: possible stigmatization from divorce and subsequent difficulty in remarrying; Muslim women being unable to remarry except as second or third wives – with many not wishing to be co-wives. These concerns, however, fail to establish a reason justifying Cox’s proposal. Regarding the social stigma of divorce, this is a cultural phenomenon which conflicts with the very life example of the Prophet of Islam, peace be upon him. As such it has nothing to do with the Shari’ah panels. Pertinently, forcing couples to register their marriage will not alleviate the problem. In fact, by effectively banning the choice to become a co-wife, Muslim women may feel constricted.
Cox’s Discriminatory Response
The final concern outlined in the Amendment demonstrates the abject discrimination propounded by Cox. It highlights a “risk” of Muslim women “being ignorant and/or duped into believing they are married under the law of the land, only to find upon divorce they have little to no rights in terms of child custody, finance, or property.” These risks also blight “common law marriages” or rather, cohabiting couples who are not married. According to a recent briefing paper “Common law marriage and cohabitation”, such set ups,
- Do not guarantee rights of ownership to property upon breakdown
- Do not grant an automatic right to inherit partner’s estate
- Have no entitlement to bereavement benefits
- Disallow claims for tax reliefs for spouses
There is potential for abuse here too. A number of studies show that many cohabiting couples are unaware that there is no formal legal status afforded common law marriages. The response to this has been interesting. Far from taking punitive action against such couples and forcing them to either register their cohabitation in some form of legally recognised relationship, reform in the area of law has been limited to enhancing legal remedies for such couples. More generally there has been a drive to create awareness of the myth of common law marriage, and the encouragement of pre-nuptial arrangements.
In other words, the response to such set ups has been to support couples in the right to cohabit without the need to formally register the marriage. The suggestions and reforms can thus be termed positive. If it were suggested that the various disadvantages related to cohabitation living under a contractual arrangement were to be resolved by legislating the requirement to marry under civil law, there would be an uproar by liberals over the draconian nature of the proposals coupled with the lack of “progressiveness” in maintaining pace with social trends. In stark, blatantly discriminatory contrast, Cox has prescribed imprisonment for Muslims who choose to live maritally concordant to their faith. The approach is, thus, a negative and punitive one.
Historically, similar treatment is afforded to “chained” (agunah) Jewish women. Where the husband fails to issue a “get” (Jewish divorce), civil courts can pressure the husband to “cooperate”. The Divorce (Religious Marriages) Act cannot, however, enforce reforms to Jewish religious law and only apply sanctions – at a judge’s discretion, where both parties want a civil divorce. Fundamentally, there is no threat of imprisonment for Jewish couples to register the marriage.
This systemic discriminatory treatment of the Muslim minority at the hands of Cox is endemic of the proposal itself. Not a single mention is made of Jewish women trapped in marital limbo, or the stigmatization they have to suffer in their own community as a result of not obtaining the “get”. The problems of “trapped” Agunah Jewish women who suffer from severe social stigmatization in their community continues to remain. Cox, however, is unable to court her colonialist white saviour complex and muster the courage to explicitly highlight the “concerns” in the Jewish minority context.
The context, underpinning study and areas of concern solely relate to Muslims, all of which makes the following statement slightly tokenistic:
“The amendment does not specify any faith tradition.”
All hopes of Cox at least trying to maintain a façade of non-discrimination are dashed with what follows immediately after:
“Yet it is true that the amendment has specific relevance for Muslim women who are adversely affected by the policies of Sharia councils/courts.”
Adversely affected cohabiting non-Muslim women, “chained” Jewish women, or women who are victims of secretive polyamorous men and Jewish polygyny for that matter, are of little relevance. The fact that none of these non-Muslim practices are explicitly highlighted makes it difficult not to view the proposals as anything but a continued anti-Muslim, neoconservative assault on Islam.
Cox’s Amendment is tantamount to a secular, discriminatory interference within the private sphere of religion and an infringement of religious rights to observe faith practices.
Where concerns are driven by anti-Muslim personalities of the calibre of Cox, who associates with those who wish to seek the destruction of Islam, and where a government implements policies like PREVENT which indirectly have the effect of interfering with and deforming Islam to neoconservative interpretations of liberalism, such “concerns” disguise yet more steps towards regulating Islam, and upon the slippery slope, deconstructing it into a faith eviscerated of its moral-spiritual core. Muslim organisations would do well to take note of the continued discriminatory targeting of the Muslim minority and take legal action if necessary, against the hatred hidden beneath the smokescreen of “concerns”.
 Islamic scholars with superlative learning in multiple sciences to deduce intricate rulings from the core Islamic scriptures.
 Issuing three divorces together is certainly not the ideal. There are narrations which state that when a man issuing “a thousand divorces” (i.e. irrevocable divorce in one sitting) came before the second Caliph of Islam, Umar Bin al-Khattaab, may Allah be pleased with him, he was whipped for pronouncing the divorce in such a manner. (Musannaf Ab al-Razzaq, Al-Bahyhaqi).