Islamic divorce in the English courts: human rights and sharia law

The court agreed with the husband that the marriage was not valid. However, instead of simply declaring that the marriage was (in the chilling phrase) a “non-marriage”, Mr. Justice Williams then took a different tack. He found that it was “void” for the purposes of section 11 of the Matrimonial Causes Act 1973. To a non-lawyer, the difference between a “non-marriage” and a “void” marriage is likely to sound like splitting hairs. In fact, it is crucial.

A “non-marriage” never existed. Such a marriage is treated as though it was some other kind of relationship: boyfriend and girlfriend, partners or what-have-you. A person in a “void” marriage can, by contrast, still apply to the court to deal with maintenance and to divide assets like the family home. By saying that a Nikah-only marriage was “void”, the judge gave the wife some of the same rights as a couple who had been validly married all along, even though the marriage had never been registered.

Mr Justice Williams’ judgement was surprising. How did we get here? It was through a novel application of human rights law. The judge interpreted the right to respect for one’s “private and family life” (Article 8 of the European Convention) in an expansive way to grant the wife her petition. This kind of ruling is possible because of the way that rights under the European Convention are interpreted. The Convention is understood as a “living instrument” which must be interpreted “in the light of present day conditions”. To put it crudely, a judge may derive new law from an “interpretation” of the very broad convention rights.

The decision represents a bold step in the protection of Muslim women who might otherwise find themselves abandoned and penniless. All the same, the judgement has its problems. The position of women in Nikah-only marriages remains far from certain. The judge decided this case “on its particular facts”. That means not everyone in a similar predicament can expect the same treatment. Much will depend on the circumstances. The bigger question is whether it is desirable for a judge to make this kind of decision. You may agree with the decision but disagree about the way it was made.

Mr Justice Williams may have altered a key notion of Islamic marriage in England. Traditionally, a Muslim husband may repudiate his wife without any reference to a legal tribunal. In many Islamic traditions, a man has only to say “I divorce you” three times in order to obtain a divorce (a Talaq). If Mr. Justice Williams’ judgement has wider application, a Talaq would no longer be possible.

If certain religious practices are deemed to be unacceptable, who should say so? Decisions made in the High Court are made by a single legal professional acting on his or her own. Do we want a solitary judge to decide difficult and rangey questions of public policy?

Parliament would be the more natural forum. Laws that pass through Parliament are given the kind of scrutiny that a judge could never give. They involve democratic accountability and policy considerations that are much broader than can feature in the necessarily narrow process of litigation. Politicians should not abandon matters of significant public policy to the courts which aren’t equipped to deal with them.

But perhaps neither Parliament nor the courts are the main answer. Not every decision is primarily a decision for law-makers. The state has a duty to protect the vulnerable, but the law also has its limits. Islamic teaching on divorce is a matter of theology. These days theology is regarded as an irrelevance. It is a bit of a Cinderella subject. But the particulars of faith can only be reordered in the language of a living tradition. The fundamental issue is a question of what should be taught about divine truth and human traditions.

Alistair Jones served as a legal advisor to the Shadow Attorney General, and is now . He now an independent consultant on law and religion. This article is published courtesy of the British Politics and Policy at LSE